The Pillager: “So When Is A Lawyer Lying?”
sunEthics has the story of a criminal appeal decided by the Florida Third District Court of Appeal.
Guy Bailey, Jr., appeals his conviction for grand theft, the act of theft being the pillage of $700,000 held by him in trust for his clients. The State cross-appeals the downward departure sentence imposed by the trial court, which spared Bailey jail time for his infraction. On these two appeals, we affirm the conviction but reverse the downward departure sentence with the direction to the trial court to impose a guidelines sentence on Bailey of between twenty-one months and thirty years, as calculated on his Criminal Punishment Code Scoresheet. A fortiori, we also reverse the more recent order of the trial court revoking Bailey’s probation and imposing sentence, upon a determination that Bailey violated a condition of his probation by failing to pay restitution to the victims of his theft.
The issue on appeal involved the prosecutor’s rebuttal argument
So where is the misunderstanding?
It’s simply an attempt, ladies and gentlemen, it’s an attempt by the Defense to use the word, misunderstanding.
And, ironically, you will find that word in an Instruction in this case, and it is more legal mumbo-jumbo.
So if there was an Agreement, then what is the misunderstanding?
Lawyers take money, and they lie. So when is a lawyer lying? It’s when they open their mouth. These are terms that we hear all of the time.
MR. PERTIERRA: Judge, it’s totally improper.
THE COURT: State your objection.
MR. PERTIERRA: It’s totally improper, Judge, Counsel’s comments.
THE COURT: Thank you. Please be seated. No reference is being made to any lawsuit. These, again, are just comments by an attorney and not considered by you to be evidence. Please, let us proceed.
MS. DUNNE: Lawyers are often the butts of jokes. They are the recipients of phrases and this happens because of the fact that we have a bad reputation.
So, Mr. Bailey exemplifies that because of the actions that he did in this case to the Levrants.
The argument was improper but did not warrant reversal
The evidence of Guy Bailey’s guilt was substantial and enabled the jury to easily reject Bailey’s defense that the entire episode was a “misunderstanding” between him and his clients. More than five years passed from the time Attorney Bailey stole $700,000 from his clients to the date of his trial. Repayment was promised – many times promised – but not a farthing was offered.
Daily Business Review reported that he is disbarred an was recently jailed for failure to pay restitution.
Good,” said Hugh Culverhouse Jr., a real estate entrepreneur and Coral Gables attorney who is a former friend and colleague of Bailey’s. “The man is the essence of contempt for humanity.”
Culverhouse, son of former Tampa Bay Buccaneers owner Hugh Culverhouse Sr., and Bailey were co-counsel in the mid-1980s when Bailey converted almost $100,000 in client settlement funds but was never charged criminally.
Prosecutor Colleen Dunne said, “It’s unfortunate that Mr. Bailey didn’t take advantage of the court’s leniency when he was placed on probation.” Dunne was brought in from Monroe County to try the case because local prosecutors recused themselves, citing Bailey’s close ties to the legal community.
Bailey, a Yale Law graduate, was admitted to practice in 1966 and rose to “the very pinnacle of the commercial litigation bar in this community,” Hirsch said in his 2014 sentencing order.
(Mike Frisch)