THE FLORIDA BAR v. HOOPER

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Docket Number

No. 67875.

Attorney(S)

John F. Harkness, Jr., Executive Director and John T. Berry, Staff Counsel, Tallahassee, and David G. McGunegle, Branch Staff Counsel and Jan K. Wichrowski, Bar Counsel, Orlando, for complainant. J.B. Hooper, Tampa, in pro. per.

Judges

PER CURIAM.

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Smart Summary

Factual and Procedural Background

This disciplinary proceeding arises from a two-count complaint filed by The Florida Bar against J.B. Hooper. Count I concerns a dispute over a contract Hooper entered into in August 1983 with Suncoast Service Center, Inc. for air-conditioning/heating equipment installation costing $3,021. There was conflicting evidence regarding the quality of the installation, with Hooper disputing the work and refusing payment despite only minor issues being acknowledged. After Suncoast's counsel demanded payment, Hooper directly communicated with Suncoast's agent, stating he would not pay and would contest any legal action for an extended period.

Count II involves Hooper's failure to appear at a deposition in related civil litigation. Hooper claimed lack of proper subpoena and short notice, but the referee found he had adequate notice and attempted to avoid the deposition. Additionally, Hooper admitted to misrepresenting himself as the dealer and salesman when applying for a rebate from Tampa Electric for the installed equipment, which rightfully belonged to Suncoast. Hooper also engaged in conduct involving threats of further lawsuits against Suncoast and sent a thank you card with the rebate check to Suncoast’s attorney after a favorable summary judgment.

Legal Issues Presented

Whether J.B. Hooper violated Florida Bar disciplinary rules by communicating with a represented party without counsel's consent in relation to Count I.
Whether Hooper’s conduct in disputing payment and his subsequent communications violated rules governing professional conduct and honesty.
Whether Hooper’s failure to appear at a deposition and misrepresentations in applying for a rebate constituted violations of Florida Bar disciplinary rules.
The appropriate disciplinary sanction for Hooper’s conduct in light of the findings.

Arguments of the Parties

Respondent's Arguments (J.B. Hooper)

Hooper maintained the installation work by Suncoast was unsatisfactory and thus refused payment.
He asserted he was never subpoenaed for the deposition and received only one day's notice.
Hooper filed a motion for protective order on the deposition date.

Complainant's Arguments (The Florida Bar)

The Florida Bar contended Hooper improperly communicated with a represented party without consent, violating disciplinary rules.
They argued Hooper’s misrepresentation in obtaining a rebate and his conduct in litigation reflected adversely on his fitness to practice law.
The Bar maintained Hooper attempted to avoid the deposition despite adequate notice.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
The Florida Bar v. Stalnaker, 485 So.2d 815 (Fla. 1986)	Standard of review for referee’s findings: upheld unless clearly erroneous or unsupported by evidence.	The court applied this precedent to affirm the referee’s factual findings and recommendations of guilt.
The Florida Bar v. Bennett, 276 So.2d 481 (Fla. 1973)	Attorney conduct in personal transactions must not tarnish the professional image or public trust.	The court cited this to emphasize that even personal dealings by attorneys must uphold professional standards.

Court's Reasoning and Analysis

The court accepted the referee’s findings supported by the record, emphasizing that Hooper knowingly communicated with a represented party without consent, violating Disciplinary Rule 7-104(A)(1). The court found his conduct reflected adversely on his fitness to practice law under Disciplinary Rule 1-102(A)(6). Regarding the deposition, the court agreed the referee correctly concluded Hooper had notice and attempted to evade his obligations. The court further found that Hooper’s misrepresentation in obtaining a rebate and his threatening communications violated rules requiring honesty and good morals (Integration Rule, article XI, Rule 11.02(3)(a); Disciplinary Rule 1-102(A)(4) and (A)(6)). The court balanced Hooper’s lack of prior disciplinary history against the seriousness of the violations, noting his overzealous self-representation did not excuse breaches of professional conduct. Consequently, the court approved the referee’s recommended sanctions.

Holding and Implications

J.B. Hooper is suspended from the practice of law in Florida for ninety days, subject to automatic reinstatement. The suspension is effective thirty days from the opinion date to allow Hooper to protect his clients, during which he may not accept new clients. Additionally, Hooper is ordered to pay costs of $1,721.69.

This decision directly affects Hooper by imposing a temporary suspension and financial penalty. No new precedent was established; the ruling applies established disciplinary principles to the facts of this case.

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THE FLORIDA BAR, COMPLAINANT, v. J.B. HOOPER, RESPONDENT.

PER CURIAM.

This disciplinary proceeding against J.B. Hooper is before us on the two-count complaint of The Florida Bar and the referee's report. We have jurisdiction. Art. V, § 15, Fla. Const.

As to Count I, the referee found that in August 1983 Hooper contracted with Suncoast Service Center, Inc. (Suncoast) for the installation of air-conditioning/heating equipment at a cost of $3,021. There is conflicting evidence as to whether or not the installation was done properly. Hooper took the position that the work was unsatisfactory and evaded or refused Suncoast's requests for payment even though, as he concedes, only a few hundred dollars worth of problems were at issue. Suncoast retained counsel who contacted Hooper by letter again demanding payment. After receiving counsel's letter, Hooper telephoned Suncoast directly and spoke to agent Jim Alexander regarding the matter. Mrs. Rodriquez, the complaining witness, testified as follows regarding respondent's conversation with Alexander:

Q. What did Mr. Alexander tell you regarding that conversation?

A. Mr. Alexander stated, as he did in his deposition, and there is such a deposition, that Mr. Hooper had said to him that he was not going to pay that money, and that if he did have an attorney file a lawsuit against him or place a lien on the property, he would get the lien removed and that he would hold this suit in litigation for years to come. So, therefore, to please tell the attorney, whoever he was, to give it his best shot.

Based on these facts, the referee recommended that Hooper be found guilty of violating the Florida Bar Code of Professional Responsibility, Disciplinary Rule 7-104(A)(1) for communicating on the subject of representation with a party he knows to be represented by a lawyer without prior consent or authorization by law; as well as Disciplinary Rule 1-102(A)(6) for conduct reflecting adversely on his fitness to practice law.

As to Count II, Hooper admits that he failed to appear at a deposition scheduled in the civil litigation between Suncoast and himself. He asserts, however, that he was never subpoenaed, that he was given only one day's notice, and that he filed a motion for protective order on the scheduled date of the deposition. The referee found that Hooper received notice of the taking of the deposition well in advance of the deposition date and attempted to avoid his own deposition.

Hooper admits that he applied for and received a $426.50 rebate from Tampa Electric for equipment installed by Suncoast. The referee found that in applying for the rebate Hooper misrepresented himself as both the dealer and the salesman of the equipment when it is undisputed that the dealer and the salesman was Suncoast. Further, the referee found that Hooper gloatingly mailed Suncoast's attorney a thank you card along with a copy of the rebate check after the circuit court granted his motion for summary judgment. Hooper also wrote a letter to Suncoast's attorney threatening to file additional lawsuits against Suncoast unless they dismissed a suit filed in county court and withdrew their pending complaint with The Florida Bar. He continued his threats in the addendum to his motion to dismiss the disciplinary matters:

Should Suncoast be allowed to pursue its complaint, respondent is left with no alternative but to bring an action for breach of contract against Suncoast or be placed by the Bar in an uncognizable position of having bargained away significant legal rights in good faith without a remedy to reinstate these rights.

Based on these facts, the referee recommended that Hooper be found guilty of violating Florida Bar Integration Rule, article XI, Rule 11.02(3)(a) for conduct contrary to honesty, justice, or good morals; Disciplinary Rule 1-102(A)(4) for engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation; and Disciplinary Rule 1-102(A)(6) for conduct reflecting adversely on his fitness to practice law.

The record provides ample support for the referee's findings. Such findings will be upheld unless clearly erroneous or without evidentiary support. The Florida Bar v. Stalnaker, 485 So.2d 815 (Fla. 1986). Accordingly, we approve these findings of fact and the referee's recommendations of guilt. The referee recommended that Hooper be placed on probation for one year, under supervision by The Florida Bar, or alternatively, suspended from The Florida Bar for ninety days. Hooper has no record of prior disciplinary violations. His violations stem from an overzealous attempt to represent himself in a business transaction and subsequent litigation. However, as we have previously noted, even in personal transactions, attorneys must "avoid tarnishing the professional image or damaging the public which may rely upon their professional standing." The Florida Bar v. Bennett, 276 So.2d 481, 482 (Fla. 1973).

Accordingly, J.B. Hooper is hereby suspended for ninety days from the practice of law in Florida, subject to automatic reinstatement. The suspension shall be effective thirty days from the date of this opinion, giving Hooper sufficient time to take steps necessary to protect his clients. He shall accept no new clients from the date of this opinion. Judgment for costs in the amount of $1,721.69 is hereby entered against respondent, for which sum let execution issue.

It is so ordered.

McDONALD, C.J., and SHAW, BARKETT, GRIMES and KOGAN, JJ., concur.

OVERTON and EHRLICH, JJ., dissent.