Opinion
No. 62085.
October 13, 1983.
John F. Harkness, Jr., Executive Director and Stanley A. Spring, Staff Counsel, Tallahassee, and Richard B. Liss, Bar Counsel, Miami, for complainant.
No appearance for respondent.
This disciplinary proceeding is before the Court on the complaint of The Florida Bar and the report of the referee recommending that respondent John N. Mayo be suspended from the practice of law for one year. Neither the Bar nor respondent has petitioned for review. We have jurisdiction. Art. V, § 15, Fla. Const.
Respondent was charged with making a payment for services rendered by means of a check that was returned for insufficient funds. Respondent filed no responsive pleadings and did not appear at the final hearing though he received notice. Since no answers or objections to the Bar's requests for admissions were filed, the referee deemed the matters admitted. The referee found that respondent issued a check for $800.00 to Richard Lord and Associates for services provided. The check was returned for insufficient funds and later attempts at collection were unsuccessful even though respondent gave assurance that he would pay. The referee concluded that respondent had violated Florida Bar Integration Rule, article XI, Rule 11.02(3)(a) and the Florida Bar Code of Professional Responsibility, Disciplinary Rule 1-102(A)(4). The referee recommended that respondent be suspended from the practice of law for one year with reinstatement contingent upon proof of rehabilitation and restitution to Richard Lord and Associates. We adopt the referee's findings and approve his recommendations.
We therefore suspend John N. Mayo from the practice of law in Florida for a period of one year from the date of this order under the above-stated conditions. Costs in the amount of $468.10 are assessed against respondent.
It is so ordered.
BOYD, OVERTON, McDONALD and EHRLICH, JJ., concur.
EHRLICH, J., concurs specially with an opinion, in which OVERTON and McDONALD, JJ., concur.
ADKINS, Acting Chief Justice, dissents with an opinion.
Respondent neither offered a defense nor participated in the disciplinary proceedings. Neither party sought review of the report of the referee. The Court, pursuant to article XI, Rule 11.09(3)(f) of the Integration Rule of The Florida Bar directed the parties to submit briefs directed to the suitability of the disciplinary measure recommended by the referee. The Florida Bar filed a brief, but the respondent did not do so.
I am of the opinion that the recommended suspension from the practice of law for the period of one year with reinstatement contingent upon proof of rehabilitation and restitution to the complaining parties is too severe and drastic for the offense charged. I concur with the Court's opinion approving the discipline recommended by the referee only because Mr. Mayo did not see fit to seek review or favor us with a brief as requested by the Court.
OVERTON and McDONALD, JJ., concur.
I dissent from the finding that respondent's conduct constituted a violation of professional ethics and also dissent to the suspension of respondent. We have held that the issuance of a worthless check, when considered in connection with other conduct, subjected the attorney to professional discipline. The Florida Bar v. Davis, 361 So.2d 159 (Fla. 1978).
The respondent, Mayo, gave a post-dated check in the sum of $800 as payment of part of a fee for "professional career counseling services." Respondent did not commit a criminal offense, but created a debt. The civil courts are adequate for the collection of money and grievance procedure should not be used for this purpose.
The referee and this Court considered respondent's nonappearance and his failure to cooperate with The Florida Bar as aggravating factors resulting in the suspension for one year with reinstatement contingent upon proof of rehabilitation and restitution. Failure to cooperate with The Florida Bar is not ground for a suspension, particularly when The Florida Bar is allowing the disciplinary procedure to collect a bad debt. The system is damaged when this procedure is used in this manner. The controversy should be referred to the county court as a civil debt.