1 THE FLORIDA BAR, Complainant, vs. ROBERT H. LECZNAR, Rcspondent. No. 85,862 [March 27, PER CURIAM. We have for review the complaint of The Florida Bar (the Bar) and the referee s report rcgarding alleged ethical breaches by Robert H. Lecznar. We havc jurisdiction. Art. V, $ 15, Fla. Const. The parties stipulatcd to the following [acts as sct out in the referee s report: According to the Stipulation of Facts, Harold E. Leighty and Mary Leighty retained Respondcnt to represent them in actions for damages as a result of permanent injuries suffered by Mary Leighty in two autoniobile accidents which occurred on September 23, 1986, and Septembcr 9, While Respondent was aware that the Leightys had uninsured motorist coverage with Colonial Penn Insurance Company which was in effcct at the time of the accidcnts, he neglected to name Colonial Penn as a party defendant in cither pcrsonal injury suit which he filed against the at-lault drivcrs on behalf of the Leightys. Respondent also ncglcctcd to negotiatc a settlement with Colonial Pcnn on the Leightys uninsured motorist claims. Both pcrsonal injury lawsuits were dismisscd for lack of prosecution. At the time Rcspondent accepted the representation, he knew, or should have known, that Florida statutes providc for a fivcyear Statute of Limitations with respect to any legal or cquitablc action on a contract, obligation, or liability foundcd upon a written instrument. As a result of thc dismissal of the personal injury suits and Rcspondent s failure to negotiate a settlement with Colonial Perm during thc statutory time limits, thc Loightys lost the opportunity to obtain recovery lrom the responsible parties. During the course of the reprcscntation, the Leightys met with Respondcnt on scvcral occasions and spoke with him by tclcphone regarding the status of their personal injury claims, In 1994, after the statutory time limits had expired, Rcspondcnt represented to the Leightys that mediations on their personal injury
2 claims had been schedulcd; however no mediations were actually held. Although Respondent repcatedly assured thc Leightys from approximately Novcmber 1987 through July 1994 that litigation was progressing, upon checking with Colonial Penn in July 1994 on the status of their claims, the Leightys lcamed that thcir case had been closed in Thereafter, the Leightys terminated Respondent s representation and retained another attorney. Harold and Mary Leighty subsequently learned that due to Respondcnt s failmc to timely pursue the personal injury claims, they would bc unable to recover from Colonial Penn duc to the expiration of the fivc-year Statute of Limitations. The partics hther stipulated that Lecznar s conduct violated four Rules of Professional Conduct. For cach violation, thc refcrcc made findings relating to aggravating and mitigating circumstances and made recommendations concerning discipline: VIOLATION OF RULE According to Rulc 4-1.1, a lawyer shall provide competent representation to a client. The Referee finds that Respondcnt s failure to name Colonial Penn as a party defendant in the personal injury lawsuits within the statutory time limitation was a violation of this Rule. Absent aggravating or mitigating circumstances, when a lawyer demonstrates such failure to understand relcvant legal doctrines or procedures and causes injury or potential injury to a client, public reprimand is appropriate. Howcver, the Referee is obligated to consider mitigating and aggravating circumstances, Respondent s mental state, and the injury caused to the Leightys in determining thc appropriate recommended sanction. As an aggravating factor, the Referee considcrs Respondent s August 1994 public admonishment for failure to keep a clicnt reasonably informed about the status of a lawsuit. However, thc Referee also finds that Respondcnt s involvement in the legal scrvices plan and the loss of his paralegal dernonstratcs that Respondent had no dishonest or selfish motive, but rathcr mismanaged his workload at the time the Leightys lawsuits were pending. Respondent s cooperativc attitude toward this procccding as evidenced by the Stipulation of Facts is of considerable significance, as such action conserves the time and resources of both The Florida Bar and the Referee. Additionally, the Referee finds it significant that Respondent intends to rehabilitate his professional procedures by consulting with an efficiency cxpert, and has since withdrawn from the legal services plan. Regarding Respondent s character and reputation, the Referee considcrs Judge Marcia Bishop Glisson s unsworn tcstimony that Respondent s rcputation for ethical behavior is favorablc. Furthermorc, the Referee takes -2-
3 into account attorney Ed Garrabran ts unsworn statement that he has confidence in Respondent s professional abilities and believes Respondent to have an affirmative reputation for ethics. As for the injury to the client, the Referec acknowledges that the Leightys were unable to pursuc thcir claim due to Respondent s inaction. Although Respondent is Compensating thc Leightys for thcir loss pursuant to a Joint Stipulation and Settlement Agreement, such a compclled restitution agreement is ncither mitigating nor aggravating. After considering the above factors, the Referee recommends that Respondent be publicly reprimanded for violation of Rulc VIOLATION OF RULE A lawyer shall act with reasonable diligence and promptness in representing a client pursuant to Rule The Referee finds that Respondent s represcntations through July 1994 to the Leightys that the litigation of their claims were progressing, although thc cases against the atfault drivers had been dismissed in 1992 and the Statute of Limitations had expired, constitutes a lack of diligence. Absent mitigating or aggravating circumstances, when a lawycr knowingly fails to perform services for a client and causes injury or potcntial injury to a client, suspension is appropriatc. Howcver, the Referee shall also weigh the mitigating and aggravating circumstances, Respondent s mental statc, and the injury caused to the Leightys in determining thc appropriate sanction. Rcspondent s August 1994 public admonishment for failure to keep a client reasonably informed is an aggravating [actor the court considers. As to Respondent s mental state during the pendency of the Lcighty s lawsuits the Referec finds that although Respondcnt failed to diligently file a timely claim against Colonial Perm, his office mismanagement, participation in the legal scrvices plan, and lack of office assistance demonstrate that Defendant unintentionally neglected his clicnts matters. The Refcrcc wcighs as mitigating factors both Judge Glisson s statement that she knew Respondent to bc a prepared and diligcnt attorney during her dealings with him and Mr. Garrabrants testimony that Respondent is a forthright and vigorous advocatc for his clients. Again, as to thc injury to the client, the Referee finds that Respondent s lack of diligence prevented the Leightys from seeking relief against the appropriatc party. However, after considering all of the above, thc Referee recommends that Respondent be publicly reprimanded for violation of Rule 4-1.3, VIOLATION OF RULE 4-1.4(A) Rule 4-1.4[a] provides that a lawyer shall keep a client rcasonably informed about the -3-
4 status of a matter and shall promptly rcspond to the client s reasonable requests for information. Thc Referee finds that Rcspondent s failure to inform thc Leightys that the Statute of Limitations had run on their claim constitutcs a violation of this Rule. As notcd above, Respondent was publicly admonished for violation of this Rule in Public reprimands are imposed on lawyers who have been disciplined and engage in the same or similar acts of misconduct. However, thc Referee is obligatcd to consider mitigating and aggravating circumstances, Respondcnt s mental state and the injury caused to the Leightys in determining the appropriate recommended sanction. Whilc taking into account that Respondcnt has been previously disciplined lor violation of this Rule, the Referee finds that Respondent s office mismanagement was the primary reason for his failure to keep the Leightys informed of the progress of their legal matters. His remorse and expressed intention to reorganize his ofice procedurcs indicate that Rcspondent genuinely desires to rehabilitate his practice. The Rcfcrco finds the fact that Respondent is a sole practioner in a small community to be significant. As a suspension would only set back his practice even further, and possibly cause irreparable harm to his current clients with pending lawsuits, the Referee recommends a public reprimand for violation of Rule 4-1,4(a). VIOLATION OF RULE 4-1.4(B) A lawyer shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation pursuant to Rule 4-1.4(b). The Referee finds that Rcspondent s assuranccs to the Leightys that litigation was progressing on their claims although almost two ycars had passed since the original lawsuits had been dismissed were a violation of this Rule. Absent aggravating or mitigating circumstances, suspension 1 s appropriate when a lawyer knowingly deceives a clicnt and causes injury or potential injury to the client. Howcvcr, mitigating and aggravating circumstances, Respondent s mental state, and the injury caused to the Leightys are taken into consideration. Again, Respondent s prior discipline record is considered an aggravating circumstance. The Refercc finds this lack of candor to be the most serious of the four violations, However, Rcspondent s rcmorsc, subsequent attempts to rehabilitate his practice, and his cooperative attitude toward this proceeding demonstrate mitigation. Therefore, the Referee recommends that Respondent be publicly reprimanded for violation of Rule 4-1.4(b). In conclusion, the referee recommendcd that several additional conditions bc irnposcd -4-
5 on Lecznar for thc above violations of the disciplinary rulcs: In addition to a public reprimand upon all four rulc violations, the Referee recommends that Respondent be required to consult the Law Office Management Advisory Service of The Florida Bar within the next ninety days to arrange a consultation regarding improvement of office management sys tems. Additionally, th c Referee recommends that the cost of this proceeding be imposed against Respondent in the sum of $1, in accordance with the Affidavit of Costs submitted by The Florida Bar. The Bar pctitions for review, sccking a nincty-day suspension rathcr than a public reprimand based on the following: 1) Lecznar was disciplined for prior similar misconduct; 2) Lecznar made misrepresentations to the Lcightys concerning the status of the lawsuit, and Lecznar had selfish motives for thc misrepresentations; 3) thc Lcightys suffered substantial harm; 4) Lecznar's prescnt conduct demonstrates a pattern of neglect; and 5) Lecznar's prcsent conduct comprises multiplc offenses. The referee, as finder of fact in Bar disciplinary proceedings, is in a unique position to assess thc credibility of witnesses and appraise thc circumstances surrounding alleged violations. Oftentimes, the referee has an opportunity to evaluate first-hand the forthrightness and character of the respondent. As long as the referee's findings arc supported by competcnt substantial evidence in the rccord, "this Court is precluded from rcwcighing the evidence and substituting its judgment for that of the referee." Florida Bar y. MacMillan, 600 So. 2d 457, 459 (Fla. 1992).l In the present case, competent substantial evidence in the record supports the rcfcrce's findings of k t and conclusions concerning guilt, and we approve those findings and conclusions. As to discipline, we note that the referee in a Bar procecding again occupies a favored vantage point for assessing key considerations--such as a respondent's degree of culpability and his or her cooperation, forthrightness, remorse, and rehabilitation (or potential for rehabilitation). Accordingly, we will not second-guess a referee's recommended discipline as long as that discipline has a reasonable basis in existing caselaw. In the present case, howcver, we find the recommended discipline to be in conflict with Florida Bar v. Palmer, 504 So. 2d 752 (Fla. 1987), wherein we suspended the attorney for eight months for conduct that was similar in many ways to Lecznar's. Based on Palmer, on the onc hand, and thc rcfcree's rccornmended discipline, on the other, we find a ninety-day suspension appropriate on this record. Robert H. Lecznar is hereby suspended for ninety days from the practice of law in Florida. The suspension will be effective thirty days from the filing of this opinion so that he can close out his practice and protect the interests of existing clients, If Lecznar notifies this Court in writing that he is no longer practicing and does not need the thirty days to protcct existing clients, this Court will enter an order ' See also Florida Bar v. Snanq,682 So. 2d 1070, 1073 (Fla. 1996) (the party contesting the referee's findings and conclusions "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"). 5-
6 making thc suspension effective immediatcly. Lecmar shall accept no new business from the date this opinion is filed until thc suspension is completed. Pursuant to thc provisions of for Respondent Rule Regulating The Florida Bar 3-5.2(g), upon receipt of this order of suspension, Lecznar shall forthwith furnish a copy of the order to all his clients with matters pending in his practice, Furthermore, within thirty days after receipt of this ordcr, Lecznar shall furnish staff counsel of the Bar with a sworn affidavit listing the names and addresses of all clients who have been furnished copies of the order. Prior to reinstatement, Lecznar must schcdule and complete in a satisfactory manner an evaluation with the Law Office Management Advisory Service of The Florida Bar. Judgment for costs in the amount of $1, is entered in favor of Thc Florida Bar against Robert H. Lecznar, for which sum Ict execution issue. It is so ordered. KOGAN, C.J., and OVERTON, SHAW, GRIMES, HARDPIG, WELLS and ANSTEAD, JJ., concur. THE FILING OF A MOTION FOR REHEARING SHALL NOT ALTER THE EFFECTIVE DATE OF THlS SUSPENSION. Scott K. Tozian of Smith and Tozian, P.A., Tampa, Florida, Original Proceeding - The Florida Bar David R, Ristoff, Branch Staff Counsel, Tampa, Florida, for Complainant -6-
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