The Florida Bar v. Wolfe, SC94226.
| Decision Date | 30 March 2000 |
| Docket Number | No. SC94226.,SC94226. |
| Parties | THE FLORIDA BAR, Complainant, v. Evan Robert WOLFE, Respondent. |
| Court | Florida Supreme Court |
John F. Harkness, Jr., Executive Director, and John Anthony Boggs, Staff Counsel, Tallahassee, Florida; and Jan K. Wichrowski, Bar Counsel, Orlando, Florida, for Complainant.
Richard B. Marx, Miami, Florida, for Respondent.
REVISED OPINION
We have for review the complaint of The Florida Bar and the referee's report regarding alleged ethical breaches by Evan Robert Wolfe. The referee has recommended a ninety-day suspension followed by a five-year probationary period. The Florida Bar seeks review, requesting a three-year suspension followed by a three-year probationary period. We have jurisdiction. Art. V, § 15, Fla. Const.
On November 2, 1998, the Florida Bar filed a complaint against Wolfe. On March 29, 1999, Wolfe stipulated to the following facts.
Count I. On February 23, 1998, a series of tornadoes struck Osceola and Seminole Counties, Florida, damaging homes and killing or injuring a large number of people. Between March 1, 1998, and March 7, 1998, Wolfe approached David Cignotti, Paul Bruno, Nancy Thomas, and Janet Sharp at their respective homes in Osceola and Seminole Counties. The home of each individual had been damaged by the tornadoes and Thomas's husband was killed. Wolfe advised each of these individuals that he could assist them in obtaining the maximum settlement from their insurance companies and gave them flyers and brochures advertising his services. Wolfe gave the Cignottis and Sharp extra brochures and flyers for them to distribute to friends and neighbors.
Wolfe presented all four parties with contingency fee contracts. After the Cignottis advised Wolfe that Carmen Rivera, Mrs. Cignotti's mother, owned the home where they resided and which had been damaged by the tornadoes, Wolfe presented them with a completed contingency fee contract to be signed by Rivera. Wolfe told the Cignottis that his fee would be 10% of any gross recovery or 25% of any amount obtained in excess of the insurance company's current offer, with a required $350 cost deposit to be provided prior to the rendition of services. Wolfe gave Bruno and his wife a contingency contract which provided that Wolfe's fee would be 10% of any gross recovery. Wolfe delivered a contingency fee contract completed in the names of Thomas and Rose Serrano1 to Thomas, which provided that Wolfe's fee would be 20% of the gross recovery, with an initial $250 cost deposit to be provided. Wolfe never spoke to Serrano or met Serrano. All conversations concerning her interest in the home were conducted through a friend of Thomas and Serrano. Thomas executed the contract, but Serrano declined. Wolfe gave the Sharps a contingency fee contract which provided that Wolfe's fee would be 25% of the gross recovery or 25% of the $84,800 already offered by their insurance company.
In March, 1998, Wolfe advised Jose Vasquez that he would pay him a referral fee for each Hispanic client referred to Wolfe in exchange for Vasquez providing translation services. Vasquez referred at least one client to Wolfe, Marilyn Escobar, in connection with the damage inflicted upon her home by the tornadoes.
Vasquez' parents retained Wolfe to represent them in obtaining the maximum settlement from their insurance company. The Vasquezes paid Wolfe $250 and Wolfe's fee was to be 25% of the recovery. The Vasquezes' insurance company did not receive any communication from Wolfe until approximately May 23, 1998. The Vasquezes also had trouble contacting Wolfe by telephone to inquire about the status of the matter.
Count II. Wolfe did not file either his flyer or his brochure with the Florida Bar's standing committee on advertising either prior to, or contemporaneously with, its first dissemination. Neither the flyer nor the brochure (1) were accompanied by a statement of Wolfe's qualifications and experience; (2) were marked "Advertisement" in red ink; (3) stated that if the recipient had already retained counsel for representation in the matter, the advertisement should be disregarded; or (4) disclosed the source from which Wolfe obtained his information regarding the recipient's need for legal services.
The flyer did not disclose whether (1) the client would be liable for any expenses in addition to the fee, (2) the client would be liable for expenses regardless of the outcome of the case, or (3) the percentage fee would be computed before expenses were deducted from the recovery.
Wolfe's brochure contained numerous testimonials and endorsements concerning his past representation of clients in negotiating insurance claims. The brochure contained statements that were likely to create unjustified expectations about the results he could achieve, such as "he knows his business and gets excellent results." The brochure contained self-laudatory statements such as "reliable performance of superior quality."
Count III. The contingency fee contracts that Wolfe entered into, or attempted to enter into, with Ms. Rivera, the Brunos, Ms. Thomas, Ms. Serrano, and the Sharps were obtained through in-person solicitation where Wolfe had no prior personal, professional or familial relationship with any of the prospective clients. The contingency fee contracts (1) were not accompanied by a statement of client's rights; (2) contained no language stating that the clients had received and read the statement of client's rights; (3) contained no language stating that the client could rescind the contract, in writing, within three business days after the date of execution; (4) were not marked "Sample" even though Wolfe did not meet with or speak to several of the prospective clients in whose names the contracts were written; namely, Ms. Rivera, Ms. Serrano, and Mrs. Bruno.
As to Count I, Wolfe stipulated to the following violations: Rules Regulating the Florida Bar 4-7.4(a) () and 4-7.4(b)(1)(A),(F) ().
As to Count II, Wolfe stipulated to violating Rules Regulating the Florida Bar 4-7.1(b) (); 4-7.1(d) (); 4-7.2(h) (); 4-7.2(j) (); 4-7.2(p)2 (); 4-7.4(b)(1)(D)-(E)( ); 4-7.4(b)(2)(A) (); 4-7.4(b)(2)(B) (); 4-7.4(b)(2)(E) (); 4-7.4(b)(2)(G) (); and 4-7.4(b)(2)(J) ().
As to Count III, Wolfe stipulated to having violated Rules Regulating the Florida Bar 4-1.5(a) (); 4-1.5(f)(4)(A)(i)-(ii) (mandating that a contingent fee contract must contain provisions (i) stating that the client has read and received the statement of client's rights and (ii) providing that the client may rescind the contract, in writing, within three business days after the date of execution); and 4-1.5(f)(4)(C) ().
In his report, the referee adopted and approved Wolfe's stipulations. The referee also recommended that Wolfe be found guilty of the stipulated rule violations.
In recommending discipline, the referee recognized that Wolfe's solicitations after the tornadoes damaged the public's perception of the legal profession and...
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