Supreme Court of Florida
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No. SC12-937
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THE FLORIDA BAR,
Complainant,
vs.
DANIEL GARY GASS,
Respondent.
[December 18, 2014]
PER CURIAM.
We have for review a referee’s report recommending that respondent Daniel
Gary Gass be found guilty of professional misconduct in violation of the Rules
Regulating the Florida Bar (Bar Rules) and suspended from the practice of law for
sixty days. We have jurisdiction. See art. V, § 15, Fla. Const. As discussed
below, we approve the referee’s findings of fact. We also approve the referee’s
recommendation that Gass be found guilty of violating Bar Rules 4-1.3
(Diligence), 4-1.4(a)(3), and 4-1.4(a)(4) (Communication; Informing Client of
Status of Representation), and 4-8.4(d) (Misconduct); however, we disapprove the
referee’s recommendation that Gass be found in violation of Bar Rule 4-1.4(a)(5)
(Communication; Informing Client of Status of Representation). We also
disapprove the referee’s recommended sanction, a sixty-day suspension. Given
Gass’s failure to diligently act on behalf of his clients and to keep them informed
as to the status of their case, and considering the harm his actions caused to the
clients, we conclude that a one-year suspension is appropriate.
FACTS
In May 2012, The Florida Bar filed a complaint against Gass, alleging that
he engaged in misconduct in violation of the Bar Rules. A referee was appointed
to consider the matter. Following a hearing, the referee submitted her report for
the Court’s review, in which she made the following findings and
recommendations.
In April 2010, Gass was hired by two clients, a married couple, to handle
several legal issues pending against them, as well as against their family-owned
business. The most significant of these was a civil case pending in the circuit court
that was related to an outstanding debt that the clients and their company owed to a
third party, who was the plaintiff in the civil case. By the time Gass first met with
the clients in April, a default judgment had been entered against them, and the
plaintiff was attempting to collect the judgment.
The evidence presented to the referee indicated that the clients received a
subpoena for a deposition scheduled for May 25, 2010; the subpoena also directed
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the clients to produce certain documents at the deposition. The clients informed
Gass of the subpoena and provided him with a copy. However, they testified that
Gass advised them not to attend. Based on this advice, the clients did not appear
for the deposition. Subsequently, counsel for the plaintiff filed a petition for an
order to show cause. On June 21, 2010, the circuit court entered an order to show
cause, holding the clients in contempt. The order allowed the clients to purge the
contempt by appearing at a rescheduled deposition on June 22. The clients
attended this deposition, but Gass did not.
Gass formally entered a notice of appearance in the civil case in July 2010.
However, the referee stated: “I find that it is clear that Respondent was
representing the [clients] prior to the Notice of Appearance and that Respondent
should have been present at the [clients’] deposition. Respondent’s failure to
attend is a clear indication of a lack of diligence in representing the [clients].”
Notably, once Gass filed the notice of appearance, the clients no longer received
any correspondence directly from the plaintiff, and they relied on Gass to keep
them informed.
At their deposition on June 22, it appears that the clients produced some, but
not all, of the documents requested from them. Consequently, in July 2010,
counsel for the plaintiff filed a second petition for an order to show cause. The
referee found that Gass received this petition, but he did not inform the clients. On
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August 23, 2010, the circuit court entered a second order to show cause, ordering
the clients to produce the remaining documents. The order set a show cause
hearing for October 4, 2010, and directed the clients to produce the documents at
least five days before the hearing. The referee found that Gass received this order,
but he again failed to notify the clients or inform them of the show cause hearing.
Thus, the clients did not attend the hearing, and Gass did not attend the hearing on
the clients’ behalf. During the proceedings before the referee, Gass maintained
that the clients were aware of the show cause hearing and that they directed him
not to attend. The referee expressly found that this testimony was not credible.
On January 10, 2011, the circuit court entered a “Renewed Order Regarding
Hearing on Order to Show Cause on October 4, 2010” (Renewed Show Cause
Order). On February 8, 2011, the court entered an “Amended Renewed Order
Nunc Pro Tunc as of January 10, 2011, Regarding Hearing on Order to Show
Cause on October 4, 2010” (Amended Renewed Show Cause Order). The clients
were personally served with the orders. The Amended Renewed Show Cause
Order gave the clients ten days from the date of service to provide all of the
documents requested. The order warned that they would be incarcerated if they
did not produce the documents.
When the clients received the Renewed Show Cause Order, they sent a letter
to Gass’s secretary. In the letter, the clients stated that they believed they had
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provided all of the documents they had available, and they asked Gass to advise
them how to proceed. Gass did not respond to the letter; however, the clients
testified that they did speak with his secretary, and she indicated Gass was
addressing the issue.
In his testimony before the referee, Gass maintained that he repeatedly
warned the clients that if they did not provide the documents requested by the
plaintiff, they could be incarcerated for contempt. However, the referee found
Gass’s testimony was “completely lacking in credibility,” and he did not produce
any records of correspondence, telephone conversations, or meetings where he
provided this advice. Gass also maintained that the clients received copies of the
circuit court’s Renewed Show Cause Order and Amended Renewed Show Cause
Order, and they should have been aware of the potential for their arrests. The
referee found that Gass’s expectation that his clients interpret a legal document on
their own indicated “a callous indifference to his clients and is contrary to his
ethical obligations as an attorney.”
In February 2011, the circuit court issued capias and bench warrants for the
clients. Although Gass gave conflicting testimony as to whether he received
copies of the warrants in advance and whether he warned the clients of their
impending arrest, the referee found no credible evidence that Gass attempted to
communicate with the clients at this crucial time. On February 22, 2011, the
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clients were arrested and taken to jail. After their arrests, Gass did take action to
secure their release. He filed a personal bankruptcy action on their behalf (staying
the civil case), as well as an emergency motion to strike the capias and bench
warrants. The motion was granted, and the clients were eventually released. One
client spent three days and two nights in custody, and the other client spent three
days and three nights in custody. Both clients testified that their incarceration was
very traumatic and caused significant emotional anguish.
Based on these facts, the referee recommended that Gass be found guilty of
violating Bar Rules 4-1.3 (a lawyer shall act with reasonable diligence and
promptness in representing a client); 4-1.4(a)(3) (a lawyer shall keep the client
reasonably informed about the status of the matter); 4-1.4(a)(4) (a lawyer shall
promptly comply with reasonable requests for information); 4-1.4(a)(5) (a lawyer
shall consult with the client about any relevant limitation on the lawyer’s conduct
when the lawyer knows or reasonably should know the client expects assistance
not permitted by the Rules of Professional Conduct); and 4-8.4(d) (a lawyer shall
not engage in conduct in connection with the practice of law that is prejudicial to
the administration of justice).
The referee found two aggravating factors in this case: Gass had a prior
disciplinary history, having received a public reprimand in 2011 for violations of
the trust account rules; and Gass had substantial experience in the practice of law.
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Additionally, the referee found five mitigating factors: Gass lacked a selfish or
dishonest motive for his actions; he made timely, good faith efforts to rectify the
consequences of his misconduct; Gass cooperated fully and made free disclosure to
the disciplinary board or exhibited a cooperative attitude during the disciplinary
proceedings; Gass was of good character or reputation; and Gass exhibited remorse
for his misconduct.
As to the sanction, the referee recommended that Gass be suspended from
the practice of law for sixty days. The referee also awarded costs to the Bar in the
amount of $5,719.24.
The Bar filed a notice of intent to seek review of the report of the referee,
urging the Court to disapprove the referee’s recommended sanction and instead
impose a one-year suspension. Gass filed a cross-notice, challenging the referee’s
recommendations as to guilt as well as the recommended sanction.
ANALYSIS
We first address the referee’s recommendation that Gass be found guilty of
violating Bar Rules 4-1.3, 4-1.4, and 4-8.4(d). To the extent that Gass challenges
the referee’s findings of fact, the Court’s review of such matters is limited, and if a
referee’s findings of fact are supported by competent, substantial evidence in the
record, this Court will neither reweigh the evidence nor substitute its judgment for
that of the referee. Fla. Bar v. Frederick, 756 So. 2d 79, 86 (Fla. 2000); see also
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Fla. Bar v. Jordan, 705 So. 2d 1387, 1390 (Fla. 1998). To the extent that Gass
challenges the referee’s recommendations as to guilt, the Court has stated that the
referee’s factual findings must be sufficient under the applicable rules to support
the recommendation. See Fla. Bar v. Shoureas, 913 So. 2d 554, 557-58 (Fla.
2005).
The referee first recommended that Gass be found guilty of violating Bar
Rule 4-1.3. We conclude that the referee’s recommendation as to this rule
violation is well supported. Rule 4-1.3 provides that a lawyer shall act with
reasonable diligence and promptness in representing a client. Here, the referee
found that Gass advised his clients not to attend a deposition scheduled in their
civil case, he repeatedly failed to inform them of the circuit court’s orders to show
cause and the show cause hearing, and he did not attend depositions and hearings
on his clients’ behalf. As a result of his inaction, the depositions and hearings had
to be rescheduled, and the civil case against the clients was delayed for months.
We also find that Gass did not act diligently on behalf of the clients when
the circuit court issued capias and bench warrants for their arrests. Although there
was conflicting testimony as to when Gass received the warrants, the referee
ultimately found that he took no action on behalf of the clients during this crucial
time.
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In his arguments before this Court, Gass contends that he was in regular
communication with the clients, that the clients were aware of the circuit court’s
orders and hearings, and that he repeatedly informed the clients that if they did not
comply with the plaintiff’s requests for documents, they could be found in
contempt and arrested. However, the referee found that Gass’s testimony was not
credible. This Court has long held, “[t]he referee is in a unique position to assess
the credibility of witnesses, and his judgment regarding credibility should not be
overturned absent clear and convincing evidence that his judgment is incorrect.”
Fla. Bar v. Tobkin, 944 So. 2d 219, 224 (Fla. 2006) (citing Fla. Bar v. Thomas, 582
So. 2d 1177, 1178 (Fla. 1991)). Here, we conclude that there is no basis for
rejecting the referee’s determination. Accordingly, we approve the referee’s
recommendation that Gass be found guilty of violating Bar Rule 4-1.3.
We also approve the referee’s recommendation that Gass be found in
violation of Bar Rules 4-1.4(a)(3) and (a)(4). Those rules require the lawyer to
keep the client reasonably informed about the status of a matter and to promptly
comply with the client’s reasonable requests for information. Here, the referee
found that Gass repeatedly failed to inform the clients of orders and hearings in
their case. As noted, there is also no evidence that Gass warned the clients that
their failure to comply with the court’s orders could result in their being held in
contempt. In January 2011, when the clients received the Renewed Show Cause
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Order, they sent Gass a letter stating that they believed they had provided all of the
documents in their possession and asking Gass to advise them how to proceed.
Gass did not personally respond to the letter, and there is no indication that he took
any action on the clients’ behalf at that time. While Gass maintains that the clients
should have known they were at risk to be incarcerated based on language in the
Renewed Show Cause Order and Amended Renewed Show Cause Order, we agree
with the referee that Gass’s expectation that his clients interpret a legal document
on their own without his guidance indicates a callous indifference to the clients.
Accordingly, we approve the referee’s recommendation that Gass be found guilty
of violating rules 4-1.4(a)(3) and (a)(4).
Gass next urges the Court to disapprove the referee’s recommendation of
guilt as to Bar Rule 4-1.4(a)(5). The rule provides that a lawyer shall consult with
the client about any relevant limitation on the lawyer’s conduct when the lawyer
knows or reasonably should know that the client expects assistance not permitted
by the Rules of Professional Conduct. We agree that the referee’s factual findings
do not support the conclusion that Gass failed to consult with the clients about
ethical limitations on his conduct, and we disapprove the referee’s
recommendation of guilt as to this rule.
Lastly, we approve the referee’s recommendation that Gass be found guilty
of violating Bar Rule 4-8.4(d), which provides that a lawyer shall not engage in
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conduct in connection with the practice of law that is prejudicial to the
administration of justice. We conclude that Gass’s failure to act diligently on
behalf of the clients and his failure to keep the clients informed, causing significant
delays in the case and ultimately resulting in the clients’ arrests and incarceration,
were prejudicial to the administration of justice.
We next address the referee’s recommended sanction, a sixty-day
suspension. In reviewing a referee’s recommended discipline, this Court’s scope
of review is broader than that afforded to the referee’s findings of fact because,
ultimately, it is the Court’s responsibility to order the appropriate sanction. See
Fla. Bar v. Anderson, 538 So. 2d 852, 854 (Fla. 1989); see also art. V, §15, Fla.
Const. However, generally speaking, this Court will not second-guess the referee’s
recommended discipline as long as it has a reasonable basis in existing caselaw and
the Florida Standards for Imposing Lawyer Sanctions. See Fla. Bar v. Temmer,
753 So. 2d 555, 558 (Fla. 1999).
We agree with the referee that Gass’s misconduct warrants a suspension.
See Fla. Stds. Imposing Law. Sancs. 4.42 (stating that suspension is appropriate
when “a lawyer knowingly fails to perform services for a client and causes injury
or potential injury to a client” or “engages in a pattern of neglect and causes injury
or potential injury to a client”). However, we believe that his failures to act on
behalf of the clients, and particularly the serious harm his inaction caused to the
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clients, warrant a more severe suspension than sixty days. The Bar argues that a
one-year rehabilitative suspension is appropriate; we agree.
We have previously imposed rehabilitative suspensions in cases where an
attorney failed to act on behalf of clients or failed to keep a client informed in a
case and caused the client harm. In Florida Bar v. Roberts, 770 So. 2d 1207 (Fla.
2000), we suspended an attorney for ninety-one days for failing to consult with a
client before transferring her case to a new attorney, refusing to respond to the
client’s repeated calls, and informing the client that he could no longer represent
her less than a month before a scheduled mediation. We stated: “We here make
the specific point that an attorney’s consideration of his or her client’s interests and
communication with the client at reasonable times in response to the client’s
inquiries are a vital and necessary part of the attorney-client relationship.” Id. at
1209 (emphasis added); see also Fla. Bar v. Summers, 728 So. 2d 739 (Fla. 1999)
(suspending former Assistant United States Attorney for ninety-one days for
failing to comply with numerous trial court directives in forfeiture case where
respondent represented government, resulting in entry of final judgment against
government, and for failing to respond to Bar inquires and to attend final hearing
before referee); Fla. Bar v. Rolle, 661 So. 2d 301 (Fla. 1995) (suspending attorney
for ninety-one days for failing to respond to repeated requests for information by
clients in two separate cases and for failing to take any action in one of client’s
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cases); Fla. Bar v. Witt, 626 So. 2d 1358 (Fla. 1993) (suspending attorney for
ninety-one days for neglecting client’s workers’ compensation and personal injury
cases and for neglecting five separate appeals in First District Court of Appeal,
resulting in dismissal of two appeals).
Moreover, Gass’s misconduct is particularly egregious because it ultimately
resulted in his clients each spending three days in jail for contempt. In Florida Bar
v. Morrison, 669 So. 2d 1040 (Fla. 1996), we noted that “[t]he failure of an
attorney to pursue representation on behalf of a client resulting in prejudice to a
client’s rights is an intolerable breach of trust.” Id. at 1042. In Morrison, the
attorney was hired to represent a client in an already pending lawsuit, but he failed
to timely file a notice of appearance in the case or respond to motions, resulting in
the case being dismissed without prejudice. Although the attorney refiled the
complaint, he failed to actively pursue the case, again resulting in dismissal. By
the time of the second dismissal, the statute of limitations had run, precluding the
client from pursuing her claims. The Court suspended the attorney for one year.
In the case presented here, we note that the clients suffered an even more serious
harm than the client in Morrison, in that they were arrested and forced to spend
three days in jail. The clients testified before the referee that their time in jail was
very traumatic and has caused lasting emotional anguish. Accordingly, we
conclude that a one-year suspension is appropriate.
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We have also considered the referee’s findings in aggravation and
mitigation. The referee found two aggravating factors: (1) Gass had a prior
disciplinary history, and (2) Gass had substantial experience in the practice of law.
The referee also found five mitigating factors: (1) Gass lacked a selfish or
dishonest motive for his actions; (2) Gass made timely good faith efforts to rectify
the consequences of his misconduct, in that he moved quickly to have the clients
released from jail after their arrest; (3) Gass cooperated fully during the
disciplinary proceedings; (4) Gass was of good character or reputation; and (5)
Gass exhibited remorse for his misconduct. However, we conclude that these
mitigating factors do not outweigh Gass’s serious misconduct.
CONCLUSION
Accordingly, Daniel Gary Gass is hereby suspended from the practice of law
for one year. The suspension will be effective thirty days from the filing of this
opinion so that Gass can close out his practice and protect the interests of existing
clients. If Gass notifies this Court in writing that he is no longer practicing law and
does not need the thirty days to protect existing clients, this Court will enter an
order making the suspension effective immediately. Gass shall fully comply with
Rule Regulating the Florida Bar 3-5.1(h). Further, Gass shall accept no new
business from the date this opinion is filed until he is reinstated.
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Judgment is entered for The Florida Bar, 651 East Jefferson Street,
Tallahassee, Florida 32399-2300, for recovery of costs from Daniel Gary Gass in
the amount of $5,719.24, for which sum let execution issue.
It is so ordered.
LABARGA, C.J., and PARIENTE, LEWIS, QUINCE, CANADY, POLSTON,
and PERRY, JJ., concur.
THE FILING OF A MOTION FOR REHEARING SHALL NOT ALTER THE
EFFECTIVE DATE OF THIS SUSPENSION.
Original Proceeding – The Florida Bar
John F. Harkness, Jr., Executive Director, The Florida Bar, Tallahassee, Florida,
and Adria E. Quintela, Staff Counsel, and Ghenete Elaine Wright Muir, Bar
Counsel, The Florida Bar, Sunrise, Florida,
for Complainant
Kevin P. Tynan of Richardson & Tynan, P.L.C., Tamarac, Florida,
for Respondent
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