The Florida Bar v. Brian P. Rush ( 2023 )

Supreme Court of Florida
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No. SC2020-1685
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THE FLORIDA BAR,
Complainant,
vs.
BRIAN P. RUSH,
Respondent.
May 4, 2023
PER CURIAM.
Respondent, Brian P. Rush, seeks review of a referee’s report
recommending that he be found guilty of professional misconduct
and suspended from the practice of law for three years for failing to
follow his client’s directives and placing his personal pecuniary
interests ahead of the client’s stated goals. 1 Rush challenges the
referee’s findings of fact and recommendations as to guilt, arguing
that his conduct did not violate any of the Rules Regulating The
1. We have jurisdiction. See art. V, § 15, Fla. Const.
Florida Bar (Bar Rules). He also asserts that because he is not
guilty of misconduct, he should not be sanctioned and assessed the
Bar’s costs. We disagree, and for the reasons discussed below, we
approve the referee’s report in its entirety and suspend Rush from
the practice of law for three years.
I. BACKGROUND
North Park Isles and JT North Park (collectively North Park),
both limited liability companies, were owned by three managing
members, Todd Taylor, Jack Suarez, and Bob Suarez. North Park
owned property in Hillsborough County that was the subject of an
eminent domain action by the Florida Department of Transportation
(FDOT). North Park and FDOT reached an agreement to relocate a
planned drainage pond on the property.
In anticipation of further litigation, Taylor hired Rush in 2014.
On behalf of North Park, Taylor signed a fee agreement stating that
Rush’s legal costs and expenses would be paid by the State of
Florida and FDOT. The agreement also stated that if the legal
representation was terminated, North Park would be obligated to
pay the reasonable value of Rush’s services.
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In October 2017, the circuit court entered an order of taking
for the North Park property necessitating a determination of
compensation for the taking. Rush argued that the current
placement of a drainage pond would restrict access to the land
destroying its developmental value, but that FDOT could move the
pond and restore approximately $8,000,000 in value to the land.
This would constitute a nonmonetary benefit, and the enhanced
value of the land would entitle Rush to an award of statutory
attorney’s fees. Initially, North Park went along with Rush’s
argument as the eventual buyer, Jeffery Hills, wanted the pond
moved to accommodate model home frontage.
At first, Hills had difficulty obtaining financing and was paying
extension fees on the purchase contract. In the spring of 2018,
Hills’ financing was approved, but the bank would not fund the
closing until the eminent domain case concluded. At that point,
North Park’s objectives changed, and Rush was told that the goal
was to settle the eminent domain action quickly to facilitate the sale
of the property. Thereafter, Rush began filing a series of
unauthorized pleadings and motions in the eminent domain case
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seeking to preserve and advance his claim for attorney’s fees based
on his nonmonetary benefits argument.
North Park met with Rush to discuss the plan of negotiating
an expediated settlement to facilitate the sale of the property.
During the meeting, Rush reminded North Park that termination of
his services would make North Park responsible for paying his legal
fees and costs. When asked to approximate the amount, Rush
estimated his legal fees and costs to be somewhere between
$300,000 and $1,000,000. Though North Park no longer wanted
Rush to pursue his argument for nonmonetary benefits, it was
afraid to terminate Rush’s representation because of the potential
liability for a million dollars in fees. North Park emphasized to
Rush that the pending sale of the property was the priority and that
the closing needed to occur by the end of April 2018.
North Park enlisted its real estate counsel, Richard Petitt, to
assist with getting Rush to settle the eminent domain case quickly.
But Rush continued to file pleadings with the court that advanced
his argument for nonmonetary benefits. Then, prior to consulting
with North Park, Rush sent FDOT a settlement proposal waiving
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monetary benefits in favor of Rush’s nonmonetary benefits
argument.
In mid-April 2018, at North Park’s urging, Petitt filed a notice
of appearance in the eminent domain case on behalf of North Park.
He instructed Rush not to file anything further without first
obtaining client consent, communicated through Petitt. Despite
this clear directive, Rush continued to file pleadings seeking
approximately $1,400,000 in attorney’s fees based on his argument
for nonmonetary benefits.
Rush’s unwillingness to cooperate with Petitt ultimately
resulted in the circuit court becoming confused as to who was
representing North Park. It refused to rule on any pending motions
until the issue was resolved. North Park told the court that it was
unsure what to do about Rush because it was concerned about its
potential million-dollar fee liability.
Based on prior interactions with Rush and safety concerns,
the FDOT attorney, Aloyma Sanchez, brought Phillip Hobby, an
independent contractor, with her to a hearing in July 2018. After
the hearing, Rush was very angry and threatened to sue Sanchez
for tortious interference of his fee agreement with North Park,
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accused her of scheming to defraud him of attorney’s fees, and
threatened to file a Bar complaint against her. Rush continued to
berate her and followed the pair out of the courthouse. Later, Rush
admitted he threatened to sue Sanchez but denied threatening to
file a Bar complaint, though he felt he could have filed one based on
a comment Sanchez made about an expert witness fee that Rush
claimed was disparaging. Sanchez reported the incident to Petitt
and her supervisor and asked Hobby to write a memorandum
recounting his observations of the encounter. Because of this
interaction, FDOT refused to reach an informal settlement with
North Park and insisted on formal mediation or a trial to have third-
party oversight.
Unable to clarify the representation issue, Petitt sent a client-
approved settlement offer to Rush to sign and submit to FDOT,
specifying that there be no modifications. Fearing that the wording
of the agreement would constitute waiver of his attorney’s fees,
Rush altered the language without consulting or informing North
Park or Petitt and submitted the new version to FDOT. After this
unauthorized submission, North Park terminated Rush’s
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representation and he withdrew from the case, though the court
retained authority to determine his attorney’s fees.
In August 2018, Rush sued North Park seeking fee arbitration
and raising 21 causes of action. All claims were denied, and North
Park was declared the prevailing party in a detailed 32-page order.
Rush attempted to set aside the findings made by the arbitrator and
the parties later entered into a settlement agreement.
Rush also filed and recorded two lis pendens encumbering the
property at issue in the eminent domain case. Because Rush had
no recorded interest in the subject property, the court dissolved
both lis pendens. Rush then filed another lawsuit against Hills, the
property purchaser, the individual who had previously held the
purchase agreement, and the bank financing the purchase.
In November 2018, North Park and FDOT reached a
settlement after formal mediation that did not include relocation of
the drainage pond. The stipulated final judgment was entered in
January 2019, and FDOT paid North Park the monetary value of
the property taken and the expert fees. Rush continued to seek
attorney’s fees based on his nonmonetary benefits argument despite
the agreement. He claimed that North Park, Petitt, and FDOT
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engaged in a conspiracy to settle for a low amount to preclude his
recovery of fees. Rush called the stipulated final judgment
“fraudulent” and a “sham” and attempted to have it undone.
Based on the above findings, the referee recommends that
Rush be found guilty of violating Bar Rules 4-1.2 (Objectives and
Scope of Representation), 4-1.4 (Communication), 4-1.5 (Fees and
Costs for Legal Services), 4-1.7 (Conflict of Interest), 4-3.1
(Meritorious Claims and Contentions), 4-3.4 (Fairness to Opposing
Party and Counsel), and 4-8.4(d) (Misconduct).
The referee found one mitigating factor (absence of prior
disciplinary record) and five aggravating factors: dishonest or selfish
motive in seeking greater attorney’s fees against the client’s
interests and direction; multiple offenses (seven); bad faith
obstruction of the disciplinary proceedings by demonstrating
improper and unprofessional behavior throughout the disciplinary
process; refusal to acknowledge the wrongful nature of the conduct
by showing no remorse and portraying himself as the victim of
illegal conduct of others; and substantial experience in the practice
of law (admitted in 1982 and representing clients in eminent
domain cases since 1987). The referee recommends that Rush be
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suspended from the practice of law for three years and be assessed
the Bar’s costs.
II. ANALYSIS
A. Findings of Fact and Recommendations as to Guilt
Rush challenges the referee’s findings of fact and
recommendations of guilt concerning all seven Bar Rule violations.
Our review of a challenge to the referee’s findings of fact is limited,
and if the findings of fact are supported by competent, substantial
evidence in the record, we will not reweigh the evidence and
substitute our judgment for that of the referee. See Fla. Bar v.
Alters, 260 So. 3d 72, 79 (Fla. 2018) (citing Fla. Bar v. Frederick,
756 So. 2d 79, 86 (Fla. 2000)). Generally, “the referee is in a
unique position to assess witness credibility” based on being able to
observe live testimony, and because of this, the factual findings by
the referee are given great deference. Fla. Bar v. Ratiner, 238 So. 3d
117, 121 (Fla. 2018) (citing Fla. Bar v. Germain, 957 So. 2d 613,
621 (Fla. 2007)). To the extent a party challenges the referee’s
recommendations concerning guilt, the referee’s factual findings
must be sufficient under the applicable rules to support the
recommendations. See Fla. Bar v. Patterson, 257 So. 3d 56, 61 (Fla.
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2018) (citing Fla. Bar v. Shoureas, 913 So. 2d 554, 557-58 (Fla.
2005)). The burden is on the party challenging the referee’s
findings of fact and recommendations concerning guilt to
demonstrate that there is no evidence in the record to support those
findings or that the record evidence clearly contradicts the
conclusions. Germain, 957 So. 2d at 620.
Bar Rule 4-1.2
Under Bar Rule 4-1.2(a), “a lawyer must abide by a client’s
decisions concerning the objectives of representation . . . [and]
whether to settle a matter.” R. Regulating Fla. Bar 4-1.2. Rush
argues that he believed North Park’s main objective was to have the
pond relocated and that his continued argument for nonmonetary
benefits supported this objective. However, Jack Suarez and Petitt
testified at the final hearing that once Hills was able to get
financing, the priority was to settle the eminent domain case as
quickly as possible to facilitate the sale of the land to Hills. Rush
actively frustrated this goal of a quick settlement by continuing to
argue for nonmonetary benefits. We conclude that the record
supports the referee’s findings of fact and that such findings are
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sufficient to support the recommendation that Rush violated Bar
Rule 4-1.2.
Bar Rule 4-1.4
Bar Rule 4-1.4 states a lawyer must “reasonably consult with
the client” about accomplishing objectives and “explain a matter to
the extent reasonably necessary to permit the client to make
informed decisions regarding the representation.” R. Regulating
Fla. Bar 4-1.4(a)(2), (b). Here, Rush admitted that he failed to notify
or consult with North Park before sending FDOT a settlement
agreement purporting to waive monetary benefits. Rush argues
that North Park had implicitly agreed to this settlement agreement
based on prior conversations, but Sanchez testified that Rush was
never authorized to waive compensation. Rush also admitted to
materially altering the client-approved version of the settlement
agreement and submitting it without notifying North Park or Petitt
of the alterations. Rush continued filing unauthorized pleadings
that supported his nonmonetary benefits argument despite North
Park’s instructions to the contrary. Further, Rush failed to
adequately explain his fee agreement, thereby causing North Park
to fear that it would be responsible for as much as a million dollars
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in attorney’s fees if Rush’s representation was terminated. This
estimation of fees was not explained to North Park by Rush and was
based on the argument for nonmonetary benefits being successful,
which it was not. Therefore, we determine that the record supports
the referee’s findings of fact and that such findings are sufficient to
support the recommendation that Rush violated Bar Rule 4-1.4.
Bar Rule 4-1.5
Bar Rule 4-1.5(a) states that a “lawyer must not enter into an
agreement for, charge, or collect an illegal, prohibited, or clearly
excessive fee or cost,” and a fee “is clearly excessive” either when
the fee is “clear overreaching or an unconscionable demand” or the
fee is sought “by means of intentional misrepresentation or fraud
upon the client.” R. Regulating Fla. Bar 4-1.5. Here, the fee
agreement stated that FDOT would pay Rush’s fees unless the
representation was terminated. If the representation was
terminated, North Park would be responsible to pay the reasonable
value of Rush’s services. Rush claimed that under this agreement,
he was entitled to the full amount of potential statutory fees based
on his argument for nonmonetary benefits.
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Attorney’s fees in eminent domain cases, as relevant here, are
governed by section 73.092, Florida Statutes (2019), 2 which states
that fees are “based solely on the benefits achieved for the client”
meaning the difference “between the final judgment or settlement
and the last written offer made by the condemning authority before
the defendant hires an attorney,” which can include “nonmonetary
benefits obtained for the client through the efforts of the attorney”
to the extent that they can be quantified. The statutory fee
schedule allows 33% of any benefit obtained up to $250,000, plus
25% of a benefit between $250,000 and $1 million, plus 20% of any
benefit exceeding $1 million. § 73.092(1)(c), Fla. Stat.
Rush was seeking fees based on his argument that moving the
retention pond would provide a nonmonetary benefit to the client,
the value of which would be $8,300,000. Based on the statute, the
attorney’s fees would equal approximately $1,730,000. However,
Rush never achieved the nonmonetary benefits for the client. There
was not an agreement to move the pond before Rush was fired, and
2. Section 73.092 remained unchanged during Rush’s
representation of North Park.
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pond relocation was not included in the mediated settlement
agreement or the final judgment. Seeking compensation based on
benefits never obtained is patently unreasonable. After the
mediated settlement agreement, the amount of attorney’s fees due
to Rush was calculated to be $110,000.
Thus, Rush’s interpretation of his fee agreement and relentless
attempts to seek these fees constitute an attempt to collect an
illegal, prohibited, or clearly excessive fee or cost in violation of the
rule. We conclude that the record supports the referee’s findings of
fact and that such findings are sufficient to support the
recommendation that Rush violated Bar Rule 4-1.5.
Bar Rule 4-1.7
Bar Rule 4-1.7 states that a lawyer must not represent a client
if “there is a substantial risk that the representation . . . will be
materially limited by . . . a personal interest of the lawyer.” R.
Regulating Fla. Bar 4-1.7(a)(2). Here, despite North Park’s desire to
settle the matter quickly with FDOT to facilitate the sale of the
property, Rush kept filing unauthorized motions seeking to advance
his claim of nonmonetary benefits, which would result in a greater
attorney fee award for Rush. Rush argues that North Park’s
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original goal was to have the pond moved as a nonmonetary benefit,
and he continued to fight for that goal. However, Rush’s focus was
on obtaining greater attorney’s fees for himself, and his continued
argument for nonmonetary benefits delayed the settlement of the
eminent domain case and could have caused the sale of the
property to fall through. Rush’s interest in obtaining greater
attorney’s fees was in direct conflict with the client’s goal of settling
the case quickly. We conclude that the record supports the
referee’s findings of fact and that such findings are sufficient to
support the recommendation that Rush violated Bar Rule 4-1.7.
Bar Rule 4-3.1
Bar Rule 4-3.1 states a “lawyer shall not bring or defend” a
claim “unless there is a basis in law and fact for doing so that is not
frivolous.” R. Regulating Fla. Bar 4-3.1. Rush argues he was
entitled to seek his attorney’s fees from his former client and none
of his filings were ever deemed frivolous by the courts. However, in
seeking payment of fees, Rush filed two lis pendens to encumber
the property, which were subsequently dissolved. Rush did not
have more than an equitable interest in the property, which was an
insufficient basis for his lis pendens actions. Rush also filed
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numerous lawsuits seeking legal fees based on his unsuccessful
nonmonetary benefits argument. Rush also attempted to have the
mediated settlement in the eminent domain case set aside as he
claimed it was a “sham” and “fraudulent.” We conclude that the
record supports the referee’s findings of fact and that such findings
are sufficient to support the recommendation that Rush violated
Bar Rule 4-3.1.
Bar Rule 4-3.4
Bar Rule 4-3.4 states that an attorney must not “threaten to
present disciplinary charges under these rules solely to obtain an
advantage in a civil matter.” R. Regulating Fla. Bar 4-3.4(h). The
attorney for FDOT, Sanchez, testified that Rush threatened to file a
Bar complaint against her for disparaging his expert witness by
commenting that his fee seemed excessive. Rush argues he never
threatened to file a Bar complaint and Sanchez’s testimony was not
corroborated. However, the referee is given great deference with
respect to live testimony in determining credibility of witnesses.
The referee here found Sanchez’s testimony to be credible and
generally corroborated by the email she sent to her supervisor after
the encounter and by Hobby’s testimony. Therefore, we determine
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that the record supports the referee’s findings of fact and that such
findings are sufficient to support the recommendation that Rush
violated Bar Rule 4-3.4.
Bar Rule 4-8.4(d)
Bar Rule 4-8.4(d) states a lawyer must not “engage in conduct
in connection with the practice of law that is prejudicial to the
administration of justice.” R. Regulating Fla. Bar 4-8.4(d). Here,
Rush attempted to set aside the mediated settlement between North
Park and FDOT, filed a lawsuit against his former client and the
buyer of the property, was unprofessional to opposing counsel, and
intentionally impeded the settlement of the eminent domain case on
multiple occasions. None of his various lawsuits and attempts to
undo the settlement were successful, but Rush did delay North
Park from settling the issue and selling the property. North Park
had to pay additional attorney’s fees to defend against Rush’s
various attacks. We conclude that the record supports the referee’s
findings of fact and that such findings are sufficient to support the
recommendation that Rush violated Bar Rule 4-8.4. See Patterson,
257 So. 3d at 64 (finding violation of rule 4-8.4(d) where lawyer’s
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pursuit of his own interests hindered the client’s ability to obtain a
more favorable outcome).
B. Discipline
We now turn to the referee’s recommended discipline, a three-
year suspension. A referee’s recommended discipline must have a
reasonable basis in existing case law and the Florida Standards for
Imposing Lawyer Sanctions. See Fla. Bar v. Picon, 205 So. 3d 759,
765 (Fla. 2016); Fla. Bar v. Temmer, 753 So. 2d 555, 558 (Fla.
1999). In reviewing a referee’s recommended discipline, this Court’s
scope of review is broader than that afforded to the referee’s
findings of fact because, ultimately, it is this Court’s responsibility
to order the appropriate sanction. See Fla. Bar v. Kinsella, 260 So.
3d 1046, 1048 (Fla. 2018); Fla. Bar v. Anderson, 538 So. 2d 852,
854 (Fla. 1989); see also art. V, § 15, Fla. Const.
Here, the referee recommends a three-year suspension. Rush
argues that he should not be sanctioned or taxed with the Bar’s
costs because he is not guilty of violating the Bar Rules. He
presented no argument to this Court or to the referee as to why a
lengthy rehabilitative suspension is not appropriate for his
misconduct. Based on Rush’s repeated failure to accede to North
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Park’s clear directives and his unwillingness to put his client’s
interests over his own pecuniary gain, as well as his conduct toward
other attorneys involved in the eminent domain proceedings, we
agree with the referee that Rush’s deliberate disregard of his
professional obligations warrants a severe sanction.
We conclude that the referee’s recommendation of a three-year
suspension has a reasonable basis in the Standards for Imposing
Lawyer Sanctions. See Fla. Stds. Imposing Law. Sancs. 4.3(b)
(“Suspension is appropriate when a lawyer knows of a conflict of
interest, does not fully disclose to a client the possible effect of that
conflict, and causes injury or potential injury to a client.”); 6.2(b)
(“Suspension is appropriate when a lawyer knowingly . . . causes
interference or potential interference with a legal proceeding.”);
7.1(b) (“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.”).
We also conclude that the recommended sanction has a
reasonable basis in existing case law. This case is analogous to
Florida Bar v. Adorno, 60 So. 3d 1016 (Fla. 2011), where we
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suspended a lawyer for three years for negotiating to the detriment
of other class members when he settled a class action settlement for
named plaintiffs in an amount “grossly disproportionate to the
value of their individual claims” and received a $2 million fee for his
firm. Id. at 1024. There, the referee found three aggravating
factors: prior discipline (private reprimand); multiple offenses
(violation of rules 4-1.5, 4-1.7, and 4-8.4(c) and (d)); and
substantial experience in the practice of law. Id. at 1023. Here,
Rush sought unreasonable attorney’s fees to the detriment of North
Park, among other misconduct, and the referee recommends guilt
for seven rule violations, including the same three found in Adorno,
4-1.5, 4-1.7, and 4-8.4(d). This case is also like Adorno in that,
here, the aggravating factors found by the referee substantially
outweighed the mitigating factors. Thus, it appears that a three-
year suspension is reasonable.
We conclude that Rush’s behavior warrants a three-year
suspension and that he shall pay the Bar’s costs.
III. CONCLUSION
Accordingly, we approve the referee’s report in its entirety.
Brian P. Rush is hereby suspended from the practice of law for
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three years. The suspension will be effective thirty days from the
filing of this opinion so that Rush can close out his practice and
protect the interests of existing clients. If Rush notifies this Court
in writing that he is no longer practicing and does not need the
thirty days to protect existing clients, this Court will enter an order
making the suspension effective immediately. Rush shall fully
comply with Bar Rule 3-5.1(h) and Bar Rule 3-6.1, if applicable. In
addition, Rush shall accept no new business from the date this
opinion is filed until he is reinstated. Rush is further directed to
comply with all other terms and conditions of the report.
Judgment is entered for The Florida Bar, 651 East Jefferson
Street, Tallahassee, Florida 32399-2300, for recovery of costs from
Brian P. Rush in the amount of $19,761.47, for which sum let
execution issue.
It is so ordered.
MUÑIZ, C.J., and CANADY, LABARGA, COURIEL, GROSSHANS,
and FRANCIS, JJ., concur.
THE FILING OF A MOTION FOR REHEARING SHALL NOT ALTER
THE EFFECTIVE DATE OF THIS SUSPENSION.
Original Proceeding – The Florida Bar
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Joshua E. Doyle, Executive Director, The Florida Bar, Tallahassee,
Florida, Patricia Ann Toro Savitz, Staff Counsel, The Florida Bar,
Tallahassee, Florida, Mark Mason, Bar Counsel, The Florida Bar,
Tallahassee, Florida, and Kimberly Anne Walbolt, Bar Counsel, The
Florida Bar, Tampa, Florida; and Kevin W. Cox, Tiffany
Roddenberry, and Kathryn Isted of Holland & Knight, LLP,
Tallahassee, Florida,
for Complainant
Brian P. Rush of Woodlief & Rush, P.A., pro se, Tampa, Florida,
for Respondent
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