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The Florida Bar v. Horton

Supreme Court of Florida

August 29, 2019

THE FLORIDA BAR, Complainant,
v.
DENNIS L. HORTON, Respondent.

          Original Proceeding - The Florida Bar

          Joshua E. Doyle, Executive Director, Tallahassee, Florida, Carrie Constance Lee, Bar Counsel, Orlando, Florida, and Allison Carden Sackett, Staff Counsel, The Florida Bar, Tallahassee, Florida, for Complainant

          Brett Alan Geer, The Geer Law Firm, L.C., Tampa, Florida, for Respondent

          PER CURIAM.

         We have for review a referee's report recommending that Respondent, Dennis L. Horton, be found guilty of professional misconduct and suspended from the practice of law for twenty-four months. We have jurisdiction. See art. V, § 15, Fla. Const. As discussed below, after having considered the referee's report, the record in this case, the parties' briefs, and oral argument, we approve the referee's findings of fact, recommendations as to guilt, and findings of aggravation and approve in part the findings in mitigation. But we conclude that one of the referee's findings in mitigation is unsupported by the record and disapprove of that finding. Last, we disapprove the referee's recommendation of suspension. Instead, we disbar Horton for his misconduct.

         BACKGROUND

         On May 1, 2017, The Florida Bar (Bar) filed with the Court a Petition for Emergency Suspension alleging that Horton took improper loans from his clients, commingled trust funds in his operating account, and misused trust funds in violation of the following Rules Regulating the Florida Bar (Bar Rules): 4-1.8(a) (Business Transactions With or Acquiring Interest Adverse to Client); 4-1.8(b) (Using Information to Disadvantage of Client); 4-1.8(c) (Gifts to Lawyer or Lawyer's Family); 4-1.15 (Safekeeping Property); 4-8.4(c) (a lawyer shall not engage in conduct involving dishonesty, fraud, deceit, or misrepresentation); 5-1.1(a)(1) (a lawyer must hold in trust, separate from the lawyer's own property, funds and property of clients); 5-1.1(b) (Application of Trust Funds or Property to Specific Purpose); 5-1.2(b) (Minimum Trust Accounting Records); and 5-1.2(d) (Minimum Trust Accounting Procedures). The Court approved the Bar's Petition for Emergency Suspension and suspended Horton from the practice of law on May 3, 2017. Horton filed a Motion to Dissolve or Modify Order of Emergency Suspension and an Emergency Motion for Relief and Clarification Regarding Order of Suspension and, following a hearing before a referee, the referee filed with the Court his report recommending that the order of emergency suspension, dated May 3, 2017, not be dissolved or modified as to Horton, but that Horton's law partner be permitted to access the law firm's trust account. On June 16, 2017, we entered an order approving the interim Report of Referee and denying Horton's Motion to Dissolve or Modify Order of Emergency Suspension and granting his Emergency Motion for Relief and Clarification Regarding Order of Suspension with respect to permitting his law partner's access to the law firm's trust account.

         REFEREE'S FINDINGS AND RECOMMENDATIONS

         On December 1, 2017, the referee filed his final Report of Referee with the Court. In it, he made the following findings of fact in this case. Horton represented E.L., a seventy-four-year-old client, in drafting a revocable living trust and power of attorney. Horton admitted to drafting a fifth amendment to the living trust naming himself as a fifty percent beneficiary in the distribution, dated July 19, 2011. In September 2016 and October 2016, E.L. agreed to loan Horton a total of $90, 000. Horton used the power of attorney issued to him by E.L. to issue three checks to himself from E.L.'s checking account in September and October 2016. On October 14, 2016, Horton wrote a fourth check to himself in the amount of $15, 000 from E.L.'s checking account and attempted to deposit the funds into his personal checking account. E.L. disputed this fourth loan, and the check was returned for insufficient funds because E.L. had removed most of the funds from his checking account with a "Closing Debit." Horton admitted that he initially did not provide a promissory note to E.L. to secure the loan nor did he advise E.L. to seek the advice of independent legal counsel regarding the transaction.

         In a separate matter, Horton represented C.B., a seventy-five-year-old client. On or about August 30, 2016, pursuant to a durable power of attorney issued to him by C.B., Horton transferred $30, 000 of the $32, 066.34 balance in C.B.'s money market account to her checking account. The same day, Horton transferred $30, 000 to a trust account for C.B. Following C.B.'s death on September 5, 2016, Horton transferred $17, 500 of the $30, 000 to his operating account by issuing a check. He noted in the memo of the check that one-half of the amount was for his attorney's fees and the other half was for his work or appointment as the personal representative of C.B.'s estate. Horton testified that he had not yet been appointed as personal representative by the probate court at the time he took this fee and that he was not appointed as personal representative of C.B.'s estate until two days later. Matthew Herdeker, Branch Auditor of The Florida Bar, conducted an audit of Horton's trust accounts for January 1, 2016, through December 31, 2016, and reviewed Horton's operating and personal checking accounts for the time period of July 1, 2013, through December 31, 2016. Herdeker testified that Horton used a portion of the $17, 500 payment to cover an overdraft in his operating account, transferred part of the funds to his other business accounts and another personal account, and paid various operating expenses at his law firm. On October 19, 2016, Horton issued an additional check for $15, 500 from C.B.'s estate account to himself for fees as personal representative. This was the same day that Horton's bank had dishonored the $15, 000 check he issued from the account he held pursuant to a power of attorney granted to him by E.L. Horton testified under oath during his sworn statement on April 6, 2017, that "it wasn't a coincidence . . . . I needed that money, so I thought I would take my - take a portion of my personal representative's fee."

         In a different matter, Horton represented R.O.C., an eighty-five-year-old client. Pursuant to the power of attorney prepared by Horton and granted to him by R.O.C., Horton changed the name and address on his client's accounts to reflect Horton's name and mailing address. Horton indicated that he made these changes at the request of R.O.C. Horton invoiced R.O.C. for legal services provided in 2014; however, he failed to invoice him for legal services provided in 2015 and 2016. In 2015, Horton issued thirty-four checks totaling $43, 000 from R.O.C.'s accounts to either Horton's personal checking account or operating accounts. During this time period, Horton deposited funds back into R.O.C.'s checking accounts totaling $4800. One of those checks came from Horton's personal account shared with his wife. In 2016, Horton issued thirty-three checks totaling $82, 840 from R.O.C.'s accounts to either his personal checking or operating accounts. During this same time period, Horton deposited funds back into R.O.C.'s checking accounts totaling $40, 050. After the Bar began its investigation, Horton issued a letter to R.O.C. informing him for the first time of Horton's compensation for 2015 and 2016 and attempting to explain his fees. However, he failed to disclose the total amount that he paid himself in 2015 and 2016 and the amounts that he returned to his client. In that letter, he also enclosed timesheets previously not sent to his client and offered to provide legal services to his client in 2017 for no charge. On or around February 12, 2016, R.O.C. signed a letter, prepared by Horton, authorizing Horton to liquidate and use monies for his client's care from a brokerage account. Between February 2016 and January 2017, the brokerage account statements were mailed to Horton's office address. From February 2016 through December 2016, Horton made sixteen transfers totaling more than $60, 000 from the brokerage account to R.O.C.'s savings account. Horton testified that he made the transfers when his client ran short of money and used the funds to pay for his client's expenses. However, the referee identified three instances in which Horton transferred funds from R.O.C.'s brokerage account and used the funds for his own benefit. On February 17, 2016, Horton transferred $5000 from R.O.C.'s brokerage account to R.O.C.'s savings account. The next day, Horton transferred $5000 from the savings account to R.O.C.'s checking account. The same day, he transferred the $5000 from the checking account to his own operating account by issuing a check. Horton then used the funds to cover an overdraft and pay overdraft charges in the operating account, the Internal Revenue Service, and Thomson Reuters. The referee further identified two other instances, in February 2016, and July 2016, in which Horton similarly transferred funds from R.O.C.'s brokerage account to his own accounts and used the funds for his own benefit.

         Herdeker testified that after review of Horton's accounts, he determined that Horton repeatedly and significantly overdrew his operating account due to insufficient funds during 2015 and 2016. Herdeker also reported that the audit of Horton's trust account maintained at First Green Bank revealed that he failed to follow the minimum required trust accounting procedures in that he failed to identify the client matter on all trust account checks, failed to consistently identify the client matter and reasons for transactions in the journal, and failed to consistently identify reasons for transactions on the client ledgers.

         Based on these findings, the referee recommended that Horton be found guilty of having violated the following Bar Rules: 4-1.8(a) (Business Transactions With or Acquiring Interest Adverse to Client); 4-1.8(b) (Using Information to Disadvantage of Client); 4-1.8(c) (Gifts to Lawyer or Lawyer's Family); 4-1.15 (Safekeeping Property); 4-8.4(c) (a lawyer shall not engage in conduct involving dishonesty, fraud, deceit, or misrepresentation); 5-1.1(a)(1) (a lawyer must hold in trust, separate from the lawyer's own property, funds and property of clients); 5-1.1(b) (Application of Trust Funds or Property to Specific Purpose); 5-1.2(b) (Minimum Trust Accounting Records); and 5-1.2(d) (Minimum Trust Accounting Procedures).

         In determining the recommended sanction, the referee considered Horton's personal history, prior discipline, and the existence of aggravating and mitigating factors pursuant to the Florida Standards for Imposing Lawyer Sanctions (Standards). In aggravation, the referee found five factors: (1) a dishonest or selfish motive pursuant to Standard 9.22(b), because Horton's pattern of activity during the relevant time period was focused on addressing his immediate concerns of his own financial distress; (2) a pattern of misconduct pursuant to Standard 9.22(c); (3) multiple offenses pursuant to Standard 9.22(d); (4) vulnerability of victim pursuant to Standard 9.22(h), because the affected clients were elderly and fully reliant on Horton to act in their best interests; and (5) substantial experience in the practice of law pursuant to Standard 9.22(i). In mitigation, the referee found four factors: (1) absence of a prior disciplinary record pursuant to Standard 9.32(a); (2) timely good faith effort to make restitution or to rectify consequences of misconduct pursuant to Standard 9.32(d), because Horton repaid his client with interest; (3) character ...


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