Summary
Florida Bar v. Borja, 554 So. 2d 514 (Fla. 1990): Attorney and personal representative of an estate violated trust accounting rules (Rules 5-1.2(b)(5), (b)(6), (c)(1)(b), and 5-1.1) by issuing a $10,000 trust check without sufficient funds, failing to maintain proper journals, ledgers, and monthly reconciliations, and commingling funds. The Supreme Court of Florida rejected the referee's "not guilty" recommendation, finding the record showed no substantial compliance despite no client harm, and publicly reprimanded the attorney with two years' probation requiring quarterly CPA reports certifying compliance. Key topics: attorney discipline, trust accounting violations, probation conditions, and public reprimand.
Topics
Practice areas
Questions Presented
- Whether the referee's finding that respondent was not guilty of the alleged violations of the Rules Regulating The Florida Bar was supported by the record.
- What the appropriate discipline should be if violations are found.
Holdings
- The referee's conclusion that there was no violation of the rules is unsupported by the record. The Bar introduced unrebutted testimony that respondent's records were not in substantial compliance with the rules, and respondent himself admitted to delegating oversight and lacking knowledge.
- Respondent is publicly reprimanded and placed on probation for two years, with the condition that quarterly reports by a certified public accountant be submitted to The Florida Bar showing compliance with trust accounting rules.
Key quotations
“We find the conclusion of the referee (that there was no violation of the rules) *515 unsupported by the record; we cannot agree, therefore, with his recommendations.” (515)
“we publicly reprimand respondent and place him on probation for a period of two years, with the condition that quarterly reports by a certified public accountant be submitted to The Florida Bar showing compliance with the trust accounting rules.” (515)
Factual background
Respondent was the attorney and personal representative for an estate. He issued a $10,000 check from a trust account to pay estate taxes when there were no funds in the account. The Florida Bar conducted audits in June 1987 and June 1988, finding that respondent was not in substantial compliance with trust accounting procedures. Respondent admitted violating trust accounting procedures but claimed no funds were diverted and all parties were paid. He employed a professional accountant and records were retained by the accountant, which explained his failure to maintain certain documents. The referee found only technical violations with no injury to any party and recommended a finding of not guilty.
Procedural history
The Florida Bar filed a formal complaint alleging violations of trust accounting rules. A referee heard testimony and recommended a finding of not guilty. The Bar opposed the report, and the Supreme Court reviewed the referee's report.
Remand instructions
Remanded only for the purpose of determining costs.