THE FLORIDA BAR, COMPLAINANT,
v.
JAMES D. WELCH, RESPONDENT
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The Court approved some amendments to the Integration Rule, Article XI, but a dissenting opinion argued for the inclusion of specific provisions regarding grievance committee findings of no probable cause and the conditions for attorney suspension.
The Court approved certain amendments to the Integration Rule, Article XI, while rejecting others, with a dissenting opinion advocating for the approval of rejected provisions concerning grievance committee procedures and suspension terms.
[1] An attorney violates professional responsibility rules by unlawfully taking and converting client funds to their own use without authorization.
[2] An attorney's failure to place client funds in a trust account, escrow, or identifiable client fund account constitutes a violation of professional conduct rules.
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Join FLexlaw to unlock all legal intelligenceThe Florida Bar submitted proposed amendments to the Integration Rule, Article XI. The majority of the Court approved some amendments, but rejected ot…
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PER CURIAM.
This is a disciplinary proceeding by The Florida Bar against James D. Welch. Respondent has filed a petition for review pursuant to Rule 11.09, Integration Rule.
The Florida Bar filed a two-count complaint against respondent. Following a hearing, the Referee recommended dismissal of Count Two. As to Count One, he found:
“1. Respondent agreed to handle matters involving Mr. Keyes’ son for a $750.00 fee.
2. Respondent did request and receive funds from a released court cash bond.
3. Mr. Keyes authorized Respondent to subtract the fine ($101.00) if any from the cash bond.
4. Respondent did not place it in a trust account, in escrow, or in an identifiable client fund account.
5. Respondent did unlawfully take and convert to his own use $899.00 belonging to Mr. Keyes.
6. Respondent had no agreement allowing him to take $899.00.
7. Respondent refused or failed to redeliver the $899.00 to Mr. Keyes.
8. Respondent claimed he did a lot of extra work which made the fee payment he received ($750.00) and the amount he converted ($899.00) a more reasonable fee for the work he did.
9. The Respondent did not testify as to any facts at the Hearing.” Satisfied that these findings were supported by a clear and convincing preponderance of the evidence in the record, the Referee recommended:
“ . . . [T]hat the Respondent be found guilty under Count One as charged in the Complaint and specifically that he be found guilty of violations of his oath as attorney of Article XI of the Integration Rule, Rule 11.02, and D. R. 9-102(A) (2) and D.R. 9-102(B)(4) of the Code of Professional Responsibility, and additional Rule 1 of the former Additional Rule governing Conduct of Attorneys in Florida.”
Respondent has a prior disciplinary history. He had been disbarred in April, 1965, for misappropriation of clients’ funds —the same offense of which he presently stands charged. The disbarment was approved by this Court in Welch v. The Florida Bar, 109 So. 2d 767 (Fla.1959).1 He was subsequently reinstated2 but was later publicly reprimanded by this Court and placed on three years probation in 1972. The Florida Bar v. Welch, 272 So. 2d 139 (Fla.1972). We there found, based in part on respondent’s own testimony, that he had fraudulently induced the complaining witness to deed her property to respondent’s wife for a grossly inadequate can-sideration. We stated:
“ . . . Respondent’s prior misconduct, together with the infraction here under consideration, constitute two strikes against him. Any further misconduct will necessarily be viewed in light of these prior disciplinary breaches.” 272 So. 2d at 141.
Considering these past disciplinary actions, the Referee recommended that respondent be disbarred from the practice of law in Florida.
In the present proceedings, respondent has contended that: (1) the punishment recommended by the Referee is grossly excessive; (2) he was deprived of due process because the Florida Bar followed the Integration Rule of the Florida Bar; (3) he was compelled to testify against himself relative to Count Two.
With regard to the alleged excessiveness of the punishment, we find this argument to be groundless in view of-our previous admonitions to respondent. As to the alleged unfairness of the Bar proceedings, we have previously considered and rejected this argument in State ex rel. The Florida Bar v. Grant, 85 So. 2d 232 (Fla.1956). Finally, concerning respondent’s third contention, it is sufficient to note that the allegedly “compelled” testimony pertained solely to Count Two, which was ultimately dismissed.
After considering the nature of the present offense in light of respondent’s past disciplinary history, we are of the unanimous opinion that the findings and recommendations of the Referee should be adopted. They are hereby approved, and the respondent is hereby disbarred from the practice of law in this state.
Execution for costs against respondent will be directed by subsequent order. It is so ordered.
ADKINS, C. J., ROBERTS, McCAIN and OVERTON, JJ., and RUDD, Circuit Court Judge, concur. . Affirming the order of the Circuit Court for Broward County in State v. Welch, Case No. L59,910A, November 8, 1959.
. Welch v. Board of Governors, The Florida Bar, 173 So. 2d 688 (Fla.1965).
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THE Florida BAR v. Blalock, 325 So. 2d 401 (Fla. 1976)…e proceeding, and active participation in an alcoholic disease control program. The Bar urges a maximum three-year term of suspension, coupled with restitution and proof of rehabilitation before reinstatement to the Bar. . The Florida Bar v. Welch, 309 So. 2d 537 (1975); The Florida Bar v. Goldhaber, 257 So. 2d 13 (Fla.1971); The Florida Bar v. Scott, 227 So. 2d 195 (Fla.1969); State ex rel. The Florida Bar v. Buskin, 126 So. 2d 142, 143 (Fla.1961). . The Florida Bar v. Pahules, 233 So. 2d 130, (Fla.1970);…
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THE Florida BAR v. Melvyn Greenspahn, 396 So. 2d 182 (Fla. 1981)…The Florida Bar v. Rubin, 362 So. 2d 12 (Fla.1978). In considering the appropriate discipline for an ethical violation, this Court considers past derelictions of responsibility and, when appropriate, increases the penalty. The Florida Bar v. Welch, 309 So. 2d 537 (Fla.1975); The Florida Bar v. Enwright, 172 So. 2d 584 (Fla.1965). Under the peculiar facts of this matter, however, we determine the appropriate discipline from the totality of the conduct as though all of the charges had been presented to us in o…
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Harvey v. State, 32 So. 3d 61 (Fla. 2d DCA 2008)…persuaded by the argument of the former wife’s attorney that the right not to be compelled to incriminate oneself did not apply in such a proceeding.2 [*63] The only remaining question is whether the error was harmless. See The Florida Bar v. Welch, 309 So. 2d 537, 538 (Fla.1975) (finding harmless the fact that the respondent was compelled to testify against himself when the count in question was ultimately dismissed); see also Arizona v. Fulminante, 499 U.S. 279, 310-11, 111 S.Ct. 1246, 113 L.Ed.2d 302 (1991…
Authorities Cited
- Turner v. Power Brake & Equip. Co., 85 So. 2d 232 (Fla. 1956)
- State of Fla. ex rel. The Fla. BAR v. Grant, 85 So. 2d 232 (Fla. 1956)
- Welch v. THE Florida BAR, 109 So. 2d 767 (Fla. 1959)
- Welch v. Bd. OF Governors, 173 So. 2d 688 (Fla. 1965)
- Hillsborough Cnty. v. Bennett, 173 So. 2d 688 (Fla. 1965)
- THE Florida BAR v. Welch, 272 So. 2d 139 (Fla. 1972)