The Florida Bar v. Jordan, 89111

Decision Date05 February 1998
Docket NumberNo. 89111,89111
Citation705 So.2d 1387
CourtFlorida Supreme Court
Parties23 Fla. L. Weekly S74 THE FLORIDA BAR, Complainant, v. Robert Paul JORDAN, II, Respondent.

John F. Harkness, Jr., Executive Director and John T. Berry, Staff Counsel, Tallahassee; and Jan Wichrowski, Rose Ann DiGangi-Schneider and James W. Keeter, Bar Counsel, Orlando, for Complainant.

Robert P. Jordan, II, pro se, Palm Bay, Respondent.

PER CURIAM.

We have for review the complaint of The Florida Bar and the referee's report regarding alleged ethical breaches by Robert Paul Jordan II. We have jurisdiction. Art. V, § 15, Fla. Const. We approve the report.

The referee made the following findings of fact based on evidence presented at the disciplinary hearing:

1. In 1989, Christine Mitchell brought a Civil action against Jack Eckerd Corporation ("Eckerds"), Travelers Insurance Company and the unknown pharmacist employed by Eckerds for negligently filling a prescription which allegedly injured Ms. Mitchell. The Civil Complaint was filed on June 30, 1989, in a suit styled Mitchell v. Jack Eckerd Corp. et al., Case number 89-10384-CA-S, in the Eighteenth Judicial Circuit Court, Brevard County, Florida (hereinafter "The Mitchell case");

2. Ms. Mitchell was represented by Attorney Estelle Powell, who was licensed in Indiana but not in Florida. Ms. Powell testified at the evidentiary hearing and later supplemented her testimony with a letter dated February 13, 1997, wherein she stated that she is no longer licensed to practice law in Indiana, but works as an "independent consultant" for the Law Firm of Robert L. Lewis & Associates. At the time she represented Ms. Mitchell, Ms. Powell associated with attorney Bruce T. McKinley, a licensed Florida lawyer, who filed a Notice of Appearance in the Mitchell case on September 6, 1989 3. On September 22, 1989, the Court dismissed Travelers Insurance Company as a party Defendant and further dismissed the Plaintiff's claim for attorney's fees;

4. On November 7, 1989, Ms. Powell's Motion for Leave to Appear Pro Hac Vice was granted by the Trial Court in the Mitchell case;

5. Ms. Powell wrote to the Respondent in a letter dated October 23, 1989, which memorialized a telephone conversation between Ms. Powell and the Respondent concerning the respondent's Notice of Appearance to be filed in the Mitchell case. Ms. Powell again wrote to the Respondent on December 11, 1989, stating that he had twenty days from November 27, 1989, within which to amend the Complaint. The Respondent was supposed to draft and file the Amended Complaint and to interview Ms. Mitchell and her husband;

6. The Respondent did not file the Amended Complaint until December 19, 1989, after the twenty-day period had elapsed. The Respondent included Travelers Insurance Co. as a Defendant although the Court had ruled on September 22, 1989, that Travelers was dismissed from the suit;

7. On January 2, 1990, defense counsel moved to dismiss the Amended Complaint on the basis that Travelers had been improperly included and that the attorney's fee claim was barred under the doctrine of res judicata;

8. On March 16, 1990, the Court approved a Stipulation for Substitution of Counsel and the Respondent became counsel of record. On March 29, 1990, the Respondent filed a Second Amended Complaint, again naming Travelers as a Defendant;

9. Ms. Powell attempted to contact the Respondent by phone or letter, but it was very difficult to communicate with him. After leaving a telephone message, Ms. Powell never received a return call from the Respondent. Ms. Mitchell exhibited a great deal of frustration over her inability to communicate with the Respondent to Ms. Powell;

10. By letter dated April 25, 1990, Ms. Powell requested the Respondent call her concerning a Notice of Ex parte Hearing on a Motion to Dismiss the Amended Complaint, which notice she had received from opposing counsel. The hearing was set for May 7, 1990. However, the Respondent failed to communicate with Ms. Powell;

11. On May 16, 1990, the Court filed an Order again striking Travelers as a Defendant. The Court also struck the Respondent's claim for attorney's fees;

12. On July 21, 1992, the opposing party moved to dismiss the suit for lack of prosecution. The Court entered a Motion, Notice and Order of Dismissal ordering the Respondent to show cause at least five days before August 24, 1992 (the date of the dismissal hearing), why the Mitchell case should not be dismissed for lack of prosecution. The Show Cause Order was served upon the Respondent. However, the Respondent failed to respond to this Order;

13. The Court dismissed the case on August 24, 1992, due to Respondent's failure to prosecute or show good cause why the matter should not be dismissed.

14. The Respondent failed to advise either Ms. Powell or Ms. Mitchell of the dismissal.

15. On May 11, 1993, Ms. Powell wrote to the Respondent and advised that she had checked with the Clerk's Office on May 10, 1993, and learned that the Mitchell case had been dismissed. She asked the Respondent to seek reinstatement of the case immediately, but the Respondent failed to take any action.

16. Ms. Mitchell and Ms. Powell met with the Respondent at some time in 1990. The Respondent did not return any of her many telephone messages. The Respondent had no explanation for the dismissal of her case other than to say that "it just slipped through his desk."

17. The Respondent offered to pay Ms. Mitchell for the dismissal of her case by entering into a contract with her. Further, the Respondent said that "he didn't have any insurance so he would have to pay her out of his pocket." The Respondent never advised Ms. Mitchell that she should seek independent representation in connection with a claim for professional malpractice.

18. Ms. Mitchell had approximately ten (10) meetings with the Respondent from August 1995 through January or February 1996 concerning whether the Respondent would pay her for the dismissal of her Civil suit.

19. The Respondent asked Ms. Mitchell to contact Ms. Powell to see if she had professional malpractice insurance to cover this case.

Based on these findings of fact, the referee reached the following conclusions concerning guilt:

III. Recommendations as to Whether or Not the Respondent Should Be Found Guilty: As to each Count of the Complaint, I make the following recommendations as to guilt or innocence:

I recommend that the respondent be found guilty, by his admission, of violating Rules 4-1.1, 4-1.3, and 4-1.4, Rules Regulating The Florida Bar.

I recommend that the Respondent be found guilty, by clear and convincing evidence, of violating Rule 4-1.8(h), Rules Regulating The Florida Bar. The Respondent's meeting with Ms. Mitchell from August 1995 through January or February 1996--numbering approximately ten (10) meetings--were an attempt to settle a potential claim for malpractice liability without first advising Ms. Mitchell in writing that she should seek independent representation in connection with such claim.

IV. Rule Violations Found: Rules 4-1.1; 4-1.3; 4-1.4; and 4-1.8(h), Rules Regulating The Florida Bar.

In his petition for review, Jordan challenges the referee's conclusion that he violated rule 4-1.8(h). Our review of the record, however, shows that competent substantial evidence supports the referee's findings of fact and conclusions concerning guilt and accordingly "this Court is precluded from reweighing the evidence and substituting its judgment for that of the referee." Florida Bar v. MacMillan, 600 So.2d 457, 459 (Fla.1992). Furthermore, a party contesting the findings and conclusions "carries the burden of...

To continue reading

Request your trial
51 cases
  • The Florida Bar v. Shoureas
    • United States
    • Florida Supreme Court
    • August 19, 2004
    ...Florida Bar v. Elster, 770 So.2d 1184 (Fla.2000) (imposing a three-year suspension for neglect of client matters); Florida Bar v. Jordan, 705 So.2d 1387 (Fla.1998) (imposing a one-year suspension for neglect of client matters); Florida Bar v. Morrison, 669 So.2d 1040 (Fla.1996) (imposing a ......
  • Fla. Bar v. Petersen
    • United States
    • Florida Supreme Court
    • July 5, 2018
    ...and substitute its judgment for that of the referee. Fla. Bar v. Frederick , 756 So.2d 79, 86 (Fla. 2000) ; see also Fla. Bar v. Jordan , 705 So.2d 1387, 1390 (Fla. 1998). To the extent Petersen challenges the recommendations as to guilt, the referee's factual findings must be sufficient un......
  • Fla. Bar v. Ratiner
    • United States
    • Florida Supreme Court
    • February 22, 2018
    ...and substitute its judgment for that of the referee. Fla. Bar v. Frederick , 756 So.2d 79, 86 (Fla. 2000) ; see also Fla. Bar v. Jordan , 705 So.2d 1387, 1390 (Fla. 1998). To the extent Ratiner challenges the recommendation as to guilt, the Court has repeatedly stated that the referee's fac......
  • The Florida Bar v. Cibula
    • United States
    • Florida Supreme Court
    • November 25, 1998
    ...in the record to support [the referee's] findings or that the record evidence clearly contradicts the conclusions." Florida Bar v. Jordan, 705 So.2d 1387, 1390 (Fla.1998) (quoting Florida Bar v. Spann, 682 So.2d 1070, 1073 (Fla.1996)). Where the referee's findings are supported by competent......
  • Request a trial to view additional results
1 books & journal articles
  • 12-4 Other Protection Methods
    • United States
    • Full Court Press Florida Legal Malpractice Law Title Chapter 12 Insurance
    • Invalid date
    ...Service Corporation Act, 15 Fla. St. U. L. Rev. 279 (1987).[37] R. Regulating Fla. B. 4-1.8(h). See also Florida B. v. Jordan, 705 So. 2d 1387 (Fla. 1998) (l awyer punished for failing to advise former client to seek independent counsel before agreeing to waive l egal malpractice claim); Fl......

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT