The Florida Bar v. Vining

721 So. 2d 1164, 24 Fla. L. Weekly Supp. 1, 1998 Fla. LEXIS 2426, 1998 WL 873056
Supreme Court of Florida·Decided December 17, 1998·No. 85235·Published·Cited by 4 cases

Opinion

721 So.2d 1164 (1998)

THE FLORIDA BAR, Complainant,
v.
Edward C. VINING, Jr., Respondent.

No. 85235

Supreme Court of Florida.

December 17, 1998.

*1165 John F. Harkness, Jr., Executive Director and John Anthony Boggs, Staff Counsel, Tallahassee, and Elena Evans and Arlene Kalish Sankel, Bar Counsel, Miami, for Complainant.

Edward C. Vining, Jr., Miami, Respondent, pro se.

PER CURIAM.

This disciplinary proceeding is before us upon review of a referee's findings and recommendations. We have jurisdiction. Art. V, § 15, Fla. Const. We approve the referee's findings and accept the recommendation of discipline.

PROCEEDINGS TO DATE

At a hearing before the referee, it was established that in November of 1991, Edward C. Vining was retained by Robert Gusman to represent the Maurice Gusman Residuary Trust No. 1 d/b/a/ The Ingraham Building (the Building). Vining initially wrote a letter to one of the Building's tenants, Byte International Corporation (Byte), demanding compliance with certain provisions in its lease. When Byte did not comply, Vining filed suit against Byte on behalf of the Building. At some point in the litigation, the trial court awarded attorney's fees *1166 in favor of the Building. Byte appealed this award on February 17, 1993, and filed its initial brief on March 30,1993.

On April 14,1993, the Building sent Vining a letter terminating his services. The letter specifically referenced circuit court and county court cases involving Byte and stated that Vining was "discharged from any further work in this case or in any other matters which you may be performing on behalf of the Ingraham Building." The letter also requested that Vining "arrange for the delivery of all file documents relating to this case following your receipt of this letter." On April 16, 1993, the Building's new attorney, Moises Grayson, requested a copy of the files in the Byte case from Vining. Vining refused.[1]

On April 20, 1993, the Building filed suit against Edward C. Vining, Jr., P.A. (the P.A.), a corporate entity formed by Vining and under whose name office space was leased in the Building, for nonpayment of rent. At the time this suit was filed, the Building had not paid Vining for services rendered in the Byte matter—in the trial court and on appeal. Vining assigned his claim for fees in the Byte matter to the P.A., and the P.A. counterclaimed for those fees against the Building. The case went to trial, and the Building obtained a judgment against the P.A., which was offset to a certain degree by the amount of unpaid attorney's fees. Through supplemental pleadings, the Building attempted to implead Vining individually and "pierce the corporate veil" with regard to the judgment for rent owed by the P.A. The trial court rejected this claim.

In the meantime, and even after receiving the discharge letter and after the Building sued the P.A., Vining nevertheless continued his representation of the Building and actually filed an answer brief and participated in oral argument in the Byte appeal. On November 8, 1993, Grayson filed a motion for substitution of counsel in the Byte appeal. On November 9, 1993, the district court affirmed the order of the trial court awarding attorney's fees to the Building.

On May 18, 1994, Robert Gusman filed a bar complaint against Vining. On February 4, 1995, the Bar filed a formal complaint against Vining alleging that through his actions in the Byte matter, he violated rule 4-1.2(a) (a lawyer shall abide by a client's decisions concerning the objective of representation and shall consult with the client as to the means by which they are to be pursued); rule 4-1.5 (an attorney shall not enter into an agreement for, charge or collect an illegal, prohibited or clearly excessive fee); rule 4-1.7(b) (a lawyer shall not represent a client if the lawyer's exercise of independent professional judgment in the representation of that client may be materially limited by the lawyer's responsibilities to another client or to a third person or by the lawyer's own interest); and rule 4-1.16 (a lawyer shall not represent a client or, where representation has commenced, shall withdraw from the representation of a client if the lawyer is discharged) of the Rules Regulating the Florida Bar.

After a hearing, the referee found that for the purpose of the bar proceedings, Vining, the individual, was the same as the P.A. Vining had formed and through which office space was leased. Further, the referee recommended that Vining be found guilty of violating rule 4-1.16, "by continuing to represent the Building after the April 1993, termination of representation letter," rule 4-1.7(b) "by representing the client in an appeal while he himself was being sued by and countersuing the client," and rule 4-1.2(a) "by continuing to pursue the appeal when he had been instructed by the client to terminate his representation." The referee recommended Vining not be found guilty of violating rule 4-1.5.

As to discipline, the referee recommended Vining be suspended for six months. In determining the recommended discipline, the referee considered that "the client suffered injury in that respondent continued to represent the client after he had been discharged and used the hours he worked pursuing the *1167 appeal to offset monies sued for back rent"; that Vining had one prior disciplinary action against him within the last year; that Vining had a self-serving motive in continuing the representation; that Vining refused to acknowledge his actions were wrong; and that Vining had substantial experience in the practice of law. In mitigation, the referee considered character testimony from respected members of the legal and business community.

Although he does not dispute the majority of the material factual findings by the referee, Vining takes issue with her finding that for the purposes of the bar proceedings, he is one and the same as Edward C. Vining, Jr., P.A. Vining also argues that under the circumstances of this case, he should not be found guilty of "continued representation of a client" and that the recommendation of a six-month suspension is excessive.

VINING VS. VINING, P.A.

Paragraph 2 of the referee's findings of fact states, "The Respondent is for the purpose of this proceeding the same as Edward C. Vining, P.A., hereinafter referred to as the Respondent."[2] Vining argues that this finding is unsupported by the evidence.

Initially, we note that it is questionable whether this "finding" is a genuine "finding of fact" in the true sense of the word, since, more than anything else, it appears to be simply for ease of reference by the referee in the report. The referee appears to be asserting that there is no question that the same lawyer, Edward Vining, represented the Building and at the same time his P.A. leased office space in the Building. However, to the extent that it is a finding of fact, Vining's burden on review is to demonstrate "that there is no evidence in the record to support [the referee's] findings or that the record evidence clearly contradicts the conclusions." Florida Bar v. Spann, 682 So.2d 1070, 1073 (Fla.1996); see also Florida Bar v. Jordan, 705 So.2d 1387, 1390 (Fla.1998) (quoting same). Where the referee's findings are supported by competent substantial evidence, "this Court is precluded from reweighing the evidence and substituting its judgment for that of the referee." Florida Bar v. MacMillan, 600 So.2d 457, 459 (Fla.1992); see also Jordan, 705 So.2d at 1390 (quoting same).

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The Florida Bar v. Vining, 721 So. 2d 1164, 24 Fla. L. Weekly Supp. 1, 1998 Fla. LEXIS 2426, 1998 WL 873056 (Fla. 1998).

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