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October 1, 2012
Court suspends lawyers for misuse of client files

Two attorneys have been suspended by the Supreme Court for obtaining and copying law firm client files when they were leaving that firm and setting up their own practice.

Overturning a referee’s findings, the court agreed with the Bar that the attorneys’ misuse of the files constituted a criminal theft that violated three provisions of Bar Rule 4-8.4. The two attorneys also briefly used a third attorney’s name on their letterhead when that attorney, despite some preliminary discussions, did not join the firm.

The referee had recommended an admonishment for the lawyers for the improper use of the third attorney’s name and because the lawyers either briefly took and copied files or maintained control over some files after leaving the firm. The referee also found the pair contacted clients that they had represented at their soon-to-be former employer about the new firm they were forming.

The court, however, went further and said those actions with the files amounted to criminal theft and violated Bar rules prohibiting the commission of a criminal act (Rule 4-8.4(b)), barring conduct involving dishonesty, fraud, deceit, or misrepresentation (Rule 4-8.4(c)), and was conduct prejudicial to the administration of justice (Rule 4-8.4(d)).

Rule 4-8.4(d) applied, the court said, “because respondents’ misconduct in this case occurred in their capacities as associate attorneys of [their former firm], it was sufficiently ‘in connection with the practice of law’ to be covered by this rule.”

The referee had acquitted the attorneys on the Rule 4-8.4 issues.

The court ordered a 91-day suspension for the attorney who took and copied client files of the original firm for his own use and a 60-day suspension for the attorney who maintained control of a few files for several days after leaving the original firm.

The court said the more severe sanctions were justified by the violations of Rule 4-8.4.

“Standards for Imposing Lawyer Sanctions 5.12 and 7.2 provide, respectively, that suspension is appropriate ‘when a lawyer knowingly engages in criminal conduct . . . that seriously adversely reflects on the lawyer’s fitness to practice law’ or ‘when a lawyer knowingly engages in conduct that is a violation of a duty owed as a professional and causes injury or potential injury to a client, the public, or the legal system.’” (Quoting Florida Bar v. Shankman, 908 So. 2d 379 (Fla. 2005).)

Chief Justice Ricky Polston and Justices Barbara Pariente, Peggy Quince, Jorge Labarga, James Perry concurred in the per curiam opinion, while Justice Charles Canady concurred in the result only.

The court acted on September 6 in case nos. SC10-1332 and SC10-1333.

[Revised: 09-16-2014]