FLORIDA BAR V. DUNAGAN 731 So. 2d 1237 (1999) CASE BRIEF

FLORIDA BAR V. DUNAGAN

731 So. 2d 1237 (1999)

NATURE OF THE CASE: Dunagan (D) appealed a recommendation of a 90-day suspension.

FACTS: In July 1992, D prepared a bill of sale purporting to transfer certain assets of a restaurant business, 'Biscuits 'N' Gravy 'N' More' ('B&G'), to the joint ownership of William and Paula Leucht. D also prepared the fictitious name filing for this business but, according to a letter sent by him to the Leuchts, inadvertently omitted Paula Leucht's name on the registration form. A commercial lease dispute arose and D represented William Leucht, and Paula Leucht as defendants. D specifically moved to dismiss Paula Leucht as an improper party to the suit. D also represented the Leuchts in an effort to open another B&G restaurant in Daytona Beach and, in 1994 and 1995, also represented B&G and the Leuchts in an eminent domain suit against the Florida Department of Transportation. On February 23, 1996, D sent a letter to the Police Department and city attorney in which he stated that he represented William Leucht, that William Leucht as the sole owner of B&G, and that although there was a bill of sale which was 'considered to put the business in the name of William and Paula Leucht,' this 'instrument and the legal consequences thereof were duly considered, and it was determined with deliberation that William Leucht would remain the sole owner.' The letter stated that Mr. Leucht intended to fire two employees, after which they would no longer be welcome on the premises of the restaurant, and that if they entered the premises, they would be ejected. The letters purported to notify the police 'in order to prevent a breach of the peace from occurring.' Several days later, D filed a petition for dissolution of marriage on behalf of William against Paula. Paula went to the restaurant and was arrested for disorderly conduct and forcibly removed from the premises. Prior to, during, and after her arrest, Paula informed the police that she co-owned the restaurant. On May 2, 1996, the judge ordered that William and Paula Leucht were to share equally in the net proceeds from both B&G restaurants, and on October 31, 1996, D filed a motion to withdraw from representation of William Leucht in the divorce proceeding after Paula hired an attorney to file a malpractice lawsuit against him. The referee recommended D be found guilty of violating rules 4-1.7(a)(prohibiting representation of a client when such representation will be directly adverse to the interests of another client); 4-1.7(b)(prohibiting representation of a client when the lawyer's exercise of independent professional judgment may be materially limited by the lawyer's responsibilities to another client, a third person, or the lawyer's own interest); 4-1.9(a)(prohibiting representation of a client whose interests are materially adverse to a former client in the same or a substantially related matter); 2 4- 1.9(b)(prohibiting use of information relating to the representation of a former client to his or her disadvantage); and 4-1.16(a)(requiring an attorney to decline representation of a client where the representation will result in a violation of the Rules of Professional Conduct or law) of the Rules Regulating The Florida Bar. The referee recommended suspension for ninety-one days. D appealed.

ISSUE:

RULE OF LAW:

HOLDING AND DECISION:

LEGAL ANALYSIS:

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