Download - RESPONDENT’S ANSWER BRIEF
IN THE SUPREME COURT OF FLORIDA
THE FLORIDA BAR,
Complainant, CASE NO. SC10-352
v. TFB FILE NO. 2009-10,532(6C)
THOMAS WILLIAM CAREY,
Respondent. _____________________________________
RESPONDENT’S ANSWER BRIEF
SCOTT K. TOZIAN, ESQUIRE Florida Bar No. 253510 DEBRA JOYCE DAVIS, ESQUIRE Florida Bar No. 93556 SMITH, TOZIAN & HINKLE, P.A. 109 North Brush Street Suite 200 Tampa, Florida 33602 813-273-0063 Attorneys for Respondent
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TABLE OF CONTENTS TABLE OF CONTENTS…………………………………………………………...i TABLE OF CITATIONS………………………………………………………….iii SYMBOLS AND REFERENCES………………………………………………..vii STATEMENT OF THE CASE AND OF THE FACTS…………………………...1 STANDARD OF REVIEW………………………………………………………...9 SUMMARY OF THE ARGUMENT……………………………………………..12 ARGUMENT……………………………………………………………………...15
I. The Referee Correctly Found Respondent Not Guilty of Any Conflict of Interest Proscribed by Rule 4-1.7....………………….15
A. When Sommers expressed concern, Respondent owed fiduciary
duties to both clients and was ethically obligated to carefully evaluate the alleged conflict and the likelihood that Sommers would be a material adverse witness, rather than hastily jettison one or both clients…………………………………………..……………..19
B. Respondent acted legally and ethically in deferring any action
for approximately 3 months, until the opposing party’s motion to disqualify could be heard, where he had no prior evidence of the basis for the alleged conflict of interest and Mellette agreed to stay the prosecution of her case………………………………………………..………….23
C. Respondent did not violate Rule 4-1.7 where immediately
following the disqualification hearing at which evidence of a potential conflict was first produced, Respondent voluntarily withdrew and waived his fees and costs…………………………………………………………..30
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II. The Referee Correctly Found that Respondent Discussed the
Alleged Conflict with Sommers and Appropriately Concluded that Respondent was Not Guilty of Violating Rule 4-1.4.…..…....32
III. The Referee’s Recommendation of Diversion is Fully Supported
and Should be Upheld.……………………………………………..34
A. If this Court disapproves the recommended diversion, it should remand the case to the Referee to conduct a sanctions hearing and to consider evidence in mitigation before recommending an appropriate disposition.……………………......………………...………...34
B. The cases cited by the Bar to support a suspension are
distinguishable.…………………………………………..…...36 C. A diversion is supported by the Standards for Imposing Lawyer
Sanctions and meets the purposes of lawyer discipline....………………………………………………..….38
D. A diversion is supported by existing law..………………....…42
CONCLUSION…………………………………………………………………...49 CERTIFICATE OF SERVICE……………………………………………………50 CERTIFICATION OF FONT SIZE AND STYLE…….…………………………50
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TABLE OF CITATIONS
CASES Brooks v. Foster, 889 So. 2d 902 (Fla. 4th DCA 2004)…………………………...24 Dep’t of Legal Affairs v. District Court of Appeal, 5th District,
434 So. 2d 310 (Fla. 1983)………………………………………………....45 Florida Bar v. Brake, 767 So. 2d 1163 (Fla. 2000)……………………………….28
Florida Bar v. Brown, 978 So. 2d 107 (Fla. 2008)…………...………...…22, 36, 37
Florida Bar v. Cosnow, 797 So. 2d 1255 (Fla. 2001)………………………………9
Florida Bar v. Dunagan, 731 So. 2d 1237 (Fla. 1999)……………………………37
Florida Bar v. Hecker, 475 So. 2d 1240 (Fla. 1985)……………………………...35
Florida Bar v. Hines, 39 So. 3d 1196 (Fla. 2010)………………………………..35
Florida Bar v. Hochman, Case No. SC09-2279, TFB File No. 2009-31,577(18A).………………………………………46-48
Florida Bar v. Hochman, Case No. SC10-804, TFB File No. 2010-30,463(18A).………………………………………46-48
Florida Bar v. Irish, 48 So. 3d 767 (Fla. 2010)……………………………………35
Florida Bar v. Kossow, 912 So. 2d 544 (Fla. 2005)………………………………11
Florida Bar v. Lecznar, 690 So. 2d 1284 (Fla. 1997)……………………..............10
Florida Bar v. Lord, 433 So. 2d 983 (Fla. 1983)……………………………...40, 41
Florida Bar v. Marable, 645 So. 2d 438 (Fla. 1994)………………………………10
Florida Bar v. Martocci, 699 So. 2d 1357 (Fla. 1997)……………………………..9 Florida Bar v. Mastrilli, 614 So. 2d 1081 (Fla. 1993)…………………………….37
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Florida Bar v. Maurice, 955 So. 2d 535 (Fla. 2007)………………………………37 Florida Bar v. Neely, 502 So. 2d 1237 (Fla. 1987)……………………………...…9 Florida Bar v. Poplack, 599 So. 2d 116 (Fla. 1992)…………………………...40-41 Florida Bar v. Respondent, Case No. SC06-1601,
TFB File No. 2005-31,245(09C)…………………………………….……..46
Florida Bar v. Respondent, Case No. SC07-102, TFB File No. 2005-10,830(6C)………………………………………...45-46
Florida Bar v. Respondent, Case No. SC10-1309, TFB File No. 2010-10,293(13D)…………………………………………...45
Florida Bar v. Respondent, Case No. SC10-1492,
TFB File No. 2008-11,493(6E)………………………………………….…45 Florida Bar v. Rose, 823 So. 2d 727 (Fla. 2002)…………………………………...9 Florida Bar v. Stalnaker, 485 So. 2d 815 (Fla. 1986)………………………………9 Florida Bar v. Vining, 761 So. 2d 1044 (Fla. 2000)…………………………..10-11 In re Jet 1 Center, Inc., Debtor, 310 B.R. 649 (Bkrtcy. M.D. Fla. 2004)…..……..19 Lussi v. Design-Build & Engineering, Inc.,
2010 WL 1687079 (S.D. Fla. 2010)…………………………………....26-27 Morse v. Clark, 890 So. 2d 496 (Fla. 5th DCA 2004)……………………………..38 Quality Air Conditioning Company v. Vrastil,
895 So. 2d 1236 (Fla. 4th DCA 2005)…………………………………..17-18 Silver v. Downs, 425 A. 2d 359 (P.A. 1981)……………………………………...20 Silvers v. Google, 2007 WL 141153 (S.D. Fla. 2007)…………………………....25 Singer Island Ltd., Inc., v. Budget Const. Co., Inc.,
714 So. 2d 651 (Fla. 4th DCA 1998)……………………………………24-25
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State v. Bastos, 985 So. 2d 37 (Fla. 3d DCA 2008)……………………………....28 State v. Jeffers, 520 F.2d 1256 (7th Cir. 1975)……………………………………32 RULES REGULATING THE FLORIDA BAR 3-5.1(b)(1)…………………………………………………………………..…43-44
3-5.3……………………………………………………………………………42-43
3-7.7(c)(5)………………………………………………………………………...10
Preamble……………………………………………………………………….41-42
4-1.1………………………………………………………………………………37
4-1.18(a), (b) and (c)……………………………………………………………....47
4-1.3……………………………………………………………………………36-37
4-1.4………………………………………………………………………………32
4-1.4(a) …………………………………………………………...…………...36-37
4-1.4(b)…………………………………………………………………1, 15, 32, 34
4-1.5(a)……………………………………………………………………………47
4-1.6……………………………………………………………………………….26
4-1.7….…………………………………..……15, 17, 21, 23, 29, 37, 38, 40, 42, 43
4-1.7(a)...……………………………………………...……1, 15, 16, 22, 31, 36, 38
4-1.7(a)(1)………………………………………………………………………....16
4-1.7(a)(2)………………………………………………………………………....16
4-1.7(b)…………………………………………………..…………1, 15, 22, 31, 37
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4-3.2…….………………………………………………………………………....37
4-3.7…….………………………………………………………………………....24
4-3.7(a).…….……………………………………………………………………..25
4-8.4(c).……...…………………………………………………………………....36
4-8.4(d).……………………………………………………………………….......28
FLORIDA STANDARDS FOR IMPOSING LAWYER SANCTIONS
Preface……………………………………………………………………………44
3.0.……………………………………………………………………………...…38
FLORIDA STATUTES 837.011 (2004)…….………………………………………………………………29 ETHICS OPINIONS American Bar Association Formal Opinion 92-367..……………………………..31 OTHER RESOURCES “Conflicts of Interest in Private Practice,” 94 Harv. L. Rev. 1284……………….18 Rotunda, Ronald D. “Resolving Client Conflicts by Hiring ‘Conflicts Counsel.’”
Hastings Law Journal, February 2011…………..………………………….32 BLACK’S LAW DICTIONARY, 6th ed. 1990…………………………………...29
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SYMBOLS AND REFERENCES
I.B. = The Florida Bar’s Initial Brief. RR. = Report of Referee. R. Exh. = Respondent’s Exhibit from Final Hearing. TFB Exh. = The Florida Bar’s Exhibit from Final Hearing. T. = Transcript of Final Hearing before Referee on
July 29 - 30, 2010. TR. = Transcript of Ruling before Referee on October 27, 2010. Depo. = Transcript of Professor Roberta Flowers’ Deposition dated
June 21, 2010.
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STATEMENT OF THE CASE AND OF THE FACTS The Florida Bar’s Statement of the Case and of the Facts omits critical facts
necessary to a full understanding of this case. Accordingly, Mr. Carey presents his
own Statement of the Case and of the Facts below.
The Bar alleges that Mr. Carey had a conflict of interest under Rule 4-1.7(a)
and (b), and inadequate communication under Rule 4-1.4(b), because from mid-
June 2008, until he withdrew in September 2008, Mr. Carey simultaneously
represented two clients in unrelated matters whose interests the Bar concludes were
adverse. (I.B. 1). The Bar’s conclusion is predicated on the fact that one client
was employed as general manager for an entity against which the other client filed
suit. Following a final hearing held July 29 and 30, 2010, the Referee announced
on October 27, 2010, that he did not find that Mr. Carey had violated any of the
charged Rules Regulating The Florida Bar. (TR. 4). On November 4, 2010,
consistent with his prior ruling, the Referee issued a Report of Referee
recommending that Mr. Carey be found not guilty of violating the Rules
Regulating The Florida Bar and that he be diverted to a practice and
professionalism enhancement program, including Ethics School. (RR. 4).
On December 28, 2010, the Bar filed a Petition for Review of the Report of
Referee seeking to overturn the Referee’s finding and conclusion that Mr. Carey be
found not guilty and the Referee’s recommendation of diversion. (I.B. 12). The
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Bar served its Initial Brief on January 25, 2011, stating that it does not challenge
the factual findings of the Referee. (I.B. 12). Notwithstanding that there was no
opportunity for Mr. Carey to present, and the Referee to consider, any evidence in
mitigation, the Bar requests this Court to not only overturn the not guilty finding,
but to sua sponte impose a 30-day suspension along with requiring that Mr. Carey
attend Ethics School. (I.B. 12). The underlying facts are as follows.
Ms. Sommers hired Mr. Carey’s law firm, Carey, Leisure & Magazine, to
represent her regarding personal injuries sustained in a rear-end automobile
collision on November 14, 2005. (T. 58). Ms. Sommers had pre-existing injuries
and no wage loss claim. (T. 181-83). On March 6, 2008, Mr. Carey attended Ms.
Sommers’ deposition in her personal injury case during which she said she was
general manager at Trinity Memorial Gardens (“Trinity”); however, Ms. Sommers’
employment was not the focal point of her personal injury case. (T. 190, 259).
On or about March 5, 2008, Mr. Carey’s partner, Katherine Neal met alone
with Ms. Priscilla Mellette who then retained the law firm of Carey, Leisure &
Magazine to represent her in a lawsuit against Trinity for the wrongful
disinterment of her husband=s body. (T. 323-23; R. Exh. 8). On March 12, 2008,
Ms. Neal sent a letter to Trinity, attention Dianna Saige, requesting insurance
coverage related to the January 30, 2008 incident. (T. 90, TFB Exh. 13). This
letter placed Ms. Sommers on notice of Ms. Mellette’s claim against Trinity and
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the fact that Mr. Carey’s firm represented Ms. Mellette, but Ms. Sommers took no
action to contact Mr. Carey at that time. (T. 91, 95-96).
Mr. Carey did not meet Ms. Mellette until shortly before June 12, 2008,
when the firm filed the complaint against Trinity, which was the subject of a press
conference. (T. 326, 347). The media attempted to interview Ms. Sommers in her
capacity as general manager of Trinity regarding the Mellette lawsuit, and Ms.
Sommers provided no comment. (T. 78).
On or about June 16, 2008, Ms. Sommers contacted Theodore P. Littlewood,
Jr., an Attorney Consumer Assistance Program attorney with the Bar explaining
that she was the general manager, not an owner, officer or director of Trinity, and
she wanted to consult with company officials as to whether the Bar should call Mr.
Carey concerning a possible conflict. (T. 66; TFB Exh. 10). Ms. Sommers stated
she did not want to file a complaint at that time because her case was “close to
settlement.” (TFB Exh. 10). Ms. Sommers later called back and asked Mr.
Littlewood to call Mr. Carey to confirm that he would finalize her personal injury
case, to ask him to call her, and to suggest that Mr. Carey consider whether it was
appropriate to represent a plaintiff suing her employer in an unrelated case. (TFB
Exh. 10).
Upon receiving the call from Mr. Littlewood, Mr. Carey’s firm contacted
Ms. Sommers to arrange a meeting that took place with Ms. Sommers, Mr. Carey
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and his partner, Ms. Leisure, in the law office on June 17, 2008. (T. 70, 193).
Although Ms. Sommers was unhappy and expressed her discomfort with the firm
suing her employer, she did not ask them to withdraw from her case and “by the
time she left the meeting, she seemed to be satisfied.” (T. 114, 222). She stated
“unequivocally” she wanted the firm to continue to represent her. (T. 200).
Ms. Sommers confirmed in a letter dated June 19, 2008, that despite
concerns that her “position as a plaintiff in the personal injury case” might be
affected by the filing of a lawsuit against Trinity, she wanted Mr. Carey’s firm to
continue representing her and to accept no less than $75,000 at the mediation in her
case, which took place on June 26, 2008. (Exh. 2 to TFB Exh. 1, T. 125). The
firm investigated the alleged conflict and after conducting a review of both client
files and Ms. Neal interviewing Ms. Mellette, no evidence of any conflict was
found. (T. 327-28). With Ms. Sommers= knowledge and consent, Mr. Carey’s firm
continued to actively represent her interests in the personal injury case through a
mediation conducted June 26, 2008; review of Defendant=s proposal for settlement;
and Plaintiff=s Notice to Set Case for Jury Trial on July 30, 2008. (T. 291).
Mr. Carey expressed to both Ms. Sommers and to Mr. Littlewood that he did
not believe a conflict of interest existed merely because Ms. Sommers worked for
Trinity. (T. 72, TFB Exh. 10). Mr. Littlewood discussed only an Aapparent@
conflict of interest with Mr. Carey. (TFB Exh. 10).
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Opposing counsel in the Trinity litigation, Mr. David LoNigro, contacted
Mr. Carey on June 30, 2008, indicating, without elaboration, that he believed there
was a conflict of interest in Mr. Carey representing Ms. Sommers in her personal
injury matter and also pursuing litigation against Ms. Sommers= employer. (T.
157). Mr. LoNigro then served a Motion to Disqualify Mr. Carey=s law firm on
July 2, 2008, and scheduled a hearing on the motion at the first available date, on
September 26, 2008. (T. 157, R. Exh. 9).
Mr. Carey presented the expert testimony of Professor Roberta Flowers, who
has taught professional responsibility courses at Stetson College of Law for more
than twelve years. (R. Exh. 12, Depo.). Professor Flowers opined that Mr. Carey
did not violate the rules of Professional Conduct. (Depo. 12). Professor Flowers
stated that in June 2008, when Ms. Sommers and opposing counsel raised the issue
of a potential conflict, Mr. Carey did not have information indicating direct
adversity. (Depo. 30). Professor Flowers opined that Mr. Carey was between a
rock and a hard place and his conduct was exactly what one would expect to see
and was correct under Rule 4-1.7. (Depo. 30). Because discovery was stayed and
Mr. Carey had agreed not to speak with Ms. Sommers regarding the Trinity case,
he had to wait until the motion to disqualify to find out the specific basis for the
alleged direct adversity. (Depo. 30).
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Prior to the hearing on the Motion to Disqualify, Mr. LoNigro did not
provide Mr. Carey with any document or other evidence supporting his Motion to
Disqualify. (T. 167, RR. 2). Instead, the parties agreed to abate discovery in the
Trinity litigation from the time the Motion to Disqualify was filed on July 2, 2008,
until the Motion was considered at the hearing on September 26, 2008. (T. 162,
261, 328, 350). Mr. LoNigro testified that Mr. Carey “absolutely” had a right to
have the judge consider the Motion to Disqualify and that there was “nothing
unethical” in Mr. Carey wanting to see the basis or to have the issue decided by a
judge. (T. 163). In fact, Mr. LoNigro stated that the issue “had to be decided by a
judge” and because the issue was “debatable” he did not know how a judge would
rule. (T. 163).
Similarly, the Bar=s expert, William E. Hahn, Esquire, testified that he
understood how “reasonable people could say, I think I want to wait until that
hearing to assert my rights” and “[t]hat certainly is appropriate to do that.” (T.
255). Mr. Hahn added, however, that he did not think it was necessary and he did
not think a reasonable lawyer needs to wait until that point for there to be a “light
bulb of recognition.” (T. 255, RR. 2). The Bar has not identified any injury or
harm to either party caused by the delay in the litigation to consider the Motion to
Disqualify. (T. 262).
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At the hearing on the Motion to Disqualify, Mr. LoNigro disclosed for the
first time a document entitled, ACemetery Agreement, Trinity Memorial Gardens@
purporting to bear Ms. Sommers= signature and pertaining to Trinity=s handling of
Ms. Mellette=s husband=s body. (R. Exh. 3;T. 167). Prior to the September 2008
disqualification hearing, Mr. Carey had no knowledge of the existence of this
document. (T. 154, 167). Upon considering the evidence presented at the hearing
on the Motion to Disqualify, after the judge had taken the matter under advisement
and before any ruling, Mr. Carey voluntarily withdrew from his representation of
Ms. Mellette in her lawsuit against Trinity. (T. 330-31).
Ms. Sommers testified that she never met, corresponded or had any
interaction with Ms. Mellette and further, that she had no direct involvement in the
interment or the disinterment of Ms. Mellette’s husband’s body. (T. 109).
Although she equivocated at the final hearing in this case, Ms. Sommers testified
in her deposition in the Trinity litigation that she also had no “supervisory role” in
those processes. (T. 111). See March 25, 2009 Deposition of Ms. Sommers in the
Trinity litigation, pp. 25-26, 42-43. Ms. Sommers testified that the extent of her
involvement in interments and disinterments was signing contracts after she
checked to be sure they were “filled out correctly.” (T. 112).
Mr. Carey offered to continue representing Ms. Sommers with a written
waiver and consent, but Ms. Sommers indicated she was unsure. (T. 280-81, 353-
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54). Thereafter, Ms. Leisure attempted numerous unsuccessful telephone calls to
Ms. Sommers to discuss the firm’s withdrawal from her case and a smooth
transition to substitute counsel. (T. 209-211, 354, R. Exh. 7). When Ms. Leisure
and Ms. Sommers finally spoke on October 21, 2008, they agreed that withdrawal
was appropriate and that as an accommodation, the firm would wait to file a
motion to withdraw until Ms. Sommers retained new counsel. (T. 122, 211).
Thereafter, on October 24, 2008, Ms. Sommers wrote a letter to Mr. Carey and his
partner, Ms. Leisure, stating that she was discussing her personal injury case with
several attorneys and would notify them when she had completed that process. (R.
Exh. 14).
Mr. Carey’s firm ultimately withdrew from representing Ms. Sommers in
her personal injury case and facilitated the transition of her file to substitute
counsel. (R. Exh. 4 and 5). Mr. Carey waived his claim to any fees and cost
reimbursement in both Ms. Sommers’ personal injury case and in the Trinity
litigation. (T. 262).
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STANDARD OF REVIEW
The Standard of Review for evaluating a referee’s factual findings and
conclusions as to guilt is limited. “[I]f a referee’s findings of fact and conclusions
concerning guilt are supported by competent substantial evidence in the record,
this Court will not reweigh the evidence and substitute its judgment for that of the
referee.” Florida Bar v. Rose, 823 So. 2d 727, 729 (Fla. 2002). “An attorney may
be found guilty only if the referee concludes that the alleged misconduct was
proven by clear and convincing evidence.” Florida Bar v. Martocci, 699 So. 2d
1357, 1359 (Fla. 1997). “Further, a referee’s findings of fact carry a presumption
of correctness which will be upheld unless ‘clearly erroneous or lacking in
evidentiary support.’” Id. citing Florida Bar v. Stalnaker, 485 So. 2d 815, 816 (Fla.
1986); Florida Bar v. Neely, 502 So. 2d 1237 (Fla. 1987).
The Bar cites Florida Bar v. Cosnow, 797 So. 2d 1255, 1258 (Fla. 2001),
which was decided on Summary Judgment below, to support its position that the
referee’s conclusions as to guilt should be reviewed de novo. The referee’s not
guilty findings are, however, not solely questions of law. The referee in the instant
case weighed conflicting testimony and drew inferences from the evidence to
support his conclusion that the Bar failed to meet its burden of proving any ethical
violation by clear and convincing evidence. In such a case, the not guilty findings
are factual determinations that warrant deference and should be upheld if supported
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by competent, substantial evidence. When challenging a referee’s conclusions as
to guilt, the Bar has the burden of demonstrating that the record is devoid of
evidence to support those findings or that the record evidence clearly contradicts
the conclusions. Florida Bar v. Vining, 761 So. 2d 1044, 1047 (Fla. 2000).
Because a referee is in the best position to evaluate the demeanor and
credibility of witnesses, this Court “neither re-weighs the evidence in the record
nor substitutes its judgment for that of the referee so long as there is competent,
substantial evidence in the record to support the referee’s findings.” Florida Bar v.
Marable, 645 So. 2d 438, 442 (Fla. 1994). The burden is on “the party seeking
review to demonstrate that a report of referee . . . is erroneous, unlawful, or
unjustified.” R. Regulating Fla. Bar 3-7.7(c)(5).
Although this Court has greater discretion in reviewing sanction
recommendations, this Court has repeatedly explained as follows:
[T]he referee in a Bar proceeding again occupies a favored vantage point for assessing key considerations – such as a respondent’s degree of culpability and his or her cooperation, forthrightness, remorse and rehabilitation (or potential for rehabilitation). Accordingly, we will not second-guess a referee’s recommended discipline as long as that discipline has a reasonable basis in existing case law.
Florida Bar v. Lecznar, 690 So. 2d 1284, 1288 (Fla. 1997). In evaluating a
recommended sanction, the standard of review not only gives deference to the
referee, but requires restraint in not substituting the opinion of the Court for that of
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the referee as long as the recommended findings of fact and conclusions as to guilt
are supported by competent substantial record evidence.
This Court pays more deference to recommendations as to guilt than to
recommendations as to discipline, but should uphold a referee’s recommended
sanction if it has a “reasonable basis in existing case law.” Vining at 1048 (Fla.
2003)(citations omitted). Generally, this Court will not second-guess a referee’s
recommended discipline that has a reasonable basis in existing case law and the
Florida Standards for Imposing Lawyer Sanctions. Florida Bar v. Kossow, 912 So.
2d 544, 546 (Fla. 2005). Similarly, this Court should approve a referee’s
recommendation of diversion that has a reasonable basis in existing law.
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SUMMARY OF THE ARGUMENT
The Florida Bar incorrectly argues that a conflict of interest existed because
Mr. Carey’s client, Ms. Sommers, whom he represented in a personal injury action,
was the general manager of Trinity, a cemetery against which Mr. Carey filed an
unrelated suit based on improper disinterment on behalf of Ms. Mellette. The
Florida Bar’s argument depends on the assertion that Ms. Sommers’ position as a
general manager made her a material, adverse witness in the Trinity litigation and
therefore, Mr. Carey would automatically be placed in the untenable position of
cross-examining his own client. The undisputed facts show, however, that prior to
hearing on the disqualification motion, Mr. Carey only had notice of a potential
conflict based on a possibility that Ms. Sommers might be a witness.
When Ms. Mellette hired Mr. Carey’s partner to pursue an action against
Trinity, there was no indication that Ms. Sommers, who was not an owner or
officer of Trinity, was an adverse party or a material witness in the Trinity dispute
merely because she was the general manager. Mr. Carey’s partner’s investigation
of the Trinity matter and her communications with Ms. Mellette indicated that Ms.
Sommers had no contact with Ms. Mellette or any involvement in the activities
surrounding the disinterment. Ms. Sommers has acknowledged that while she was
the general manager in charge of Trinity’s daily administrative functions, she had
no direct involvement in disinterments or interments.
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The Bar has conceded that a conflicts check by Mr. Carey’s partner at the
time Ms. Mellete retained the firm would not have revealed even a potential
conflict of interest caused by the representation of Ms. Sommers and the
representation of Ms. Mellette. Even after the firm connected Ms. Sommers’
employment with Trinity, her role as general manager raised only a possible
conflict. Premature suspicions of potential conflicts do not permit a lawyer to
jettison a client unless or until adequate investigation shows an actual conflict.
Once the potential conflict was raised by Trinity’s counsel in the Motion to
Disqualify served July 2, 2008, the parties agreed to stay litigation in the Trinity
matter until September 26, 2008, which was the first available date for the
disqualification hearing. Trinity’s counsel testified that the issue was “debatable”
and that there was nothing unethical about Mr. Carey waiting to see the basis for
the alleged conflict and to have the judge decide the issue. Even The Florida Bar’s
expert recognized that it is reasonable and appropriate for an attorney to wait for
evidence to be presented at a hearing, but then asserted that waiting was not
necessary in this case to determine whether Ms. Sommers would be a material,
adverse witness. Instead, the Bar’s expert said at some point in time -- he did not
know when, but well prior to the disqualification hearing -- attorneys would more
reasonably have “walked away” sooner.
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Mr. Carey and his partner met with Ms. Sommers and discussed her
concerns. They explained that the firm’s investigation and information then
known revealed no conflict. Ms. Sommers did not wish to speak about the Trinity
matter and Mr. Carey and his partner did not press her for information. Instead,
they assured Ms. Sommers that they would continue to vigorously pursue her
interests in the personal injury case to the best of their ability. The firm’s
discussions with Ms. Sommers were to an extent reasonably necessary to enable
her to make an informed decision and she approved the firm’s continued
representation of her in her personal injury case.
At the disqualification hearing, for the first time, Trinity’s counsel presented
Mr. Carey with a disinterment contract signed by Ms. Sommers. Subsequently,
Ms. Sommers explained that she has no involvement in disinterments, but does
review the contracts to ensure they were “filled out correctly.” Both experts
testified that the alleged conflict was waivable. Further, it may have been
permissible for Mr. Carey to retain conflicts counsel to conduct any examination of
Ms. Sommers that might at some point become necessary in the Trinity litigation.
Nevertheless, as soon as he reviewed the contract identifying Ms. Sommers as a
potential witness, Mr. Carey took the conservative approach and immediately
withdrew from representing Ms. Mellette in the Trinity matter.
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Mr. Carey withdrew after the judge had taken the matter under advisement,
but prior to any ruling on the disqualification motion. Mr. Carey’s firm also
withdrew from representing Ms. Sommers in her personal injury case after she
declined to provide informed consent to the continued representation. Importantly,
Mr. Carey waived all fees or right for reimbursement of costs in both actions.
Once the potential conflict was raised, Mr. Carey’s careful evaluation of all
the facts, his discussions with Ms. Sommers and his ultimate withdrawal with
waiver of fees and cost reimbursement after the basis of the alleged conflict was
discovered fully complied with his obligations under Rules 4-1.4(b) and 4-1.7.
ARGUMENT
I. The Referee Correctly Found Respondent Not Guilty of Any Conflict of Interest Proscribed by Rule 4-1.7.
The Florida Bar has not met its burden of showing that the Referee’s finding
of not guilty as to any violation of Rules 4-1.7(a) and (b) is without record support.
The Bar’s argument is that Mr. Carey waited too long to withdraw and should have
recognized sooner that as general manager, Ms. Sommers would automatically be a
material, adverse witness. Mr. Carey acted appropriately, however, in cautiously
considering whether Ms. Sommers’ employment and involvement constituted an
actual conflict. Mr. Carey waited to consider evidence from opposing counsel
regarding Ms. Sommers’ alleged role, which was not divulged until the
disqualification hearing. Although Mr. Carey may have properly sought waivers
16
and potentially been permitted to consider retaining conflicts counsel, upon
discovering Ms. Sommers’ execution of a contract relevant to the Trinity litigation,
Mr. Carey took the conservative approach of withdrawing and waiving all fees and
cost reimbursement.
A factual assessment is necessary when examining whether a direct
adversity conflict exists and whether it precludes representation. In pertinent part,
Rule 4-1.7(a) provides that a lawyer shall not represent a client if: “(1) the
representation of 1 client with be directly adverse to another client; or (2) there is a
substantial risk that the representation of 1 or more clients will be materially
limited by the lawyer’s responsibilities to another client.” (emphasis added).
Although a lawyer ordinarily may not act as an advocate against a person the
lawyer represents in some other matter, even if wholly unrelated, “simultaneous
representation in unrelated matters of clients whose interests are only generally
adverse, such as competing economic enterprises, does not require consent of the
respective clients.” Rule 4-1.7 (cmt). Thus, Rule 4-1.7(a)(1) applies “only when
representation of 1 client would be directly adverse to the other and where the
lawyer’s responsibilities of loyalty and confidentiality of the other client might be
compromised.” Id.
In evaluating Rule 4-1.7(a)(2), the question is whether a lawyer is precluded
from considering, recommending, or carrying out an appropriate course of action
17
for a client; that is, whether the conflict forecloses alternatives otherwise available
to the client. Id. “A possible conflict does not itself preclude the representation.”
Id. Instead, the critical questions are “the likelihood that a conflict will eventuate
and, if it does, whether it will materially interfere with the lawyer’s independent
professional judgment in considering alternatives or foreclose courses of action
that reasonably should be pursued on behalf of the client.” Id.
Mr. Carey’s delay in taking any action for only about 3 months, until the
first available hearing time for the motion to disqualify, was reasonable and
appropriate. Prior to the hearing, he lacked information necessary to analyze the
alleged conflict using the above factors. In conversation with Trinity’s counsel,
Mr. Carey respectfully declined to accept that Ms. Sommers’ employment as
general manager constituted a conflict of interest. “Where there is a dispute over
the disqualification of an attorney and the parties do not agree on the issue
presented, an evidentiary hearing is necessary.” Quality Air Conditioning
Company v. Vrastil, 895 So. 2d 1236 (Fla. 4th DCA 2005).
In Quality, the appellate court held that evidence was insufficient to support
the trial court’s disqualification of a corporation’s attorney based on an allegation
that the attorney for the corporation in a shareholder dispute was a necessary
witness. Id. The only evidence was allegations relating to the attorney’s role in
preparing the shareholder’s agreement that was the subject of the dispute. Id.
18
Although the trial court had said it would issue a decision on the motion to
disqualify after the attorney was deposed, the trial court issued an order granting
disqualification without deposition testimony or an evidentiary hearing. Id. The
appellate court stated, “[d]octrines of fairness dictate that parties who are facing
disqualification of their attorney should be provided adequate opportunity to
present or contest any evidence regarding the attorney’s role as a witness,
especially where a representation has been made that the court would not consider
the motion without such evidence.” Id.
Taking the appropriate steps to investigate a potential conflict of interest is
especially important when a conflict is raised by opposing counsel. The comment
to Rule 4-1.7 warns that in resolving questions of conflict of interest, allegations
raised by an opposing party are to be viewed with caution for they may be misused
as a technique of harassment.1
1 A 1981 Harvard Law Review stated that “disqualification motions based on some alleged violation of a conflict-of-interest principle appear to have become ‘common tools of the litigation process.’” See 94 Harv. L. Rev. 1284, “Conflicts of Interest in Private Practice,” April 1981(internal cites omitted). “Lawyers have discovered that disqualifying opposing counsel is a successful trial strategy, capable of creating delay, harassment, additional expense, and perhaps even resulting in the withdrawal of a dangerously competent counsel.” Id.
Mr. LoNigro acted within his discretion in filing
the Motion to Disqualify and the Referee took no issue with Mr. LoNigro’s
decision to wait until the disqualification hearing to “divulge the basis /
circumstances” surrounding the motion. (RR. P. 2). Likewise, Mr. Carey acted
19
appropriately in waiting to weigh all the circumstances before making any
determination to withdraw from his client’s representation. Even Mr. LoNigro
testified that the issue was debatable and Mr. Carey “[a]bsolutely” had a right to
have a hearing; the issue “had to be decided by a judge.” (T. 163). Mr. LoNigro
opined that there was “nothing unethical” in Mr. Carey wanting to see the basis for
the motion to disqualify or to have it decided by a judge. (T. 163).
Contrary to the Bar’s assertions, the Referee’s factual findings do not
demonstrate as a matter of law that, based on the facts and circumstances then
known to him, Mr. Carey’s representation of Ms. Mellette was directly adverse to
the interests of Ms. Sommers. Similarly, the Referee’s factual findings do not
establish that Mr. Carey’s representation of one or both clients would have been
materially limited by Mr. Carey’s responsibilities to the other client.
A. When Sommers expressed concern, Respondent owed fiduciary duties to both clients and was ethically obligated to carefully evaluate the alleged conflict and the likelihood that Sommers would be a material adverse witness, rather than hastily jettison one or both clients.
Under Florida law, “an attorney may not jettison a client whose continuing
representation becomes awkward.” In re Jet 1 Center, Inc., Debtor, 310 B.R. 649
(Bkrtcy. M.D. Fla. 2004). Further, it is well established that “the party seeking
disqualification of an attorney carries a heavy burden and must meet a high
standard of proof before an attorney is disqualified.” Id. at 654. The Pennsylvania
20
Supreme Court aptly rejected the premise that “the mere possibility that one of the
ethical canons may be transgressed at some indeterminate point in litigation is
sufficient to trigger, without discovery or an evidentiary hearing, the extreme
remedy of disqualification.” Silver v. Downs, 425 A. 2d 359 (P.A. 1981).
Notwithstanding the Bar’s assertion in its Initial Brief that Mr. Carey
“knowingly” engaged in a conflict of interest, Bar counsel acknowledged during
closing argument at the final hearing that the firm’s simultaneous representation of
Ms. Mellette and Ms. Sommers happened inadvertently. (I.B. 13, 37; T. 384). Bar
counsel stated it would not be fair to assert that an immediate conflict check would
have disclosed any conflict when Ms. Mellette hired the firm in March 2008, and
“it would be wrong to say that . . . a conflict check at the time would have divulged
[any conflict].” (T. 383-384).
Ms. Mellette filed her lawsuit on June 12, 2008, against Trinity, not against
Ms. Sommers individually. It is undisputed that Ms. Sommers was not an owner,
officer or director of Trinity. Neither Mr. Carey, nor any member of his firm, has
ever had an attorney / client relationship with Trinity in any matter. Thus, there
can be no allegation that Mr. Carey “switched sides” or that he represented both
parties in the lawsuit that Ms. Mellette filed against Trinity.
Instead, the Bar alleges a conflict of interest because Ms. Sommers, whom
Mr. Carey then represented in an unrelated personal injury case, was employed as
21
general manager at Trinity when Ms. Mellette filed suit against that entity. At that
time, however, the firm had no evidence that Ms. Sommers was involved, at all, in
the underlying substance of Ms. Mellette’s claims. Ms. Leisure testified that the
firm conducted an investigation of both files, which revealed the absence of a
conflict. (T. 187, 191, 201). Ms. Neal also testified that based on her review of the
file and discussions with Ms. Mellette, Ms. Sommers was not involved. (T. 327).
The Bar alleges that Mr. Carey violated Rule 4-1.7 because he should have
recognized by at least June 17, 2008, and before the disqualification hearing on
September 26, 2008, that Ms. Sommers’ position would “likely” make her a
material, adverse witness he would have to depose or cross examine at some point
in the course of the litigation. Nevertheless, Ms. Sommers’ employment status
alone was not a sufficient basis for concluding that she was a material, adverse
witness. Further, the likelihood that an individual may be a material adverse
witness is only one of the factors to be considered in evaluating a potential conflict.
The Bar concludes that “at the latest,” Mr. Carey should have been aware of
a conflict of interest on June 17, 2008, because that was the day Ms. Sommers
expressed her “concerns” during her meeting at the law firm with Mr. Carey and
Ms. Leisure. (I.B. 25). From this demarcation date, however, Mr. Carey remained
counsel of record for Ms. Mellette for no more than 101 days before he withdrew.
As the Bar’s expert recognized, this brief delay did not prejudice either client, but
22
he opined there was “harm to the system.” (T. 262). Importantly, as soon as some
evidentiary basis for an alleged conflict was presented at the September 26, 2008
hearing, Mr. Carey promptly withdrew and waived his claim to fees and costs.
These facts do not support a violation of Rule 4-1.7(a) or (b).
The Bar argues Brown in an attempt to bolster its assertion that Mr. Carey
knew or should have known his simultaneous representation of Ms. Sommers and
Ms. Mellette, however brief, constituted a violation of Rules 4-1.7(a) and (b).
Florida Bar v. Brown, 978 So. 2d 107 (Fla. 2008). The facts in Brown, however,
are entirely distinguishable. In Brown, an actual conflict was immediately
apparent to any competent criminal defense lawyer. The case involved an issue of
constructive possession and either defendant A had possession, or defendant B had
possession. Each defendant was directly adverse to the other because both had an
interest in claiming that the gun belonged to the other. The attorney recognized
this obvious conflict and therefore, filed a fraudulent notice of appearance.
By contrast, it was not at all clear before the disqualification hearing that
Ms. Sommers would be an adverse or even relevant witness in the Trinity
litigation. Unlike Brown, Mr. Carey did not recognize that Ms. Sommers’
employment might make her a witness in the Trinity litigation when his partner
first accepted the representation of Ms. Mellette. Trinity’s counsel did not have or
did not provide any substantive basis for the alleged conflict until the
23
disqualification hearing. Upon discovering that Ms. Sommers had potential
involvement in the Mellette matter, Mr. Carey immediately withdrew and waived
his claim to fees and costs, which the Bar’s expert found to be “exceedingly
appropriate.” (T. 262).
B. Respondent acted legally and ethically in deferring any action for approximately 3 months, until the opposing party’s motion to disqualify could be heard, where he had no prior evidence of the basis for the alleged conflict of interest and Mellette agreed to stay the prosecution of her case.
As discussed above, the Bar suggests that this Court should find Mr. Carey
guilty of violating Rule 4-1.7 and suspend him for 30-days because he did not
withdraw from representing Ms. Mellette soon enough. Although he
acknowledged that Rule 4-1.7 gives no guidance as to timing, the Bar’s expert
opined that Mr. Carey took too long to take the correct action. (T. 263). Rule 4-
1.7 imposes no time constraints, however, thus leaving the timing of withdrawal
within the sound discretion and good judgment of the attorney. Nonetheless, the
Bar’s position is that Mr. Carey acted unethically because he did not withdraw
between the date of the complaint against Trinity, June 12, 2008, and the date he
actually withdrew, September 26, 2008, immediately after the disqualification
hearing.
The Bar’s analysis ignores those cases in which a disqualification was
denied or overturned on appeal as premature, because the factual basis for the
24
alleged conflict had not yet been determined. The following cases discussing
motions to disqualify based on an alleged conflict under Rule 4-3.7, Lawyer as
Witness, are instructive.
In 2004, the Fourth District Court of Appeal held that a debtor’s allegation
that creditor’s counsel would be a fact witness was insufficient to require counsel’s
disqualification and reversed the trial court order granting disqualification.
Brooks v. Foster, 889 So. 902 (Fla. 4th DCA 2004). After obtaining a judgment
against Foster, Brooks secured counsel to pursue enforcement proceedings by
which Brooks sought to garnish accounts held by Foster. Foster moved to
disqualify counsel and served him with a notice of taking deposition. Brooks
appealed the trial court order disqualifying counsel.
The appellate court stated that the trial court’s decision to disqualify chosen
counsel was premature and error because “[t]he need to depose a party’s chosen
counsel based on the execution of such statements demonstrate[d] nothing more
than the potential that disqualification will be required.” Id. at 903. “The trial
court’s decision provided Brooks with an extraordinary remedy based on nothing
more than a possibility.” Id. at 904.
The Brooks court cited positively to Singer Island Ltd., Inc., v. Budget
Const. Co., Inc., 714 So. 2d 651 (Fla. 4th DCA 1998). In Singer, a breach of
construction contract case, the issue was whether the respondent contractor
25
voluntarily left a job in progress, or stopped working after dismissal by the
petitioner owner. The owner moved to disqualify the contractor’s counsel on the
basis that he would be a material witness and would have to be deposed as to
critical communications in the case. The Singer court stated that disqualification
of a party’s chosen counsel is an extraordinary remedy and should be resorted to
sparingly, commenting that some motions to disqualify are viewed with skepticism
as they may be filed for tactical or harassing reasons. In Singer, the appellate court
upheld the trial court’s denial of the motion to disqualify because “the petitioner
alleged, at most, only a possibility that disqualification might be necessary.” Id.
The court stated that “[i]f petitioner had waited until after he had deposed opposing
counsel, he might have been able to develop more of a record to support this
motion to disqualify . . . and “[o]n the other hand, counsel’s testimony might well
have convinced petitioner that a motion to disqualify would not have been well-
founded.” Id.
In Silvers v. Google, 2007 WL 141153 (S.D. Fla. 2007), a United States
District Court denied Silver’s motion to disqualify counsel, where Silver stated that
it may, not that it would, call counsel as a witness. Although Silver argued that
counsel was a material witness, the court found that Silver failed to show how
counsel’s testimony would be adverse to his client’s position, “a necessary
condition for disqualification under rule 4-3.7(a).” Id.
26
Just as in the cases cited above, in June 2008, Mr. Carey did not have
sufficient facts to ascertain whether Ms. Sommers would be a material, adverse
witness or if any other grounds for the alleged conflict existed. On July 2, 2008,
Mr. LoNigro served the Motion to Disqualify asserting an apparent conflict of
interest and an appearance of impropriety based on the fact that Ms. Sommers was
employed by Trinity, was a witness in the case and then represented by Mr. Carey
in an unrelated personal injury case. Neither Ms. Sommers, nor Mr. LoNigro,
provided Mr. Carey any factual basis for the alleged conflict of interest until the
disqualification hearing on September 26, 2008. During this time, Mr. LoNigro
and Mr. Carey agreed not to speak with Ms. Sommers regarding her possible
involvement, if any, in the Mellette matter, and Ms. Mellette agreed to have the
prosecution of her case abated until the issue could be resolved at the hearing.
Despite the Bar’s position that by virtue of her position as general manager,
Mr. Carey should have immediately considered her to be a material adverse
witness, courts have held that something more than the allegation of a high level
managerial position is warranted in order to sustain a motion to disqualify. In
Lussi v. Design-Build & Engineering, Inc. 2010 WL 1687079 (S.D. Fla.), the
United States District Court denied defendants’ Motion to Disqualify plaintiff’s
counsel, which was grounded in an alleged violation of Rule 4-1.6. Defendants
argued that plaintiff’s counsel had previously filed other lawsuits against
27
defendants, during which the defendants employed one of the current plaintiffs,
Mr. Rivero, as a “high level manager.” Id. The court noted in a footnote that it
was not provided any affidavits or other evidence establishing Mr. Rivero’s work
responsibilities with the defendants. Id. at FN 2.
The Lussi court acknowledged that the party moving for disqualification
bears the burden of proving grounds and held that defendants had not presented
any evidence to support disqualification. The court stated that the defendants
“must provide the Court with something more than counsel’s argument to support
their statement that [plaintiff’s counsel has] received attorney client privileged
communications from a former high level manager, Rivero.” Id.
In the instant case, there was nothing unethical about Mr. Carey holding the
moving party to its burden of proof and refusing to acquiesce and withdraw based
on an opposing counsel’s unsubstantiated allegation. In addition, Mr. Carey acted
appropriately and within the bounds of his discretion in waiting until there could be
a proper determination regarding whether Ms. Sommers would actually be a
“material” and “adverse” witness in the lawsuit against her employer.
Under the plain meaning of “materiality” it was initially uncertain whether
Ms. Sommers would be a “material” witness in the Trinity litigation. No relevant
information needed to draw such a conclusion was available, until the contract
signed by Ms. Sommers was presented for the first time at the disqualification
28
hearing. Ms. Sommers even clarified in her subsequent testimony in the Trinity
litigation and in the instant case that the extent of her involvement in interments
and disinterments was limited to checking such contracts to make sure they are
“filled out correctly.” (T. 112).
Based on various definitions of “materiality” it is clear that Mr. Carey acted
appropriately in waiting to view the evidence, rather than simply accept opposing
counsel’s suggestion that there was a conflict. This Court has previously
considered the express language and plain meaning of the Rules Regulating The
Florida Bar when evaluating the scope and application of the Rules. See Florida
Bar v. Brake, 767 So. 2d 1163, 1168 (Fla. 2000) (examining the phrase “engaged
in the practice of law” included in the text of Rule 4-8.4(d) and carving out Rule 4-
8.4(d) violations as an exception to the general principle that discipline can be
imposed for misconduct occurring outside the practice of law).
When considering the plain language of a rule or statute, courts have
consulted Black’s Law Dictionary. For example, in State v. Bastos, 985 So. 2d 37,
41 (Fla. 3d DCA 2008), the Third District Court of Appeals relied in part on the
dictionary definition of a “material witness” which is a witness who can “testify
about matters having some logical connection with the consequential facts, esp. if
few others, if any, know about these matters.” Similarly, Black’s Law Dictionary
defines a “material fact” in the context of pleading and practice as follows:
29
one which is essential to the case, defense, application, etc., and without which it could not be supported. One which tends to establish any of issues raised. The ‘material facts’ of an issue of fact are such as are necessary to determine the issue. Material fact is one upon which outcome of litigation depends.
Black’s Law Dictionary 977 (6th ed. 1990). Black’s Law Dictionary further
defines “material fact” in the context of “summary judgment” as follows:
In determining what constitutes a genuine issue as to any material fact for purposes of summary judgment, an issue is ‘material’ if the facts alleged are such as to constitute a legal defense or are of such a nature as to affect the result of the action . . . . A fact is ‘material’ and precludes grant of summary judgment if proof of that fact would have effect of establishing or refuting one of essential elements of a cause of action or defense . . . and would necessarily affect application of appropriate principle of law to the rights and obligations of the parties.
Id. A similar definition of materiality was enacted by the Florida Legislature for
use in prosecutions for perjury. Florida Statutes, section 837.011 (2004), defines
“material matter” as “any subject, regardless of its admissibility under the rules of
evidence, which could affect the outcome of the proceeding.”
Under any of these definitions of materiality, Mr. Carey would need to
consider Ms. Sommers’ actual involvement in matters related to Ms. Mellette’s
claim before he could reasonably determine the likelihood that she would be a
material adverse witness in the Mellette matter. Because discovery in that case
was abated until the disqualification hearing, Mr. Carey did not have the necessary
facts upon which to conclude that there was a conflict of interest that would
preclude his representation of Ms. Mellette.
30
C. Respondent did not violate Rule 4-1.7 where immediately following the disqualification hearing at which evidence of a potential conflict was first produced, Respondent voluntarily withdrew and waived his fees and costs.
In its Initial Brief, the Bar states that “[e]ven if [Mr. Carey] had obtained an
informed consent, which he did not, he could not reasonably believe that he would
be able to provide competent and diligent representation to each affected client.
Respondent could not ethically represent both clients.” (I.B. 26). This position is
in direct contradiction to the opinions of both experts, Professor Flowers on behalf
of Mr. Carey, and Mr. Hahn on behalf of the Bar who testified that the apparent
conflict was waivable. Mr. Hahn stated “without question” Mr. Carey could have
continued to represent both clients upon written consent waivers from Ms. Mellette
and Ms. Sommers. (T. 260).
Nevertheless, when a document related to Ms. Mellette’s case and
purportedly signed by Ms. Sommers was presented for the first time during the
disqualification hearing, Mr. Carey determined that given the facts and
circumstances then known, withdrawal was appropriate. Although the judge had
taken the matter under advisement, Mr. Carey agreed to withdraw from
representing Ms. Mellette immediately following the disqualification hearing.
Mr. Carey ultimately withdrew from representing Ms. Sommers when she
declined to provide her informed consent to continued representation. Importantly,
however, Mr. Carey also assisted both clients in obtaining new counsel and he
31
waived his claim to any fees and advanced costs to which he would otherwise have
been entitled.
Under these facts, a purported “conflict of interest” lasting a mere 101 days
does not rise to the level of a violation of Rule 4-1.7(a) or (b), particularly where
there is no clear and convincing evidence of any client harm. The Bar’s expert
testified that the “concept of harm” was a “thorny issue” for him in this case. (T.
262). Mr. Hahn resolved the issue by concluding it was more of a “harm to the
system” that Mr. Carey did not withdraw sooner, but such an aspirational analysis
is not sufficient to sustain a finding of unethical conduct.
Further, as discussed in ABA Formal Opinion 92-367, which Professor
Flowers cited, other practical solutions may be available to resolve a conflict issue.
“In some instances, a sufficient solution may be to provide for other counsel, also
representing the litigation client, to deal with the client witness: where local
counsel as well as principal counsel are involved in a litigation, the disqualification
applying to one of these will not ordinarily affect the other.” Id. Also, “a
satisfactory solution may be the retention of another lawyer solely for the purpose
of examining the principal lawyer’s client.” Id. Judge (later Justice) Stevens
suggested this approach in a former client case where after acknowledging ethical
considerations that inhibited the lawyer’s ability to interrogate a witness, he said
the lawyer should have “made an offer to have some other lawyer retained for this
32
limited purpose.” State v. Jeffers, 520 F. 2d 1256, 1264-66 (7th Cir. 1975). See
also, Hastings Law Journal, February 2011, Resolving Client Conflicts by Hiring
“Conflicts Counsel,” by Ronald D. Rotunda. Thus, Mr. Carey did not violate
Rules 4-1.7(a) or (b), but rather took an exceedingly conservative approach when
he withdrew from representing Ms. Mellette upon first receiving evidence that Ms.
Sommers was a potential witness in the Trinity litigation.
II. The Referee Correctly Found that Respondent Discussed the Alleged Conflict with Sommers and Appropriately Concluded that Respondent was Not Guilty of Violating Rule 4-1.4. The Bar has not met its burden of proving that that the Referee’s conclusion
that Mr. Carey did not violate Rule 4-1.4 was clearly erroneous or lacking in
evidentiary support. The Referee made a factual determination that Mr. Carey
discussed Ms. Sommers’ concerns with her. (RR. p 3). The Referee also found
that Mr. Carey advised Ms. Sommers that he did not feel a conflict existed, but
acknowledged that, in retrospect, perhaps he should have obtained a waiver or
consent. (RR. p 3). There is competent substantial evidence in the record to
support these factual findings and the recommendation of not guilty as to Rule 4-
1.4(b), which states “[a] lawyer shall explain a matter to the extent reasonably
necessary to permit the client to make informed decisions regarding the
representation.”
33
Ms. Sommers met with Mr. Carey and Ms. Leisure on June 17, 2008, and
expressed that she “just felt there was a conflict.” (T. 71). Ms. Sommers never
asked Mr. Carey if he would be willing to withdraw from Ms. Mellette’s case, but
she did express concern that her personal injury case would be compromised. (T.
112). Ms. Sommers acknowledged that Mr. Carey said he did not feel there was a
conflict (T. 108), and that both Mr. Carey and Ms. Leisure assured Ms. Sommers
that they were going to pursue her case as vigorously as they could. (T. 112-113).
Ms. Sommers did not ask Mr. Carey to withdraw from her case on June 17, 2008.
(T. 111).
In fact, Ms. Sommers confirmed in her letter dated June 19, 2008, that even
though she was “still uncomfortable” and “concerned” she hoped to be represented
fairly and would not agree to settle for less than $75,000.00 at the upcoming
mediation. (See Exhibit 2, to TFB Exh. 1). In response to her letter, Mr. Carey
called Ms. Sommers and after they spoke, Ms. Sommers she continued to allow
him to represent her. (T. 77).
From June 17, 2008, until September 26, 2008, Ms. Sommers elected to
have the law firm continue pursuing her personal injury case through mediation
and beyond, after having discussed the matter with Mr. Littlewood of the Bar, and
with Mr. Carey and his partner on June 17, 2008. Ms. Sommers requested and
received assurance that the firm would vigorously pursue her case, notwithstanding
34
her “concerns” based on the firm’s representation of Ms. Mellette in the pending
litigation against Trinity.
As stated above, a lawyer is not permitted to “jettison” a client merely
because the representation has become “awkward.” Ms. Sommers did not discuss
the Mellette case with Mr. Carey or disclose any involvement she may have had
prior to the disqualification hearing. Because Mr. LoNigro also did not have or
wish to disclose the “basis / circumstances” for the motion to disqualify, Mr.
Carey’s partner obtained Ms. Mellette’s consent to abate the discovery and
prosecution in her case until the matter could be resolved at the disqualification
hearing. (T. 328). Under these facts, (1) Mr. Carey adequately communicated
with Ms. Sommers to the extent reasonably necessary to allow her to make
informed decisions regarding her representation, and (2) should be found not guilty
of violating Rule 4-1.4(b).
III. The Referee’s Recommendation of Diversion is Fully Supported and Should be Upheld.
A. If this Court determines that the record does not support a
diversion, the case should be remanded to the Referee to conduct a hearing and consider evidence in mitigation and to recommend an appropriate disposition.
If this Court determines that a rule or the Rules of Professional Conduct
have been violated and that sanctions are warranted, the appropriate procedure is to
remand the matter to the Referee to conduct a sanctions hearing. Recently, this
35
Court remanded a case in which the Bar prevailed on appeal of the referee’s not
guilty findings, because the referee had no prior opportunity to hear evidence in
mitigation and aggravation, make factual findings and consider an appropriate
sanction. Florida Bar v. Hines, 39 So. 3d 1196 (Fla. 2010).
This Court has consistently held that mitigating factors are factual findings.
Florida Bar v. Irish, 48 So. 3d 767 (Fla. 2010) (quoting Florida Bar v. Hecker, 475
So. 2d 1240, 1242 (Fla. 1985) (determining “‘referee’s finding as to the existence
[or non-existence] of a particular mitigator is considered a factual determination
and is “presumed correct and will be upheld unless clearly erroneous or lacking in
evidentiary support.”’”). As stated repeatedly by the Bar in the proceedings and
during the final hearing, it was always intended that the guilt and penalty phases
would be bifurcated. (T. 436-440). The Referee specifically inquired and Bar
counsel responded affirmatively when at the conclusion of the trial he asked “[i]f
there was to be a finding of guilt, then we would have another proceeding that
would talk about any type of sanctions, punishment, et cetera?” (T. 454-455).
Likewise, Mr. Carey relied upon Bar counsel’s representations that he would have
a meaningful opportunity to present mitigating evidence, if the Referee should find
him guilty. Accordingly, if this Court should find any violation and determine that
a diversion is not appropriate, the case should be remanded to the Referee to
conduct a sanctions hearing.
36
B. The cases cited by the Bar to support a suspension are distinguishable.
The Bar attempts to analogize the facts of this case to one in which this
Court suspended an attorney for ninety days in January 2008, after she concealed
an improper conflict of interest and made misrepresentations to the court and to her
client. Florida Bar v. Brown, 978 So. 2d 107 (Fla. 2008). The Court noted that the
conflict of interest impacted Ms. Brown’s ability to competently represent two
criminal defendants, the passenger and the driver of a vehicle who were both
charged with constructive possession of a firearm discovered in the vehicle in
which they had been riding. Id. at 112-113. The attorney filed a false notice of
appearance, indicating that another attorney represented the passenger while she
represented the driver. Id. at 110. The passenger, however, only met with and
paid Ms. Brown, with no understanding that her defense of him was compromised
by the defense of the driver. Id. As a result, Ms. Brown violated Rules 4-1.3
(competence), 4-1.4(a) (communication), 4-8.4(c) (misrepresentation) and 4-1.7(a)
(conflict of interest).
Ms. Brown not only compromised the integrity of the legal system, but also
detrimentally impacted the substantive rights of her clients who were charged with
felony crimes and thus, were subject to imprisonment, fines and the loss of civil
liberties. The Court noted that a “public reprimand might have been appropriate if
Brown had engaged in only one of the different types of misconduct in which she
37
engaged, but not when all of the rule violations are considered together.” Id. at
113. In sharp contrast to the egregious facts in Ms. Brown’s case, Mr. Carey made
no misrepresentations and his alleged conflict of interest was an isolated instance
of brief duration that resulted in no demonstrable client harm. Also, upon
receiving evidentiary support for the alleged conflict, Mr. Carey voluntarily
withdrew from both representations, assisted the clients in seeking new counsel,
and agreed to forfeit all fees and costs. On these facts, Mr. Carey should be found
not guilty of violating Rule 4-1.7.
The other cases cited by the Bar to support a suspension are equally
distinguishable. In Florida Bar v. Maurice, 955 So. 2d 535 (Fla. 2007), the
attorney was suspended not only for a conflict of interest under Rule 4-1.7(b), but
also for Rules 4-1.1 (competence); 4-1.3 (diligence); 4-1.4(a) (communication);
and 4-3.2 (failure to expedite litigation). In Florida Bar v. Mastrilli, 614 So. 2d
1081 (Fla. 1993), the attorney represented two parties in the same automobile
accident case, filed suit against his own client in the same matter and exposed one
client to significant personal liability. In Florida Bar v. Dunagan, 731 So. 2d 1237
(Fla. 1999), the attorney had a clear conflict of interest in representing the husband
in a dissolution of marriage proceeding that involved joint ownership of a business,
where the attorney had previously represented both the husband and the wife in
matters involving the business.
38
The Bar also cites Morse v. Clark, 890 So. 2d 496 (Fla. 5th DCA 2004), a
case in which the appellate court overturned a trial court’s denial of a motion to
disqualify based on an alleged conflict. On appeal, attorneys for petitioners
successfully argued that Charles D. Hood, Jr. then represented Morse in an
unrelated matter and his firm also represented Clark in the underlying case. No
consent or waiver was obtained. The appellate court held that “[s]ince a clear
violation of Rule 4-1.7(a) was established in this case, a conflict of interest
involving a current client, the lower court should have granted Morse’s motion to
disqualify.” Id. at 499. Notably, notwithstanding the clear holding of the appellate
court, a review of the Bar’s membership records shows that Charles D. Hood, Jr.
never received any discipline for the Rule 4-1.7(a) violation.
C. A diversion is supported by the Standards for Imposing Lawyer Sanctions and meets the purposes of lawyer discipline.
In evaluating a recommended sanction, the Standards for Imposing Lawyer
Sanctions consider the following factors:
3.0 GENERALLY In imposing a sanction after a finding of lawyer misconduct, a court should consider the following factors:
(a) the duty violated; (b) the lawyer's mental state; (c) the potential or actual injury caused by the lawyer's misconduct; and (d) the existence of aggravating or mitigating factors.
39
Fla. Stds. Imposing Law. Sancs. 3.0. In this case, neither the Standards nor the
existing case law support a suspension. First, in considering the duty violated, the
Court has previously examined whether the rule violations pertain to “only one of
the different types of misconduct” or whether they violate multiple types of lawyer
obligations. Brown at 113. In contrast to Brown, which implicated many duties
violated, the rule violations in this case all pertain to the same alleged conflict, the
duration of which was a mere few months.
The Bar’s own expert, Mr. Hahn, only faulted Mr. Carey for not
withdrawing sooner. (T. 263). Mr. Hahn agreed, however, that Rule 4-1.7 gives
no guidance regarding how promptly an attorney must act upon an alleged conflict
when a motion for disqualification is filed by an opposing party. (T. 263).
Second, Mr. Carey had no reason to know of any potential conflict of
interest when Ms. Mellette met Ms. Neal and hired the firm on March 5, 2008.
Even the Bar’s expert Mr. Hahn and Bar counsel agreed that a routine conflicts
check would not have disclosed a conflict related to a client’s employer. Also, as
confirmed by Mr. LoNigro, Mr. Carey had no improper motive in waiting until the
disqualification hearing to have evidence presented and the conflict issue decided.
Third, despite Ms. Sommers’ stated concerns, there was no demonstrable
client harm. The Bar’s expert Mr. Hahn even testified that the “thorny issue” for
him in this case was the “concept of harm.” (T. 262). Mr. Hahn “finally resolved
40
that it’s not an issue of harm, actual harm to the client.” (T. 262). Instead, Mr.
Hahn opined that the issue was more of a “harm to the system” and an “appearance
of impropriety.” (T. 262).
Fourth, a significant mitigating factor to be considered is the fact that Mr.
Carey, upon seeing documentary evidence at the disqualification hearing not only
withdrew, but waived his entitlement to any fees or costs in either case, which the
Bar’s expert found to be “exceedingly appropriate.” (T. 262). Mr. Carey has no
prior disciplinary history that would aggravate any disciplinary sanction. Instead,
Mr. Carey has been Board Certified by The Florida Bar in civil trial since 1988,
and Board Certified by the National Board of Trial Advocacy since 1992. (T.
346). Mr. Carey also has an impressive and established history of community
service, which along with other extensive mitigating evidence, would have been
presented at a sanctions hearing had the Referee recommended a finding of guilt
for any of the charged rule violations.
The recommended diversion serves the purposes of discipline, as enunciated
in Florida Bar v. Poplack, 599 So. 2d 116, 118 (Fla. 1992) (citing Florida Bar v.
Lord, 433 So. 2d 983 (Fla. 1983)) in evaluating the recommended discipline. (TR.
18). These purposes are: (1) “the judgment must be fair to society . . . by
protecting the public from unethical conduct and at the same time not denying the
public the services of a qualified lawyer;” (2) the sanction “must be fair to the
41
respondent,” punishing for ethical breaches and yet encouraging reformation and
rehabilitation; and (3) the sanction “must be severe enough to deter others who
might be . . . tempted to become involved in like violations.” Id.
The Bar dismisses the Referee’s recommendation of diversion as
insufficient, but ignores that it did not meet its burden of proving by clear and
convincing evidence that the alleged conduct constituted any ethical violation,
much less a violation warranting discipline. Even if this Court were to find a
conflict existed under Rule 4-1.7, the conduct at issue in this case does not rise to
the level of an ethical violation for which sanctions are warranted. As stated in the
Preamble, the “Rules of Professional Conduct are rules of reason.” The Preamble
further states:
The rules presuppose that disciplinary assessment of a lawyer’s conduct will be made on the basis of the facts and circumstances as they existed at the time of the conduct in question in recognition of the fact that a lawyer often has to act upon uncertain or incomplete evidence of the situation. Moreover, the rules presuppose that whether discipline should be imposed for a violation, and the severity of a sanction, depend on all the circumstances, such as the willfulness and seriousness of the violation, extenuating factors, and whether there have been previously violations. The Preamble also acknowledges that no disciplinary action should be taken
when a lawyer chooses not to act or acts within certain bounds of discretion and
states:
In the practice of law conflicting responsibilities are often encountered. Difficult ethical problems may arise from a conflict
42
between a lawyer’s responsibility to a client and the lawyer’s own sense of personal honor, including obligations to society and the legal profession. The Rules of Professional Conduct often prescribe terms for resolving such conflicts. Within the framework of these rules, however, many difficult issues of professional discretion can arise. Such issues must be resolved through the exercise of sensitive professional and moral judgment guided by the basic principles underlying the rules. These principles include the lawyer’s obligation to protect and pursue a client’s legitimate interest, within the bounds of the law, while maintaining a professional, courteous, and civil attitude toward all persons involved in the legal system. In the instant case, the duration of Mr. Carey’s representation of Mellette
from the date the Motion to Disqualify was served on July 2, 2008, until he
voluntarily withdrew immediately after the September 26, 2008 disqualification
hearing, was only 86 days. During this time, and with Ms. Mellette’s full consent,
Mr. Carey abated the prosecution of her case. Upon receiving for the first time at
the disqualification hearing evidence suggesting that Ms. Sommers was likely to be
witness in the Trinity litigation, Mr. Carey immediately withdrew and waived any
claim to fees or costs. The facts in this case do not support a Rule 4-1.7 violation
or the imposition of any permanent discipline, much less a suspension.
D. A diversion is supported by existing law.
The referee appropriately exercised his authority under Rule 3-5.3, which
governs diversion of Bar disciplinary cases to practice and professionalism
enhancement programs and provides in relevant part as follows:
(b) Types of Diciplinary Cases Eligible for Diversion. Disciplinary cases that otherwise would be disposed of by a finding of minor
43
misconduct or by a finding of no probable cause with a letter of advice are eligible for diversion to practice and professionalism enhancement programs; and (h)(2) Diversion at Trial Level After Submission of Evidence. A referee may recommend diversion of a disciplinary case to a practice and professionalism enhancement program if, after submission of evidence, but before a finding of guilt, the referee determines that, if proven, the conduct alleged to have been committed by the respondent is not more serious than minor misconduct.
The conduct at issue in the instant case was certainly no more serious than
minor misconduct. The purported conflict representation was not undertaken
knowingly or with any evil motive when Ms. Mellette hired the firm in March
2008. Upon learning of Ms. Sommers’ “concerns” in June 2008, Mr. Carey
discussed the issue with her and with counsel for her employer, but was provided
no factual basis for the alleged conflict. After the Motion to Disqualify was filed
on July 2, 2008, Mr. Carey remained attorney of record, but stayed the discovery
and prosecution of Ms. Mellette’s case, with her consent, for only 86 days, until
evidence of the alleged conflict was presented at the hearing on the Motion to
Disqualify. That same day, Mr. Carey withdrew from the representation and
waived any claim to fees and costs. (T. 262). The Bar did not present substantial
competent evidence of any actual harm to either client. On these facts, any alleged
violation of Rule 4-1.7 was, at worst, minor.
Moreover, none of the conditions that would presumptively preclude an
admonishment for minor misconduct are present in this case. Rule 3-5.1(b)(1)
44
states that “[i]n the absence of unusual circumstances misconduct shall not be
regarded as minor” if any of the following conditions exist: (A) the misconduct
involves misappropriation of a client’s funds or property; (B) the misconduct
resulted in or is likely to result in actual prejudice (loss of money, legal rights, or
valuable property rights) to a client or other person; (C) the respondent has been
publicly disciplined in the past 3 years; (D) the misconduct involved is of the same
nature as misconduct for which the respondent as been disciplined in the past 5
years; (E) the misconduct includes dishonesty, misrepresentation, deceit, or fraud
on the part of the respondent; or (F) the misconduct constitutes the commission of
a felony under applicable law. Accordingly, the recommended diversion was
appropriate under the Rules Regulating The Florida Bar.
The Standards for Imposing Lawyer Sanctions discussed above were
created, in part, to meet the goal of imposing consistent sanctions for similar
misconduct. The Standards are utilized in determining “acceptable pleas” between
the Bar and respondents, as well as guiding a referee’s recommendations after a
contested matter. Stds. Imposing Law. Sancs. (Preface). As such, uncontested
Reports of Referee approved by this Court may offer some persuasive authority in
considering the range of sanctions imposed for conflicts.2
2 This Court has previously explained while a Court’s own unwritten decision is “not a precedent for a principle of law and should not be relied upon for anything other than res judicata . . . it would not be improper for counsel, in an
Also, prior unpublished
45
Florida Supreme Court Orders approving uncontested Reports of Referee may
assist this Court in evaluating the consistency of discipline. A review of recent
Orders and Reports of Referee establishes that diversions have been approved for
more serious allegations and facts that constituted conflicts of interest.
The recommended diversion in this case is particularly appropriate given the
diversions that have been recommended and approved in the following cases3
effort to persuade a court to adopt a certain position, to refer to such a decision and thereby suggest to the court how it previously viewed the proposition.” Dep’t of Legal Affairs v. District Court of Appeal, 5th District, 434 So. 2d 310, 313 (Fla. 1983). This Court noted that a court “has the records of its own decisions and the judges have the opportunity to discuss such cases collegially.” Id. 3 For privacy concerns, and because diversions are confidential following one year after imposition, names of the respondent attorneys are omitted. The Bar is able to confirm the existence and facts and circumstances of the cited cases.
:
Order dated January 27, 2011, in Case No. SC10-1492, TFB File No. 2008-
11,493(6E) (defendant shareholder alleged a potential conflict of interest and later
filed a motion to disqualify, after which Respondent withdrew from the
representation); Order dated October 5, 2010, in Case No. SC10-1309, TFB File
No. 2010-10,293(13D) (after court imposed sanctions against client and
Respondent, Respondent initially refused to pay his half subjecting his client to the
risk of collection efforts; Respondent later paid his half, satisfying the sanctions
order); Order dated July 12, 2007, in Case No. SC07-102, TFB File No. 2005-
10,830(6C) (Respondent represented a time share condominium association, and
during the same time period, Respondent’s law firm undertook to represent a
46
company that allegedly had some interest that was adverse to the time share
condominium association. “The Florida Bar presented a prima fascia (sic) case,
which, if proven would constitute a conflict.”); and Order dated February 1, 2007,
in Case No. SC06-1601, TFB File No. 2005-31,245(09C) (Respondent represented
husband in a dissolution. After the divorce was final, the former wife attempted to
withdraw 401(k) funds from her account, but was unable to do so without former
husband’s signed consent. Former wife sought Respondent’s help and paid him
$100.00 to assist her in obtaining former husband’s signature. When former wife
went to pick up the executed consent, Respondent told her the former husband
wanted $2,000.00 for his signature on the consent form. Former wife provided
Respondent a $2,000.00 check to deliver to former husband, but later placed stop
payment on the check. Former husband assigned his rights to the $2,000.00 check
to Respondent, who filed suit against the former wife seeking treble damages,
court costs and attorney’s fees. The court entered a Final Summary Judgment for
$8,000.00 plus interest).
By Order dated October 5, 2010, this Court also approved an uncontested
report of referee and directed that an attorney receive an admonishment for minor
misconduct to be administered by a letter from the referee. See Florida Bar v.
Hochman, Case No. SC09-2279, TFB File No. 2009-31,577(18A) and Case No.
SC10-804, TFB File No. 2010-30,463(18A). Hochman had consulted with a
47
prospective client in April 2007, and December 2007, regarding post-dissolution
issues including child custody. Although he paid respondent $275.00 for each
consultation, the former husband did not hire respondent to represent him.
In April 2009, the former husband hired another attorney to represent him in
post-dissolution matters, and in May 2009, the former wife hired respondent to
represent her in the same matters. In June 2009, counsel for former husband
alerted respondent to a conflict of interest. Upon researching her file, respondent
concluded that she could continue to represent the former wife, because all
information respondent obtained during the consultations would be revealed
through discovery. Thereafter, former husband’s counsel filed a motion to
disqualify respondent and set the matter for hearing. On the date of the hearing,
July 28, 2009, respondent filed a motion to withdraw that was granted, but she
retained as earned all consultation and retainer fees she had received from the
former wife.
In Hochman, the respondent attorney entered into a conditional guilty plea
for consent judgment admitting to violations of: Rule 4-1.5(a)(illegal, prohibited
or excessive fee); 4-1.9(a)(conflict of interest involving a former client); and 4-
1.18(a)(b) and (c)(duties owed to prospective clients). In addition to the
admonishment, Hochman was required to undergo at her expense a Law Office
48
Management Assistance, Inc. (LOMAS) evaluation, and to pay restitution of
$2,000.00 to her former client.
Unlike the instant case, the facts in Hochman are egregious. Hochman
virtually switched sides, tried to rationalize a true conflict of interest, and then
retained prohibited fees, until forced to pay restitution as a condition of resolving
the Bar proceeding. Mr. Carey did not switch sides; he properly investigated
whether a potential conflict was an actual conflict after evaluating evidence that his
client might be an adverse, material witness in an unrelated matter. In addition,
Mr. Carey promptly withdrew upon receiving evidence that Ms. Sommers may
become an adverse witness and he waived all fees and costs.
Based on the foregoing cases, the Bar cannot show that a diversion falls
outside the range of existing case law. Rather than providing a comprehensive
analysis of cases addressing conflict situations, the Bar merely requests imposition
of a 30 day suspension without even the opportunity for Mr. Carey to present
extraordinary mitigating evidence and to argue the appropriate sanction to the
referee. The Bar’s limited analysis does not give appropriate consideration to the
standard of review.
49
CONCLUSION
The Referee’s finding of not guilty and diversion to a Bar practice and
professionalism enhancement program is supported by substantial credible record
evidence and existing applicable law. Accordingly, Mr. Carey requests that this
Court issue an order approving the Report of Referee in its entirety. In the event
that this Court should find Mr. Carey guilty of any violation, however, a diversion
is nevertheless the appropriate disposition to serve the goals of lawyer regulation in
this case. In the alternative, should this Court determine that a sanction is
warranted, Mr. Carey asks that the case be remanded to the Referee to conduct a
sanctions hearing so that Mr. Carey would have a meaningful opportunity to
present significant evidence in mitigation to be considered in determining the
severity of any sanction to be imposed.
Respectfully submitted,
____________________________________ SCOTT K. TOZIAN, ESQUIRE Florida Bar No. 253510 DEBRA JOYCE DAVIS, ESQUIRE Florida Bar No. 93556 SMITH, TOZIAN & HINKLE, P.A. 109 North Brush Street, Suite 200 Tampa, Florida 33602 813-273-0063 Attorneys for Respondent
50
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that the original of the foregoing Respondent’s
Answer Brief has been furnished by FedEx overnight delivery and electronic
submission via [email protected] to the Honorable Thomas D. Hall, Clerk,
Supreme Court of Florida, 500 South Duval Street, Tallahassee, Florida 32399-
2300; and true and correct copies have been furnished by U.S. Mail to Troy
Matthew Lovell, Esquire, Bar Counsel, The Florida Bar, 4200 George J. Bean
Parkway, Suite 2580, Tampa, Florida 33607, and to Staff Counsel, The Florida
Bar, 651 East Jefferson Street, Tallahassee, Florida 32399-2300, this 16th day of
May 2011.
____________________________________ SCOTT K. TOZIAN, ESQUIRE
CERTIFICATION OF FONT SIZE AND STYLE
The undersigned counsel does hereby certify that this brief is submitted in
14 point proportionally spaced Times New Roman font.
____________________________________ SCOTT K. TOZIAN, ESQUIRE