IN THE SUPREME COURT OF FLORIDA (Before a Referee)

Transcription

1 IN THE SUPREME COURT OF FLORIDA (Before a Referee) THE FLORIDA BAR, v. Complainant, CASE NO. SC TFB NO ,083 (6B) MICHAEL ALEX WASYLIK, Respondent. / REPORT OF REFEREE I. Summary of Proceedings: The undersigned was duly appointed as referee to conduct disciplinary proceedings herein according to the Rules Regulating The Florida Bar. The pleadings, notices, motions, orders, transcripts, and exhibits are forwarded to The Supreme Court of Florida with this report and constitute the record in this case. The following attorneys appeared as counsel for the parties: For The Florida Bar: Jodi Anderson Thompson For the Respondent: Scott Kevork Tozian, Esquire II. Findings of Fact as to Each Item of Misconduct With Which the Respondent Is Charged: After considering all the pleadings and evidence before me, pertinent portions of which are commented on below, I find pursuant to the Conditional Guilty Plea for Consent Judgment that the facts of the consent judgment are admitted. I adopt the facts as set forth in the Conditional Guilty Plea for Consent Judgment as follows: George and Alice Morrow were pro se plaintiffs in a county court suit in Citrus County. The defendant had prevailed and sought an award of attorney s fees and costs pursuant to a proposal for settlement. On September 26, 2005, the trial court entered a Final Judgment in the amount of $12, against the Morrows. The Morrows filed a motion for new trial or rehearing which was stricken. Then they filed a second motion for new trial or rehearing in which they alleged that the defendant s proposal of settlement was defective on multiple grounds including Rule 1.442(c)(3), Florida Rules of Civil

2 Procedure, because it failed to state the settlement amount and terms attributable to each party named in the proposal. The trial court denied the motion and entered a Second Amended Final Judgment against them. The Morrows were confident their position was correct regarding the proposal for settlement. As a result, on or about January 16, 2006, the Morrows consulted with Respondent and signed a representation agreement for Post trial relief, including Mot. for Rehearing & Appeal. The Morrows agreed to pay Respondent a retainer of $2,000 and attorney s fees at $200 per hour. The Morrows specifically requested that Respondent include Rule 1.442(c) (3), Florida Rules of Civil Procedure, as a basis for relief and provided him with the case law to support their position. On February 3, 2006, Respondent filed Plaintiffs Motion to Set Aside the Second Amended Final Judgment and For New Trial. Respondent decided not to include Rule 1.442(c)(3) as a basis for relief in the motion. The trial court denied the Motion to Set Aside the Second Amended Final Judgment and For New Trial. The Morrows wanted to appeal the court s ruling on multiple grounds including that the defendant s proposal of settlement failed to comply with Rule 1.442(c)(3). The Morrows allege Respondent advised them he would include a demand for an award of attorney s fees in the appeal. Respondent disputes this allegation. On February 23, 2006, Respondent filed a Notice of Appeal. On April 5, 2006, the Morrows posted a supersedeas bond in the amount of $14, with the Clerk of the Court in Citrus County as a condition of filing the appeal. On May 12, 2006, Respondent filed the initial brief seeking, inter alia, a reversal of the trial court s ruling that defendant was entitled to attorney s fees and costs and seeking a new trial. The Morrows allege Respondent failed to request an award of attorney s fees and costs if they prevailed. Respondent, however, denies there was a basis to demand attorney s fees and costs. On June 26, 2006, Respondent issued a statement to the Morrows reflecting a balance of $4, The Morrows made partial payments to Respondent toward their balance. On September 11, 2006, the Fifth Judicial Circuit Court issued an opinion ruling in the Morrows favor as to the attorney s fee award. On September 12, 2006, Respondent issued a statement to the Morrows reflecting a balance due of $3, Respondent apparently had not learned of the court s ruling and wrote I hope to hear from the court in 2-3 months. Thereafter, Respondent failed to monitor the court for a ruling or notify the Morrows of same. 2

3 On February 16, 2007, the Morrows called the Clerk of the Court and discovered that the Fifth Judicial Circuit Court had reversed the trial court s award of attorney s fees based on Rule 1.442(c)(3), and that they had prevailed. From February 16 th to the 26 th, the Morrows attempted to contact Respondent, but Respondent failed to respond. On May 16, 2007, Respondent sent the Morrows a Statement for Services reflecting a balance due of $5, On July 30, 2007, Respondent filed a Third Amended Final Judgment on behalf of the Morrows. On August 17, 2007, the clerk issued check #93044 in the amount of $11, payable to George and Alice Morrow c/o Michael Alex Wasylik, Esq. as a refund of the balance of the supersedeas bond. Anticipating the refund of the bond, on August 20, 2007, Alice Morrow sent an to Respondent asking Respondent to call the Morrows upon receipt of the check from the clerk so they could pick it up. Respondent did not respond to Mrs. Morrow s . On August 21, 2007, Respondent deposited the check into his trust account at Wachovia Bank. On August 22, 2007, Respondent paid himself $5, for attorney s fees and costs from the bond proceeds and forwarded a check in the amount of $6, to the Morrows representing the balance. Respondent relied on language in the fee agreement which he believed gave him authority to collect his fees from the refund. Respondent did not discuss deducting his fees from the bond refund with the Morrows prior to taking such action. On August 23, 2007, Mrs. Morrow sent an to Respondent again inquiring about the status of the refund check. Respondent did not respond to this . Instead, the Morrows received Respondent s trust account check by mail but refused to negotiate it. The Morrows complained to Wachovia Bank about Respondent s endorsement of the check and Wachovia s improper negotiation of same. As part of a three-way settlement of the Morrows claims against Wachovia, on December 18, 2007, Wachovia sent the Morrows a check in the amount of $11, and Respondent refunded Wachovia the balance. Respondent then filed a suit against the Morrows for the outstanding balance of attorney s fees. The case is still pending in Citrus County against the Morrows. The Morrows allege Respondent never responded to their inquiries regarding his statement for services. The Morrows dispute the fees charged by Respondent and the application of payments to their outstanding balance. III. Recommendation as to Disciplinary Measures to Be Applied: a) Public Reprimand to be administered before the Board of Governors; 3

4 b) Respondent shall participate in fee arbitration with the Morrows if they file a claim to do so within twelve months of the Supreme Court s order approving the report of referee and they agree to sign a joint stipulation to dismiss the pending civil case with prejudice; c) Respondent agrees to attend Trust Accounting School; and d) Respondent shall pay the Bar s costs in prosecuting this matter. IV. Personal History and Past Disciplinary Record: After the finding of guilty and prior to recommending discipline to be recommended pursuant to Rule 3-7.6(m)(l), I considered the following personal history and prior disciplinary record of the respondent, to wit: Year of Birth: 1970 Date Admitted to Bar: 10/25/1995 Prior Disciplinary convictions and Disciplinary Measures Imposed Therein: None The referee notes that the Respondent is not certified in any area of practice. V. In support of the Conditional Guilty Plea for Consent Judgment, I considered the following Florida Standards for Imposing Lawyer Sanctions: 4.1 Failure to preserve the Client s Property 4.13 Public reprimand is appropriate when a lawyer is negligent in dealing with client property and causes injury or potential injury to a client. 7.0 Violation of Other Duties Owed as a Professional 7.3 Public reprimand is appropriate when a lawyer negligently 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 Aggravating Factors: (i) substantial experience in the practice of law 9.32 Mitigating Factors: (a) absence of prior disciplinary record 4

5 VI. Statement of Costs and Manner in Which Costs Should Be Taxed: I find the following costs were reasonably incurred by The Florida Bar: Administrative Costs Pursuant to Rule 3-7.6(q)(1)(I)...$1, Bar Counsel Costs Jodi A. Thompson...$ 6.40 Court Reporter Costs Judy G. Moukazis & Associates...$ Scribe Associates, Inc...$ Miscellaneous Costs Citrus County Clerk...$ TOTAL: $ 2, It is apparent that other costs have or may be incurred. It is recommended that all such costs and expenses together with the foregoing itemized costs be charged to the respondent, and that interest at the statutory rate shall accrue and be payable beginning 30 days after the judgment in this case becomes final unless a waiver is granted by the Board of Governors of The Florida Bar. Dated this day of April, Vivian T. Corvo, Referee Copies: Michael Alex Wasylik, Respondent, c/ o Scott K. Tozian, Counsel for Respondent, Smith, Tozian, and Hinkle, P.A., 109 N. Brush Street, Suite 200, Tampa, Florida Jodi Anderson Thompson, Bar Counsel, The Florida Bar, 4200 George J. Bean Parkway, Suite 2580, Tampa, Florida Kenneth Lawrence Marvin, Staff Counsel, The Florida Bar, 651 E. Jefferson Street, Tallahassee, Florida