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THE FLORIDA BAR v. COLEE
Factual and Procedural Background
This opinion arises from a disciplinary proceeding initiated by The Florida Bar against Harold W. Colee, Jr., a member of the Florida Bar. The referee found Colee guilty of violating former disciplinary rule 7-102(B)(2) based on his conduct involving an attempt to sell information allegedly proving fraud on the court in a personal injury case. The facts stem from a conversation between Colee and a long-time client, during which the client mentioned knowledge of possible fraud. Colee suggested monetizing this information by offering it to the opposing party's attorneys for $200,000. The opposing attorneys initially delayed but later rejected the offer. Colee eventually revealed the client's identity after a court order, and it was shown that the opposing attorneys already possessed the information, negating any actual fraud.
Following the referee's recommendation of a private reprimand, probation, and ethics coursework, The Florida Bar petitioned for review, urging a ninety-day suspension, probation, and bar examination ethics passage. Colee contested some factual findings but did not dispute the ethical violation and supported the recommended discipline.
Legal Issues Presented
- Whether Harold W. Colee, Jr. violated former disciplinary rule 7-102(B)(2) by attempting to sell information related to a possible fraud on the court.
- What level of disciplinary action is appropriate for Colee's conduct—private reprimand or a more severe sanction such as suspension.
Arguments of the Parties
The Florida Bar's Arguments
- Colee's conduct warrants a ninety-day suspension followed by one year of probation.
- Colee should also be required to pass the ethics portion of the bar examination.
- A private reprimand is insufficient because the case does not arise from minor misconduct.
Colee's Arguments
- Disagrees with some of the referee's findings of fact but does not dispute the conclusion that he violated the code of ethics.
- Urges the Court to approve the referee's recommended discipline of a private reprimand.
- Prior to his actions, Colee studied the code of ethics and consulted another attorney, believing no violation occurred.
Table of Precedents Cited
No precedents were cited in the provided opinion.
Court's Reasoning and Analysis
The Court acknowledged that while no specific rule clearly prohibits an attorney from seeking a fee from another attorney to produce a witness, the duty of a lawyer is to bring any information of fraud to the court rather than attempt to sell it. The Court found Colee's conduct to be an "abysmal lack of judgment" and "conduct unbecoming to a member of the legal profession." Despite Colee's previously unblemished record and his belief that no ethical violation occurred, the Court determined that the seriousness of his actions warranted a suspension rather than a mere reprimand. The Court emphasized the impropriety of attempting to financially benefit from the truth-seeking process in this manner and noted that the opposing counsel recognized the ethical problem with Colee's proposal. The Court also invited The Florida Bar to consider revising the rules regulating such conduct.
Holding and Implications
Holding: The Court imposed a ninety-day suspension on Harold W. Colee, Jr., to begin thirty days after the opinion's filing date, followed by one year of probation and a requirement to complete ten hours of bar-approved ethics courses. Colee is also ordered to pay costs totaling $1,007.07.
Implications: The decision directly affects Colee by imposing suspension and probation with educational requirements. The Court did not establish new precedent but underscored the ethical duty of attorneys to report fraud to the court rather than seek financial gain from such information. The Court also encouraged The Florida Bar to review and possibly amend its rules to address similar conduct in the future.
McDONALD, Justice.
After a hearing on the Florida Bar's complaint, the referee recommended that Colee, a member of the bar, be found guilty of violating former disciplinary rule 7-102(B)(2) and that he be given a private reprimand, be placed on probation for one year, and be required to complete ten hours of bar-approved ethics courses. The bar petitioned for review, arguing that Colee's conduct warrants a ninety-day suspension, followed by one year's probation and passage of the ethics portion of the bar examination. Colee disagrees with some of the referee's findings of fact, but does not complain about the conclusion that he violated the code of ethics. He urges us to approve the recommended discipline of private reprimand.
The pertinent facts from the referee's report are as follows:
I. FINDINGS OF FACT:
This case arises out of a "cracker-barrel" discussion between an attorney and his long time client. The discussion centered on a verdict in excess of One Million Dollars ($1,000,000.00) rendered in a personal injury action in Jacksonville. The size of the verdict obviously titillated both lawyer and client. The level of the discussion was gossipy, opinionated, and banal.
The client advised the attorney that he knew someone who could prove that the Plaintiff in the personal injury action had defrauded the Court, possibly in a criminal way. The lawyer clamped his mental jaws shut on this bare hook, and suggested to the client that such information could be sold to the losing party in the law suit for a sum of Two Hundred Thousand Dollars ($200,000.00).
The abysmal lack of judgment exercised by COLEE upon receiving this dubious information is, in the opinion of this Referee, the most regrettable act committed by COLEE in the sequence of events which he initiated.
The Referee finds that the conversation between lawyer and client, paraphrased, went something like this:
The client suggests that he is aware of a witness who can expose a fraud perpetrated on the Court; The lawyer responds by saying that such information is valuable; The lawyer suggests that the information be taken to the Defendant's lawyers; The lawyer suggests that the information is worth Two Hundred Thousand Dollars ($200,000.00).
The Referee believes that it was the lawyer who suggested that the information could be sold, and determined the value of the information, based on the testimony of the client before the Grievance Committee. The client has no interest or bias in this case except perhaps to help his friend the lawyer. If anything, the testimony of the client is extremely damaging to the lawyer. The client denies that he suggested that the lawyer take the information to the Defendant's lawyers and the client denies that he knew for what sum of money the information could be sold. In fact, the client suggests that he would have sold the information for a far greater sum.
COLEE then went to the Defendant's attorneys and revealed that he was aware of evidence which could possibly prove a fraud on the Court. COLEE suggested that the evidence was worth a figure of Two Hundred Thousand Dollars ($200,000.00). The Defendant's attorneys balked and obtained a delay in making a decision.
Within two days the Defendant's attorneys called back and rejected COLEE's offer. COLEE then terminated the discussions without revealing the name of the client.
The attorneys for the Defendant went to Court, to obtain a Court Order requiring COLEE to divulge the name of the client, COLEE appealed, COLEE capitulated, and the name of the client was revealed. A deposition of the client and the witness showed that the Defendant's attorneys were already in possession of the allegedly valuable information. In other words, no fraud had actually been perpetrated on the Court.
The bar also argues that a private reprimand is out of order because this case did not arise from a grievance committee's finding of minor misconduct. Because of our ruling on the discipline to be imposed, we do not address the bar's second issue.
The objections do not affect the conclusions of law or fact.
Prior to taking the action which led to the complaint, Colee studied the code of ethics, consulted another attorney in regards thereto, and could find no violation. We agree with the referee that there is no clearly delineated prohibition against an attorney seeking a fee from another attorney to produce a witness. Be that as it may, the duty of any lawyer is to take any information of fraud to the court rather than to attempt to sell the information to the lawyer who lost the case. Fortunately for all concerned, the counsel whom Colee approached recognized the impropriety of Colee's proposal.
We invite The Florida Bar to review this type of action to determine if chapter 4 of the Rules Regulating The Florida Bar should be modified.
Notwithstanding Colee's previously unblemished record and his belief that he committed no ethical violation in taking the course he did, we find that a ninety-day suspension is warranted. Even though the bar rules do not expressly proscribe Colee's actions, it is incomprehensible to us that an attorney would seek to benefit financially from furthering the truth-seeking process in this manner. Colee engaged in conduct unbecoming to a member of the legal profession and deserves more than a private reprimand for this flagrant violation. In order to protect his clients Colee's suspension will begin thirty days from the date this opinion is filed. Colee shall accept no new business after that date. In accordance with the referee's recommendation Colee is also put on probation for one year and is directed to complete ten hours of courses in ethics. Judgment for costs in the amount of $1,007.07 is hereby entered against Colee, for which sum let execution issue.
It is so ordered.
EHRLICH, C.J., and OVERTON, SHAW, BARKETT, GRIMES and KOGAN, JJ., concur.
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