IN THE SUPREME COURT OF FLORIDA (Before a Referee) THE FLORIDA BAR, Supreme Court Case No. SC14-1576 Complainant, The F.lorida Bar File v. Nos. 2014-30,298 (18B), 2014-30,843 (09E) LILLIAN CLOVER, Respondent. REPORT OF REFEREE ACCEPTING CONSENT JUDGMENT o i < % I. SUMMARY OF PROCEEDINGS Pursuant to the undersigned being duly appointed as referee to conduct di ciplinary proceedings herein according to Rule 3-7.6, Rules of Discipline, the f&lowing proceedings occurred: On August 13, 2014, The Florida Bar filed its Complaint against Respondent as well as its Request for Admissions in these proceedings. All of the aforementioned pleadings, responses thereto, exhibits received in evidence, and this Report constitute the record in this case and.are forwarded to the Supreme Court of Florida. II. FINDINGS OF FACT
A. Jurisdictional Statement. Respondent is, and at all times mentioned during this investigation was, a member of The Florida Bar, subject to the jurisdiction and disciplinary rules of the Supreme Court of Florida. B. Narrative Summary Of Case. THE FLORIDA BAR FILE NO. 2014-30,298 (18B) 1. On or about September 23, 2013, the bar received notice from Wells Fargo Bank, N. A., that on September 16, 2013, check number 01079, in the amount of $1,500.00, drawn on respondent's trust account, caused an overdraft in the amount of $218.78. 2. The bar requested respondent provide her Wells Fargo trust account records, initially for the time period of June 1, 2013 through October 1, 2013, in order to conduct an audit of respondent's trust account. The compliance audit completed by The Florida Bar revealed that respondent did not maintain the required trust account records and she did not regularly perform the mandatory trust accounting procedures. 3. During the audit period, respondent routinely maintained earned fees in her trust account and paid personal and business expenses from the trust account. As a result of respondent's inadequate record keeping, she made disbursements from her trust account that exceeded the amount of personal funds held in her trust account.
4. Between November 15, 2012 and March 10, 2014, respondent should have been holding at least $1,812.78 in her trust account in connection with the Selph matter to satisfy liabilities owed to Brevard Emergency Services, Health First Medical Equipment, and Optum. After the shortage in the Selph matter was brought to respondent's attention by the bar, she paid the amounts owed to the health care providers from her operating account on or about March 11, 2014. 5. There was no evidence of intentional misappropriation and no clients have complained of the loss of any funds. THE FLORIDA BAR FILE NO. 2014-30,843 (09E) 1. In early April 2011, respondent met with the mother of a prison inmate to discuss his legal options after his motion for post-conviction relief was denied. The mother believed that for a fee of $5,000.00 respondent would file a motion for rehearing and also file an appeal. After being paid the fee, respondent filed a document she titled as "First Amendment to Motion for Postconviction Relief Pursuant to Florida Rule of Criminal Procedure 3.850" without having any direct communication inmate who was her client and without having him sign this document. The Court denied this motion after finding it to be legally insufficient and procedurally improper. Thereafter, respondent filed a notice of appeal in the case but took no further action. The inmate eventually filed a pro se writ of habeas corpus and after an evidentiary hearing was granted permission to file a belated
appeal. Respondent failed to clarify the parameters of this representation during the initial consultation and failed to have any direct communication with her client, relying instead on his mother to act as a conduit for information. III. RECOMMENDATIONS AS TO GUILT I recommend that Respondent be found guilty of violating the following Rules Regulating The Florida Bar: THE FLORIDA BAR FILE NO. 2014-30,298 (ISB) 4-1.15 A lawyer shall comply with The Florida Bar Rules Regulating Trust Accounts. 5-1.1(a)(1) A lawyer shall hold in trust, separate from the lawyer's own property, funds and property of clients or third persons that are in a lawyer's possession in connection with a representation. All funds, including advances for fees, costs, and expenses, shall be kept in a separate bank or savings and loan association account maintained in the state where the lawyer's office is situated or elsewhere with the consent of the client or third person and clearly labeled and designated as a trust account. A lawyer may maintain funds belonging to the lawyer in the trust account in an amount no more than is reasonably sufficient to pay bank charges relating to the trust account. 5-1.1(b) Money or other property entrusted to an attorney for a specific purpose, including advances for fees, costs, and expenses, is held in trust and must
be applied only to that purpose. Money and other property of clients coming into the hands of an attorney are not subject to counterclaim or setoff for attorney's fees, and a refusal to account for and deliver over such property upon demand shall be deemed a conversion. 5-1.2(b)(6) A separate file or ledger with an individual card or page for each client or matter, showing all individual receipts, disbursements, or transfers and any unexpended balance, and containing: (A) the identification of the client or matter for which trust funds were received, disbursed, or transferred; (B) the date on which all trust funds were received, disbursed, or transferred; (C) the check number for all disbursements; and (D) the reason for which all trust funds were received, disbursed, or transferred. THE FLORIDA BAR FILE NUMBER 2014-303843 (09E) 4-1.1 A lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness, and preparation reasonably necessary for the representation. 4-1.2(a) Subject to subdivisions (c) and (d), a lawyer shall abide by a client's decisions concerning the objectives of representation, and, as required by rule 4-1.4, shall reasonably consult with the client as to the means by which they are to be pursued. A lawyer may take such action on behalf of the client as is impliedly authorized to carry out the representation. A lawyer shall abide by a client's
decision whether to settle a matter. In a criminal case, the lawyer shall abide by the client's decision, after consultation with the lawyer, as to a plea to be entered, whether to waive jury trial, and whether the client will testify. 4-1.3 A lawyer shall act with reasonable diligence and promptness in representing a client. 4-1.4(a) A lawyer shall: (1) promptly inform the client of any decision or circumstance with respect to which the client's informed consent, as defined in terminology, is required by these rules; (2) reasonably consult with the client about the means by which the client's objectives are to be accomplished; (3) keep the client reasonably informed about the status of the matter; (4) promptly comply with reasonable requests for information; and (5) consult with the client about any relevant limitation on the lawyer's conduct when the lawyer knows or reasonably should know that the client expects assistance not permitted by the Rules of Professional Conduct or other law. 4-1.4(b) A lawyer shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation. 4-8.4(d) A lawyer shall not engage in conduct in connection with the practice of law that is prejudicial to the administration ofjustice, including to knowingly, or through callous indifference, disparage, humiliate, or discriminate against litigants, jurors, witnesses, court personnel, or other lawyers on any basis,
including, but not limited to, on account of race, ethnicity, gender, religion, national origin, disability, marital status, sexual orientation, age, socioeconomic status, employment, or physical characteristic. IV. STANDARDS FOR IMPOSING LAWYER SANCTIONS I considered the following Standards prior to recommending discipline: 4.1 Failure to Preserve the Client's Property 4.12 Suspension is appropriate when a lawyer knows or should know that she is dealing improperly with client property and causes injury.or potential injury to a client. 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. 4.4 Lack of Diligence 4.42(a) Suspension is appropriate when a lawyer knowingly fails to perform services for a client and causes injury or potential injury to a client. 4.43 Public reprimand is appropriate when a lawyer is negligent and does not act with reasonable diligence in representing a client, and causes injury or potential injury to a client. 9.22 Aggravating Factors (d) multiple offenses. 9.32 Mitigating Factors
(a) absence of prior disciplinary record; (b) absence of a dishonest or selfish motive; and (d) timely good faith effort to make restitution or to rectify consequences of misconduct. V. CASE LAW I considered the following case law prior to recommending discipline: The Florida Bar v. Lopez, 139 So. 3d 301 (Fla. 2014) - Ten day suspension with automatic reinstatement pursuant to a Consent Judgment for Conditional Guilty Plea for making disbursements against uncollected funds resulting in checks being dishonored due to insufficient funds and neglect of a family law case resulting in its dismissal for lack of prosecution. The attorney successfully reopened the case and obtained a favorable judgment for her client. In aggravation, the attorney had a prior disciplinary history for trust accounting violations that were the result of her failure to properly supervise her nonlawyer staff. The Florida Bar v. Johnson, 135 So. 3d 290 (Fla. 2014) - Public reprimand and three year period of conditional probation pursuant to a Consent Judgment for Conditional Guilty Plea for neglect. The attorney was appointed to represent a criminal defendant in Federal Court. When it came time to appeal, the attorney failed to file required documents despite being granted three extensions of time to do so. As a result, the court issued an order to show cause, to which the attorney
failed to respond, resulting in the court entering an order suspending him from the practice of law (in that Federal Court) indefinitely. This was a not final order which would make reciprocal discipline appropriate. During his probation, the attorney was required to participate in Florida Lawyers Assistance, Inc. In aggravation, the attorney had a prior disciplinary history and was experienced in the practice of law. In mitigation, there was no dishonest or selfish motive, he was suffering from acute depression and substance abuse for which he was receiving treatment after a suicide attempt, he fully cooperated with the bar, suffered the imposition of other penalties or sanctions, was remorseful and his prior disciplinary offense was remote in time. The Florida Bar v. Kutchins, 120 So. 3d 562 (Fla. 2013) - Public reprimand pursuant to a Consent Judgment for Conditional Guilty Plea for neglect and inadequate communication. The attorney represented a client in a dissolution of marriage action where the attorney failed to appear at the final hearing due to miscommunication or calendaring error. There was no prejudice to the client. Shortly after the final judgment was entered, the attorney represented the client in a contempt action against the former spouse. The attorney failed to ensure that the client fully understood the proposed settlement terms and to confirm that his client was agreeable to those terms before accepting the settlement offer. Also, during the course of representing the client, the attorney provided unsolicited advice
concerning the need for a trust, and billed the client for drafting a trust and will. The documents were never signed by the client who complained that he never requested the services. The will included a provision appointing the attorney as counsel for the estate; however, there was no discussion with the client concerning this provision. In aggravation, the attorney had a prior disciplinary history and was experienced in the practice of law. In mitigation, the attomey was remorseful. The Florida Bar v. Luka, 88 So. 3d 150 (Fla. 2012)- Public reprimand and two years of probation pursuant to a Consent Judgment for Conditional Guilty Plea for commingling, failing to maintain the minimum required trust account records and failing to follow the minimum required trust accounting procedures. As a result, three checks drawn on his trust account were dishonored due to insufficient funds. No clients complained or lost any funds. There was no evidence of misappropriation. In a second matter, the attorney was not diligent in preparing the closing statement for a personal injury client's case and failed to communicate with the client regarding any possible outstanding liens held by non-recourse companies. As a result the closing statement failed to reflect the liens and the attorney provided the client with a check for her net settlement proceeds. The first settlement company was awarded its proceeds through an arbitration order entered against the attorney and his client. The second settlement company filed a civil suit against the attorney and his client but it was dismissed after settlement by the
parties. During the probationary period, the attorney was required to attend Ethics School and hire a CPA to file quarterly reports with the bar. The Florida Bar v. Mogul, 10 So. 3d 1100 (Fla. 2009) - 90 day suspension, nunc pro tune to the date of his emergency suspension, pursuant to a Consent Judgment.for Conditional Guilty Plea for commingling, failing to maintain the minimum required trust accounting records, failing to follow the minimum required trust accounting procedures, neglecting a civil case and failing to adequate communicate with several clients. The attorney failed to produce all of the trust account records sought by the bar, claiming they had been destroyed in a hurricane or lost during a move. The bar's audit revealed he engaged in extensive commingling. In a second case, he neglected a client's civil case and failed to maintain adequate communication with the client, resulting in a deposition being missed and a judgment being entered against the client. In two additional cases, the attorney failed to maintain adequate communication with his clients. The attorney also was required to complete Trust Accounting Workshop. In aggravation, the attorney was experienced in the practice of law. In mitigation, he had no prior disciplinary history, there was no dishonest of selfish motive, he was experiencing significant emotional problems during the time in question, he fully cooperated with the bar and was remorseful.
The Florida Bar v. Bateman, 966 So. 2d 969 (Fla. 2007) - Public reprimand and two year period of probation pursuant to a Consent Judgment for Conditional Guilty Plea for numerous technical trust accounting violations resulting in a check drawn against the attorney's trust account being dishonored due to insufficient funds. VI. RECOMMENDATION AS TO DISCIPLINARY MEASURES TO BE APPLIED I recommend that Respondent be found guilty of misconduct justifying disciplinary measures, and that she be disciplined by: A. Thirty day suspension with automatic reinstatement to the practice of law. B. Two year period of probation to commence upon reinstatement with the following terms: i. Respondent shall attend and complete the next scheduled Trust Accounting Workshop. ii. Respondent agrees to retain, at respondent's expense, the services of a certified public accountant acceptable to The Florida Bar to review respondent's trust account records on a monthly basis during the term of probation. Quarterly statements shall be prepared by the certified public accountant for review by The Florida Bar. The quarters are March 31, June 30, September 30 and December 31, 2015. Statements shall specify whether respondent is in compliance
with the Rules Regulating Trust Accounts and shall include the monthly reconciliations, copies of the bank statements of respondent's trust accounts and a list of clients with the individual client trust account balances. Respondent is responsible for the submission of the quarterly statements to The Florida Bar. iii. Respondent will pay a quarterly monitoring fee of $100.00 to The Florida Bar. All quarterly monitoring fees must be remitted no later than the end of each respective quarter in which the monitoring fee is due. All fees must be paid to the Bar's headquarters office 651 E. Jefferson Street, Tallahassee, Florida 32399-2300. Failure to pay shall be deemed cause to revoke probation. VII. PERSONAL HISTORY AND PAST DISCIPLINARY RECORD Prior to recommending discipline pursuant to Rule 3-7.6(m)(1)(D), I considered the following personal history of Respondent, to wit; Age: 53 Date admitted to the Bar: February 22, 2005 Prior Discipline: None. VIII. STATEMENT OF COSTS AND MANNER IN WHICH COSTS SHOULD BE TAXED I fmd the following costs were reasonably incurred by The Florida Bar: Investigative Costs $2,753.66 Court Reporters' Fees $404.30 Bar Counsel Costs $19.96 Administrative Fee. $1,250.00
TOTAL $4,427.92 It is recommended that such costs be charged to Respondent and that interest at the statutory rate shall accrue and that should such cost judgment not be satisfied within thirty days of said judgment becoming final, Respondent shall be deemed delinquent and ineligible to practice law, pursuant to R. Regulating Fla. Bar 1-3.6, unless otherwise deferred by the Board of Governors of The Florida Bar. Dated this So" day of o d4/l, 2014. Original To: Charles Anthony Schwab Referee Clerk of the Supreme Court of Florida; Supreme Court Building; 500 South Duval Street, Tallahassee, Florida, 32399-1927 Conformed Copies to: Henry Lee Paul, Henry Lee Paul, P. A., Post Office Box 18685, Tampa, Florida 33679-8685, henry@,henryleepaul.com Karen Clark Bankowitz, Orlando Branch Office, The Gateway Center1000 Legion Place, Suite 16250rlando, Florida 32801-1050, kbankowitz@flabar.org and orlandooffice@flabar.org Staff Counsel, The Florida Bar, at aquintel@flabar.org