Summary
In State ex rel. Florida Bar v. Dunham, Fla., 134 So.2d 1, we stated that disbarment is the most severe punishment which can be meted out to an attorney and "* * * should be imposed only where the evidence shows that the possibility of restoration is unlikely or remote."
Summary of this case from Florida Bar v. TurkOpinion
No. 31100.
October 25, 1961.
George N. Meros, St. Petersburg, for The Florida Bar, complainant.
Harry W. Fogle of Fogle, Wilson Shingler, St. Petersburg, for respondent.
By his petition the respondent, Frank R. Dunham, requested this Court to review a judgment of the Board of Governors of The Florida Bar that he be disbarred from the practice of law and that he pay the costs of the proceedings leading to the judgment of disbarment.
In June 1960 the respondent, after consulting his minister, contacted the President of the St. Petersburg Bar Association and advised him that he had diverted various sums of money belonging to his clients to his own personal use and that he was unable to repay these sums to his clients.
On advice of the President of the St. Petersburg Bar Association respondent in August 1960 petitioned the Circuit Court for appointment of a committee to close out his practice and to assist his clients to obtain other counsel in pending matters. The respondent has not practiced law since the appointment of said committee.
Subsequently a complaint was filed against respondent by The Florida Bar in which respondent was charged with violating the second paragraph of Canon Eleven of the Canons of Professional Ethics, as adopted by the Supreme Court of Florida on December 6, 1955, 31 F.S.A.
Respondent filed an answer admitting most of the charges in the complaint and alleging that he had made restitution to the fullest of his then financial ability.
After hearings, at which the respondent testified that his defalcations had been occasioned by financial and domestic difficulties, the referee made his report in which he recommended that respondent be suspended from the practice of law for a period of one year and continuously thereafter until he could demonstrate to the Board of Governors of The Florida Bar and to this Court that he was entitled to be reinstated in the practice of law.
In his report the referee found that respondent on six different occasions, over a period of seven or eight months, had diverted the funds of clients to his personal use. Of the total sum of $15,596 so diverted, the respondent made restitution in amount of $11,398 leaving a balance of $4,198 unpaid. Respondent has given a note in the sum of $1,250 to secure payment of a portion of the unpaid balance.
The Board of Governors of The Florida Bar adopted and approved the findings of fact and of guilt made by the referee but disagreed with his recommendation as to the measure of discipline. The Board of Governors ordered that the respondent be disbarred from the practice of law.
In recommending that the respondent be suspended, rather than disbarred, the referee relied upon the case of State ex rel. Florida Bar v. Ruskin, Fla. 1961, 126 So.2d 142.
The Ruskin case involved circumstances similar to this one. In that case, as in this one, the respondent had misappropriated substantial sums of his clients' monies but had made full restitution. In that case the referee recommended a severe reprimand and probation for one year. The Board of Governors disagreed with the referee and entered judgment of disbarment. This Court, being impressed with respondent's repentant attitude, his efforts to rehabilitate himself, and his making restitution to his clients, concluded that respondent Ruskin was not beyond rehabilitation and in lieu of disbarment ordered that the respondent be suspended from the practice of law for six months and until he could demonstrate to the Board of Governors and this Court that he was entitled to be reinstated.
It would be difficult to find two cases more similar than this one and the Ruskin case. The principal difference is that in the Ruskin case full restitution had been made while in this one it has not.
However, at oral argument counsel for respondent advised this Court that respondent was now employed as a book salesman in another state and read a telegram from him explaining his absence from the argument and repeating his statements made before the referee as to his intention to make full restitution.
As this Court pointed out in the Ruskin case, disbarment, being the most severe punishment which can be meted out to an attorney, should be imposed only where the evidence shows that the possibility of restoration is unlikely or remote.
The facts of this case do not indicate that rehabilitation of the respondent is unlikely or remote. He did not attempt to deny or hide his misconduct, on the contrary he voluntarily disclosed it. His attitude has been one of repentance. He has made restitution to the extent of some $11,000, the extent of his financial ability, and has expressed the intention of repaying the balance due his clients. In mitigation of his conduct he explained that he was in financial trouble and was having domestic difficulties. The record shows that he consulted a psychiatrist who by deposition testified that the respondent was suffering a mental disturbance, was contemplating suicide, and as a result was confined to a hospital for treatment.
While these circumstances in nowise excuse respondent's conduct they do indicate that he is not beyond reasonable expectation of complete rehabilitation. In response to a question from this Court at oral argument counsel for The Florida Bar stated that he did not consider the respondent beyond rehabilitation.
For these reasons and on authority of the Ruskin case we feel that a judgment of disbarment should not be ordered but rather that the respondent should be suspended.
Accordingly, it is the order of this Court that the respondent, Frank R. Dunham, be suspended from the practice of law for a period of twelve months from the date of filing of this opinion and thereafter until he demonstrates to the Board of Governors of The Florida Bar and to this Court that he has rehabilitated himself pursuant to Section 5(i) of Article XI of the Integration Rule of The Florida Bar, 31 F.S.A., and has made full restitution of the monies misappropriated by him and paid the costs of these proceedings in the sum of $307.10.
It is so ordered.
ROBERTS, C.J., and THOMAS, THORNAL and O'CONNELL, JJ., concur.
TERRELL, J., dissents.
The statement of fact in the majority opinion is accurate. A referee was appointed to take testimony and make recommendations in the cause. Relying on State ex rel. Florida Bar v. Ruskin, Fla. 1961, 126 So.2d 142, the referee recommended that respondent be suspended from the practice of law for a period of one year. The Board of Governors of The Florida Bar approved the findings of fact of the referee but disbarred respondent and directed that he pay the costs of this proceeding in the sum of $307.10.
I would affirm the judgment of the Board of Governors. "On six different occasions," said the majority opinion, respondent appropriated money placed in his hands as attorney by six different clients to his personal use. These defalcations took place within approximately one year despite the fact that respondent had specific instructions from each client to use the sums entrusted to him for a named purpose. I do not overlook the fact that respondent repaid a large portion of these funds but the record shows that a considerable portion of said moneys is outstanding and unpaid. The fact of partial restitution may do much to appease the clients whose funds were restored but it does not appease those whose funds were not restored, neither does it erase the cause for which charges were preferred against him.
In my book when a lawyer deliberately violates instruction from his client and contrary to law, appropriates moneys of clients to his own use in the manner shown, his reservoir of integrity has run dry. Integrity is the priceless ingredient of every lawyer; his fidelity is sustained by it; it is fortified by those virtues we like to think of as moral soundness, stability, honesty, dependability; in fine, the very qualities that his brethren found in him which won him admission to the bar. I think respondent is shown to be destitute of pride in his profession and that his ethical concepts are blanked both of which seem to be among the indicia of a dependable lawyer. No lawyer can afford to guide his conduct by any other light and when he attempts to do so, he not only betrays the confidence his brethren placed in him, he forfeits the right to company and membership in the profession.
It matters not for what purpose a client places money in his lawyer's hands; it is bad business and the worst kind of practice to credit it to his personal account. It is trust funds and should never be commingled with personal funds. It enlarges the danger of misappropriation and when appropriated to personal use by paying personal bills, extending or cooking up personal ventures, or directing it in channels other than instructed by his client, there can be no more flagrant abuse of trust; it is the most heinous species of embezzlement; it is an application deluxe of the pickpocket's trade and to come up with domestic trouble as an excuse for doing so is as empty and devoid of reason as Adam's excuse for eating the apple.
For the reasons so recited, I think respondent was shown to be guided by a pattern of professional conduct far below that which every lawyer should impose on himself. Such a pattern too often begets sticky fingers and a host of other misprisions. By the nature of his employment the lawyer is trustee for every client who employs him. When he views his trusteeship other than as a sacred trust or in anywise abuses it, he not only smuts the good character his brethren vouched for him, he forfeits their confidence and respect.
Every lawyer, by the nature of the oath he takes and code of ethics he vows to live by, is clothed with an obligation to the public, to his profession, to his client and to his brethren. On the record respondent is shown to have flagrantly violated each of these obligations. The Board of Governors, who are clothed with a great responsibility in this, found him guilty and disbarred him. A "great and honorable profession" cannot be sustained with such members. We would never reverse a chancellor or jury or a deputy commissioner in a workman's compensation case on the record before the Board of Governors. True, the forum of the Board of Governors is rectitude of professional conduct but a scar made on the social cosmos by a breach of professional conduct may be just as ugly and often more far reaching in consequences than one made by violations of the criminal law or one in which a chancellor is driven to compel a defendant to do equity.
I would affirm the order and judgment of the Board of Governors.
I, therefore, dissent.