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February 1, 2014
Misleading a grievance investigation will most likely get you suspended

A lawyer who misled a Bar grievance inquiry and filed an erroneous court document has received a 90-day suspension from the Supreme Court, although one justice argued a one-year suspension was warranted.

The attorney was hired to handle an estate, which included filing an estate tax return with the IRS in March 2005. Seven and 10 months after the deadline for filing the return, the IRS sent letters to the attorney saying the return had not been filed.

After the second notice, the attorney in December 2005 sent an unsigned return to the IRS, along with a letter stating the return was a duplicate. Based on that form, the IRS issued a refund to the client. Several months later, the court issued a notice that it would close the estate for lack of activity, and the attorney filed a reply that the estate tax return was under review or audit.

The client eventually hired an accountant to review the estate, and the accountant determined that the estate actually owed taxes to the government, and the client returned the earlier refund. The client also filed a grievance against the lawyer.

During the Bar’s investigation, the attorney “repeatedly” claimed he had filed an original return with the IRS before the “duplicate” and once indicated the “duplicate” was the third copy of the return provided to the IRS.

However, when the grievance case reached the referee stage, the client testified the unsigned “duplicate” was the first return he had sent to the IRS.

The referee concluded that the attorney had made knowingly false statements to the Bar during its investigation and further that the attorney’s submission of the “duplicate estate tax return” to the IRS “was dishonest and misleading and was designed to convey to the IRS that the estate tax return had been previously sent to the IRS.”

The referee also found the attorney misled the court when he filed for an extension by falsely saying the IRS was still reviewing the tax return and that he failed to adequately communicate with his client, including when the client terminated his representation.

The justices upheld the referee’s finding of guilt, but overturned the recommendation for a two-year probationary period, saying the Florida Standards for Imposing Lawyer Sanctions call for a suspension when a lawyer’s action damages a client, the public, or the legal system. The attorney met that standard “by submitting his misleading petition to the probate court, misleading the IRS with his December 2005 cover letter, and providing false statements to the Bar claiming that he filed the tax return in March 2005.”

The court said a longer suspension, which would have required a rehabilitative hearing before reinstatement, was not imposed because the attorney did admit his actions to the referee and otherwise has a discipline-free record in his 37 years as a Bar member. He is also required to take ethics and professional responsibility CLE courses.

Justice Charles Canady partially dissented from the per curiam opinion, saying he would have imposed a one-year suspension.

The attorney’s “misconduct was not ‘a single isolated incident in respondent’s 37- year history as a Florida lawyer.’ . . . [The attorney] engaged in a lengthy campaign of misrepresentations in an effort to cover up what likely began — but did not end — as an act of negligence in his representation of an estate,” Canady wrote.

“. . . Because truthfulness is so essential to the practice of law, [the attorney’s] pattern of misrepresentations warrants at least a one-year suspension and the special conditions recommended by the referee and approved by the majority.”

The court acted December 19 in case no. SC11-1029.

[Revised: 04-14-2014]