The Florida Bar v. Rose, 34393

• Decision Date: 16 March 1966
• Docket Number: No. 34393,34393
• Parties: THE FLORIDA BAR, Complainant, v. William Lamar ROSE, Respondent.
• Court: Florida Supreme Court

Page 329

187 So.2d 329

THE FLORIDA BAR, Complainant, v. William Lamar ROSE, Respondent.

No. 34393.

Supreme Court of Florida.

March 16, 1966.

Rehearing Denied June 28, 1966.

E. G. Boone, Venice, for The Florida Bar, complaint.

Walter O. Sheppard, Fort Myers, for respondent.

PER CURIAM.

The board of governors of The Florida Bar entered its judgment directing that the respondent, William Lamar Rose, be suspended from the practice of law for a period of three months and requiring that he pay the costs of these proceedings. Respondent seeks review in this Court.

Count I of the first amended complaint of The Florida Bar charged the respondent with violation of Rules 1, 27 and 30, Section II, Rule B, Code of Ethics, adopted by the Supreme Court of Florida on January i7, 1941, 31 F.S.A., in that he failed diligently to prosecute a cause on behalf of his client, thereby causing a loss to his client, for which loss no account was made by the respondent, nor did he advise his client of the outcome of the case, though requested to do so for many months after the case was dismissed.

Count II charged the respondent with violation of paragraphs 11 and 12, Section I, Rule B, and Rules 1, 27 and 30, Section II, Rule B, Code of Ethics, in that he accepted employment to defend one who had been arrested on a charge of aggravated assault, the fee for services having been set by respondent at $500, which was paid, that after his client had obtained his freedom by posting a $2000 cash bond, his client left on a trip, but prior to leaving signed over the bond to the respondent with the understanding that he would place the money in his client's bank account if the case was dismissed and the bond money paid over to the respondent; that although the case was dismissed and the bond money paid over to him, respondent wrote his client advising that the case was still pending, well knowing that the case had been dismissed; that his client received no further word about the case from respondent until he returned some two months later, when he contacted respondent and was advised that the case had been dismissed and that respondent was retaining the bond money as additional fee over and above the $500 previously paid, and to date the respondent had failed and refused to refund any portion of said money. The respondent was therefore charged with being guilty of professional misconduct in that he appropriated and converted to his own use the aforesaid $2000; that he was further guilty of professional misconduct in that he knowingly and wilfully advised his client on a certain date that his case was stillpending when in fact it had been dismissed over two months before.

A third count was subsequently dismissed.

The referee, as to count I, found that the respondent did not fail honestly and truly to account for any funds received; that he was not guilty of any deceit or wilful misconduct in his representation; that the respondent represented his client in the prosecution of his suit with diligence and ability; and that the respondent was guilty of conduct unbecoming an attorney in failing to give his client seasonal advise on the outcome of the cause. As to count II, he found that the respondent did not appropriate or convert to his own use any monies belonging to his client; that the respondent did not knowingly and wilfully advise his client that his case was still pending when, in fact, the same had already been dismissed; that the respondent was guilty of conduct unbecoming an attorney in failing to give his client seasonal advice on the outcome of the cause.

The referee recommended that the respondent be found guilty of misconduct as set out in his findings, and recommended that the respondent suffer a private reprimand to be administered by a judge of the circuit court and that the two clients be notified that they might attend to witness the reprimand; he recommended that costs be assessed against the respondent.

The judgment of the board of governors, referring to count I, stated that the board had difficulty with the record in finding evidence to support the referee's finding that the respondent represented his client with diligence and ability, remarking that 'The respondent's own explanation of the reason for the suit's dismissal after almost three years was that he could not obtain the consent of the indispensable party to join as a plaintiff. We find in this record no adequate excuse for respondent's permitting his client's suit to be dismissed. On the contrary, this board finds the overwhelming weight of the evidence to support the charges of Count I of the First Amended Complaint.' And in referring to count II, the board related, 'The evidence, considered in the light most favorable to respondent, shows that respondent devoted at most, several hours of his time to this case. * * * Upon consideration of this record, this Board is unable to concur in the findings of the referee. It is particularly noted that even if respondent's contentions were taken as correct, the amount of the fee charged under these circumstances would have been unconscionable.'

Upon consideration of the report of the referee and the entire record, the board directed suspension from practice for three months upon each count, that the suspensions run concurrently, and that respondent's reinstatement should be conditioned only upon the payment of costs of.$2,017.79.

The respondent, in presenting his questions I and II, which he summarized as whether the preponderance of the evidence failed to support the judgment of the board in reversing the findings and recommendations of the referee, contended that the evidence so clearly preponderated in his favor that the referee resolved all doubts in his favor, but assuming for the sake of argument that his evidence did not prove to the board an adequate excuse for permitting the suit to be dismissed, as charged in count I, such did not involve moral turpitude; that at best his act consisted of fundamentally being guilty of carelessness in attending to or dereliction of duty in not properly briefing the law and advising his client to appeal; and he concluded therefore that according to the decisions of this court the judgment of the board was too severe and should not be approved by the court, and that the recommendations and findings of the referee should be approved. In this argument, he relied on the decisions of In Re The Integration Rule Of The Florida Bar, Fla., 103 So.2d 873; Gould v. State, 99 Fla. 662, 127 So. 309, 69 A.L.R 699; State ex rel. Florida Bar v. Fishkind, Fla., 107 So.2d 131.

Turning to count II, the respondent contended for the sake of argument that even if the evidence produced by the bar was considered in the light more favorable to the bar, that all the bar could have proven was that there was an honest dispute and controversy over the amount of the retainer charged by respondent, referring to Integration Rule 11.02(4), 31 F.S.A.; he further contended that the bar failed to sustain the truth of the charge, the evidence preponderating so strongly in his favor that the actions of the board in overruling the referee were erroneous, unlawful and unjustified, and he cited Gould v. State, supra, State ex rel. Florida Bar v. Grant, Fla., 85 So.2d 232, and In Re The Integration Rule Of The Florida Bar, supra.

By his question III, which asked if the proceedings were handled with dispatch with due regard for the protection of the accused and the bar, respondent pointed to the lapse of nearly five years from the date of the filing of the judgment by the circuit court dismissing the suit (count I) to the date of the filing of the judgment of the board of governors, and to the lapse of over three years from the date of the filing of his client's affidavit before the circuit court grievance committee to the filing of the judgment of the board. In support of his position that the question must be answered in the negative, State ex rel. Florida Bar v. Bieley, Fla., 120 So.2d 587; and of The Florida Bar v. King, Fla., 174 So.2d 398, are mentioned; in the former, four years elapsed from the filing of the complaint before the grievance committee to the date of the filing of the judgment of the board, and in the latter, the episode occurred nine years prior to its conclusion.

Respondent's last question inquired if, in a disciplinary proceeding, was the attorney presumed to be innocent of the charges and presumed to have performed his duty as an officer of the court in accordance with his oath until such time that a bad or fraudulent motive has been proved by a preponderance of the evidence. Cases from other jurisdictions, and In Re The Integration Rule of The Florida Bar, supra, were cited as authorities.

With respect to respondent's questions I and II, and quantum of evidence required in disciplinary proceedings was stated, in Gould v. State, supra, to be 'A disbarment proceeding against an attorney is not a criminal proceeding * * * but to authorize disbarment not only the act charged but the bad or fruadlent motive must be proved by a preponderance...