The Florida Bar v. Walton

952 So. 2d 510, 31 Fla. L. Weekly Supp. 870, 2006 Fla. LEXIS 2875, 2006 WL 3627029
CourtSupreme Court of Florida
DecidedDecember 14, 2006
DocketSC05-774
StatusPublished
Cited by1 cases

This text of 952 So. 2d 510 (The Florida Bar v. Walton) 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. Walton, 952 So. 2d 510, 31 Fla. L. Weekly Supp. 870, 2006 Fla. LEXIS 2875, 2006 WL 3627029 (Fla. 2006).

Opinion

952 So.2d 510 (2006)

THE FLORIDA BAR, Complainant,
v.
Costell WALTON, Jr., Respondent.

No. SC05-774.

Supreme Court of Florida.

December 14, 2006.
Rehearing Denied March 16, 2007.

*511 John F. Harkness, Jr., Executive Director, Kenneth L. Marvin, Director of Lawyer Regulation, and John Anthony Boggs, Staff Counsel, The Florida Bar, Tallahassee, FL, Lorraine Christine Hoffmann, Bar Counsel, The Florida Bar, Fort Lauderdale, FL, and James David Camp, III, Chair, Seventeenth Judicial Circuit, Grievance Committee "A," for Petitioner.

Kevin P. Tynan and James O. Walker, III of Richardson and Tynan, PLC, Tamarac, FL, for Respondent.

PER CURIAM.

We have for review a referee's report regarding alleged ethical breaches by Costell Walton, Jr. We have jurisdiction. See art. V, § 15, Fla. Const. For the reasons explained herein, we approve the referee's recommendation that Walton be suspended for ninety-one days. We disapprove the referee's recommendation that Walton be ordered to reimburse Louis Asbate for attorney fees and costs incurred by him as a result of Walton's misconduct. We also disapprove the referee's recommendation that Walton have his practice evaluated by The Florida Bar's Law Office Management Assistance Service (LOMAS). Instead, we order Walton to take The Florida Bar's professionalism course.

FACTS

The Bar filed a single-count complaint against Walton. The complaint alleged Walton violated the Rules of Professional Conduct; committed an act that was unlawful or contrary to honesty and justice; failed to be professionally competent; failed to be reasonably diligent and prompt; and engaged in conduct prejudicial to the administration of justice, all pursuant to his representation of the plaintiffs in a civil case after a judgment in his clients' favor had been entered. A formal hearing was held on the complaint on October 10, 2005. The referee issued a report on November 14, 2005.

In the report, the referee found that Walton represented the plaintiffs in a civil suit against Louis and Dawn Asbate. The civil trial court awarded Walton's clients a judgment for $3000, plus $250 in costs with interest. The $3000 had been previously deposited into the registry of the court and was available to the plaintiffs at any time. Louis Asbate wanted to pay the costs immediately to avoid the possibility that the unpaid judgment would have a negative impact on his credit rating, but, on the advice of his counsel, waited a few months until his liability for attorney fees diminished. *512 Three months later, Asbate's attorney forwarded a check to Walton for the $250 in costs plus $4.08 to cover the seven percent interest for the three-month period.[1] The attorney also demanded a recorded satisfaction of judgment in return.

The referee found that Walton wrongfully refused to record a satisfaction of judgment as requested. After the opposing party filed a complaint against him with The Florida Bar, Walton told the Bar that he "had no obligation to Mr. Asbate." In a subsequent letter, he told the Bar that Asbate had "some mental disorder" and that he was a "liar."

In a chance meeting four months after the satisfaction of judgment was first requested, Walton told opposing counsel, for the first time, that the check for costs and interest which had been forwarded to him was twenty-three cents less than what he thought it should have been. Opposing counsel immediately provided the missing twenty-three cents, from his pocket, to resolve the matter. Walton refused to accept the money, insisting that the entire amount due be sent to him in one check. He returned the check that had been sent to him in May 2004 to opposing counsel.

Walton received what he considered satisfaction in full in November 2004. Although his clients had been paid what they were owed according to Walton's own calculation, he still refused to provide a recorded satisfaction of judgment. Finally, in January 2005, he sent an unrecorded satisfaction of judgment directly to Asbate. Asbate ultimately recorded the satisfaction of judgment himself, after paying the requisite fee.

More than a year after the judgment had been satisfied, and well after Asbate had recorded the satisfaction of judgment, Walton filed a "Motion for Clarification and/or Determination of When Judgment was Satisfied" in the county court case, which had been closed for some time. The trial court determined the amount originally tendered, $254.08, had been short by only fourteen cents, not the twenty-three cents calculated by Walton.

The referee found Walton filed the motion to give himself a defense in the Bar disciplinary proceedings and that the motion was "frivolous and prejudicial to the administration of justice." Based upon careful observation of the demeanor of the witnesses at the final hearing, the referee found that Walton's conduct had been willful, intentional, and motivated by personal antipathy toward Asbate.

With regard to guilt, the referee found that Walton's conduct violated Rules Regulating the Florida Bar 3-4.2 (violating Rules of Professional Conduct is a cause for discipline), 3-4.3 (commission by a lawyer of any act that is unlawful or contrary to honesty and justice can be cause for discipline), 4-1.1 (professional competence), 4-1.3 (reasonable diligence and promptness), 4-8.4(a) (violation of Rules of Professional Conduct constitutes misconduct), and 4-8.4(d) (conduct prejudicial to the administration of justice, including disparaging litigants).

With regard to discipline, the referee recommended that Walton be suspended for ninety-one days; ordered to pay restitution to Asbate for costs and legal fees, if any, incurred as a result of Walton's misconduct; undergo evaluation of his law office management by LOMAS as a condition for reinstatement; and pay the Bar's costs. In recommending a ninety-one-day *513 suspension, the referee recognized that neglecting a client matter is generally punishable by a suspension of less than ninety days, but justified the more severe penalty by the cumulative nature of Walton's misconduct and the fact that his actions had been motivated by his personal animus toward the opposing party.

The referee found three aggravating factors: prior discipline, dishonest or selfish motive, and substantial experience in the practice of law. The referee did not find any mitigating factors.

Walton petitioned for review of the referee's findings of fact and conclusions as to guilt and the referee's recommended discipline.[2]

ANALYSIS

Findings of Fact and Conclusions 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." Fla. Bar v. Nowacki, 697 So.2d 828, 832 (Fla.1997). Walton failed to satisfy this burden, because there is competent, substantial evidence in the record to support the referee's findings in this case.

The crux of Walton's argument on this issue was not that the factual findings are unsupported, but that the findings that he violated rules 4-1.1 (competent representation), 4-1.3 (reasonable diligence and promptness), and 4-8.4(d) (conduct prejudicial to the administration of justice) are not supported by the facts. Further, Walton argues that because rules 3-4.2, 3-4.4, and 4-8.4(a) are all "piling on" violations, i.e., violations based on a respondent violating some other rule, these violations are also unsupported.

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952 So. 2d 510, 31 Fla. L. Weekly Supp. 870, 2006 Fla. LEXIS 2875, 2006 WL 3627029, Counsel Stack Legal Research, https://law.counselstack.com/opinion/the-florida-bar-v-walton-fla-2006.