IN THE SUPREME COURT OF FLORIDA INITIAL BRIEF

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1 IN THE SUPREME COURT OF FLORIDA THE FLORIDA BAR, v. Complainant, RONALD HARDY PEACOCK, SC Case No. SC TFB File No ,671(03) Respondent. / INITIAL BRIEF James A.G. Davey, Jr., Bar Counsel The Florida Bar 651 E. Jefferson Street Tallahassee, FL (850) Florida Bar No Kenneth Lawrence Marvin, Staff Counsel The Florida Bar 651 E. Jefferson Street Tallahassee, Florida (850) Florida Bar No John F. Harkness, Jr., Executive Director The Florida Bar 651 E. Jefferson Street Tallahassee, Florida (850) Florida Bar No

2 TABLE OF CONTENTS TABLE OF CONTENTS... ii TABLE OF CITATIONS... iii PRELIMINARY STATEMENT... 1 STATEMENT OF THE CASE... 2 STATEMENT OF THE FACTS... 3 SUMMARY OF ARGUMENT... 5 ARGUMENT... 6 ISSUE I... 7 SHOULD AN ATTORNEY FOUND GUILTY OF INCOMPETENCE BE ALLOWED TO PRACTICE LAW WITHOUT A SHOWING OF REHABILITATION... 7 ISSUE II... 9 MUST THE PRESENT DISCIPLINE INVOLVE THE SAME TYPE OF MISCONDUCT AS PRIOR DISCIPLINES IN ORDER TO SUSPEND A LAWYER... 9 ISSUE III...11 THE RECOMMENDED DISCIPLINE DOES NOT COMPORT WITH EXISTING CASE LAW OR THE FLORIDA STANDARDS FOR IMPOSING LAWYER SANCTIONS...11 CONCLUSION CERTIFICATE OF SERVICE CERTIFICATE OF TYPE, SIZE AND STYLE AND ANTI-VIRUS SCAN ii

3 TABLE OF CITATIONS Page No. Cases The Florida Bar v. Lecznar, 690 So.2d 1284, 1288 (Fla. 1997)... 6 The Florida Bar v. Morrison, 669 So.2d 1040 (Fla. 1996)...11 The Florida Bar v. Titone, 522 So.2d 822 (1988)...12 The Florida Bar v. Vining, 707 So.2d 670, 672 (Fla. 1998)... 6 The Florida Bar v. Vining, 761 So.2d 1044 (Fla. 2000)...10 The Florida Bar v. Wilder, 543 So.2d 222 (Fla. 1989)...11 The Florida Bar v. Witt, 626 So.2d 1358 (Fla. 1993)...12 Vining at Rules Regulating The Florida Bar (a) (b)... 2 Florida Standards for Imposing Lawyer Sanctions 4.42(a) (b) iii

4 PRELIMINARY STATEMENT The Complainant, The Florida Bar, is seeking review of a Report of Referee recommending a public reprimand. Complainant will be referred to as The Florida Bar, or as the Bar. Ronald Hardy Peacock, Respondent, will be referred to as Respondent, or as Mr. Peacock throughout this brief. References to the Report of Referee shall be by the symbol RR followed by the appropriate page number. 1

5 STATEMENT OF THE CASE On September 21, 2007, The Florida Bar filed its Complaint against Respondent. The Referee was appointed on October 2, 2007, and a Telephonic Case Management Conference was held on November 29, 2007, at which the date for the final hearing was set for February 11, The guilt phase of the final hearing was held on February 11, The Referee found that Respondent is guilty of violating the following rules: (Competence), (Diligence), 4-1.4(a) (Informing Client of Status of Representation), and 4-1.4(b) (Duty to Explain Matters to Clients) of the Rules Regulating The Florida Bar. The penalty phase of the final hearing was held on March 7,

6 STATEMENT OF THE FACTS On November 4, 2004, Robert Sprague hired Respondent to represent him in a wrongful death action regarding the treatment of Mr. Sprague s mother and her subsequent death in a nursing home in Jacksonville, Florida. (RR, 4) Respondent and Mr. Sprague signed a contingency fee agreement on November 8, 2004, and Respondent, on that same day, filed a petition for automatic extension of the statute of limitations in circuit court. (RR, 4) Respondent thereafter determined that the case should not be pursued. On February 2, 2005, Respondent filed a complaint in circuit court in Duval County for nursing home negligence. It was signed by Mr. Sprague as well as Respondent. Respondent therefore became the attorney of record in Case No. 05-CA-1076 CDC of the Fourth Circuit. Respondent testified that it was filed only to toll the statute of limitations and that he did not intend to reestablish an attorney-client relationship, but the facts belie that statement. Respondent drafted an amended complaint. The case was eventually dismissed for Respondent s failure to prosecute. When Respondent received the motion to dismiss and the notice of hearing on that motion, he did not inform Mr. Sprague of either the motion or the notice of hearing. Respondent did appear at the hearing 3

7 telephonically and told the judge that he had intended to engage in discovery. Respondent has denied that he represented Mr. Sprague. (RR, 4-5) 4

8 SUMMARY OF ARGUMENT The Referee s recommended discipline falls short of the discipline warranted by Respondent s misconduct in light of (1) prior decisions of the Florida Supreme Court, and (2) the Florida Standards for Imposing Lawyer Sanctions. 5

9 ARGUMENT While the Referee s fact findings are presumptively correct and should not be overturned unless clearly erroneous or lacking evidentiary support, The Florida Bar v. Vining, 707 So.2d 670, 672 (Fla. 1998), the Referee s recommended discipline is afforded a broader scope of review. This Court has stated, however, that a recommended discipline will not be second-guessed so long as that discipline has a reasonable basis in existing case law. Vining at 673 (quoting The Florida Bar v. Lecznar, 690 So.2d 1284, 1288 (Fla. 1997). The Florida Bar intends to show that the recommended discipline in this case is not supported by existing case law, nor by the Florida Standards for Imposing Lawyer Sanctions. 6

10 ISSUE I SHOULD AN ATTORNEY FOUND GUILTY OF INCOMPETENCE BE ALLOWED TO PRACTICE LAW WITHOUT A SHOWING OF REHABILITATION The Referee found that Respondent did not possess the legal knowledge, skill, thoroughness, or preparation necessary for representation in this case. (RR, 5) Respondent s belief that he was not Mr. Sprague s lawyer was a complete misunderstanding or ignorance of the Rules Regulating The Florida Bar. (RR, 5) The Referee further found that Respondent failed to recognized that he had a duty to withdraw from the case if he was not going to pursue it. And, the Referee found that the gravamen of this case is that such an experienced attorney could think that his client was acting pro se after signing the complaint and other court documents. (RR, 6) The Referee recommends that Respondent be publicly reprimanded, that he be required to take additional continuing legal education courses in ethics, that he not handle any wrongful death cases or personal injury cases, and that he pay the costs of these proceedings. The Florida Bar submits that such discipline would be totally inadequate to ensure that the public is protected from this type of incompetence. The Referee s 7

11 solution is to require that he take additional continuing legal education courses in ethics and that he not handle personal injury or wrongful death cases. (RR, 7) The Referee does not mention how many hours of continuing legal education courses, nor the specific subject matter. There is no recommendation concerning how a limitation on the types of cases Respondent handles is to be administered and enforced. The Florida Bar believes that the incompetence extends to all types of cases because it is based upon a total lack of understanding of his duties under the lawyerclient relationship. Until he can demonstrate such understanding, he is a danger to the public. He must show rehabilitation. Therefore, at minimum, a 91-day suspension is required. 8

12 ISSUE II MUST THE PRESENT DISCIPLINE INVOLVE THE SAME TYPE OF MISCONDUCT AS PRIOR DISCIPLINES IN ORDER TO SUSPEND A LAWYER Respondent has prior discipline. In Supreme Court Case No. SC83087, TFB File Nos and , Respondent was awarded a 60-day suspension for (1) making a false oath and intentionally failing to fully disclose his finances in his own bankruptcy case (TFB File No ) and (2) lying to a judge concerning the whereabouts of his witnesses (TFB File No ). While remote in time, those matters are extremely egregious. The Referee rejected the Bar s recommendation of suspension because Suspension is appropriate when a lawyer has been publicly reprimanded for the same or similar conduct, and engages in a further similar act of misconduct that cause injury or potential injury to the public, the legal system, or the profession, and I don t believe that s applicable here. That is a misinterpretation of the law and is error. There is no requirement that there even be prior discipline in order to impose suspension. And there is no requirement that a public reprimand be given first. 9

13 The Referee found that this is isolated misconduct. It is not. Respondent is not new to the discipline system. It is true that cumulative misconduct of a similar nature warrants an even more severe discipline than might dissimilar conduct. The Florida Bar v. Vining, 761 So.2d 1044 (Fla. 2000). However, the similarity of conduct is not required for very severe discipline to be imposed. The prior discipline, even if it is dissimilar misconduct, may warrant suspension in the later case. Discipline should ordinarily increase in severity with each subsequent case. Recidivism should be discouraged. In light of the prior discipline, the Referee s recommended discipline would send the wrong message to lawyers and the public. The Referee found that there was very little harm, if any, to Mr. Sprague because the recoverable damages were insignificant. The Florida Bar submits that there was harm in that (1) Mr. Sprague lost his legal rights because of Respondent s lack of diligence, and (2) Respondent believed that the case should not be pursued, yet caused a frivolous suit to clog the court system. There was potential injury to Mr. Sprague because he could have had to pay attorney fees and costs. 10

14 ISSUE III THE RECOMMENDED DISCIPLINE DOES NOT COMPORT WITH EXISTING CASE LAW OR THE FLORIDA STANDARDS FOR IMPOSING LAWYER SANCTIONS A. Case Law The prior decisions of this Court indicate that suspension is the appropriate discipline in this case. In The Florida Bar v. Morrison, 669 So.2d 1040 (Fla. 1996), a lawyer received a 1-year suspension and was required to pass the ethics portion of the Bar examination for failing to act with reasonable diligence and promptness, failing to keep his client reasonably informed and promptly comply with requests for information, and failure to respond in writing to an inquiry by the Bar. Respondent s actions caused the case to be dismissed for failure to prosecute. There was prior discipline for similar conduct. In The Florida Bar v. Wilder, 543 So.2d 222 (Fla. 1989), a lawyer received a 180-day suspension for neglect of a legal matter, misrepresentations to the client regarding the status of the matter, and permitting the case to be dismissed with prejudice without informing the client. 11

15 In The Florida Bar v. Witt, 626 So.2d 1358 (Fla. 1993), a lawyer received a 91-day suspension and was required to pass the ethics portion of the Bar examination for a continuing pattern of inaction in a client matter. The Florida Bar was able to find only one case on similar rule violations in which a public reprimand was imposed. In The Florida Bar v. Titone, 522 So.2d 822 (1988), a lawyer filed a conditional guilty plea for neglecting legal matters entrusted to him. A public reprimand and three years supervised probation was imposed. There was no prior discipline. B. Florida Standards for Imposing Lawyer Sanctions The following standards are applicable: 4.42(a) 4.42(b) Suspension is appropriate when a lawyer knowingly fails to perform services for a client and causes injury or potential injury to a client. Suspension is appropriate when a lawyer engages in a pattern of neglect and causes injury or potential injury to a client Suspension is appropriate when a lawyer engages in an area of practice in which the lawyer knowingly lacks competence, and causes injury or potential injury to a client. 12

16 CONCLUSION The Florida Bar respectfully requests that this Court adopt the findings of fact and recommendations of guilt as found by the Report of Referee, but impose a 91-day suspension as the appropriate sanction rather than a public reprimand. 13

17 CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing Initial Brief regarding Supreme Court Case No. SC , TFB File No ,671(03), has been mailed by certified mail # , return receipt requested, to Ronald Hardy Peacock, Respondent, c/o Clifford Leroy Adams, Counsel for Respondent, whose record Bar address is 6188 SW 79th Drive, Jasper, Florida , on this 15th day of May, Copy provided to: Kenneth Lawrence Marvin, Staff Counsel James A.G. Davey, Jr., Bar Counsel The Florida Bar 651 E. Jefferson Street Tallahassee, FL (850) Florida Bar No

18 CERTIFICATE OF TYPE, SIZE AND STYLE AND ANTI-VIRUS SCAN Undersigned counsel does hereby certify that the Initial Brief is submitted in 14 point proportionately spaced Times New Roman font, and that the brief has been filed by in accord with the Court s order of October 1, Undersigned counsel does hereby further certify that the electronically filed version of this brief has been scanned and found to be free of viruses, by Symantec AntiVirus. James A.G. Davey, Jr., Bar Counsel 15

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