The Florida Bar v. Phillip J. Brutus
216 So. 3d 1286
| Fla. | 2017Background
- Phillip J. Brutus represented a wife in a dissolution; the trial court ordered approximately $60,000 in home-equity loan proceeds deposited into Brutus’s trust account to preserve marital assets.
- Despite no court resolution on distribution, Brutus disbursed most of the funds: $46,128.55 to his client, $12,475 to himself as fees, and the remainder for costs.
- A subsequent marital settlement required the client to return $12,000, and the court referred the matter to The Florida Bar.
- The Bar’s audit revealed repeated trust-account deficiencies: shortages for a client on multiple occasions, commingling (depositing earned fees into trust), and at least three overdrafts over a two-month span.
- The referee found violations of Bar Rules 4-3.4(c), 5-1.1(a), and 5-1.1(b); recommended 90-day suspension + 1 year probation and imposed several monitoring conditions.
- The Florida Supreme Court approved guilt findings, rejected the referee’s finding of dishonest/selfish motive, but concluded the conduct warranted greater discipline: one-year suspension and two years probation, plus costs.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Brutus committed trust-account and tribunal-order violations | The Bar: Brutus disobeyed a court order and violated trust-account rules by disbursing and mismanaging funds | Brutus: Disbursements were based on a genuine (though mistaken) legal understanding of equitable distribution; accounting lapses were negligent, not intentional | Court: Approved guilt for trust-account and disobedience violations based on stipulated facts |
| Whether Brutus acted with a dishonest or selfish motive (aggravator) | The Bar: Paying himself fees from the funds shows selfish motive | Brutus: Fees were legitimately earned; shortages arose from negligent bookkeeping, not intent to misappropriate | Court: Disapproved the dishonest/selfish-motive aggravator (no clear evidence of intent to misappropriate) |
| Whether the client was a vulnerable victim (aggravator) | The Bar: Client relied on counsel and had limited means | Brutus: Client’s vulnerability disputed | Court: Approved vulnerability aggravator based on client’s financial situation and reliance on counsel |
| Appropriate sanction for negligent trust-account violations | The Bar: One-year suspension appropriate | Brutus: Public reprimand only | Court: Rejected referee’s 90-day suspension as insufficient; imposed one-year suspension and two years probation requiring rehabilitation/monitoring |
Key Cases Cited
- Fla. Bar v. Germain, 957 So. 2d 613 (referee findings of aggravation/mitigation entitled to deference)
- Fla. Bar v. Tobkin, 944 So. 2d 219 (referee’s credibility determinations upheld absent clear and convincing evidence)
- Fla. Bar v. Thomas, 582 So. 2d 1177 (same principle regarding referee credibility)
- Fla. Bar v. Anderson, 538 So. 2d 852 (Court’s broader review of recommended discipline)
- Fla. Bar v. Temmer, 753 So. 2d 555 (deference to referee’s discipline when reasonably based on law and standards)
- Fla. Bar v. Weiss, 586 So. 2d 1051 (distinguishing intentional misappropriation from negligent trust-account errors)
- Fla. Bar v. Mason, 826 So. 2d 985 (two-year suspension for trust-account errors despite lack of intentional misappropriation)
- Fla. Bar v. Neu, 597 So. 2d 266 (six-month suspension for unauthorized withdrawals and commingling absent intent to convert)