The Florida Bar v. Michael Eugene Wynn – Corrected Opinion

Supreme Court of Florida
____________
No. SC15-1323
____________
THE FLORIDA BAR,
Complainant,
vs.
MICHAEL EUGENE WYNN,
Respondent.
[February 16, 2017]
CORRECTED OPINION
PER CURIAM.
We have for review a referee’s report recommending that Michael Eugene
Wynn be found guilty of professional misconduct and suspended for ninety days,
followed by two years of probation with conditions. We have jurisdiction. See art.
V, § 15, Fla. Const. As discussed below, we disapprove of the referee’s
recommended discipline and instead impose a one-year suspension, followed by
two years’ probation.
FACTS
On July 21, 2015, The Florida Bar filed a complaint against Respondent
Wynn alleging ethical misconduct in connection with his representation of a client,
Sylvia Rhodes, in a landlord-tenant matter. The complaint was referred to a
referee, and the parties subsequently entered into a stipulation of the facts and rule
violations. The referee approved the stipulation, and in his report, provided the
following findings of fact:
On October 10, 2013, Respondent emailed Ms. Rhodes informing her
that $500 was needed for the costs of deposition transcripts. On
October 10, 2013, Ms. Rhodes paid $500 to Respondent to be used
towards the cost of deposition transcripts and wrote in the memo
“Legal Fees.” Respondent deposited the $500 into his business
operating account on October 15, 2013, rather than to his trust
account. Respondent failed to pay for the deposition transcripts as had
been intended. Beginning in December 2013, Ms. Rhodes made
several inquiries about the status of the deposition transcripts. In early
January 2014, after another email inquiry by Ms. Rhodes, Respondent
had a phone conversation with Ms. Rhodes and informed her that due
to his financial problems he used the funds to pay for law firm
expenses, such as electricity and rent. During the conversation,
Respondent indicated he could obtain a loan to pay for the deposition
transcripts; however, Ms. Rhodes indicated she would pay the court
reporter directly. Respondent further agreed to repay the funds to Ms.
Rhodes when he had the financial ability to do so. Respondent
converted the $500 to pay for business expenses of Michael E. Wynn
P. A., as well as for other purposes. Respondent failed to hold the
$500 that was intended for costs in his trust account. A review of
Respondent’s bank records revealed the funds were used on items
other than rent and electricity. On January 7, 2014, Ms. Rhodes
issued a new check for $500 directly to the court reporter to obtain the
necessary deposition transcripts, as agreed to by Respondent and Ms.
Rhodes. By email in March 2014, Ms. Rhodes again asked
Respondent about repayment of the initial $500. By reply email,
Respondent stated that he would repay Ms. Rhodes as soon as he
could. By email on September 15, 2014, Ms. Rhodes again inquired
about the status for the repayment of the initial $500 and requested
that Respondent to repay the funds by Christmas time. By reply email
on September 15, 2014, Respondent reiterated to Ms. Rhodes that he
had completed additional post-judgment legal services which were not
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part of the original representation and that the fees for services were
higher than the $500 Respondent owed Ms. Rhodes. Respondent
further offered to forgo billing Ms. Rhodes for the additional services
in exchange for not having to remit the $500 owed. Respondent never
executed a new representation agreement for additional services with
Ms. Rhodes. There was never an understanding or agreement that the
$500 could be applied towards legal fees. In October 2014, Ms.
Rhodes filed a Bar grievance against Respondent. On November 8,
2014, Respondent arranged for Ms. Rhodes and Mr. Rhodes to meet
him at MidFlorida Bank in Arcadia, Florida in order to repay the
$500. During the meeting, Respondent presented Mr. and Mrs.
Rhodes with a receipt of funds he drafted. Ms. Rhodes signed the
document, which was notarized, without any discussion about its
contents. The receipt of funds indicated that the funds were repaid
and requested that the Bar complaint be dismissed. Respondent
repaid the $500 upon the condition that Ms. Rhodes would request
dismissal of the Bar grievance she filed against Respondent. By letter
dated November 9, 2014, Respondent provided a copy of the receipt
of funds to the Bar and requested closure of the file. Respondent did
not provide the required Certificate of Disclosure form. By email on
November 12, 2014, Respondent was informed by the Bar that his
written response to the allegations was required along with his
required completed disclosure form. In response to the grievance,
Respondent provided a Certificate of Disclosure form, dated
November 16, 2014, wherein he incorrectly completed the section for
Sole Practitioner and certified that he was “not presently affiliated
with a law firm and was not affiliated with a law firm at the time of
the act(s) giving rise to the complaint in The Florida Bar File No.
2015-10,358 (20A).” At the time Respondent completed the
November 16, 2014, disclosure form, he was employed by the Office
of Regional Conflict Counsel, Second District, in Fort Myers, Florida.
Respondent failed to timely notify his superiors with the Office of
Regional Conflict Counsel, Second District, of the grievance filed
against him as required by Rule 3-7.1 (f). Respondent did not provide
notice of the grievance to his superiors with the Office of Regional
Conflict Counsel, Second District, until December 2, 2014.
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Rep. of Ref. 2-3. Also based on the stipulation, the referee recommended that
Respondent be found guilty of violating Rules Regulating the Florida Bar 3-7.1(f)
(Notice to Law Firms), 4-1.5 (Fees and Costs for Legal Services), 4-8.4(d)
(Misconduct—a lawyer shall not engage in conduct prejudicial to the
administration of justice), and 5-1.1 (Trust Accounts).
As for discipline, the referee recommended that Respondent be suspended
for ninety days, followed by two years of probation during which Respondent
would be required to participate in mentor monitoring, submit quarterly reports by
a CPA, if in private practice, undergo an office procedures and record-keeping
analysis by and under the direction of Diversion/Discipline Consultation Service
(formerly LOMAS), and attend ethics school, a trust accounting workshop, and a
stress management workshop. The referee also recommended that Respondent pay
the Bar’s costs. The Bar seeks review of the referee’s recommended discipline and
argues that a one-year suspension is the appropriate sanction.
ANALYSIS
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 it is
the Court’s ultimate responsibility to order the appropriate sanction. See Fla. Bar
v. Anderson, 538 So. 2d 852, 854 (Fla. 1989); see also Art. V, §15, Fla. Const.
However, generally speaking the Court will not second-guess the referee’s
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recommended discipline as long as it has a reasonable basis in existing case law
and the Florida Standards for Imposing Lawyer Sanctions. See Fla. Bar v.
Temmer, 753 So. 2d 555, 558 (Fla. 1999).
Here, the Bar does not dispute the referee’s reliance upon Florida Standards
for Imposing Lawyer Sanctions 4.0 (Violation of Duties Owed to Clients) and 7.0
(Violations of Other Duties Owed as a Professional) in recommending that
Respondent be suspended under standards 4.12 and 7.2, rather than disbarred under
standards 4.11 and 7.1. The Bar concedes that the referee properly found
significant mitigating circumstances that weigh in favor of suspension rather than
disbarment in this case. The Bar does dispute, however, the referee’s
recommendation as to the appropriate length of the suspension.
We agree with the Bar that the referee’s recommendation of a ninety-day
suspension does not have a reasonable basis in existing case law. First, the main
case relied upon by the referee, Florida Bar v. Lopez, 83 So. 3d 710 (Fla. 2012), is
an unpublished disposition, approving an uncontested report of referee; thus, it
cannot constitute “case law” providing a reasonable basis for the referee’s
recommendation. Second, none of the other published cases cited by the referee,
which are all more than approximately twelve years old, support a short-term non-
rehabilitative suspension. In Florida Bar v. Frederick, 756 So. 2d 79 (Fla. 2000),
the Court imposed a ninety-one-day suspension on an attorney who had engaged in
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a convoluted series of unethical acts pertaining to funds he received from
prospective class action clients. Subsequently, the attorney, prior to withdrawing
from the representation, negotiated a settlement with the clients involving a refund
to the clients in exchange for their agreement not to contact The Florida Bar or to
withdraw any complaint already filed against him. The attorney also employed
and improperly permitted a disciplinarily resigned attorney to have direct contact
with a client. In Florida Bar v. Smith, 866 So. 2d 41 (Fla. 2004), the Court
imposed a one-year suspension on an attorney who deposited a $1665 check from a
client for filing fees into her operating account and then used the funds for other
expenses; failed to diligently represent that client and another client in an
immigration matter; and issued a worthless check. The referee in Smith found
significant mitigation in the form of, among other things, very serious medical
issues, an absence of dishonest or selfish motive, rehabilitation, and remorse. In
Florida Bar v. Corces, 639 So. 2d 604 (Fla. 1994), the Court imposed a two-year
suspension where an attorney intentionally debited a client trust account over
$6000, used the funds to pay personal bills, then over the course of twenty months
repaid the deficit in the client trust account. Finally, in Florida Bar v. McNamara,
634 So. 2d 166 (Fla. 1994), an attorney converted for his own use a $5000 check
from a third party that was either to be held in escrow or be used to reduce his
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client’s tax obligation. Although the Court noted that there was evidence in the
record to support several mitigating factors, we imposed a three-year suspension.
Here, as in several of the cases discussed above, Respondent converted
client funds for his own use and repaid the funds at a later time. In addition, as in
Frederick, he attempted to condition the repayment upon the client’s agreement not
to complain to the Bar about his misconduct. Based on the existing case law, we
conclude that the Bar is correct that a one-year suspension, followed by two years’
probation with the conditions recommended by the referee, is warranted. As we
have noted many times, misuse or misappropriation of client funds is one of the
most serious offenses a lawyer can commit, and disbarment is presumed to be the
appropriate punishment. Fla. Bar v. Travis, 765 So. 2d 689, 691 (Fla. 2000). We
see no reason under the circumstances of this case, even given the referee’s
uncontested findings of mitigation, to impose anything less than a rehabilitative
suspension.
CONCLUSION
Accordingly, Michael Eugene Wynn is hereby suspended from the practice
of law for one year, followed by two years of probation under the terms and
conditions as set forth in the referee’s report. The suspension will be effective
thirty days from the filing of this opinion so that Wynn can close out his practice
and protect the interests of existing clients. If Wynn notifies this Court in writing
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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.
Wynn shall fully comply with Rule Regulating the Florida Bar 3-5.1(h). Further,
Wynn shall accept no new business from the date this opinion is filed until he is
reinstated.
Judgment is entered for The Florida Bar, 651 East Jefferson Street,
Tallahassee, Florida 32399-2300, for recovery of costs from Michael Eugene
Wynn in the amount of $3,975.45, for which sum let execution issue.
It is so ordered.
LABARGA, C.J., and PARIENTE, LEWIS, QUINCE, CANADY, and
POLSTON, JJ., concur.
LAWSON, J., did not participate.
THE FILING OF A MOTION FOR REHEARING SHALL NOT ALTER THE
EFFECTIVE DATE OF THIS SUSPENSION.
Original Proceeding – The Florida Bar
John F. Harkness, Jr., Executive Director, The Florida Bar, Tallahassee, Florida;
Adria E. Quintela, Staff Counsel, The Florida Bar, Sunrise, Florida; and Chardean
Mavis Hill, Bar Counsel, The Florida Bar, Tampa, Florida,
for Complainant
Edward Joseph Kelly, Fort Myers, Florida, and Robert Gary Hines, Fort Myers,
Florida,
for Respondent
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