The Florida Bar v. Benchimol, 81599
| Decision Date | 23 May 1996 |
| Docket Number | No. 81599,81599 |
| Citation | 681 So.2d 663 |
| Parties | 21 Fla. L. Weekly S226, 21 Fla. L. Weekly S443 THE FLORIDA BAR, Complainant, v. H. Richard BENCHIMOL, Respondent. |
| Court | Florida Supreme Court |
John F. Harkness, Jr., Executive Director and John T. Berry, Staff Counsel, Tallahassee, Florida; and Bonnie L. Mahon and Joseph A. Corsmeier, Assistant Staff Counsel, Tampa, Florida, for Complainant.
John A. Weiss, Tallahassee, Florida, for Respondent.
We have for review the complaint of The Florida Bar and the referee's report regarding alleged ethical breaches by H. Richard Benchimol. We have jurisdiction pursuant to article V, section 15 of the Florida Constitution.
The Bar filed a three-count complaint against Benchimol, alleging misappropriation of funds belonging to Benchimol's former law firm and his clients. Circuit Judge Bonnie Newton was appointed referee in April 1993. When the Bar's motion to disqualify the referee was denied, the Bar filed a petition for review by this Court and a motion to seal the files in the case. We denied the petition for review, but granted the motion to seal the files. Later in the proceedings, Benchimol also filed a motion to disqualify the referee, which the referee denied as well. Benchimol then filed a petition for writ of prohibition with this Court, which we denied without prejudice to raise the disqualification issue in an appeal from the referee's recommendation. In light of our disposition of this case, we order that the record be unsealed.
The referee conducted hearings in September and November 1994, and issued a partial report on January 25, 1995, detailing factual findings and making recommendations as to guilt on the three counts charged in the complaint. The referee's report revealed the following facts and determinations of guilt.
Count I involves Benchimol's representation of the Guglieminos, who resided in Italy, in their attempt to recover property they owned in Florida. During a period of time when Benchimol was ending his association with the Battaglia law firm, he deposited three separate checks from the Guglieminos in his personal bank account. The referee found that a check for $1000 belonged to the Battaglia firm for legal services rendered, that a check for $5000 was client money entrusted to Benchimol to negotiate the Gugleiminos' outstanding bill at the Battaglia firm, and that a check for $1300 was client trust money for future work to be performed by Benchimol. The referee concluded that Benchimol appropriated these funds to his own use, commingled client and firm money with his own funds, failed to place money entrusted to him for a particular purpose in a separate trust account, did not act with reasonable diligence and promptness in representing his clients on the fee dispute with the law firm, and engaged in a pattern of conduct involving "misrepresentation and dishonesty." The referee further concluded that in handling the $5000 check Benchimol "used the paperwork confusion common in an attorney's relocation to private practice as a cover to personally access client funds, believing that the language barrier and distance of the clients would prevent a discovery of his misappropriation of this [money]." As to count I, the referee recommended that Benchimol be found guilty of violating the following Rules Regulating The Florida Bar: rule 4-1.2(a) (); rule 4-1.15 (); rule 4-8.4(c) (); rule 5-1.1 (trust account procedures); and rule 5-1.2(b)(1) ().
Count II involves Benchimol's representation of Glenn Roland in a personal injury action. The settlement statement indicates that Roland deposited $2500 with the United States Marshal to cover any costs associated with the seizure of the boat involved in his injury. When Benchimol received a refund check for $1,067.66 in unused costs, he deposited the funds in his personal account and never forwarded the money to Roland. Benchimol alleged that he had advanced Roland $1500 in cash at the settlement conference, with the agreement that the anticipated refund would belong to Benchimol. However, the referee found no documentation of such a transaction. The referee also found that because Roland was imprisoned in another state Benchimol concluded that "the client would not pursue his refund and that [Benchimol] could use the monies without being questioned." As to count II, the referee recommended that Benchimol be found guilty of violating the following Rules Regulating The Florida Bar: rule 4-1.15; rule 4-8.4(c); rule 5-1.1; and rule 5-1.2(b)(1).
Count III involves two $150 fee payments from other clients that Benchimol deposited in his personal account, but which actually belonged to the Battaglia firm. The referee concluded that these misappropriations were neither accidental nor the result of gross inattention to detail, but rather that Benchimol's actions showed that he "was so irresponsible with money belonging to someone else that he concluded that these two little payments would never be missed." As count III, the referee recommended that Benchimol be found guilty of violating the following Rules Regulating The Florida Bar: rule 4-1.15; rule 4-8.4(c); and rule 5-1.1.
After two further hearings regarding discipline and the reasonableness of costs incurred by the Bar, the referee issued her final report and recommended the following discipline: an eighteen-month suspension, with proof of rehabilitation before becoming eligible to practice again; upon readmission a one-year probation requiring the filing of monthly financial records and semi-annual auditing of business accounts with the Bar, at Benchimol's expense; and payment of $20,019.19 in costs. The referee disallowed part of the costs incurred for the services of the Bar's investigator, finding that some of the hours charged were improper and others were not properly documented.
The Bar has filed a petition for review of the recommended discipline, arguing that disbarment is the appropriate discipline and that Benchimol's readmission should be conditioned upon making restitution to Roland and the Guglieminos. Benchimol has filed a cross-petition for review, arguing that the referee erred in denying his motion to disqualify, that the referee's findings of misconduct were not based on clear and convincing evidence, that the appropriate discipline is a suspension not requiring proof of rehabilitation, and that this Court should review the costs charged against him.
Initially, we find mo merit to the disqualification issue. Benchimol's fear of prejudice was not well-founded and thus his motion to disqualify the referee was legally insufficient. 1
Next we consider Benchimol's claim that the referee's findings of fact and conclusions of law are erroneous. A referee's findings of fact...
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