The Florida Bar v. Lange

711 So. 2d 518, 23 Fla. L. Weekly Supp. 263, 1998 Fla. LEXIS 862, 1998 WL 238757
CourtSupreme Court of Florida
DecidedMay 14, 1998
Docket87537, 88694
StatusPublished
Cited by12 cases

This text of 711 So. 2d 518 (The Florida Bar v. Lange) 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. Lange, 711 So. 2d 518, 23 Fla. L. Weekly Supp. 263, 1998 Fla. LEXIS 862, 1998 WL 238757 (Fla. 1998).

Opinion

711 So.2d 518 (1998)

THE FLORIDA BAR, Complainant,
v.
Kenneth T. LANGE, Respondent.

Nos. 87537, 88694.

Supreme Court of Florida.

May 14, 1998.
Rehearing Denied June 11, 1998.

*519 John F. Harkness, Jr., Executive Director, and John T. Berry, Staff Counsel, Tallahassee, and Arlene K. Sankel, Bar Counsel, Miami, for Complainant.

Kenneth T. Lange, Miami, Respondent, pro se.

PER CURIAM.

We have for review the complaints of The Florida Bar and the referees' reports regarding alleged ethical breaches by respondent Kenneth T. Lange. We have jurisdiction. Art. V, § 15, Fla. Const. We consolidate these two cases for disposition in one opinion.

CASE NO. 88,694

The Florida Bar filed a one-count complaint against respondent in August 1996, alleging violation of the attorney-client privilege in that respondent disclosed confidential communications of a former client without seeking a waiver from that client. The referee's report reveals the following facts and determinations as to guilt.

In 1994, respondent represented Keith Biggins in a federal criminal case. Respondent had previously represented Carlos Vasquez who was listed as a government witness against Biggins. Prior to the commencement of trial, in two separate motions, respondent divulged confidential communications made to him by Vasquez in 1991 relating to uncharged crimes that Vasquez had confessed to committing.

On the opening day of trial, respondent filed a "Motion to Notice Actual Potential Conflict of Interest" between himself and Vasquez in which he again disclosed Vasquez's communications and confession to the crime. A hearing was held before Judge Stafford, during which respondent gave sworn testimony divulging the confidential communications made to him by Vasquez. Upon inquiry by Judge Stafford, respondent admitted that he had not obtained a waiver of the attorney-client privilege from Vasquez. Although respondent contends that his disclosure of confidential information falls within the crime-fraud exception to the attorney-client privilege, the referee found that no such argument was made to the judge in the federal court proceedings.[1]

Based on these facts, the referee found that respondent should not have divulged privileged attorney-client communications, but rather should have advised the court, in generalities, of this potential conflict and sought guidance from the court on how to proceed. Accordingly, the referee recommended that respondent be found guilty of violating rule 4-1.6(a) of the Rules Regulating the Florida Bar. As for the discipline, the referee found that respondent was previously sanctioned with a public reprimand in an unrelated case, the case that has now been consolidated with this one. She recommended that respondent receive an admonishment and bear the costs incurred by the Bar.

Preliminarily, we reject respondent's argument regarding the "crime-fraud" exception. The so-called "crime-fraud" exception on which respondent relies states, in relevant part:

(a) Consent Required to Reveal Information. A lawyer shall not reveal information relating to representation of a client except as stated in subdivisions (b), (c), and (d), unless the client consents after disclosure to the client.
(b) When Lawyer Must Reveal Information. A lawyer shall reveal such information to the extent the lawyer reasonably believes necessary:
(1) to prevent a client from committing a crime; or
*520 (2) to prevent a death or substantial bodily harm to another.

R. Regulating Fla. Bar 4-1.6.[2] Clearly, subsection (b)(1) of the rule requires lawyers to disclose a client's secrets to prevent the commission of a crime. However, in this case, respondent made no attempt to prevent the commission of a crime in that he neither discouraged Vasquez from hiding evidence of the crimes nor made any attempt to alert law enforcement agencies or the court of the existence of a possible crime.[3] Rather, respondent disclosed Vasquez's confession to two murders previously committed for the purpose of demonstrating possible conflict.[4] Accordingly, this claim is without merit.

Next, we conclude that the referee's findings of fact and recommendation of guilt are supported by competent and substantial evidence.[5] Respondent fails to point to any evidence (or lack thereof) in the record that would vitiate the referee's findings of guilt. Thus, based upon the record evidence in this case, we approve the referee's findings of fact and conclude that respondent violated rule 4-1.6 of the Rules Regulating The Florida Bar.

CASE NO. 87,537

In case no. 87,537, the Bar filed a two-count complaint against respondent, alleging the following violations: Count I—Violations of Rules of Professional Conduct 4-1.4(b) (lawyer shall explain matter to extent reasonably necessary to permit client to make informed decisions regarding representation); 4-1.7(b) (lawyer shall not represent client if lawyer's exercise of independent professional judgment may be materially limited by lawyer's responsibilities to another client, third person, or lawyer's own interest); 4-2.1 (lawyer shall exercise independent judgment and render candid advice) and 4-8.4(d) (prohibiting conduct prejudicial to the administration of justice)); Count II—Violations of Rules of Professional Conduct 4-7.1(a) (lawyer shall not make or permit to be made false, misleading, deceptive, or unfair communication about lawyer or his services); and 4-7.2(j) (prohibiting self-laudatory statements in advertisements and written communications. The referee, Judge Moie J.L. Tendrich, found respondent guilty of all the allegations in the complaint. As discipline, Judge Tendrich recommended that respondent receive a public reprimand administered by publication in the Southern Reporter. The following facts are taken from Judge Tendrich's report.

COUNT I

In 1984, respondent accepted an appointment to defend Rickey Bernard Roberts in a capital murder case. Respondent's fee as a specially appointed public defender was limited to $3500. During deliberations, the jury requested a viewing of the alleged crime *521 scene. Respondent failed to object to the jury's request and failed to advise Roberts of his right to be present or his right to have the trial judge present. Respondent's inaction was based solely on his personal financial interests.

Respondent wished to avoid a hung jury since if a retrial occurred, he would remain limited to the original $3500 mandated in special appointed capital cases. Respondent testified at Roberts' 1992 federal habeas evidentiary hearing before Judge King that if the jury did not reach a verdict, he would have to retry the case "for free."[6] He testified that the decision not to object was entirely personal to him and his motivation was not a tactical decision made in the best interest of his client. Respondent allowed his independent professional judgment to be compromised by his own personal financial interests. The referee concluded that respondent violated the Rules of Professional Conduct whether or not he testified truthfully at Roberts' federal habeas hearing before Judge King.

COUNT II

From 1992 to the present, respondent's advertisement in the yellow pages stated, "All Federal & State Court in 50 States." That statement suggests that respondent is admitted to practice in all federal and state courts in fifty states.

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Bluebook (online)
711 So. 2d 518, 23 Fla. L. Weekly Supp. 263, 1998 Fla. LEXIS 862, 1998 WL 238757, Counsel Stack Legal Research, https://law.counselstack.com/opinion/the-florida-bar-v-lange-fla-1998.