Et Tu?

The Florida Supreme Court  has held that ethical violations called for a more substantial suspension than proposed by a referee

 We have for review a referee’s report recommending that Respondent, Phillip J. Brutus, be found guilty of professional misconduct in violation of the Rules Regulating the Florida Bar (Bar Rules) and suspended from the practice of law for ninety days, followed by one year on probation. We have jurisdiction. See art. V, § 15, Fla. Const. We approve the referee’s findings of fact and recommendations as to guilt. As discussed in this opinion, we disapprove the referee’s finding, as an aggravating factor, that Brutus’s misconduct in this case was the result of a dishonest or selfish motive. Nonetheless, we conclude that his failure to maintain funds entrusted to him, together with other acts demonstrating  negligence in managing his trust account, constitutes serious misconduct warranting a suspension longer than ninety days. We disapprove the referee’s recommended sanction, and instead suspend Brutus from the practice of law for one year followed by two years on probation.

90 days is not sufficient

The Court has long held that the misuse of client funds “is one of the most serious offenses a lawyer can commit. . . . However, in imposing discipline for trust account violations, this Court’s case law suggests a clear distinction between cases where the lawyer’s conduct is deliberate or intentional and cases where the lawyer acts in a negligent or grossly negligent manner.” Fla. Bar v. Weiss, 586 So. 2d 1051, 1053 (Fla. 1991). Here, the stipulated facts indicate that Brutus did not intentionally misappropriate client money for his own personal use. Still, we find his negligent conduct troubling. Brutus has repeatedly failed to ensure that his own conduct, and his law firm’s trust accounting practices, are in strict compliance with the ethical and trust accounting rules. In the dissolution of marriage proceeding, Brutus clearly was aware of the court’s order directing that marital funds be held in his trust account; nonetheless, he deliberately disbursed the funds to his client, without an order resolving the matter and without the court’s knowledge or authorization. Additionally, Brutus has admitted to negligence in maintaining his trust account—his poor record keeping was such that Brutus could not determine when funds held on behalf of a client dropped below the balance that should have been maintained in the account; he commingled trust account funds with earned fees; and there is evidence of three overdrafts from the trust account during a two-month period in 2010.

(Mike Frisch)