The Florida Bar v. Klein

774 So. 2d 685, 25 Fla. L. Weekly Supp. 1107, 2000 Fla. LEXIS 2369, 2000 WL 1785985
CourtSupreme Court of Florida
DecidedDecember 7, 2000
DocketSC95011
StatusPublished
Cited by9 cases

This text of 774 So. 2d 685 (The Florida Bar v. Klein) 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. Klein, 774 So. 2d 685, 25 Fla. L. Weekly Supp. 1107, 2000 Fla. LEXIS 2369, 2000 WL 1785985 (Fla. 2000).

Opinion

774 So.2d 685 (2000)

THE FLORIDA BAR, Complainant,
v.
Edward KLEIN, Respondent.

No. SC95011.

Supreme Court of Florida.

December 7, 2000.

*687 John F. Harkness, Jr., Executive Director, and John Anthony Boggs, Division Director, Tallahassee, Florida, and Kevin P. Tynan, Bar Counsel, Fort Lauderdale, Florida, for Complainant.

Edward Klein, Tamarac, Florida, Respondent, pro se.

PER CURIAM.

Attorney Edward Klein has petitioned for review of the referee's report regarding alleged ethical breaches by Klein. We have jurisdiction. See Art. V, § 15, Fla. Const.

FACTS

During all times relevant to the conduct at issue, Klein owned a home in Westwood, a community of 214 single-family homes. At various times Klein served as either an officer or a member of the Board of Directors of the homeowner's association for the community, Westwood Community Two Association, Inc. ("Westwood HOA"). Klein also represented the Westwood HOA in various lawsuits and legal disputes.

The original 1972 deed restrictions for the Westwood community contained a provision prohibiting children less than 16 years of age from living in the development. Following several amendments to the federal Fair Housing Act, Klein, as attorney for the Westwood HOA, amended the deed restrictions in an attempt to qualify Westwood as a 55 and older community, which would permit Westwood to exclude children if certain criteria were met. After the amendment was recorded, two Westwood homeowners, John Lewis and Peter Martin, challenged the amendment by commencing a legal action in federal court against the Westwood HOA ("Lewis and Martin federal litigation"). Lewis and Martin were granted a partial summary judgment by the federal court and the Westwood HOA was permanently enjoined from enforcing the amendment. This order was appealed and affirmed without opinion. See Lewis v. Westwood Community Two, 104 F.3d 370 (11th Cir.1996) (table).

Lewis and Martin also filed suit challenging the amendment in state court under the state Fair Housing Act against the Westwood HOA ("Lewis and Martin state litigation"). Just weeks after Lewis and Martin had filed their state lawsuit, Klein, on behalf of the Westwood HOA, filed a separate legal action against Lewis and Martin, also in state court. The Westwood HOA's state action was later dismissed and Lewis and Martin were awarded attorneys' fees and costs, to be paid by the homeowner's association.

On October 12, 1995, Lewis and Martin received a summary final judgment in the Lewis and Martin state litigation, and were again awarded attorneys' fees and costs in connection with that action. Lewis and Martin sought discovery of Westwood HOA's financial status, and Klein was ordered to produce the Westwood HOA's bank records. Klein failed to do so until two and one-half months later upon the threat of being held in contempt of court.

The judgment in favor of Lewis and Martin in the state litigation which permanently enjoined the Westwood HOA from enforcing the amendment was appealed and affirmed. See Westwood Community Two Ass'n, Inc. v. Lewis, 687 So.2d 296 (Fla. 4th DCA 1997). However, notwithstanding this legal status of the restrictions, Klein proceeded to file another legal action on behalf of the successor corporation to the Westwood HOA against Linda *688 and Mark Menzano, seeking to enforce the age restrictions which had been invalidated. Klein was later found in contempt for doing so.

Following these adverse rulings in both the state and federal litigation, which included monetary awards, the Westwood HOA filed a voluntary petition for Chapter 7 bankruptcy protection. Days after the bankruptcy filing, Klein formed Westwood Community Two, Inc. ("Westwood HOA II"), and thereafter orchestrated the execution of an assignment of the assets of the Westwood HOA to the Westwood HOA II. Following a complaint by the bankruptcy trustee, the funds were returned to the Westwood HOA's bankruptcy estate.

Based in part on the above facts, the Bar filed a 17-count complaint against Klein. Following a hearing, the referee found Klein had engaged in a total of 61 rule violations.[1] In recommending a disciplinary sanction, the referee found several aggravating factors including: dishonest or selfish motive, a pattern of misconduct, refusal to acknowledge wrongful nature of the conduct, vulnerability of the victim, substantial experience in the practice of law, and indifference to making restitution. See Fla. Stds. Imposing Law. Sancs. 9.22(b)-(c), (g)-(j). Although the referee did not make any specific findings as to mitigating factors, the referee did consider Klein's age (91) and his heart condition. After considering these factors, the referee recommended that Klein be disbarred.[2] Klein now petitions for review.

THE REFEREE'S FINDINGS

Klein challenges many of the referee's findings of fact and recommendations as to guilt. The party contending that the referee's findings of fact and conclusions as to guilt are erroneous carries the burden of demonstrating that there is no evidence in the record to support those findings or that the record evidence clearly contradicts the conclusions. See Florida Bar v. Miele, 605 So.2d 866, 868 (Fla.1992). Although Klein challenges many of the referee's findings, we find that certain factual findings are dispositive of this case, and we decline to address the other issues raised by Klein.

A. Amendment to the Bylaws

The referee found that Klein failed to provide competent representation in connection with the attempt to amend the bylaws of the Westwood HOA because the deed restrictions required that any bylaw amendment have the approval of the developer and the institutional lenders. The referee found that Klein failed to obtain such approval, and therefore Klein had violated rule 4-1.1 (lawyer shall provide competent representation). Klein claims that he informed the Board of the Westwood HOA that the approval of the institutional *689 lenders was needed, but the Board rejected his advice. Klein also asserts that the developer was no longer in business so the approval could not have been obtained.

There is competent substantial evidence in the record to support the referee's findings. Even if we accept Klein's argument that such approval was unobtainable, the summary judgment entered in the Lewis and Martin federal litigation held that the amendment was invalid because the Westwood HOA was not authorized to amend the bylaws in a manner inconsistent with the deed restrictions. Because the amendment Klein prepared was inconsistent with the deed restrictions, we approve the referee's finding that Klein failed to provide competent representation.

B. Forum Shopping

The referee found that less than one month after the Lewis and Martin state litigation was filed, Klein filed an almost identical legal action in state court against Lewis and Martin without disclosing the existence of the already pending Lewis and Martin state litigation. The referee concluded that Klein was shopping for a more favorable forum, and found that Klein had violated rule 4-8.4(d) (conduct prejudicial to the administration of justice). Klein argues that the referee erred in basing this finding on a circuit court administrative order that was inapplicable.

Although the administrative order relied on in part by the referee was inapplicable, there is competent substantial evidence to support the referee's finding as to the rule violation.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Richard Allen Johnson v. State of Florida
135 So. 3d 1002 (Supreme Court of Florida, 2014)
Martinez v. State
123 So. 3d 701 (District Court of Appeal of Florida, 2013)
Florida Bar v. Gwynn
94 So. 3d 425 (Supreme Court of Florida, 2012)
Geralds v. State
35 Fla. L. Weekly Fed. S 503 (Supreme Court of Florida, 2010)
Lamb v. McNeil
41 So. 3d 964 (District Court of Appeal of Florida, 2010)
JEAN-MARIE v. State
35 So. 3d 116 (District Court of Appeal of Florida, 2010)
Florida Bar v. Feige
937 So. 2d 605 (Supreme Court of Florida, 2006)
Florida Bar v. Shankman
908 So. 2d 379 (Supreme Court of Florida, 2005)

Cite This Page — Counsel Stack

Bluebook (online)
774 So. 2d 685, 25 Fla. L. Weekly Supp. 1107, 2000 Fla. LEXIS 2369, 2000 WL 1785985, Counsel Stack Legal Research, https://law.counselstack.com/opinion/the-florida-bar-v-klein-fla-2000.