The Florida Bar v. Kelly

813 So. 2d 85, 2002 WL 355227
CourtSupreme Court of Florida
DecidedMarch 7, 2002
DocketSC96940
StatusPublished
Cited by3 cases

This text of 813 So. 2d 85 (The Florida Bar v. Kelly) 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
The Florida Bar v. Kelly, 813 So. 2d 85, 2002 WL 355227 (Fla. 2002).

Opinion

813 So.2d 85 (2002)

THE FLORIDA BAR, Complainant,
v.
Peter Ellis KELLY, Respondent.

No. SC96940.

Supreme Court of Florida.

March 7, 2002.

*86 John F. Harkness, Jr., Executive Director, and John A. Boggs, Director of Lawyer Regulation, Tallahassee, FL; and Stephen Christopher Whalen, Assistant Staff Counsel, Tampa, FL, for Complainant.

Peter E. Kelly, pro se, Sanibel, Florida, for Respondent.

PER CURIAM.

We have for review a referee's report regarding alleged ethical breaches by Peter Ellis Kelly. We have jurisdiction. See art. V, § 15, Fla. Const.

The Florida Bar filed a three-count complaint against Peter Ellis Kelly alleging that he violated various Rules Regulating the Florida Bar in representing a client in a workers' compensation claim, in bringing a lawsuit against that client, and in failing to follow trust accounting procedures.

FACTS

After a hearing, the referee made the following findings:

Count I—Kelly entered into a contingency fee agreement to represent Gregory Halderman in a workers' compensation suit involving an eye injury. The agreement provided that Kelly would receive 33 1/3% of the gross amount recovered in the case. Pursuant to section 440.34, Florida Statutes (1995), Kelly was required to file a workers' compensation agreement regarding his fee with the workers' compensation court or file a notice of appearance, and to obtain prior approval from the workers' compensation judge. The referee found that Kelly failed to file such an agreement or notice and was therefore precluded from obtaining any fees whatsoever for handling the workers' compensation claim without prior approval from the workers' compensation judge.

After Kelly filed a workers' compensation claim on behalf of Halderman, Kelly received two checks payable to Halderman from Riscorp, the workers' compensation carrier. The referee found that Kelly failed to forward these checks to Halderman in a timely manner, delaying until after the checks had expired, and, in doing so, failed to safeguard Halderman's property.

In a letter dated April 4, 1998, Halderman terminated Kelly's representation and requested certain papers. The referee found that Kelly failed to surrender the papers and property to Halderman and his new attorney, Robert Keezel, in a timely manner. The referee found that Kelly, without legal justification, withheld Halderman's file from Keezel for five months, even after Kelly had been notified by the Bar that the grievance committee was investigating several issues, including whether there was probable cause to believe that Kelly violated the rules by failing to surrender property and papers to Halderman or his new counsel.

As to count I the referee recommended that Kelly be found guilty of violating rules 4-1.5(a) (a lawyer shall not enter into an agreement for, charge, or collect an illegal, prohibited, or clearly excessive fee), 4-1.15(a) (failure to safeguard client property and commingling client funds), 4-1.16(d) (protecting client's interest upon termination of representation), and 4-8.4(d) (engaging in conduct prejudicial to the administration of justice).

*87 Count II—The referee found that Kelly had filed a five-count civil action against Halderman and his wife, Delores Halderman, that lacked justiciable issues. The referee noted the civil action was filed almost one year after Halderman discharged Kelly and was filed after Halderman had submitted his grievance to the Bar.

In the first count of Kelly's complaint, along with other claims, he alleged that he was entitled to $50,000 for "loss of the contingency amount due him from a settlement" and for Halderman's cancellation of the agreement. In the second count of Kelly's cause of action, he sought damages from Halderman based on quantum meruit. The referee found the first and second counts to be frivolous because Kelly was suing to enforce an illegal fee in a court that did not have jurisdiction over the issue. The referee found that Kelly had not petitioned the workers' compensation court for approval of his fee and had not submitted his fee agreement for approval.

In the third count of Kelly's civil action, he sued Delores Halderman, claiming that she interfered with Kelly's contract because she "advised" her husband, Halderman, to terminate Kelly's services. The referee found this count to be frivolous because Kelly sought damages against his former client in retaliation for exercising his lawful right to terminate representation and seek new counsel.

In Kelly's fourth count, he sued Halderman for $500,000 for filing a false grievance against him with The Florida Bar. The referee found this count frivolous because Halderman is immune from suit pursuant to this Court's opinion in Tobkin v. Jarboe, 710 So.2d 975 (Fla.1998). The Bar provided Kelly with the cite for the Tobkin opinion no later than March 24, 1999, less than two months after Kelly had filed his lawsuit. On March 24, 1999, Kelly acknowledged in a letter to the Bar that he had been informed of the immunity issue and of the Tobkin decision. Although Kelly indicated he would read the decision and determine whether his lawsuit complied with the opinion, he later testified that he was not sure he ever read Tobkin.

In the fifth count of his civil action, Kelly sued Halderman for an additional $500,000 for allegedly misrepresenting the existence of a preexisting eye injury. Kelly alleged that Halderman "deliberately misrepresented the truth" to him and "allowed him to continue to work on the case under false pretenses." The referee found that Kelly knew or should have known about Halderman's prior injury and that the information was available in the medical records. Further, the referee found that even assuming Halderman purposely had withheld information concerning the prior injury from Kelly, it would not have created a valid basis for a cause of action. Additionally, the referee found that Kelly's challenge to Halderman's veracity potentially created a conflict of interest between Kelly and his client because, if the lawsuit had been discovered by the workers' compensation carrier, Kelly could have become a witness against his client concerning Halderman's credibility. The referee found that Kelly was prohibited under rule 4-1.6 (Confidentiality of Information) from revealing an opinion based on confidential information regarding his client's veracity. The referee also found that Kelly could not claim he was permitted under rule 4-1.6(c)(2)[1] to make such disclosures, because the conduct Kelly accused Halderman *88 of committing did not establish a cause of action.

As to count II the referee recommended that Kelly be found guilty of violating rules 4-1.6(a) (revealing confidential information without consent), 4-1.16(d) (failing to protect client's interest upon termination of representation), 4-3.1 (bringing a frivolous action), 4-8.4(d) (conduct prejudicial to the administration of justice), and 4-8.4(g) (failure to respond in writing to an inquiry by a disciplinary agency).

Count III—The record shows that the Bar conducted an audit of Kelly's trust account and charged Kelly with failing to preserve duplicate deposit slips for deposits made to his trust account, failing to maintain a cash receipts and disbursements journal for trust account funds, failing to maintain client ledger cards, and failing to make any monthly comparisons between the total of reconciled balances of all trust accounts and the total of trust account ledger cards.

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Related

The Florida Bar v. Tobkin
944 So. 2d 219 (Supreme Court of Florida, 2006)
The Florida Bar v. Spear
887 So. 2d 1242 (Supreme Court of Florida, 2004)
The Florida Bar v. Shoureas
892 So. 2d 1002 (Supreme Court of Florida, 2004)

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Bluebook (online)
813 So. 2d 85, 2002 WL 355227, Counsel Stack Legal Research, https://law.counselstack.com/opinion/the-florida-bar-v-kelly-fla-2002.