The Florida Bar v. MacMillan, 76563
| Decision Date | 21 May 1992 |
| Docket Number | No. 76563,76563 |
| Citation | 600 So.2d 457 |
| Parties | 17 Fla. L. Weekly S295 THE FLORIDA BAR, Complainant, v. Hugh MacMILLAN, Jr., Respondent. |
| Court | Florida Supreme Court |
John F. Harkness, Jr., Executive Director and John T. Berry, Staff Counsel, Tallahassee, and David M. Barnovitz, Bar Counsel, Fort Lauderdale, for complainant.
Alan C. Sundberg and F. Townsend Hawkes of Carlton, Fields, Ward, Emmanuel, Smith & Cutler, P.A., Tallahassee, and Cecil H. Albury of Alley, Maass, Rogers & Lindsay, P.A., Palm Beach, for respondent.
Hugh MacMillan, Jr. petitions for review of a referee's recommendations regarding guilt and sanctions against him. We have jurisdiction pursuant to article V, section 15 of the Florida Constitution.
The Florida Bar filed a five-count complaint against MacMillan, alleging misconduct relating to MacMillan's duties as guardian of the property which the minor Scott T. Ellison (Ellison) received from his deceased father's estate. As guardian, MacMillan received six pieces of the father's jewelry to hold until Ellison reached the age of majority. In anticipation of Ellison's eighteenth birthday, MacMillan delivered three of the pieces of jewelry to Ellison's mother, who was the guardian of Ellison's person. However, MacMillan was unable to locate or deliver the remaining items of jewelry, consisting of two jeweled rings and a stickpin. In response, the mother demanded that MacMillan compensate Ellison for the monetary value of the jewelry. The mother also reported the matter to The Florida Bar.
On April 2, 1986, MacMillan transferred $4,000 from the Ellison guardianship account to his personal account without prior notice to Ellison or the mother and without prior notice or leave of the court. MacMillan reimbursed the entire amount to the guardianship account by personal check within two weeks of the original transfer, and notified the mother of the transfer and reimbursement. However, MacMillan filed a Return of Guardian of Property with the circuit court covering the time period between January 1, 1986, and December 31, 1986, which reported neither the withdrawal nor the reimbursement.
MacMillan admitted the negligent loss of the jewelry, the $4,000 transfer out of and into the guardianship account, and the failure to report the transfers in the guardian's report. However, MacMillan denied that he intentionally misappropriated Ellison's money or that he intentionally concealed the transfer from the probate court.
The referee found MacMillan not guilty of two of the counts in the bar's complaint. The referee found insufficient evidence to support the charge that MacMillan made a knowing misrepresentation regarding one of the missing rings. The referee also found that although the methodology employed by MacMillan to obtain guardian fees was "rather lax," it was an accepted practice at the time and not a violation of the law.
The referee recommended that MacMillan be found guilty of violating the following: the former Florida Bar Integration Rule, article XI, rule 11.02(4) and/or Rule Regulating The Florida Bar 5-1.1 1 (property entrusted for a specific purpose is held in trust and must be applied only to that purpose) and Rule Regulating The Florida Bar 4-1.15(a) () for failure and inability to deliver the three items of jewelry entrusted to him as guardian of Ellison's property; the former Florida Bar Integration Rule, article XI, rules 11.02(3)(a) () and 11.02(4) (money or other property entrusted to an attorney for a specific purpose is held in trust and must be applied only to that purpose) and Disciplinary Rules 1-102(A)(1) (), 1-102(A)(4) (), and 1-102(A)(6) (), of the former Code of Professional Responsibility, for misappropriating funds from Ellison's guardianship account for personal use; and Rules Regulating The Florida Bar 3-4.3 (commission by lawyer of any act which is unlawful or contrary to honesty and justice may constitute cause for discipline), 4-8.4(a) (), and 4-8.4(c) () for intentionally misrepresenting to the court the receipts and disbursements of the guardianship account.
The referee found the following mitigating factors to be present: absence of a prior disciplinary record; a cooperative attitude toward the proceedings; a timely good faith effort to make restitution; and good character and reputation. The referee also found the following aggravating factors to be present: substantial experience in the practice of law; a dishonest or selfish motive in the misappropriation of the $4,000; a pattern of misconduct regarding the handling of the guardianship property; an apparent cover-up to the court in not accounting for the transactions involving the taking, use, and restitution of the $4,000; and the existence of multiple offenses. The referee recommended that MacMillan be...
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The Florida Bar v. Korones, SC92873.
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