THE FLORIDA BAR v. COLCLOUGH

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Docket Number

No. 73404.

Attorney(S)

John F. Harkness, Jr., Executive Director, and John T. Berry, Staff Counsel, Tallahassee, and Richard A. Greenberg, Asst. Staff Counsel, Tampa, for complainant. Alan C. Sundberg of Carlton, Fields, Ward, Emmanuel, Smith Cutler, P.A., Tallahassee, and Glenn Woodworth and Joseph F. McDermott, St. Petersburg, for respondent.

Judges

Raymond Ehrlich

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Smart Summary

Factual and Procedural Background

This disciplinary proceeding was initiated by The Florida Bar against respondent Thomas P. Colclough following a referee's report finding him guilty of making misrepresentations in litigation to the court and opposing counsel. The referee's factual findings describe events in August 1986 in which opposing counsel Margaret Barr (and her substitutes) were involved in motions concerning a money judgment and a motion to assess costs; the referee found that Colclough represented to the court and to opposing counsel that a costs judgment had already been obtained when no hearing on costs had occurred, resulting in the inclusion of those costs in an amended judgment and the preparation of a larger supersedeas bond. The referee recommended a twelve-month suspension. The respondent contested the factual findings. The Supreme Court of Florida reviewed the referee's report and exercised jurisdiction under Art. V, § 15 of the Florida Constitution.

Legal Issues Presented

Whether the referee's findings of fact that respondent made misrepresentations in the litigation are supported by competent substantial evidence and should be approved.
What discipline, if any, is appropriate for respondent's misconduct under the applicable disciplinary rules.

Arguments of the Parties

The opinion does not contain a detailed account of the parties' legal arguments.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
The Fla. Bar v. McKenzie, 442 So.2d 934 (Fla. 1983)	Standard that a referee's finding of fact will be upheld unless clearly erroneous or lacking evidentiary support.	Used to support the court's affirmation that referee findings are presumed correct and reviewed under that standard.
The Fla. Bar v. Hirsch, 359 So.2d 856 (Fla. 1978)	Standard regarding deference to referee findings in disciplinary proceedings.	Relied upon in assessing the sufficiency of evidence supporting referee's factual findings.
The Fla. Bar v. Wagner, 212 So.2d 770 (Fla. 1968)	Standard regarding review of referee findings of fact.	Applied as part of the body of authority supporting deference to the referee.
The Fla. Bar v. Stalnaker, 485 So.2d 815, 816 (Fla. 1986)	Referee's findings of fact enjoy presumption of correctness analogous to trier-of-fact judgments.	Quoted to reinforce the presumption of correctness of the referee's factual findings.
The Fla. Bar v. Fischer, 549 So.2d 1368 (Fla. 1989)	Comparative disciplinary decisions involving similar misconduct.	Considered by the court in calibrating appropriate suspension length relative to comparable cases.
The Fla. Bar v. Anderson, 538 So.2d 852 (Fla. 1989)	Comparative disciplinary decisions involving similar misconduct.	Used as a comparator in determining appropriate discipline.
The Fla. Bar v. Milin, 517 So.2d 20 (Fla. 1987)	Comparative disciplinary decisions involving similar misconduct.	Referenced in the court's comparison of disciplinary outcomes.
The Fla. Bar v. Oxner, 431 So.2d 983 (Fla. 1983)	Comparative disciplinary decisions involving similar misconduct.	Included among cases the court consulted to align discipline with past rulings.
The Florida Bar v. Lancaster, 448 So.2d 1019, 1024 (Fla. 1984)	Statement that the profession requires members to conform to the highest standard of integrity (cited in dissent).	Cited by the dissenting justice to support a view that more severe discipline (twelve months) was appropriate given the undermining of public trust.

Court's Reasoning and Analysis

The Court reviewed the referee's factual findings under the settled rule that such findings are presumed correct and will be upheld unless clearly erroneous or lacking evidentiary support. Applying that standard and the cited authority, the Court concluded the referee's findings were supported by competent substantial evidence and approved the referee's findings of guilt for violations of Disciplinary Rules involving dishonesty, fraud, deceit or misrepresentation and conduct prejudicial to the administration of justice. In determining discipline, the Court weighed the seriousness of the misconduct against mitigating factors in the record: respondent had no prior disciplinary history and the record contained letters and affidavits attesting to his credibility and honesty. Considering the referee's recommended twelve-month suspension but seeking consistency with discipline in somewhat comparable cases, the Court reduced the suspension to six months. The Court ordered the suspension to be effective nunc pro tunc to February 19, 1990 (the date respondent ceased practicing pursuant to an earlier order), and assessed costs in the amount of $2,079.63, entering judgment for that sum. The opinion records a concurrence-in-part and partial dissent by Chief Justice Ehrlich (who agreed with guilt but would impose the recommended twelve-month suspension) and a separate dissent by Justice McDonald.

Holding and Implications

HOLDING: The Court approved the referee's findings of guilt and imposed discipline: respondent Thomas P. Colclough is suspended from the practice of law for six months and thereafter until he proves rehabilitation; the suspension is effective nunc pro tunc to February 19, 1990; respondent must pay The Florida Bar costs of $2,079.63, judgment entered.

Implications: The decision directly suspends respondent and imposes costs. The Court relied on established standards for reviewing referee findings and compared discipline to prior cases; the opinion does not announce a new legal precedent beyond application of existing disciplinary review and sanctioning principles.

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THE FLORIDA BAR, COMPLAINANT, v. THOMAS P. COLCLOUGH, RESPONDENT.

PER CURIAM.

This proceeding is before the Court upon the complaint of The Florida Bar and the referee's report. The referee found respondent guilty as charged and recommended the imposition of a twelve-month suspension. We have jurisdiction.

Art. V, § 15, Fla. Const.

In essence, the referee found that respondent made misrepresentations in a lawsuit to the court and to opposing counsel as reflected in the following facts:

B. On or about August 4, 1986, Gordon B. Hustin retained Margaret Barr to appeal a final judgment entered against him on July 1, 1986, in the amount of $23,352.00. . . .

C. On or about August 6, 1986, a Money Judgment and Execution was entered by Judge Fred Bryson in the aforementioned lawsuit.

D. After August 6, 1986, Ms. Barr was informed by her client that the Pinellas County Sheriff's Department was attempting to levy on her client's property as a result of the Money Judgment and Execution entered by Judge Bryson.

E. Ms. Barr prepared a Motion to Stay Execution and set the Motion for a hearing on August 18, 1986, before Judge Bryson. In a telephone conversation with Ms. Barr on Wednesday or Thursday of the week before, Mr. Colclough [as the opposing attorney] agreed to the hearing time on August 18, 1986. Ms. Barr told Mr. Colclough she could not attend the hearing on August 18, 1986.

F. On or about August 12, 1986, Mr. Colclough, as counsel for Bonnie Lee Holmes, filed a Motion to Assess Costs on the Money Judgment in the amount of $4,666.50 and scheduled a hearing on the Motion to Assess Costs for September 24, 1986, before Judge Bryson.

G. Ms. Barr was scheduled to be out of town on August 18, 1986, and, as a result, she arranged to have attorneys Meredith Craig and Elizabeth Mansfield handle the hearing scheduled on her client's Motion to Stay Execution.

H. On the morning of August 18, 1986, just prior to the hearing on the Motion to Stay Execution, Mr. Colclough entered Judge Bryson's chambers without Ms. Craig or Ms. Mansfield. Mr. Colclough told Ms. Craig and Ms. Mansfield he had another matter with the judge. Mr. Colclough had a private meeting with Judge Bryson.

I. After Mr. Colclough's private conference with Judge Bryson, the hearing on the Motion to Stay Execution began before Judge Bryson.

J. During the hearing on August 18, 1986, Ms. Craig requested the Court to stay execution on the $23,352.00 Money Judgment.

K. Mr. Colclough represented to the Court that the sum for execution was $28,018.00, rather than $23,352.00, because he had obtained a Money Judgment against Mr. Hustin for costs in the amount of $4,666.50.

L. Ms. Craig was aware of a hearing scheduled for September 24, 1986, on Mr. Colclough's Motion to Assess Costs and asked Mr. Colclough whether or not the costs he was referring to were the costs which were scheduled for a hearing on September 24, 1986.

M. Mr. Colclough fraudulently represented to Ms. Craig, Ms. Mansfield and Judge Bryson that a hearing on costs had already been held, that a Money Judgment for costs had already been obtained, and that the Cost Hearing scheduled for September 24, 1986, was for something else.

N. Since Ms. Craig and Ms. Mansfield were only substituting for Ms. Barr on the Motion to Stay Execution and were thus unfamiliar with the Holmes vs. Hustin case in other respects, they could not dispute Mr. Colclough's representations to the Court regarding a Money Judgment for costs.

. . . .

Q. As a result of Mr. Colclough's representation that a Cost Judgment in the amount of $4,666.50 had already been obtained, these costs were added to the previously ordered Money Judgment of $23,352.00, and a proposed Order for a supersedeas bond in the amount of the two sums, plus interest, for a total of $34,733.00 was prepared for the Court by Mr. Colclough.

R. Immediately following the hearing on August 18, 1986, Mr. Colclough gave attorneys Mansfield and Craig an executed copy of a Money Judgment for costs and Execution for the sum of $4,666.50. In addition, Mr. Colclough submitted to Ms. Craig an Amended Notice of Hearing which provided that the Motion to Assess Costs scheduled for September 24, 1986, would be heard August 18, 1986.

S. The Money Judgment for costs and Execution were signed by Judge Bryson on August 18, 1986.

T. No hearing had been held on the Motion to Assess Costs at the time Mr. Colclough obtained the aforementioned Money Judgment for costs and the Execution.

U. Ms. Barr was not notified prior to August 18, 1986 that the hearing on the Motion to Assess Costs, scheduled for September 24, 1986, would be heard on or before August 18, 1986.

V. On or about August 21, 1986, Ms. Barr received by mail the Amended Notice of Hearing dated August 18, 1986, regarding Mr. Colclough's Motion to Assess Costs.

W. On or about August 25, 1986, Ms. Barr filed Mr. Hustin's Motion to Vacate Money Judgment for Costs.

X. On or about August 29, 1986, a hearing was held on Mr. Hustin's Motion to Vacate Money Judgment for Costs.

Y. At the conclusion of the hearing on August 29, 1986, Judge Bryson set aside the Money Judgment for Costs dated August 18, 1986.

The referee recommended that respondent be found guilty of having violated the Disciplinary Rules of the Code of Professional Responsibility. Respondent contests the factual findings.

Disciplinary Rule 1-102(A)(4) (conduct involving dishonesty, fraud, deceit, or misrepresentation); Disciplinary Rule 1-102(A)(5) (conduct prejudicial to the administration of justice); Disciplinary Rule 1-102(A)(6) (conduct adversely reflecting on fitness to practice law).

A referee's finding of fact will be upheld unless it is clearly erroneous or lacking in evidentiary support. The Fla. Bar v. McKenzie, 442 So.2d 934 (Fla. 1983); The Fla. Bar v. Hirsch, 359 So.2d 856 (Fla. 1978); The Fla. Bar v. Wagner, 212 So.2d 770 (Fla. 1968); Rules Regulating Fla.Bar 3-7.6 ("the burden shall be upon the party seeking review to demonstrate that a report of a referee sought to be reviewed is erroneous, unlawful, or unjustified"). A referee's findings of fact are presumed to be correct. The Fla. Bar v. Stalnaker, 485 So.2d 815, 816 (Fla. 1986); Rules Regulating Fla.Bar 3-7.5(k)(1), ( l) (referee's findings of fact "shall enjoy the same presumption of correctness as the judgment of the trier of fact in a civil proceeding").

We conclude that the findings of the referee are supported by competent substantial evidence. Accordingly, we approve the referee's findings of guilt.

With respect to discipline, the gravity of respondent's conduct cannot be disputed. However, he has not been the subject of prior disciplinary action, and the record contains numerous letters and affidavits from practitioners which confirm that he has never before given cause to question his credibility or honesty. Under the circumstances, we believe that a six-month suspension gives appropriate weight to the referee's recommendation while at the same time imposing discipline which is more in line with that which has been imposed in cases involving somewhat comparable conduct. See The Fla. Bar v. Fischer, 549 So.2d 1368 (Fla. 1989); The Fla. Bar v. Anderson, 538 So.2d 852 (Fla. 1989); The Fla. Bar v. Milin, 517 So.2d 20 (Fla. 1987); The Fla. Bar v. Oxner, 431 So.2d 983 (Fla. 1983).

We hereby suspend respondent from the practice of law for six months and thereafter until he shall prove rehabilitation. Inasmuch as respondent ceased practicing law on February 19, 1990, pursuant to our earlier order, this suspension shall be effective nunc pro tunc as of that date. Respondent shall pay costs to The Florida Bar in the amount of $2,079.63. Judgment in that amount is hereby entered against respondent, for which sum let execution issue.

It is so ordered.

OVERTON, SHAW, GRIMES and KOGAN, JJ., concur.

EHRLICH, C.J., concurs in part and dissents in part with an opinion, in which BARKETT, J., concurs.

McDONALD, J., dissents.

EHRLICH, Chief Justice, concurring in part and dissenting in part.

I agree with the majority's approval of the referee's findings of guilt. I dissent, however, as to the discipline imposed.

As noted by the majority, "the referee found that respondent made misrepresentations in a lawsuit to the court and to opposing counsel." Maj. op. at 1148. A I have previously stated, "our profession can operate properly only if its individual members conform to the highest standard of integrity in all dealings within the legal system." The Florida Bar v. Lancaster, 448 So.2d 1019, 1024 (Fla. 1984) (Ehrlich, J., concurring in part and dissenting in part). The conduct of which Colclough has been found guilty undermines the very foundation of our profession. Members of the bench and bar as well as the public have a right to expect that a lawyer's representations are truthful and that he can be trusted. I feel that the discipline recommended by the referee, a suspension of twelve months, is appropriate in light of the seriousness of the misconduct at issue.

BARKETT, J., concurs.