Opinion
No. 57340.
May 1, 1980.
John A. Weiss, Branch Staff Counsel, Tallahassee, for complainant.
No appearance for respondent.
This disciplinary matter is before us on complaint of The Florida Bar, report of the referee, and petition for review by The Florida Bar seeking a greater penalty than that recommended by the referee.
The complaint charged, and the referee found, that respondent improperly handled a quiet title suit; that, although he had not been and would not be successful in clearing the title to the property, and, even though he had not undertaken any efforts to clear the title of the interest reserved to the state, respondent closed the transaction and allowed his client to take title to the property without advising his client that the defects in the title continued to exist; that respondent prepared an incomplete deed; and that respondent has never refunded to his client the $1,000 fee paid for the handling of the quiet title suit. The complaint charged, and the referee also found, that respondent was asked to represent a party in a breach of warranty suit; that he failed to notify his client of the date of the hearing on the matter and, because his client failed to appear at the hearing, the court dismissed the client's action; that respondent did not initiate contact with his client within a reasonable time before the scheduled hearing in order to prepare for the final hearing and to arrange for the attendance of witnesses; and that respondent never attempted to reopen the case.
The findings of the referee are supported by the record, and we agree with the referee's recommendation that respondent be found guilty of violating Florida Bar Code of Professional Responsibility Disciplinary Rule 6-101(A)(1), (A)(2), and (A)(3). The referee recommends that respondent receive a public reprimand and be placed on probation for a period of one year. During this probation period, the referee recommends that respondent undertake no legal representation of clients in real estate matters, other than the drawing of routine deeds, mortgages, contracts, or similar instruments until after he has completed thirty hours of continuing legal education courses approved for credit in the real property specialty under The Florida Bar designation plan. Additionally, the referee recommends that respondent make restitution to both clients.
Rule 6-101 provides:
DR 6-101. Failing to Act Competently
(A) A lawyer shall not:
(1) Handle a legal matter which he knows or should know that he is not competent to handle, without associating with him a lawyer who is competent to handle it; however, he may accept such employment if in good faith he expects to become qualified through study and investigation, as long as such preparation would not result in unreasonable delay or expense to his client.
(2) Handle a legal matter without preparation adequate in the circumstances.
(3) Neglect a legal matter entrusted to him.
Although The Florida Bar recommends that respondent receive a sixty-day suspension and probation, we have considered the facts that respondent has practiced law in Florida for thirty years without any prior disciplinary proceedings and that the present charges do not involve dishonesty or fraud, and we conclude that the referee's recommendation of public reprimand and a one-year conditional probation is appropriate under the particular circumstances of this case.
Accordingly, respondent is hereby publicly reprimanded, and the publication of this opinion in Southern Reporter will serve as a public reprimand. He is further placed on probation for a period of one year, and during this time he is not to undertake any legal representation of clients in real estate matters, other than drawing of routine deeds, mortgages, contracts, and similar instruments until he has completed thirty hours of continuing legal education courses approved for credit in real property. He is further ordered to refund to the two clients whose affairs he mishandled the attorney's fees paid by them. Costs in the amount of $537.00 are hereby assessed against respondent.
It is so ordered.
ENGLAND, C.J., and BOYD, OVERTON, SUNDBERG, ALDERMAN and McDONALD, JJ., concur.
ADKINS, J., concurs in part and dissents in part with an opinion.
I concur in that portion of the opinion which orders that respondent be publicly reprimanded, but I dissent from that portion of the order placing respondent on probation.
The respondent should be reprimanded for allowing his client to take title to the property without advising his client that defects in the title continued to exist, and his failure to notify another client of the date of a hearing in a breach of warranty suit.
The question of whether respondent was incompetent in handling a legal matter, or handled a legal matter without adequate preparation, should be determined in an appropriate malpractice suit. After determination of the malpractice suit, we would be in a position to determine whether respondent should be disciplined.
There is no way to determine whether the respondent handled a legal matter which he knew or should have known that he was not competent to handle, or whether he handled a legal matter without preparation adequate in the circumstances, or whether he neglected a legal matter entrusted to him. Respondent has practiced law in Florida for thirty years without any prior disciplinary proceedings, so I hesitate to say that he was handling a legal matter which he knew or should have known that he was not competent to handle. Also, I hesitate to say that he handled a legal matter without preparation adequate in the circumstances. Perhaps the evidence would show that he neglected a legal matter entrusted to him. It is on the latter basis that I would order a public reprimand. I do not believe it is appropriate to require respondent to complete thirty hours of continuing legal education courses approved for credit in real property.
The goals of The Florida Bar are lofty, but there are no recognized standards by which to measure competency. Most clients who fail to prevail in the course of their lawsuit feel that their failure is due to the competency of the attorney rather than the facts of the case. The line dividing the competent from the incompetent is ill-defined. I hate to judge a man's competency by his activities in a few instances. For that reason I believe the matter should be determined on the question of whether respondent neglected a legal matter. He did and should be reprimanded.