Florida Bar v. Flinn

575 So. 2d 634, 16 Fla. L. Weekly Supp. 169, 1991 Fla. LEXIS 236, 1991 WL 16329
CourtSupreme Court of Florida
DecidedFebruary 7, 1991
DocketNo. 72934
StatusPublished
Cited by2 cases

This text of 575 So. 2d 634 (Florida Bar v. Flinn) is published on Counsel Stack Legal Research, covering Supreme Court of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Florida Bar v. Flinn, 575 So. 2d 634, 16 Fla. L. Weekly Supp. 169, 1991 Fla. LEXIS 236, 1991 WL 16329 (Fla. 1991).

Opinion

PER CURIAM.

This is a lawyer disciplinary proceeding in which the respondent, Gene Flinn, petitions for review of the referee’s findings of fact and his recommendation of disbarment. We have jurisdiction. Art. V, § 15, Fla.Const. We approve the referee’s findings, and we determine that disbarment is the appropriate discipline in this case.

The seven-count complaint against Flinn charged him with acts which occurred before January 1, 1987, in violation of the Disciplinary Rules of the Code of Professional Conduct, and acts which occurred after January 1, 1987, in violation of the Rules Regulating The Florida Bar, adopted effective January 1, 1987. See The Florida Bar re Rules Regulating The Florida Bar, 494 So.2d 977 (Fla.1986).

These incidents occurred in Dade County, and a Dade County grievance committee made appropriate findings of probable cause. A judicial officer in Broward County was appointed as referee to hear this cause, and the final hearing before the referee was held in Broward County. The respondent challenges the venue of that hearing. We agree with the referee that, under the record and the circumstances of this cause, the respondent waived his claim of improper venue.

The following are the findings of fact and recommendations of guilt as articulated by the referee in addressing each of the seven counts in this complaint.

As to count I, the referee found:

Mr. Gene Flinn was representing Mrs. Mattie Bohannon in the filing of a claims bill before the Florida legislature for the 1987 Florida legislative session. Although Mr. Flinn had been informed by Mrs. Bohannon and her lawyer, Steven Hall, and Ronald Buschbom (co-counsel with Mr. Flinn) that he had been discharged as counsel in the claims matter, Mr. Flinn continued to hold himself out as Mr. and Mrs. Bohannon's attorney in the claims matter and continued to interfere with the claims bill.

Consistent with this finding, the referee recommended that Flinn be found

guilty of violating Rule 4-1.16(a)(3) of the Rules Regulating The Florida Bar, to wit: lawyer shall not represent a client or, where representation has commenced, shall withdraw from representation of a client, if the lawyer is discharged.
As to count II, the referee found that on or about August 25, 1986, Mr. Flinn and his co-counsel received $27,869.40 for costs in a medical malpractice case. During March and April, 1987, Mr. Flinn was requested to provide an itemized statement for his portion of the costs, which was $19,700. However, Mr. Flinn failed to provide a timely or accurate accounting.
Mr. Flinn called a Dr. Ira Mitzner as one of his witnesses. During questioning of Dr. Mitzner, it was established that Dr. Mitzner is a chiropractor and he never treated Edwin Bohannon. However, he submitted a statement dated March 25, 1988, years after the services were allegedly performed, which shows [636]*636that he charged several thousand dollars for reviewing Edwin Bohannon’s medical records and for consultation fees. Dr. Mitzner testified that he was going through a nasty divorce at the time and he asked Mr. Flinn to pay him in cash (presumably to hide his assets from his wife and from the judge handling his divorce). Mr. Flinn allegedly paid Dr. Mitzner in cash.
The doctor also testified that the baby (who was the victim in a medical malpractice case) had a perforated large bowel and small bowel. Mr. Buschbom testified that Edwin Bohannon was a premature baby and had developed Necrosis Enteritis, which causes the intestines to die. It’s a disease of infants.
The accounting submitted by Mr. Flinn shows that he incurred $3,000 in costs for payment to Dr. Mitzner. Neither Dr. Mitzner nor Mr. Flinn presented any record of the number of hours allegedly spent or on what days the records were allegedly reviewed or when the money was paid.
Ronald Buschbom testified, and I believe, that it was impossible for Dr. Mitz-ner to have done anything beneficial to the Plaintiff in the medical malpractice case. Mr. Buschbom testified that he had all of the medical records and Dr. Mitzner never reviewed them. In addition, he stated, according to Florida Statute 768.45, Medical Neglect Standards of Recovery, Dr. Mitzner could not testify in the medical malpractice case, as only a medical doctor experienced in treating babies would be qualified to testify and Dr. Mitzner is a chiropractor. Moreover, Dr. Mitzner was not listed on the pre-trial catalog, which Flinn prepared.
Based upon the evidence, it is clear and convincing that Dr. Mitzner’s statement for charges was false, his testimony was pure fabrication, and that Mr. Flinn’s itemization of costs (at least as it concerned Dr. Mitzner) was also false.

(Citations omitted.)

Consistent with these findings, the referee recommended that Flinn be guilty of the following violations:

Disciplinary Rule 9-102(B)(3) of the Code of Professional Responsibility, to wit: a lawyer shall maintain complete records of all funds, securities and other properties of a client coming into [the] posséssion of the lawyer and render appropriate accounts to his client regarding them.
Disciplinary Rule 2-106(E), Code of Professional Responsibility, to wit: the attorney shall prepare a closing statement reflecting an itemization of all costs and expenses, together with the amount of fee received by each participating attorney;
Rule 4 — 1.5(f)(5), Rules Regulating The Florida Bar. Charging an illegal or clearly excessive fee;
Rule 5-1.1, Rules Regulating The Florida Bar, to wit: Trust accounting rule.

The referee also stated:

Although the respondent was not specifically charged with violating Rule 4-8.-4(c), Rules Regulating The Florida Bar, the evidence elicited from Dr. Mitzner during cross-examination, plus other evidence, makes it clear and convincing, no, beyond any reasonable doubt, that the respondent violated Rule 4-8.4(c) of the Rules Regulating The Florida Bar, to wit: engaging in conduct involving dishonesty, fraud, deceit or misrepresentation.
Therefore, this was considered relevant to the discipline to be imposed, The Florida Bar v. Stillman, 401 So.2d 1306 (Fla.1981) and The Florida Bar v. Setien, 530 So.2d 298 (Fla.1988).

As to count III, the referee found:

At a grievance committee hearing on March 22, 1988, Mr. Flinn offered into evidence a copy of an affidavit dated April 26, 1985, signed by Mattie and William Bohannon. Added to the affidavit were the words, “and employ Gene Flinn and Bob Levy, exclusively, to pursue a claims bill to conclusion.”
While the evidence shows that the affidavit was signed by Mattie and William Bohannon, I find that the words described above were added to the affidavit [637]*637by Mr. Flinn or at his instruction, without the prior knowledge or consent of Mattie or William Bohannon. On April 26, 1985, Mrs. Bohannon did not know Bob Levy. Also, on April 26, 1985, the date the above-mentioned affidavit was signed, the relationship between Mr. Flinn and Mr. Buschbom was very good and there was no reason for hiring a lobbyist at that time.

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Bluebook (online)
575 So. 2d 634, 16 Fla. L. Weekly Supp. 169, 1991 Fla. LEXIS 236, 1991 WL 16329, Counsel Stack Legal Research, https://law.counselstack.com/opinion/florida-bar-v-flinn-fla-1991.