IN THE SUPREME COURT OF FLORIDA. Complainant, SC Case No. SC

Transcription

1 THE FLORIDA BAR, IN THE SUPREME COURT OF FLORIDA v. Complainant, SC Case No. SC TFB File No ,671(03) RONALD HARDY PEACOCK, Respondent. / ANSWER BRIEF Clifford L. Adams Counsel for Respondent 6188 SW 79 th Drive Jasper, FL Florida Bar No

2 TABLE OF CONTENTS TABLE OF CONTENTS... 2 TABLE OF CITATIONS... 3 PRELIMINARY STATEMENT... 4 STATEMENT OF THE CASE... 5 STATEMENT OF THE FACTS... 6 SUMMARY OF ARGUMENT... 7 SHOULD AN ATTORNEY FOUND GUILTY OF INCOMPETENCE BE ALLOWED TO PRACTICE LAW WITHOUT A SHOWING OF REHABILITATION?... 8 MUST THE PRESENT DISCIPLINE INVOLVE THE SAME TYPE OF MISCONDUCT AS PRIOR DISCIPLINES IN ORDER TO SUSPEND A LAWYER?... 9 THE RECOMMENDED DISCIPLINE DOES NOT COMPORT WITH EXISTING CASE LAW OR THE FLORIDA STANDARDS FOR IMPOSING LAWYER SANCTIONS CONCLUSION CERTIFICATE OF SERVICE CERTIFICATE OF TYPE, SIZE AND STYLE AND ANTI-VIRUS SCAN... 14

3 TABLE OF CITATIONS Rules of the Florida Bar Rule (Competence) 5 Rule (Diligence) 5 Rule 4-1.4(a) (Informing Client of Status of Representation) 5 Rule 4-1.4(b) (Duty to Explain Matters to Clients) 5 Florida Cases The Florida Bar v. Morrison, 669 So.2d 1040 (Fla. 1996) 10, 11 The Florida Bar v. Witt, 626 So.2d 1358 (Fla. 1993) 10, 11, 12

4 PRELIMINARY STATEMENT Complainant will be referred to as The Florida Bar, or as the Bar. Ronald Hardy Peacock, Respondent, will be referred to as Respondent. References to the Report of Referee shall be by the symbol RR followed by the appropriate page number.

5 STATEMENT OF THE CASE The Florida Bar filed its complaint on September 21, The Referee was appointed and a hearing scheduled and held on February 11, The Referee found Respondent guilty of violating: Rule (Competence), Rule (Diligence), Rule 4-1.4(a) (Informing Client of Status of Representation), and Rule 4-1.4(b) (Duty to Explain Matters to Clients) The penalty phase of the final hearing was held on March 7, 2008.

6 STATEMENT OF THE FACTS In November 2004, Mr. Robert Sprague hired Respondent to represent him in a wrongful death action regarding the treatment of Mr. Sprague s mother and her death. A standard contingency fee agreement was executed. The case was eventually dismissed for failure to prosecute. Respondent appeared (telephonically) at that hearing and told the judge that delays were at least in part attributable to discussions with Defendant s counsel regarding setting depositions or other discovery. Respondent testified that he viewed his role as a limited one, confined to these two specific tasks; and that the client was responsible for continued prosecution of this action. The Referee found Respondent had not withdrawn in writing and was in fact continuing in his representative capacity, and not in a limited capacity. Respondent also testified that due to present health problems related to a cancer diagnosis, he did not expect to return to full-time practice.

7 SUMMARY OF ARGUMENT The Referee s recommended discipline is appropriate given the findings in this case.

8 ISSUE I SHOULD AN ATTORNEY FOUND GUILTY OF INCOMPETENCE BE ALLOWED TO PRACTICE LAW WITHOUT A SHOWING OF REHABILITATION? The Referee recommends that Respondent be publicly reprimanded and required to take additional continuing legal education courses and not handle any wrongful death cases or medical malpractice cases. The Bar feels that the Referee s recommendation is inadequate as it does not contain any language specifying the prerequisites for lifting that restriction. Respondent has not protested this apparently permanent restriction on handling wrongful death and medical malpractice cases. That is because as the Respondent testified at the penalty hearing, even if his metastatic cancer goes into remission, he does not foresee returning to full-time practice. He does not foresee handling any future jury trials, or wrongful death cases. As he described (RR 153) he might handle (given a favorable health exam), only debt collection cases, bankruptcy filings, uncontested dissolutions, etc.

9 ISSUE II MUST THE PRESENT DISCIPLINE INVOLVE THE SAME TYPE OF MISCONDUCT AS PRIOR DISCIPLINES IN ORDER TO SUSPEND A LAWYER? Here, The Florida Bar has misinterpreted the Referee s recommendation. It is true that the Referee observed, Suspension is appropriate when a lawyer has been publically 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. The Bar was arguing that the misconduct in the present case was similar to conduct in a previous discipline case, some 15 years ago. The Referee found it was not. But the Referee did not rule that conduct which is the same or similar to that involved in a prior disciplinary matter, is a necessary prerequisite to imposing the sanction of suspension. Respondent would agree that it is not a necessary prerequisite; e.g. suspension can be imposed in an appropriate case, even if there has been no prior disciplinary history.

10 ISSUE III THE RECOMMENDED DISCIPLINE DOES NOT COMPORT WITH EXISTING CASE LAW OR THE FLORIDA STANDARDS FOR IMPOSING LAWYER SANCTIONS. The Referee s recommended discipline is appropriate. The Referee gave a detailed outline of the facts and grounds as to why the discipline was appropriate. RR The Referee specifically found that the present misconduct was not related to the disciplinary incident ca. 1993; and that contrary to the Bar s argument, there had been little or insignificant harm to Mr. Sprague. The Bar asserts (in its conclusion at the end of its initial brief),... that this Court should adopt the findings of fact and recommendations as to guilt as found by the Report of Referee. If the Referee s findings of fact are correct, then her detailed recommendations regarding sanctions, should stand as appropriate to the facts of the case. The Florida Bar has cited two cases in support of its argument: The Florida Bar v. Morrison, 669 So.2d 1040 (Fla. 1996) and The Florida Bar v. Witt, 626 So.2d 1358 (Fla. 1993). Both of those cases involved neglect of legal matters involving

11 multiple clients of each attorney, and which did result in significant damage or injury to each client. Those facts are simply not present in the instant case. The Florida Bar has cited the Witt case, supra, in support of hits request for a 91 day suspension. Like Morrison, Witt s 91 day suspension was also the result of misrepresentation of several clients. In the first, Witt failed to prosecute a worker s compensation case and a personal injury case. After the client threatened a Bar complaint, Witt took some action including the filing of a case. The lawyer respondent also failed to prosecute five (5) appeals to the First District Court of Appeal. Two appeals were dismissed for failure to respond to an order to show cause or file a brief. In two other appeals, Witt responded by moving to dismiss the appeal, but the DCA rejected the motions and ordered the briefs filed (in one of those two cases, the DCA ultimately reversed). In both Morrison and Witt, there were many clients and clear injury to those clients. The instant case doesn t involve negligence of two civil actions for damages. It does not involve negligence in five separate cases on appeal at the DCA. In an order from the 1 st DCA reprimanding Witt for failure to timely file briefs or respond to the order to show cause, the court outlined his prior history of inaction

12 and stated that [t]his pattern of practice shows a disregard for the rights of Mr. Witt s clients and for the rules and orders of this court. Mr. Witt s discipline was also based at least in part, upon his prior disciplinary history of failing to properly represent his clients. In the instant case, Respondent is not accused of any pattern of practice showing a disregard for the rights of clients. Respondent s grievance involved only one case involving somewhat unusual facts. The 91 day suspension in Witt, involved multiple civil actions on behalf of a client, and multiple appeals. It also involved a prior disciplinary history of inaction or otherwise neglecting the representation of his clients. Mr. Witt s 91 day suspension involved at least seven actions and six clients. Respondent Ronald Peacock s case involves only one action (under peculiar and unusual circumstances) and it does not involve any prior disciplinary history of previously neglecting the affairs of his clients and injury to them.

13 CONCLUSION The Respondent respectfully requests that this Court adopt the findings of fact and recommendations of guilt as found by the Report of the Referee, as well as the recommended sanction(s) as appropriate and adequate in light of the facts determined by the Referee.

14 CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing Answer Brief regarding Supreme Court Case No. SC , TFB File No ,671(03), has been mailed by certified mail # , return receipt requested, to James A. G. Davey, Jr., Bar Counsel, The Florida Bar, 651 E. Jefferson Street, Tallahassee, FL on this 30th day of June, CERTIFICATE OF TYPE, SIZE AND STYLE AND ANTI-VIRUS SCAN Undersigned does hereby certify that the Answer 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 AVG. /s/ Clifford L. Adams Clifford L. Adams Attorney for Respondent 6188 SW 79 th Drive Jasper, FL (850) Florida Bar No