THE FLORIDA BAR, COMPLAINANT,
v.
JOHN P. KIRTZ, JR., RESPONDENT
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The Florida Supreme Court upheld disciplinary measures against attorney John P. Kirtz, Jr. for multiple instances of professional misconduct, including charging an excessive fee, communicating directly with adverse parties without consent, neglecting a legal matter, and suggesting a client exaggerate an injury. The court suspended Kirtz from practice for four months and required restitution to affected clients.
The court affirmed all findings of misconduct and approved the referee's recommended discipline. Kirtz is suspended from the practice of law for four months and until he proves rehabilitation, with concurrent suspensions on the two separate disciplinary cases, and must make restitution to the affected clients.
[1] Charging and collecting a clearly excessive fee from a client violates professional responsibility rules.
[2] A lawyer cannot excuse an excessive fee by claiming bookkeeping errors.
Previewing 2 of 6 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“Respondent knew, or should have known, that the charge was excessive and cannot now use poor bookkeeping on his part to excuse himself from the consequences of his act.”
Establishes that attorneys are responsible for excessive fees regardless of whether the overcharge was intentional, and cannot use bookkeeping errors as an excuse.
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceKirtz overcharged client Otis Jones and collected an excessive fee of $968.98, which he conceded but attributed to a bookkeeping error, though he neve…
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PER CURIAM.
These disciplinary proceedings are before us on complaints of The Florida Bar, reports of the referee, and petitions for review filed by John Peter Kirtz, Jr. Case No. 61,386
The referee recommends that Kirtz be found guilty of all three counts of misconduct charged in the complaint. As to Count 1, the referee finds that a clearly excessive fee was charged and collected by Kirtz from his client, Otis Jones, in violation of Florida Bar Code of Professional Responsibility, Disciplinary Rule 2-106(A). We agree with the referee’s finding. This is not a fee dispute matter. Kirtz conceded that he had overcharged his client. In response to Kirtz’s claim that the overcharge was due to a bookkeeping error, the referee stated:
Respondent knew, or should have known, that the charge was excessive and cannot now use poor bookkeeping on his part to excuse himself from the consequences of his act. Even though it may be concluded that the overcharge was not intentional, yet the obligation of the lawyer is to keep his books of account in such order as not to make a careless mistake to the detriment of his client. The fact that Respondent did not ever tender the overcharge to Jones even after the complaint was filed with the Grievance Committee belies his now taken position that he made an honest mistake.' As to Count 2, the referee found that Kirtz knowingly communicated directly with an adverse party without consent of the party’s lawyer, in violation of Florida Bar Code of Professional Responsibility, Disciplinary Rule 7 — 104(A)(1). The record supports this finding; and we approve it.
As to Count 3, the referee found that Kirtz neglected a legal matter entrusted to him, in violation of Florida Bar Code of Professional Responsibility, Disciplinary Rule 6-101(A)(3). Kirtz accepted a fee from C.L. Taylor for representation of his former wife and failed to pursue the matter. The referee also found that Kirtz engaged in conduct adversely reflecting on his fitness to practice law, in violation of Florida Bar Code of Professional Responsibility, Disciplinary Rule 1-102(A)(6). The record supports these findings, and we approve them.
As the appropriate disciplinary measure for this cumulative misconduct, the referee recommends that Kirtz be suspended from the practice of law for four months and until proof of rehabilitation and restitution to Otis Jones of the excessive fee of $968.98, plus interest thereon from October 4, 1979, at the annual rate of 8 percent, and repayment to C.L. Taylor, or his nominee, of the fee collected by him in the amount of $150 from Taylor for representation of his former wife, plus interest at 8 percent per annum from September 14, 1978.
We agree with the discipline recommended by the referee. John Peter Kirtz, Jr., is hereby suspended from the practice of law in this state for four months and thereafter until he proves rehabilitation and makes restitution to Otis Jones and C.L. Taylor or his nominee. Respondent shall pay the costs of these proceedings. This suspension shall be effective March 12, 1984, thereby giving respondent thirty days to close his practice and to take the necessary steps to protect his clients.
Case No. 61,942
The referee finds that Kirtz suggested to a client in a workers’ compensation case that he go out and strain his back so as to exaggerate his condition for the purpose of securing more compensation from his employer. The referee finds that by doing this, Kirtz engaged in conduct involving dishonesty, fraud, and deceit, which adversely reflects on his fitness to practice law and violated Florida Bar Code of Professional Responsibility, Disciplinary Rules 1 — 102(A)(4) and (6) and 7-102(A)(6) and (7). We approve this finding.
As the appropriate disciplinary measure, the referee recommends that Kirtz be suspended from the practice of law for four months and thereafter until he proves rehabilitation. The referee further recommends that this four-month suspension run concurrently with the four-month suspension recommended in Case No. 61,368. We agree with this recommended discipline.
Accordingly, Kirtz is hereby suspended from the practice of law in this state for four months and until he proves his rehabilitation. This suspension will run concurrently with the suspension ordered in Case No. 61,386.
Kirtz shall pay the costs of the proceedings in Case No. 61,386 and Case No. 61,-942 in the amount of $4,153.32.
It is so ordered.
ALDERMAN, C.J., and BOYD, OVER-TON, EHRLICH and SHAW, JJ., concur. McDONALD, J., concurs in part and dissents in part with an opinion with which ADKINS, J., concurs.
McDONALD, Justice,
concurring in part, dissenting in part.
I concur in all but Count I of Case No. 61,386. The evidence fails to support a finding that respondent intentionally charged an excessive fee. This disagreement does not affect the ultimate penalty, however. ADKINS, J., concurs.
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THE Florida BAR v. Alphonse Della-Donna, 583 So. 2d 307 (Fla. 1989)…address the power to or propriety of ordering restitution of excessive fees, but such restitution, as a condition of resuming the practice of law, has become standard. E.g., The Florida Bar v. Lowe, 508 So. 2d 6 (Fla.1987); The Florida Bar v. Kirtz, 445 So. 2d 576 (Fla.1984). As has been recognized for many years, “[disciplinary proceedings against attorneys are instituted in the public interest and to preserve the purity of the courts. No private rights except those of the accused attorney are involved.” Ap…
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Pace v. Miami-Dade Cnty. Sch. Bd. & Gallagher Bassett Servs., Inc., 868 So. 2d 1286 (Fla. 1st DCA 2004)…v. Flinn, 575 So. 2d 634 (Fla.1991) (approving referee’s findings of fact and discipline recommendation in lawyer disciplinary proceeding involving, among other things, actions taken by attorney in workers’ compensation case); The Fla. Bar v. Kirtz, 445 So. 2d 576, 577 (Fla.1984) (approving referee’s finding and discipline recommendation concerning attorney’s misconduct in workers’ compensation case). Therefore, because the JCC acted beyond his jurisdiction here, we reverse the order on appeal to the extent…