THE FLORIDA BAR, COMPLAINANT,
v.
MARZELL MITCHELL, JR., RESPONDENT
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The Florida Bar appealed a disciplinary referee's recommendation of a private reprimand for attorney Marzell Mitchell, Jr., who failed to maintain adequate trust account records and commingled personal funds with client trust funds over a three-year period. The Florida Supreme Court adopted the referee's factual findings but increased the discipline to a public reprimand, two years of probation, and quarterly accounting oversight, finding a private reprimand too lenient given Mitchell's prior disciplinary history and extended violations.
The Court affirmed the referee's factual findings but rejected the private reprimand as insufficiently punitive. Instead, the Court imposed a public reprimand, two years of probation with mandatory quarterly certified public accountant reports certifying trust account compliance, and assessed costs of $2,630.75 against the attorney.
[1] An attorney's failure to maintain adequate trust account records and commingling of personal and trust funds constitutes a violation of professional conduct rules.
[2] A prior disciplinary record may be considered when determining appropriate sanctions for attorney misconduct.
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“funds belonging to respondent and his wife were deposited into, and personal payments were made from, respondent's trust account”
Establishes the core violation of commingling personal and trust funds
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Join FLexlaw to unlock all legal intelligenceAn audit of respondent's trust accounts covering May 1980 through May 1983 revealed that personal funds belonging to respondent and his wife were depo…
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PER CURIAM.
We have for review a Petition for Review by The Florida Bar of a Report of a Referee assigned to hear a disciplinary case against respondent. We have jurisdiction pursuant to article V, section 15 of the Florida Constitution.
The Florida Bar filed a complaint alleging that respondent, Marzell Mitchell, Jr., had failed to keep adequate records of his trust accounts and had co-mingled personal funds with trust funds. An audit was performed covering the period from May 1, 1980 through May 1983. The referee found that during this time funds belonging to respondent and his wife were deposited into, and personal payments were made from, respondent’s trust account. The referee also found that respondent failed to maintain quarterly balance reconciliations, deposit slips, ledger cards, or any records indicating the reasons for disbursements from the trust account. The referee found that respondent received a private reprimand in 1978. In the present case the referee recommends another private reprimand.
In its brief the Florida Bar seeks to increase the discipline to a public reprimand and two years of probation. The respondent has failed to file a brief despite repeated requests from this Court. In light of respondent’s previous disciplinary record, his lengthy and continuous period of failing to comply with the trust account record-keeping requirements contained in The Florida Bar Integration Rule, article XI, Rule 11.02(4), and his intermingling of personal and trust account funds in violation of Code of Professional Responsibility, Disciplinary Rule 9-102, we find that a private reprimand is too lenient a penalty. We therefore adopt the referee’s findings of fact, but do not approve his recommendation as to the appropriate discipline. Instead we order that through the publication of this opinion respondent be publicly reprimanded and that he be placed on probation for two years. During this two-year period, respondent shall be required to submit quarterly reports prepared by a certified public accountant that respondent’s trust records have been reviewed and are in compliance with The Florida Bar Integration Rule 11.02. The quarterly reports are to be filed with The Florida Bar’s office for lawyer regulation and discipline at Bar headquarters in Tallahassee. The costs of bringing this proceeding are taxed against respondent. Judgment for costs in the amount of $2,630.75 is hereby entered against him, for which sum let execution issue.
It is so ordered.
McDonald, C.J., and BOYD, OVER-TON, EHRLICH, SHAW and BARKETT, JJ., concur. ADKINS, J., dissents with an opinion.
ADKINS, Justice,
dissenting.
I would dismiss the proceedings. The 1978 private reprimand resulted from a charge involving trust account record keeping violations, but the Grievance Committee found that the problem involved ignorance of trust accounting procedures rather than willful misconduct. Respondent is a criminal lawyer who does not handle trust funds. I would dismiss these technical charges.
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THE Florida BAR v. Marzell Mitchell, Jr., 645 So. 2d 414 (Fla. 1994)…en wilful misconduct. In 1986, Mitchell received a public reprimand and was placed on probation for two years for failing to maintain adequate trust accounting records and for commingling personal funds with trust funds. The Florida Bar v. Mitchell, 493 So. 2d 1018 (Fla. 1986). The referee also considered in aggravation Mitchell’s failure to appear for a properly noticed deposition and his failure to appear at a properly noticed hearing necessitated by his failure to appear for the deposition. The referee rec…
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THE Florida BAR v. Hosner, 513 So. 2d 1057 (Fla. 1987)…lorida Bar v. Suprina, 468 So. 2d 988 (Fla.1985). Public reprimands have also been imposed in more serious cases where such misconduct has been combined with other additional violations and in second-offense cases. E.g., The Florida Bar v. Mitchell, 493 So. 2d 1018 (Fla.1986) (with probation); The Florida Bar v. Aaron, 490 So. 2d 941 (Fla.1986) (with probation); The Florida Bar v. Staley, 457 So. 2d 489 (Fla.1984) (with probation). As authority for its position that respondent should be suspended, the Bar cit…