In two opinions released January 27, the Florida Supreme Court has reaffirmed a Bar policy that disbarment is the presumed sanction for deliberately stealing from clients, even when the lawyers have otherwise had exemplary careers.

The court acted in cases from the Sixth and Second circuits. In both cases, the referees had recommended a 90-day suspension, and the Board of Governors appealed and sought disbarment.

(It is Bar News policy not to name the lawyers when writing about these cases, although both will be identified when the court's rulings are reported, along with other disciplinary cases, in the Disciplinary Actions column in a future edition.)

The court released a six-page opinion in the Second Circuit case, and a 14-page opinion in the Sixth Circuit case. Case nos. SC92873 and SC93559.

"It is indeed a sad day when an attorney having so many virtues important to the honor of the legal profession falls victim to the vice of avarice," the court said in the Sixth Circuit case. "However, neither praise of past glory and good deeds, nor mere disappointment with the frailties of humanity can substitute for our duty to properly protect the citizens of Florida. There is certainly a lesson for all lawyers to learn from these most unfortunate of circumstances: Always honor and never betray the oath that grants one the privilege to be a Florida lawyer, no matter how much or how little money may entice."

"The court has clearly echoed the sentiment of the Board of Governors on the expectation for lawyers on the trust accounting issues. But they said it much more eloquently than the Board of Governors did," said board member Hank Coxe, co-chair of the Disciplinary Review Committee, which reviewed both cases and recommended that the board appeal and seek disbarment.

He added, "My prediction is that decision and the language it [the Sixth Circuit case] closes with what will become the most cited case on trust accounting issues in the United States within the next several years. I have a feeling that courts around the country are going to say, 'It could not have been said better.'"

"The court agreed with the board as to how important one of our core values is, the lawyer's duty of loyalty to the client," said Carol Brewer, the other DRC co-chair. "The court has said, essentially, violation of one of the core values that a lawyer has will disqualify a lawyer from practicing. These core values are something that differentiate lawyers from other professions, including the duty of loyalty.

"It's guidance for the DRC. We think we've been heading in the right direction, and the court agrees with us," she added.

The Second Circuit case involved a 28-year member of the Bar, whose audited trust account showed had paid himself $35,850 without his clients' knowledge in 1996 and 1997. He also admitted his account would have been short another $1,500 for 1998. The checks were written for his personal use and one was written to pay for his daughter's trip to Costa Rica.

The attorney had shared the account with a colleague who owed him money for utilities and on loans, and the checks were written in anticipation of that income.

The records showed the attorney had an income of about $150,000 in 1998, including lottery winnings, winning a car and from his practice, yet he made no attempt to repay the trust account shortages. The money in the trust account was owed to creditors of his clients and in some cases was left over after he had negotiated a reduction in debt for his clients. The attorney did not tell the clients they had money coming back.

He also, at the time of the disciplinary proceedings, had not made any attempt to pay back the missing money.

The referee entered a summary judgment of guilt and held a hearing on what punishment should be imposed. Three circuit judges and several local attorneys testified on the lawyer's exemplary record and history of service to the community, and a psychiatrist testified the lawyer had been depressed at the time of the trust thefts.

Aggravating factors found by the referee were the attorney knew what he was doing was wrong, that he had failed to make restitution, and he had exposed his clients to risk. Mitigating factors included his personal problems, his otherwise exemplary career with no disciplinary problems, his cooperation with the investigation and a long history of serving indigent clients and helping establish legal aid.

The recommended 90-day suspension would have allowed the lawyer to automatically resume the practice of law after the suspension. Suspensions of 91 days or longer require proof of rehabilitation, a background investigation and other hurdles before reinstatement.

The court rejected as inappropriate two cases cited where lawyers had been suspended for 90 days for trust account violations. Those cases involved technical violations and an instance where the lawyer used his trust account to hide money from the IRS. In an instance where a client's check had been deposited into the operating account instead of the trust account, no harm to the client resulted, the court noted. The Second Circuit attorney engaged in a pattern of misconduct over a substantial period, the justices noted.

The attorney's good history was also insufficient to offset the seriousness of the infractions, the court said. "An attorney does not perform such good works so that they can be used as a credit against such severe misconduct," the opinion said. "The public has a right to have confidence that all lawyers who are members of The Florida Bar are deserving of their trust in every transaction."

The court found disbarment was the proper penalty, and ordered the attorney to pay the Bar $2,794.58 in costs.

In the Sixth Circuit case, the attorney acted as executor in the settling of his uncle's estate, to which he was also a beneficiary. The attorney filed false accountings to cover up that he had converted $123,750 to his own use, paid himself $7,611 in legal fees, paid himself $4,750 more than other beneficiaries and paid his son $7,000 more than other beneficiaries. The attorney stipulated in the grievance case that he had removed the money and to minor trust account violations.

The attorney testified the extra payment was made to his son because his son threatened to tell the Bar about the mishandling of the estate.

Friends of the attorney raised money and reached a settlement with the estate over the missing money. The attorney also pleaded guilty to grand theft and received a two-year suspended sentence.

The referee cited several mitigating conditions, including that the attorney was experiencing personal and health problems, taking medication that could affect his judgment, showed remorse, and had taken steps to repay the estate.

The court, however, wrote that in cases where it imposed less than disbarment for trust account violations that violations were usually technical and that clients had not been harmed. In this case, the justices wrote, the estate beneficiaries had been denied use of proceeds for 10 years and the lawyer filed false papers to cover his theft.

The opinion also noted that in past opinions the court has held that fiscal and personal problems do not mitigate such theft, and that physical and mental problems are not accepted as a complete defense.

"[W]e are faced with a situation in which an attorney with an exemplary career has intentionally and wrongfully misappropriated money from clients and diverted it for his personal use or for the benefit of his family," the court said. "Further, this attorney affirmatively filed a false accounting with the beneficiaries of his uncle's estate and paid his son so that he would not be reported to the Bar. The latter actions clearly indicate that the attorney was well aware of the wrongfulness of his conduct.

"Prior commendable acts cannot exonerate an attorney from the discipline that must be imposed for intentional, egregious ethics violations, such as those which have occurred in the instant cases. Therefore, despite [the lawyer's] attempted reliance upon remorse, financial and familial difficulties, health problems, good reputation, and restitution to the beneficiaries, we conclude that disbarment is the discipline that must be imposed."

The attorney was ordered to pay $3,989.24 in costs to the Bar.