Summary
The Florida Supreme Court reviewed attorney Omar Javier Arcia's misconduct involving the diversion of law-firm fees and clients to his own professional association. The court upheld findings that Arcia violated Florida Bar Rules 4-8.4(b) and 4-8.4(c), and imposed a three-year suspension followed by three years of probation. The court also awarded the Florida Bar $4,284.90 in costs and stated that future theft of law-firm funds would presumptively warrant disbarment.
Topics
Practice areas
Questions Presented
- Whether the referee's findings of aggravating and mitigating factors were clearly erroneous or unsupported by the record.
- Whether theft of law-firm funds by an attorney constitutes sufficiently serious misconduct to warrant disbarment under most circumstances.
- Whether the respondent should receive the referee's recommended three-year suspension followed by three years of probation.
Holdings
- The referee's findings of aggravating and mitigating factors were supported by the record and were not clearly erroneous, so the Supreme Court approved them.
- For purposes of attorney discipline, theft of firm funds is serious enough to warrant disbarment under most circumstances, and future cases involving theft of firm funds carry a presumption of disbarment.
- Arcia was suspended from the practice of law for three years, followed by three years of probation upon reinstatement, subject to the conditions recommended by the referee, and was ordered to pay $4,284.90 in costs.
Key quotations
“We conclude that, for purposes of attorney discipline, theft of firm funds is serious enough to warrant disbarment under most circumstances.” (300)
“We emphasize, however, that future cases involving theft of firm funds will carry a presumption of disbarment.” (300)
Factual background
Arcia was employed as an associate by Zarco and Pardo, P.A., and his employment agreement and the firm's manual prohibited him from independently representing the firm's clients or prospective clients and required fees from permitted representations to be paid to the firm. During approximately one and one-half to two years, he diverted firm and client-related fees to his own professional association, intercepted calls and mail, used misleading documents, and represented clients without the firm's knowledge or consent. He admitted depriving the firm of approximately $62,000, later settled the firm's civil action by agreeing to repay $60,000, and made full restitution before the disciplinary hearing.
Procedural history
The referee granted the Bar's motion for partial summary judgment, leaving discipline as the sole issue for the final hearing. After the hearing, the referee found violations of Rules Regulating the Florida Bar 4-8.4(b) and 4-8.4(c), recommended a three-year suspension followed by three years of probation, and recommended an award of costs. The Supreme Court of Florida approved the findings and recommendations of guilt, upheld the aggravating and mitigating factors, deferred to the referee's recommended discipline because the Bar had not cross-appealed, and imposed the recommended suspension and probation.