132 So. 3d 1095
Fla.2013Background
- In 2004 Dr. Michael Hill hired attorney Max R. Whitney (fee agreement: $15,000 fee + $5,000 cost deposit) to handle immigration matters for Ms. Leila Mesquita de Oliveira; Whitney deposited funds in his personal account and used them for personal expenses.
- Whitney made two trips to Brazil that the referee found unnecessary or unrelated to the clients’ immigration needs and then took custody of Ms. de Oliveira’s original Brazilian documents but took no meaningful further action.
- Hill sued Whitney for breach of contract/legal malpractice; during that litigation Whitney (pro se) repeatedly failed to comply with discovery orders, missed a noticed deposition, produced redacted/withheld documents, and gave false deposition testimony; the trial court entered default and awarded fees and costs.
- The Florida Bar charged Whitney with multiple ethics violations (diligence, communication, protection of client interests, candor to tribunal, discovery/fabrication/obstruction, conduct prejudicial to administration of justice, etc.).
- The referee found Whitney guilty of multiple rule violations and recommended a 90‑day suspension; the Bar sought a greater sanction and requested review of costs.
- The Supreme Court approved the referee’s guilt findings, rejected the 90‑day recommendation, imposed a one‑year suspension (effective 30 days), and awarded the Bar $18,056.76 in costs.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Guilt on alleged rule violations (diligence, communication, protection of client interests, candor to tribunal, discovery/fabrication/obstruction, prejudicial conduct) | Bar: record shows failure to perform work, misuse of client funds, lack of communication, false testimony, redactions/withholding of documents, and disobedience of court orders — supporting multiple rule violations | Whitney: disputed factual findings, claimed Dr. Hill was not a client, argued delay/laches, and contested some specific violation findings | Court: affirmed referee; competency/substantial evidence supports findings and guilt on the listed rules |
| Appropriate discipline (90‑day recommended by referee vs. 1‑year sought by Bar) | Bar: multiple, serious violations plus aggravating factors warrant at least one‑year suspension | Whitney: argued for lesser sanction (and mitigation) | Court: imposed one‑year suspension based on case law and aggravating/mitigating factors; 90 days was insufficient |
| Taxable costs claimed by the Bar (referee disallowed investigative and some expert costs) | Bar: all claimed costs were allowable, necessary, and properly authenticated; referee abused discretion by disallowing certain items | Whitney: objected to portions of the costs | Court: disapproved referee’s reductions; awarded Bar full requested costs of $18,056.76 |
| Laches defense to Bar proceeding (delay in filing charges) | Whitney: Bar’s delay prejudiced him; laches applies | Bar: delay was due to Bar’s deferral pending civil litigation and much delay attributable to Whitney’s own actions | Court: rejected laches; delay attributable to Bar’s deferral and Whitney’s conduct; no prejudice shown to Whitney |
Key Cases Cited
- Florida Bar v. Nowacki, 697 So.2d 828 (Fla. 1997) (referee factual findings enjoy presumption of correctness)
- Florida Bar v. Glueck, 985 So.2d 1052 (Fla. 2008) (respondent bears burden to show referee findings unsupported)
- Florida Bar v. Shoureas, 913 So.2d 554 (Fla. 2005) (referee’s factual findings must support guilt recommendations)
- Florida Bar v. Tobkin, 944 So.2d 219 (Fla. 2006) (referee uniquely positioned to assess witness credibility)
- Florida Bar v. Anderson, 538 So.2d 852 (Fla. 1989) (Court reviews recommended discipline de novo but gives reasonable deference)
- Florida Bar v. Maier, 784 So.2d 411 (Fla. 2001) (60‑day suspension for certain diligence/communication failures)
- Florida Bar v. Forrester, 818 So.2d 477 (Fla. 2002) (60‑day suspension where attorney attempted to conceal deposition evidence)
- Florida Bar v. Bloom, 632 So.2d 1016 (Fla. 1994) (91‑day suspension for flagrant discovery misconduct)
- Florida Bar v. Batista, 846 So.2d 479 (Fla. 2003) (91‑day suspension for failure to represent clients and attempting to create false affidavits)
- Florida Bar v. Centurion, 801 So.2d 858 (Fla. 2000) (one‑year suspension for taking no action and causing prejudice to many clients)
- Florida Bar v. Rotstein, 835 So.2d 241 (Fla. 2002) (one‑year suspension for failing to act and then falsifying records)
- Florida Bar v. Shoureas, 892 So.2d 1002 (Fla. 2004) (multi‑year suspension for accepting fees and taking little or no action)
- Florida Bar v. Head, 27 So.3d 1 (Fla. 2010) (taxation of costs against misbehaving attorney is appropriate)
- Florida Bar v. Rousso, 117 So.3d 756 (Fla. 2013) (referee abused discretion by unjustified reduction of Bar costs)
- Florida Bar v. Dove, 985 So.2d 1001 (Fla. 2008) (rejection of percentage‑of‑costs approach in disciplinary cases)