SC96743 The Florida Bar v. Dewey Homer Varner

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SC96743 The Florida Bar v. Dewey Homer Varner - Corrected Opinion

State: Florida

Court: Supreme Court

Docket No: sc96743

Case Date: 02/15/2001

Plaintiff: SC96743 The Florida Bar

Defendant: Varner - Correction

Preview:Supreme Court of Florida
No. SC96743
THE FLORIDA BAR,
Complainant,
vs.
DEWEY HOMER VARNER,
Respondent.
[February 15, 2001]
CORRECTED OPINION
PER CURIAM.
The Florida Bar has petitioned for review of a referee’s report addressing
alleged ethical misconduct by attorney Dewey Homer Varner.   We have
jurisdiction.   See art. V, § 15, Fla. Const.   For the reasons expressed below, we
approve in part and disapprove in part the referee’s recommendations as to guilt,
and suspend Varner from the practice of law for ninety days.
FACTS
The Bar filed a complaint against Varner alleging violations of nine Rules

Regulating the Florida Bar in connection with his settlement of a personal injury
claim.   Following a hearing, the appointed referee made the following factual
findings:
Varner represented a client in a personal injury matter.   During the client’s
deposition, Varner represented to Ed Welch of State Farm, the client’s insurer, that
Varner had filed suit against State Farm on the client’s behalf.   At the time Varner
made this statement, he believed it to be true.   Following the deposition, Varner
offered to settle with State Farm for $200 in attorneys’ fees and $215 in filing fees.
Welch agreed to the settlement on behalf of State Farm.
State Farm forwarded a $415 check to Varner, along with a letter requesting
that Varner furnish State Farm with a notice of voluntary dismissal as to the suit that
had been filed.   Varner requested his secretary to prepare a notice of voluntary
dismissal.   Varner’s secretary prepared the notice, but informed Varner that she
had been unable to fill in a file number because no such action had been
commenced.   Varner took the notice, filled in a fictitious file number, signed it, and
mailed a copy to Welch at State Farm.   At the time Varner forwarded the notice of
voluntary dismissal to State Farm, there had been no summons, complaint or other
pleadings drafted or prepared in the case.
For placing a fictitious file number on the notice of voluntary dismissal and
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forwarding the same to State Farm, the referee recommended that Varner be found
guilty of violating rule 3-4.3 (lawyer shall not engage in any act that is contrary to
honesty and justice) and rule 4-8.4(c) (lawyer shall not engage in conduct involving
dishonesty, fraud, deceit or misrepresentation).   The referee recommended that
Varner be found not guilty of the remaining rule violations charged by the Bar.
In determining the recommended discipline, the referee found no aggravating
factors.   In mitigation, the referee found that Varner made a good faith effort at
restitution and correcting the consequences of his misconduct, see Fla. Stds.
Imposing Law. Sancs. 9.32(d), that Varner had a good character and reputation,
see Fla. Stds. Imposing Law. Sancs. 9.32(g), and that Varner was remorseful.
See Fla. Stds. Imposing Law. Sancs. 9.32(l).
The referee recommended that Varner be suspended for thirty days.   The
Bar now seeks review of the referee’s recommendation of not guilty as to rules 4-
1.4(a), 4-8.4(b), 4-8.4(d), 4-5.3(b), and 4-5.3(c)(1); the referee’s finding of no
aggravating factors; and the referee’s recommended discipline.
GUILT ANALYSIS
The Bar challenges several of the referee’s recommendations as to guilt.   In
order to successfully challenge a referee’s recommendation of not guilty as to a
particular rule violation, the Bar must demonstrate that there is no evidence in the
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record to support the recommendation, or that the referee’s recommendation is
clearly contradicted by the evidence.   See Florida Bar v. Spann, 682 So. 2d 1070,
1073 (Fla. 1996).   Although we give deference to a referee’s recommendations as
to guilt, we find that several of the referee’s recommendations are clearly
contradicted by the evidence.
A. Rule 4-4.1(a)
The Bar argues that Varner knowingly made a false statement of material fact
by submitting the fictitious notice of voluntary dismissal to Welch, and therefore
the referee erred in recommending that Varner be found not guilty of violating rule
4-4.1(a) (knowingly making false statement of material fact).   We agree, because the
referee’s recommendation of not guilty as to rule 4-4.1(a) is contradicted by the
evidence.   Rule 4-4.1(a) provides that in the course of representing a client, “a
lawyer shall not knowingly make a false statement of material fact or law to a third
person.”   Although the referee found that Varner believed a suit had been filed at
the time he made the verbal representation to Welch that a suit had been filed, the
referee also found that Varner knew a suit had not been filed when he mailed Welch
the notice of voluntary dismissal with a fictitious case number.
A document has been held to constitute a “statement” for the purposes of
rule 4-4.1(a).   See Florida Bar v. Adams, 641 So. 2d 399 (Fla. 1994) (letter from
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attorney accusing another attorney of suborning perjury basis for violation of rule
4-4.1(a)).   This document contained a false statement of fact in that the case
number was nonexistent, and also implied other falsehoods: that a lawsuit had been
filed and that the lawsuit was now being voluntarily dismissed.   The false statements
in the document were material in that they were in furtherance of a falsehood that
State Farm relied upon in settling the matter.   By sending the notice to Welch,
Varner knowingly made a false statement of material fact, and we therefore
disapprove the referee’s recommendation and find Varner guilty of violating rule 4-
4.1(a).
B. Rule 4-8.4(b)
The Bar also contends that the referee erred in recommending that Varner be
found not guilty of violating rule 4-8.4(b).   Rule 4-8.4(b) provides that a lawyer
shall not commit a criminal act1 that “reflects adversely on the lawyer’s honesty,
trustworthiness, or fitness as a lawyer in other respects.”   The Bar argues that
Varner’s submission of the fictitious notice violated section 817.234(1)(a)(1)-(2),
1It is not necessary for the attorney to have been convicted or even charged with violation of
the criminal statute in question. See R. Regulating Fla. Bar 3-4.4 (disciplinary action based on a criminal
offense may be initiated regardless of whether the respondent has been tried, acquitted, or convicted
for the alleged criminal offense).
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Florida Statutes (Supp. 1998).2   This section provides:
Any person who, with the intent to injure, defraud, or
deceive any insurer:
1.   Presents or causes to be presented any written or
oral statement as part of, or in support of, a claim for
payment or other benefit pursuant to an insurance policy,
knowing such statement contains any false, incomplete,
or misleading information concerning any fact or thing
material to such claim
2.   Prepares or makes any written or oral statement
that is intended to be presented to any insurer in
connection with, or in support of, any claim for payment
or other benefit pursuant to an insurance policy, knowing
that such statement contains any false, incomplete, or
misleading information concerning any fact or thing
material to such claim . . . commits a felony of the third
degree . . .
§ 817.234(1)(a)(1)-(2), Fla. Stat. (Supp 1998).   Although it is arguable whether
Varner violated subsection one, in that at the time the fictitious notice was sent the
“claim” had already been paid, see § 817.234(1)(a)(1) (prohibiting presenting any
false statement “as part of, or in support of, a claim for payment or other benefit
pursuant to an insurance policy”) (emphasis added), we find it unnecessary to
resolve this question because we agree with the Bar that a violation of subsection
two of the statute is clear.   Section 817.234(1)(a)(2) provides that any person who,
with the intent to deceive an insurer, “[p]repares or makes any written . . . statement
2This is the version of the statute in effect on January 27, 1999, when Varner submitted the
fictitious notice.  A violation of this statute is classified as a third-degree felony.
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that is intended to be presented to any insurer in connection with, or in support of,
any claim for payment or other benefit pursuant to an insurance policy” is guilty of
violating the statute.   Under the facts as found by the referee, it is clear that the
fictitious notice was sent with an intent to deceive an insurer “in connection with” a
claim for payment, and that such act constitutes a violation of section
817.234(1)                                                                                                (a)(2).3   We therefore disapprove the referee’s recommendation and find
Varner guilty of violating rule 4-8.4(b).
C. Rule 4-8.4(d)
The Bar contends that Varner should have been found guilty of violating rule
4-8.4(d) (conduct prejudicial to the administration of justice), because the fictitious
notice invoked the power and prestige of the court in order to further the deception.
We agree.   One need not be involved in a judicial proceeding to engage in conduct
prejudicial to the administration of justice.   See Florida Bar v. Machin, 635 So 2d
938, 939-40 (Fla. 1994) (“While conduct that actually affects a given proceeding
may be prejudicial to the administration of justice, conduct that prejudices our
system of justice as a whole also is encompassed in rule 4-8.4(d).”).   Varner
3In concluding that Varner’s actions violated section 817.234(1)(a)(2) for the purposes of this
attorney discipline proceeding we expressly make no comment as to Varner’s criminal culpability, if
any, because in the attorney discipline process proof must only be clear and convincing, whereas in the
criminal context such proof must be beyond a reasonable doubt.
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attempted to conceal his initial mistake in representing to State Farm that a lawsuit
had been filed by creating a fictitious court document that was cloaked with the
aura of authenticity.   Such misuse of official documents is conduct prejudicial to
the administration of justice, see, e.g., Florida Bar v. Cox, 718 So. 2d 788, 793
(Fla. 1998) (lawyer violated rule 4-8.4(d) by creating, signing, and mailing various
false documents), as it diminishes the public trust in the reliability of such
documents.   Since it is not disputed that Varner did indeed execute and mail the
fictitious notice, we disapprove the referee’s recommendation and find Varner
guilty of violating rule 4-8.4(d).4
DISCIPLINE ANALYSIS
The Bar challenges the referee’s recommended sanction of a thirty-day
suspension, arguing instead that a ninety-one day suspension is more appropriate
under the circumstances at issue.5   Although a referee’s recommendation as to
4The Bar also challenges the referee’s recommendation of not guilty as to rule   4-5.3(b) (lawyer
shall make reasonable efforts to ensure that nonlawyer’s conduct is compatible with professional
obligations of a lawyer); and rule 4-5.3(c)(1) (lawyer shall be responsible for nonlawyer’s conduct if
lawyer orders or ratifies the conduct involved).  However, at the close of the Bar’s case as to the rule
violations, Varner moved for an involuntary dismissal of these rule violations, and the Bar indicated that
it “would stipulate that it has not established those violations.”  In light of the Bar’s apparent stipulation
that these violations were not proven, coupled with the referee’s lack of any factual findings as to these
alleged rule violations, we decline to address the Bar’s claims here and approve the remainder of the
referee’s factual findings and recommendations as to guilt without discussion.
5The Bar additionally challenges the referee’s finding of no aggravating factors.  However, in
light of our disposition as to discipline, we decline to address this issue and approve the referee’s
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discipline is persuasive, “we do not pay the same deference to this
recommendation as we do to the guilt recommendation because this Court has the
ultimate responsibility to determine the appropriate sanction.”   Florida Bar v.
Sweeney, 730 So. 2d 1269, 1272 (Fla. 1998).   Although we generally will not
“second-guess” a referee's recommended discipline if the recommendation has a
“reasonable basis in existing caselaw,” Florida Bar v. Lecznar, 690 So. 2d 1284,
1288 (Fla. 1997), we find that in light of the duties violated in this case a thirty-day
suspension lacks such support.
The referee did not cite to any cases in support of the recommended thirty-
day suspension; however, Varner cites Florida Bar v. Kravitz, 694 So. 2d 725 (Fla.
1997) (thirty-day suspension imposed where lawyer misrepresented to client’s
employee that he would be arrested if he failed to pay attorney money and made
several misrepresentations to court and opposing counsel), and Florida Bar v.
Rose, 607 So. 2d 394 (Fla. 1992) (imposing thirty-day suspension where lawyer
misrepresented information to financial institution to obtain his children’s money
from a trust without ex-wife’s authorization), in support of the referee’s
recommendation.   Notably, however, these cases did not involve the commission
of a criminal act or the use of court documents as a means to deceive others.
findings as to aggravating and mitigating factors.
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These cases do not provide a reasonable basis for approving the referee’s
recommended sanction.
However, the cases relied upon by the Bar as supporting a ninety-one-day
suspension are likewise distinguishable from the instant case.   The Bar likens this
case to fraud cases in which this Court imposed disbarment.   See Florida Bar v.
Cramer, 678 So. 2d 1278 (Fla. 1996) (attorney with prior disciplinary record was
disbarred for making fraudulent representations to lenders and failing to respond to
the Bar’s inquiry); Florida Bar v. Forbes, 596 So. 2d 1051 (Fla. 1992) (lawyer
disbarred following felony conviction for bank fraud and making materially false
statements in obtaining loans).   As discussed, the basis for finding Varner guilty of
violating rule 4-8.4(b) was that the conduct at issue involved an attempt to deceive,
not an intent to defraud.   Thus, the fraud cases relied upon by the Bar are
distinguishable.
We find Florida Bar v. Morse, 587 So. 2d 1120 (Fla. 1991), instructive in
this case.   In Morse, the attorney represented a client in a personal injury matter and
rejected a settlement on the client’s behalf.   However, the attorney then failed to file
suit against the insurance carrier and the statute of limitations ran.   When the
attorney discovered the error, his law partner, Morse, called the client and indicated
that the insurance carrier refused to go above the offered settlement amount, and
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issued a check to the client in the amount of the settlement offer.   This Court
ordered a ninety-day suspension, based in part on the fact that Morse did not
inform the client “of the true outcome of his personal injury claim or of the fact that
the firm had committed possible malpractice by letting the statute of limitations run,
nor did he advise the client to seek other legal counsel, as a conflict of interest had
arisen.”   Morse, 587 So. 2d at 1121.
Although the facts of Morse differ slightly from the instant case, we find the
most troubling aspect of Morse is present here: an error is made in the
representation of a client, but instead of the error being admitted, an attorney
develops a deception to cover up the error so that it will go undetected.   Varner’s
error in representing that a suit had been filed was pardonable and   correctable
upon his learning that such a suit had not in fact been filed.   However, Varner, like
Morse, instead chose to keep this truth to himself and hatched a scheme to conceal
the error.   Varner’s decision to go forward with a deception rather than honestly
admitting to his mistake is so contrary to the most basic requirement of candor that
we cannot countenance a short-term suspension in this instance.   Instead, we
impose a ninety-day suspension, consistent with this Court’s sanction in Morse.
CONCLUSION
Dewey Homer Varner is hereby suspended from the practice of law for
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ninety days.   The suspension will be effective thirty days from the filing of this
opinion so that Varner can close out his practice and protect the interests of
existing clients.   If Varner notifies this Court in writing that he is no longer
practicing and does not need the thirty days to protect existing clients, this Court
will enter an order making the suspension effective immediately.   Varner shall
accept no new business from the date this opinion is filed until the suspension is
completed.   Judgment for costs in the amount of $1,217.87 is entered against
Varner and in favor of The Florida Bar, 650 Apalachee Parkway, Tallahassee, FL
32399, for which sum let execution issue.
It is so ordered.
WELLS, C.J., and SHAW, HARDING, ANSTEAD, PARIENTE, LEWIS and
QUINCE, 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, and John Anthony Boggs, Division
Director, Tallahassee, Florida; and David M. Barnovitz, Bar Counsel, Fort
Lauderdale, Florida,
for Complainant
Michael J. McNerney of Brinkley, McNerney, Morgan, Solomon & Tatum, LLP,
Fort Lauderdale, Florida,
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for Respondent
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