IN THE SUPREME COURT OF FLORIDA (Before a Referee)

THE FLORIDA BAR, IN THE SUPREME COURT OF FLORIDA (Before a Referee) v. Complainant, Case No. SC07-40 [TFB Case Nos. 2005-11,345(20B); 2006-10,662(20B); 2006-10,965(20B)] KENT ALAN JOHANSON, Respondent. / AMENDED REPORT OF REFEREE I. Summary of Proceedings: The undersigned was appointed as referee to conduct disciplinary proceedings herein according to the Rules Regulating The Florida Bar. The Pleadings, Notices, Motions, Orders, Transcripts and Exhibits, all of which are forwarded to The Supreme Court of Florida with this report, constitute the record in this case. On June 5, 2007, this referee filed a Report of Referee and the record with the Court. On June 12, 2007, the bar filed a Motion to Return Case to Referee for Entry of an Amended Report of Referee to Correct Scrivener s Error with respondent s consent. By order dated June 19, 2007, this Court granted the bar s motion, allowing this referee until and including July 19, 2007 to file an amended report of referee. The following attorneys appeared as counsel for the parties: For The Florida Bar - Kenneth H. P. Bryk For The Respondent - pro se II. Findings of Fact as to Each Item of Misconduct of Which the Respondent Is Charged: After considering all the pleadings and evidence, pertinent portions of which

are commented on below, this referee finds: 1. On March 1, 2007, this referee entered an order granting the bar s Motion for Default based upon respondent s failure to file an Answer to the Complaint or to participate in these proceedings as of that date. COUNT I [TFB Case No. 2005-11,345(20B)] 2. Respondent represented Swiss Sausage House, Inc. in an action brought by a salaried employee seeking compensation for overtime work. 3. In or around October 2003, after obtaining a judgment in favor of Swiss Sausage House, Inc., André Herrmann, the corporate representative, directed respondent to file a motion to recover the corporation s attorney s fees from the losing claimant in the amount of $15,000.00. 4. Thereafter, respondent failed to maintain adequate communication with either Mr. Herrmann or Louisa Mullin Herrmann, the other corporate representative. 5. On the few occasions when respondent communicated with the Herrmanns, he repeatedly told them that the motion for attorney s fees was filed and proceeding. These statements were untrue. 6. Respondent failed to file a motion for attorney s fees on behalf of Swiss Sausage House, Inc. 7. Respondent never advised Mr. Herrmann that he was unable to represent the corporation in the motion for attorney s fees. 8. In or about January 2004, Swiss Sausage House, Inc. hired respondent to pursue a claim against an insurance company for damages suffered after the company s truck was destroyed in an accident. 9. Respondent failed to handle the claim in a diligent manner and failed to maintain adequate communications with the Herrmanns. 10. In or around late 2004, Mr. Herrmann directed his corporate attorney to recover the two files from respondent so that Swiss Sausage House, Inc. could hire new counsel to pursue the cases. 11. Despite repeated assurances that the files and original documents would be provided to new counsel, respondent failed to do so. 12. On April 22, 2005, the Bar served respondent at his record bar address with the grievance against him involving Swiss Sausage House, Inc. and directed respondent to provide a written response to Ms. Herrmann and the Bar within 15 days. 2

13. Respondent failed to respond to the Bar s investigative inquiry. 14. On May 13, 2005, the Bar served respondent at his record bar address, by certified mail, return receipt requested, with the grievance against him involving Swiss Sausage House, Inc. and directed respondent to provide a written response to Ms. Herrmann and the Bar within 7 days. 15. Respondent signed the return receipt card on May 16, 2005. 16. Respondent failed to respond to the Bar s investigative inquiry. COUNT II [TFB Case No. 2006-10,662(20B)] 17. In or around 2000, David and Karen Tutch hired respondent to represent them in a claim for personal injuries sustained in an automobile accident that occurred on February 9, 2000 in Marathon, Florida. The Tutchs resided in Minnesota for part of the year and balance of the year in Florida. 18. Respondent advised the Tutchs that although he did not normally handle personal injury claims that he would represent them. Respondent advised the Tutchs that if he determined that he could not provide them with adequate representation, he would refer their case to another attorney. 19. Thereafter, respondent failed to keep scheduled appointments with the Tutchs and failed to maintain adequate communication with them. 20. On the occasions when respondent communicated with the Tutchs, he repeatedly advised them the case was progressing. This statement was untrue. 21. Despite Mr. Tutch s directive on or about June 26, 2001 to proceed immediately, respondent failed to file the complaint until July 31, 2003. 22. Respondent failed to convey a settlement offer to the Tutchs that he received from the insurer on or about March 26, 2003 until on or about April 26, 2003 after Mr. Tutch made three telephone calls to respondent requesting the status of the case. 23. Mr. Tutch rejected the settlement offer and directed respondent to aggressively pursue the personal injury claim. 24. After the defendants filed the answer and affirmative defenses on August 22, 2003, respondent failed to file a reply to the affirmative defenses until October 2, 2003. 25. Opposing counsel mounted an aggressive defense to the personal injury claim, challenging the seriousness of the Tutchs injuries and the validity of their claim. 26. Opposing counsel propounded numerous discovery requests to the Tutchs during the litigation. 3

27. On at least six occasions, respondent failed to file timely responses to the discovery demands, resulting in opposing counsel filing at least eight motions to compel, three motions for sanctions, two motions for attorney s fees and three motions to dismiss. 28. The court issued numerous orders to the Tutchs to compel discovery. 29. On or about July 7, 2005, defense counsel attempted to serve respondent by mail with a proposal for settlement. 30. After respondent failed to claim the letter, the settlement proposal was returned to opposing counsel. 31. Respondent did not convey the settlement offer to the Tutchs. 32. Respondent never advised the Tutchs of the ramifications of declining an offer of settlement in the event they were awarded damages in an amount similar to or less than that made in an offer of settlement. 33. On July 8, 2005, defense counsel served additional discovery upon respondent. 34. Respondent failed to file a response, resulting in defense counsel filing a motion to compel discovery on August 23, 2005. 35. Respondent misled the Tutchs into believing mediation had been scheduled in their case when in fact it had not. 36. Respondent never advised the Tutchs that he did not believe that they had a valid claim or that they should hire new counsel due to respondent s inexperience. 37. On October 11, 2005, Mr. Tutch wrote respondent and advised him he was terminating respondent s services due to respondent s failure to communicate and neglect of the case. 38. Mr. Tutch requested that respondent forward the file and travel reimbursements to him. 39. Mr. Tutch also disputed respondent s bill for expenses allegedly incurred for long distance telephone calls and faxes. Mr. Tutch advised respondent that neither he nor his wife had received any long distance telephone calls or faxes from respondent during the period set forth in the bill. 40. Respondent failed to forward the file, original documents or travel reimbursement to the Tutchs. 41. On March 28, 2005, respondent was administratively suspended from the practice of law because of his failure to comply with continuing legal education requirements. 42. Despite his administrative suspension, respondent continued to provide legal services to the Tutchs, such as holding himself out as being licensed to practice law and remaining as attorney of record. 43. On December 9, 2005, the Bar served respondent at his record bar address 4

with the grievance against him involving the Tutch s and directed respondent to provide a written response to Mr. Tutch and the Bar within 15 days. 44. Respondent failed to respond to the Bar s investigative inquiry. COUNT III [TFB Case No. 2006-10,965(20B)] 45. In or around April 2005, Michael Skladany, a resident of Arizona, hired respondent to represent him in a wage garnishment action against Ritchie and Christie Wilson and paid respondent a legal fee. 46. When respondent was hired by Mr. Skladany, respondent was administratively suspended from the practice of law due to his failure to comply with his continuing legal education requirements. 47. Respondent did not advise Ms. Skladany that he was not a member in good standing eligible to engage in the practice of law. 48. In or around June 2005, respondent requested $200.00 for court costs from Mr. Skladany. On June 12, 2005, Mr. Skladany sent $200.00 to respondent. 49. Thereafter, respondent failed to communicate with Mr. Skladany or provide him with any meaningful legal services. 50. Respondent did not refund any of the unearned legal fee nor did he return or provide an accounting of the costs paid. 51. On February 15, 2006, the Bar served respondent at his record bar address with the grievance against him involving Mr. Skladany and directed respondent to provide a written response to Mr. Skladany and the Bar within 15 days. 52. Respondent failed to respond to the Bar s investigative inquiry. 53. On March 10, 2006, the Bar served respondent at his record bar address, by certified mail, return receipt requested, with the grievance against him involving Mr. Skladany and directed respondent to provide a written response to Mr. Skladany and the Bar within 10 days. 54. Respondent signed the return receipt card on March 14, 2006. 55. Respondent failed to respond to the Bar s investigative inquiry. III. Recommendations as to Whether the Respondent Should Be Found Guilty: As to each count of the complaint, this referee makes the following recommendations as to guilt or innocence: Pursuant to the Order of Default, I recommend respondent be found guilty and specifically that he be found guilty of violating the following Rules Regulating The Florida Bar: 5

COUNT I [TFB Case No. 2005-11,345(20B)] 4-1.3 for failing to act with reasonable diligence and promptness in representing a client; 4-1.4 for failing to keep a client reasonably informed about the status of a matter, for failing to comply with reasonable requests for information, and for failing to explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation; 4-1.16(d) for failing to take the steps reasonably practicable to protect a client s interests upon the termination of the representation; 4-3.2 for failing to make reasonable efforts to expedite litigation consistent with the interests of the client; and, 4-8.4(g) for failing to respond, in writing, to an official inquiry by Bar counsel or a disciplinary agency when Bar counsel or the agency is conducting an investigation into the lawyer s conduct. COUNT II [TFB Case No. 2006-10,662(20B)] 4-1.3 for failing to act with reasonable diligence and promptness in representing a client; 4-1.4 for failing to keep a client reasonably informed about the status of a matter, for failing to comply with reasonable requests for information, and for failing to explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation; 4-8.4(c) for engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation; and 4-8.4(g) for failing to respond, in writing, to an official inquiry by Bar counsel or a disciplinary agency when Bar counsel or the agency is conducting an investigation into the lawyer s conduct. COUNT III [TFB Case No. 2006-10,965(20B)] 4-1.3 for failing to act with reasonable diligence and promptness in representing a client; 4-1.4 for failing to keep a client reasonably informed about the status of a matter, for failing to comply with reasonable requests for information, and for failing to explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation; 4-8.4(c) for engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation and 4-8.4(g) for failing to respond, in writing, to an official inquiry by Bar counsel or a disciplinary agency when Bar counsel or the agency is conducting an investigation into the lawyer s conduct. 6

IV. Rule Violations Found: COUNT I [TFB Case No. 2005-11,345(20B)] - 4-1.3; 4-1.4; 4-1.16(d); 4-3.2; and 4-8.4(g). COUNT II [TFB Case No. 2006-10,662(20B)] - 4-1.3; 4-1.4; 4-8.4(c); and 4-8.4(g). COUNT III [TFB Case No. 2006-10,965(20B)] - 4-1.3; 4-1.; 4-8.4(c); and 4-8.4(g). V. Recommendation as to Disciplinary Measures to Be Applied: On May 18, 2007, this referee conducted a telephonic final hearing as to discipline only that was attended by respondent and counsel for the bar. Following this telephonic final hearing, where both parties were afforded an opportunity to offer proof and make recommendations, this referee makes the following recommendations as to the disciplinary measures to be applied: A. One year rehabilitative suspension; and B. Payment of costs which currently total $ 1,481.40. VI. Personal History and Past Disciplinary Record: After the finding of guilty and prior to recommending discipline to be recommended pursuant to R. Regulating Fla. Bar 3-7.6(m)(1)(D), this referee considered the following personal history, prior disciplinary record of the respondent, case law and standards, to wit: Age: 48 Date admitted to bar: May 8, 1992 Prior disciplinary convictions and disciplinary measures imposed therein: 1. The Florida Bar v. Johanson, 908 So. 2d 1058 (Fla. 2005) Public reprimand for neglect, inadequate communication and failure to respond to the bar. (Exhibit A - Certificate of Disciplinary History). CASE LAW Additionally, I have considered the following case law: 1. The Florida Bar v. Grosso, 647 So. 2d 840 (Fla. 1994) 10 day suspension for failure to respond to the bar s investigative inquiries. In mitigation, Mr. Grosso had no prior disciplinary history. Prior to reinstatement, he was required to submit a certification 7

from a psychiatrist attesting to his ability to resume his law practice and to provide the bar with a complete response to the substantive charges underlying the proceedings. 2. The Florida Bar v. Heptner, 887 So. 2d 1036 (Fla. 2004) Two year suspension for attorney misconduct. The Court noted that the Court considers the respondent s prior disciplinary history where appropriate for cumulative misconduct. Thus, the Court deals more harshly with cumulative misconduct than it does isolated misconduct. 3. The Florida Bar v. Broome, 932 So. 2d 1036 (Fla. 2006) One year suspension for engaging in multiple acts of gross neglect resulting in client prejudice, failing to respond to the bar s investigative inquires, making misrepresentations to the bar concerning her efforts to resolve one client s grievance, failing to communicate with clients, and receiving fees that were excessive in light of the services provided. In mitigation, the attorney suffered from clinical depression, had no prior disciplinary history, there was no evidence of a dishonest or selfish motive, and had undergone interim rehabilitation. In aggravation, she engaged in a pattern of misconduct over a period of many years affecting a large number of clients. Her neglect caused potentially serious harm to at least one criminal client. 4. The Florida Bar v. Morrison, 660 So. 2d 1040 (Fla. 1996) 1 year suspension for failing to act with reasonable diligence, inadequate client communications and failing to respond to the bar s investigative inquiries. The attorney had a prior public reprimand. 5. The Florida Bar v. Wheeler, 940 So. 2d 1126 (Fla. 2006) - 2 year suspension for neglecting client legal matters resulting in prejudice to those clients, failing to maintain adequate communication with clients, taking excessive fees, engaging in trust account recordkeeping violations, commingling, misusing client funds, making misrepresentations to a court and failing to respond to the bar s investigative inquires. 6. The Florida Bar v. Floyd, 928 So. 2d 336 (Fla. 2006) 6 month suspension for neglecting client legal matters, failing to maintain adequate communication with clients and failing to respond to the bar s investigative inquires. STANDARDS In making this recommendation, I have considered the following Florida Standards for Imposing Lawyer Sanctions: 4.4 Lack of Diligence 8

4.42 Suspension is appropriate when: (a) a lawyer knowingly fails to perform services for a client and causes injury or potential injury to a client, or (b) a lawyer engages in a pattern of neglect and causes injury or potential injury to a client. 4.6 Lack of Candor 4.62 Suspension is appropriate when a lawyer knowingly deceives a client, and causes injury or potential injury to a client. 7.0 Violations of Other Duties Owed as a Professional 7.2 Suspension is appropriate when a lawyer knowingly 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. 8.0 Prior Discipline Orders 8.2 Suspension is appropriate when a lawyer has been publicly reprimanded for the same or similar conduct and engages in further similar acts of misconduct that cause injury or potential injury to a client, the public, the legal system, or the profession. 9.22 Aggravating Factors (a) prior disciplinary offenses; (c) pattern of misconduct; (d) multiple offenses; (i) substantial experience in the practice of law; and (e) bad faith obstruction of the disciplinary proceeding by intentionally failing to comply with rules or orders of the disciplinary agency. 9.32 Mitigating Factors (c) personal or emotional problems. VII. Statement of costs and manner in which costs should be taxed: This referee finds the following costs were reasonably incurred by The Florida Bar. A. Grievance Committee Level Costs: 1. Court Reporter Costs $ 155.00 9

B. Referee Level Costs: 1. Court Reporter Costs $ 65.00 C. Administrative Costs $ 1,250.00 D. Miscellaneous Costs: 1. Copy Costs $ 11.40 TOTAL ITEMIZED COSTS: $ 1,481.40 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. It is further recommended that respondent shall be deemed delinquent and ineligible to practice law pursuant to R. Regulating Fla. Bar 1-3.6 for failure to timely pay the costs assessed in this proceeding. Dated this day of, 2007. Edward Nicholas Referee Original to Supreme Court with Referee s original file. Copies of this Report of Referee only to: Kenneth H. P. Bryk, Bar Counsel, 1200 Edgewater Drive, Orlando, Florida 32804-6314 10

Kent Alan Johanson, Respondent, Johanson Law Office, 3541 Bonita Bay Boulevard, Suite 100, Bonita Springs, Florida 34134-1624 Mr. Kenneth Lawrence Marvin, Staff Counsel, The Florida Bar, 651 East Jefferson Street, Tallahassee, Florida 32399-2300 H:\Cases\Johanson.ka\SC07-40\Pleadings\AmendedROR.doc 11