The Florida Bar v. Ticktin

14 So. 3d 928, 2009 Fla. LEXIS 1254, 2009 WL 1406251
CourtSupreme Court of Florida
DecidedMay 21, 2009
DocketSC07-369
StatusPublished
Cited by12 cases

This text of 14 So. 3d 928 (The Florida Bar v. Ticktin) 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. Ticktin, 14 So. 3d 928, 2009 Fla. LEXIS 1254, 2009 WL 1406251 (Fla. 2009).

Opinion

PER CURIAM.

We have for review a referee’s report recommending that Peter David Ticktin, a member of The Florida Bar, be found guilty of professional misconduct and ad *931 monished. We have jurisdiction. See art. V, § 15, Fla. Const. We approve the referee’s findings of fact, his recommendations as to guilt, and his findings in aggravation and mitigation, with the exception of the finding in mitigation of imposition of other penalties or sanctions. However, we disapprove the recommended discipline of admonishment. Instead, we impose a ninety-one-day suspension.

BACKGROUND

The Bar filed a two-count complaint against Ticktin seeking lawyer discipline. The Bar alleged that Ticktin violated a number of former Rules Regulating the Florida Bar, as they existed in 2002, through his representations and business dealings that constituted conflicts of interests. In addition, the Bar alleged that Ticktin breached lawyer-client confidentiality. A referee was appointed. The referee conducted a disciplinary hearing and subsequently submitted a report recommending that Ticktin be found guilty of violating the following four rules in Count I: rules 4-1.7(a) (Representing Adverse Interests); 4-1.7(b) (Duty to Avoid Limitation on Independent Professional Judgment); 4-1.7(c) (Explanation to Clients); and 4-1.8(a) (Business Transactions With or Acquiring Interest Adverse to Client). The referee also recommends that Ticktin be found not guilty of violating the following two rules as alleged in Count II: rules 4-1.6(a) (Consent Required to Reveal Information); and 4-1.8(b) (Using Information to Disadvantage of Client). The referee recommends that Ticktin be admonished and that costs be awarded to the Bar.

The Bar petitioned for review challenging the referee’s recommendations of not guilty as to Count II and the recommended sanction of admonishment. Tick-tin cross-petitioned challenging the referee’s recommendation of guilt regarding Count I. The referee’s findings of fact and recommendations as to guilt, which we find are supported by the record, are as follows.

COUNT I

Beginning in 2001, and at all pertinent times afterward, Ticktin represented Paul Johnson in connection with various personal and business matters. Ticktin’s legal representation of Johnson included numerous matters related to three corporations for which Johnson was the founder, held executive authority over until January 2002, and had a continuing ownership interest: (1) Link Express Delivery Solutions, Inc. (LEDS); (2) Silver State Vending Corporation (Silver State) d/b/a Pony Express; and (3) Link Worldwide Logistics (LWL). 1 Johnson and Richard Bee were the only directors of LWL when it acquired a majority of the shares of stock of Silver State. But, Johnson made all the decisions for both LWL and Silver State, and was Bee’s boss.

In the fall of 2001, the Securities and Exchange Commission (SEC) brought a civil action against Johnson concerning LEDS. Ticktin represented Johnson in connection with the civil action until he withdrew in April 2002. 2 Sometime before January 5, 2002, Johnson learned that criminal charges in connection with LEDS were going to be filed against him. Tick- *932 tin dealt with the Assistant U.S. Attorney on Johnson’s behalf concerning the imminent criminal charges and advised Johnson concerning his grand jury appearance. Ticktin recommended a criminal attorney to Johnson, but he did not appear in the criminal case. Johnson was ultimately arrested and convicted of defrauding investors out of $20 million.

In anticipation of his arrest, on or about January 5, 2002, Johnson met with Ticktin to discuss who would replace Johnson as chief executive officer (CEO) of Silver State. The referee believed Ticktin’s testimony that he was tricked by Johnson into suggesting himself as a suitable replacement. But both Ticktin and the law partner with whom Ticktin discussed the matter viewed it as an opportunity. On January 7, 2002, Johnson, Ticktin, Bee, and Ticktin’s law partner met at Ticktin’s law office where the following announcements was made concerning Silver State: (1) Ticktin would immediately replace Johnson as Chairman and CEO; (2) Tick-tin’s law partner would assume the role of chief financial officer (CFO); and (3) Tick-tin’s law firm would remain as corporate counsel. Bee understood that, after that meeting, Ticktin would be his new boss at Silver State.

Ticktin failed to prepare a written document for Johnson or Silver State fully disclosing and transmitting the terms of the transaction or the terms by which Ticktin acquired an interest in Silver State, as required by former rule 4-1.8(a)(1). 3 The referee found that a written press release purportedly prepared and issued by Johnson did not satisfy the requirements of the rule. The press release stated that Ticktin accepted the position of Chairman and CEO, Ticktin’s law partner accepted appointment as CFO, and Johnson was to remain as a primary consultant. The press release was not prepared by Ticktin and did not fully disclose the terms of the transaction or contain the oral waiver of conflict and confidentiality Ticktin claims he obtained from Johnson, which the referee found was an essential term of the transaction.

Ticktin testified that the oral waiver of conflict and confidentiality obtained from Johnson at the January meeting only pertained to Silver State. Ticktin admitted that he did not have a waiver from Johnson pertaining to LWL or a waiver from Silver State, pertaining to Johnson, as required by former rule 4-1.7(a). There is no evidence to show that Johnson understood the meaning or extent of any oral waiver claimed by Ticktin. In April 2002, when Ticktin presented a written waiver, Johnson refused to sign it.

The referee found Ticktin’s testimony was not credible that he had not taken over as CEO of Silver State in January 2002. On February 26, 2002, Ticktin mailed a letter to shareholders and potential investors that stated he had assumed his role as CEO and Chairman of Silver State approximately eight weeks earlier. The referee found that when Ticktin made it known that he had no intention of being “Johnson’s ‘puppet,’ ” his interests became adverse to Johnson’s interests. The adverse positions between Ticktin and Johnson “became stark” by April 2002, when Ticktin decided he needed Johnson completely out of the business if it was to succeed.

At that time, Johnson held an assignment for 14.5 million shares of LWL stock, which made him the majority shareholder. *933 Furthermore, LWL was the majority shareholder in Silver State. Bee was the only active trustee for LWL after Johnson’s arrest. Bee testified that prior to Johnson’s ai’rest, the certificates for 14.5 million shares in LWL had been issued, but they had not been delivered to Johnson. Ticktin and Bee saw Johnson’s failure to take delivery of the shares in LWL as their mutual opportunity to completely oust Johnson from that corporation. Tick-tin visited Johnson in jail on multiple occasions during April 2002 in order to obtain Johnson’s signature on certain agreements.

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Bluebook (online)
14 So. 3d 928, 2009 Fla. LEXIS 1254, 2009 WL 1406251, Counsel Stack Legal Research, https://law.counselstack.com/opinion/the-florida-bar-v-ticktin-fla-2009.