CASE NO.

: SC02-2125

Lower Tribunal No.: 2001-32,017(18B), 2002-30, 199(18B), 2002-30,129(18C)

THE FLORIDA BAR

vs. BILLY MICHAEL THOMAS

Complainant

Respondent

The Court approves the uncontested referee's report and directs that respondent receive a public reprimand to be administered by the Board of Governors of The Florida Bar.

Judgment is entered for The Florida Bar, 651 East Jefferson Street, Tallahassee, Florida 32399-2300, for recovery of costs from Billy Michael Thomas in the amount of $2,282.50, for which sum let execution issue.

Not final until time expires to file motion for rehearing, and if filed, determined.

A True Copy Test:

~lf{iId

Clerk) Supreme Court

dy Served:

JOHN ANTHONY BOGGS ERNEST C. WRIGHT MARK S. PETERS

CLIFTON A. MCCLELLAND, JR. FRANCES R. BROWN-LEWIS BILLY MICHAEL THOMAS

HON. BEN L. BRYAN, JR., JUDGE

THE FLORIDA BAR, Complainant,

IN THE SUPREME COURT OF FLORlDA (Before a Referee)

v.

BILLYMICHAEL THOMAS, Respondent.

--------------------~/

REPORT OF REFEREE

I. Summary of Proceedings: Pursuant to the undersigned being

duly appointed as referee to conduct disciplinary proceedings herein according to the Rules Regulating The Florida Bar, a hearing was held on March 11, 2003. The pleadings, notices, motions, orders, transcripts and exhibits, all of which are forwarded to The Supreme Court of Florida with this report, constitute the record in this case.

The following attorneys appeared as counsel for the parties:

For The Florida Bar - Frances R. Brown-Lewis

F or Respondent - Pro se

II. Findings of Fact as to Each Item of Misconduct of Which the

Respondent Is Charged: After considering all the pleadings and evidence before me, pertinent portions of which are commented on below, I find:

As to Count I

[TFB Case No. 2001-32,017(18B)]

1. Althoughrespondent's conduct evidenced a lack of

professionalism on his part,The Florida Bar failed to prove by clear and convincing evidence that respondent's conduct roseto a leve1that violated the Rules Regulating The Florida Bar.

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2. I make as an observation in this matter that there was an offer

and acceptance between respondent and Albert E. Gibson and that it appears Mr. Gibson is entitled to payment of$500.00 from respondent.

As to Count II

[TFB Case No. 2002-30,199(18B)]

3. The Florida Bar failed to prove by clear and convincing

evidence that respondent's conduct rose to a level that violated the Rules Regulating The Florida Bar.

4.. However, respondent's actions in this case evidence some sloppy practices.

As to Count III

[TFB Case No. 2002-31,129(18C)1

5. On February 20, 2002, The Florida Bar notified respondent, via

written correspondence sent to his record Bar address, of the Bar's investigation into alleged misconduct which occurred on January 14,2002. Respondent was directed to respond in writing within 15 days from the date of the letter. Respondent was notified of his obligation to respond pursuant to the Rules Regulating The Florida Bar. Respondent failed to respond to the Bar's inquiry.

6. On March 20, 2002, the Bar again notified respondent of the

investigation and his obligation to respond in writing pursuant to the Rules Regulating The Florida Bar. Respondent was directed to respond within 5 days from the date of the letter. The letter was sent via certified mail and was received by respondent's agent, Nicole Harvey, on March 21, 2002. Respondent failed to respond to the Barts inquiry.

7. On July 2, 2002, the Bar notified respondent that the matter

was being.set for probable cause vote on July 22, 2002. Respondent was given yet another opportunity to respond in writing to the Barts inquiries. Respondent failed to respond to the Bar.

8. Respondent's conduct showed a lack of respect for the Bar's

disciplinary system. Indeed, his actions showed a lack of interest in the disciplinary system, an aggravation with the system, and a "thumb your nose at the system."

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III. Recommendations as to Whether Respondent Should

Be Found Guilty: As to each count of the complaint, I make the following recommendations as to guilt or innocence:

As to Count I

[TFB Case No. 2001-32,017(18B)1

I recommend respondent be found not guilty.

As to Count II

[TFB Case No. 2002-30,199(18B)]

I recommend respondent be found not guilty.

As to Count III

[TFB Case No. 2002-31,129(18C)]

I recommend respondent be found guilty and specifically that he be found guilty of violating the following Rules Regulating The Florida Bar: 4-8.4(g) for failing to respond, in writing, to any official inquiry by Bar counselor a disciplinary agency when Bar counselor the agency is conducting an investigation into the lawyer's conduct. A written response shall be made: (1) within 15 days of the date of the initial written investigative inquiry by Bar counsel, grievance committee, or board of governors; (2) within 10 days of the date of any follow-up written investigative inquiries by Bar counsel, grievance committee, or board of governors.

IV. Rule Violations Found: Count I - None. Count II - None. Count III - 4- 8.4(g)(I),4-8.4(g)(2).

V. Recommendation as to Disciplinary Measures to Be Applied:

Public reprimand to be administered by an appearance before the Board of Governors of The Florida Bar and payment of costs.

In reaching this disciplinary recommendation, I have considered the Florida Standards for Imposing Lawyer Sanctions, specifically Standard 6.23 which calls for a public reprimand when a lawyer negligently fails to comply with

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a court order or rule, and causes injury or potential injury to a client or other party, or causes interference or potential interference with a legal proceeding; and Standard 7.3 which calls for a public reprimand when a lawyer negligently engages in conduct that is a violation of a duty owed as a professional and causes injury or potential injury to a client, the public, or the legal system.

In aggravation, I have considered respondent's bad faith obstruction of the disciplinary proceedings Standard 9.22(e) by intentionally failing to comply with the rules or orders of the disciplinary agency and Standard 9.22(i) for respondent's substantial experience in the practice of law.

In mitigation, I have considered respondent's lack of a prior disciplinary history Standard 9.23(a).

In reaching this disciplinary recommendation, I also have considered the following case law:

In The Florida Bar v. Vaughn, 608 So. 2d 18(Fla. 1992), an attorney received a public reprimand for his failure to respond to the Bar's inquiries and for his failure to attend the grievance committee hearing. Further, the attorney appeared at the final hearing, via telephone, only after the referee telephoned him at home. The attorney had two instances of prior discipline. The Court noted that "[ c ]onsiderable time and expense [were] expended on a matter that might have been resolved at the early stages of the investigation" and "it [was] clear that Vaughn's case [was] only before this Court because he failed to cooperate with the disciplinary process and to provide information which he had in his possession."

In The Florida Bar v. Grigsby, 641 So. 2d 1341 (Fla. 1994), an attorney was publicly reprimanded for failing to respond to the Bar's inquiries and requests for a copy of a letter he had written his client. The attorney finally provided the letter at the grievance committee hearing. The Court found that "[i]f Grigsby had timely provided a copy of the letter to the Bar when requested, there would have been no need for the grievance committee hearing." In mitigation, the referee found the attorney voluntarily sought treatment for the clinical depression from which he suffered. In aggravation, he had two instances of prior discipline. The attorney was placed on probation for three years which included his continuation of therapy with a licensed mental health counselor and supervision by an attorney who was

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acceptable to the Bar. He was also required to reimburse the Bar for all costs of monitoring his probation.

VI. Personal History and Past Disciplinary Record: After the finding of guilt and prior to recommending discipline to be recommended pursuant to Rule 3-7.6(k)(1)(D), I considered the following personal history and prior disciplinary record of respondent, to wit:

Age: 50

Date admitted to Bar: August 10, 1992

Prior disciplinary convictions and disciplinary measures imposed therein: None.

VII. Statement of Costs and Manner in Which Costs Should be

Taxed: I find the following costs were reasonably incurred by The Florida Bar.

A. Grievance Committee Level Costs

1. Transcript Costs

2. Bar Counsel Travel Costs

$ 181.25 $ 137.84

B. Referee Level Costs

1. Transcript Costs

2. Bar Counsel Travel Costs

$ 334.50 $ 275.98

C. Administrative Costs $ 750.00
D. Miscellaneous Costs
1. Investigator Expenses $ 423.98
2. Copy Costs $ 178.95

TOTAL ITEMIZED COSTS: $2282.50 It is apparent that other costs have or may be incurred. It is recommended that all such costs and expenses together with the foregoing itemized costs be charged to respondent, and that interest at the statutory rate shall accrue and be

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payable beginning 30 days after the judgment in this case becomes final unless a waiver is granted by the Board of Governors of The Florida Bar.

Dated this day of __ ~_---r==~,:.....:2:.....:.0.....:..0~3~. -=

r SIGNED AND DP;(ED'"1

APi 14. l I

---,:-~, I

Ben L.

Original to Supreme Court with Referee's original file.

Copies of this Report of Referee only to:

Frances R. Brown-Lewis, Bar Counsel, The Florida Bar, 1200 Edgewater Drive, Orlando, Florida 32804-6314

Billy Michael Thomas, 997 South Wickham Road, West Melbourne, Florida 32904-1650

John Anthony Boggs, Staff Counsel, The Florida Bar, 650 Apalachee Parkway, Tallahassee, Florida 32399-2300

..

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IN THE SUPREME COURT OF FLORIDA (Before a Referee)

THE FLORIDA BAR, Complainant,

Case No. _

[TFB Nos. 2001-32,017(18B); 2002-30,199(18B); 2002- 31, 129(18C) ]

v.

BILLY MICHAEL THOMAS, Respondent.

/

---------------

AMENDED COMPLAINT

The Florida Bar, complainant, files this Complaint against Billy Michael

Thomas, respondent, pursuant to the Rules Regulating The Florida Bar and alleges:

1. The respondent, Billy Michael Thomas, was and still is, a member of

The Florida Bar, subject to the jurisdiction of the Supreme Court of Florida and the

Rules Regulating The Florida Bar.

2. Respondent resided and practiced law in Brevard County, Florida, at

all times material.

COUNT I

[TFB Case No. 2001-32,017(18B)]

The Florida Bar realleges paragraphs 1 and 2 as if set forth fully herein and

further alleges:

3. Respondent's main law office was located in Melbourne, Florida, and

he shared office space with attorney Aaron Michael Bross in Cocoa, Florida, for the purpose of meeting with clients who lived in northern Brevard County.

4. Albert E. Gibson met with respondent on or about February 12, 2001,

at respondent's Cocoa office to discuss a child support issue and related lien against his federal income tax refunds. When Mr. Gibson attempted to purchase a home, he discovered a $40,000.00 judgment for child support had been entered against him in the State of Texas and he wanted respondent to determine ifany action could be taken to remedy the matter because he did not believe he owed any past due child support.

5. Respondent agreed to undertake the representation.

6. Respondent advised Mr. Gibson that the initial fee would be $500.00 to look into the matter. Mr. Gibson paid respondent the $500.00 fee in full by March 20, 2001.

7. Mr. Gibson called respondent's Cocoa office on or about February 26,

2001, March 12,2001, and March 20,2001. On March 12,2001, and March 20, 2001, Mr. Gibson left a message requesting that respondent contact him.

8. Respondent failed to return Mr. Gibson's telephone calls.

9. After Mr. Gibson was unable to contact respondent, Mr. Gibson's

wife, Michele Gibson, called respondent's office in Cocoa, Florida, and spoke to an employee of Mr. Bross. Mrs. Gibson requested that respondent call Mr. Gibson.

10. Minutes later, respondent called Mr. Gibson and angrily told him to cease calling respondent and instead wait for respondent to call him. Respondent also told Mr. Gibson that Mrs. Gibson should not call either respondent or his office about the matter.

11, Respondent was not able to provide Mr. Gibson with any progress

regarding Mr. Gibson's legal matter.

12. Mr. Gibson was not satisfied with respondent's lack of progress in the case and was disturbed by respondent's tone of voice and attitude during their telephone conversation, As a result, the next day Mr. Gibson called respondent's Cocoa office and advised that he wanted his original documents returned and wanted a full refund of the fee paid,

13. Mr. Gibson went to respondent's office on or about Apri12, 2001, and obtained his original documents but respondent refused to refund any of the unearned fee.

14. Respondent threatened Mr. Gibson with charging him for the time spent by Mr. Bross' office staff on Mr. Gibson's telephone messages, despite the fact that Mr. Bross' staff in the Cocoa office were not employees of respondent,

and for the time respondent spent driving to the Cocoa office to retrieve Mr. Gibson's fee payments and documents. Respondent stated he would create charges to justify the $500.00 fee paid by Mr. Gibson.

15. Respondent performed no meaningful legal services for Mr. Gibson other than reviewing the documents Mr. Gibson provided respondent and speaking to Mr. Gibson by telephone on one occasion during which he related only that Mr. Gibson and Mrs. Gibson were to cease calling either him or the Cocoa office for status updates which, according to respondent, totaled between one and one-half and two hours.

16. On April 23, 2001, The Florida Bar served respondent at his record

Bar address by certified mail, return receipt requested, with notification that Mr. Gibson had filed a grievance. The notification referenced that the matter appeared appropriate for resolution at mediation and requested respondent to reply in writing within ten (10) days.

17. Respondent failed to respond in writing to The Florida Bar's letter of April 23, 2001.

18. The Florida Bar served respondent on May 8, 2001, at his record Bar address with a second request for his written response to be submitted within ten

(10) days.

19. Respondent failed to respond in writing until May 24, 2001, when he requested and consented to resolution of the fee issue at mediation. Respondent requested that he be allowed to appear at mediation telephonically. Respondent did not address Mr. Gibson's allegations.

20. The mediation was set for August 13, 2001, and agreed to by respondent. However, respondent failed to attend the mediation either in person or telephonically. Respondent did not provide any advance notice that he would be unable to attend the mediation as scheduled.

21. The Florida Bar served respondent at his record Bar address on August 24, 2001, with notice that the matter had been referred back to the disciplinary process as a result of his failure to attend the scheduled mediation and that he was required to submit a written response to Mr. Gibson's allegations within ten (10) days.

22. Respondent failed to respond in writing to The Florida Bar's August 24, 2001, letter.

23. Wherefore, by reason of the foregoing, the respondent has violated the following Rules Regulating The Florida Bar: 3-8.1(f) for failing to attend an agreed-upon mediation conference without good cause; 4-1.4(a) for failing to keep a client reasonably informed about the status of a matter and for failing to promptly

comply with reasonable requests for information; 4-1.4(b) for failing to explain a

matter to the extent reasonably necessary to permit the clientto make informed

decisions regarding the representation; 4-8.4(g)( 1) for failing to respond, in writing,

to an official inquiry by Bar counselor a disciplinary agency within fifteen days of

the date of the initial written investigative inquiry when Bar counselor the agency

is conducting an investigation into the lawyer's conduct; and 4-8.4(g)(2) for failing

to respond, in writing, to an official inquiry by Bar counsel or a disciplinary agency

within ten days of the date of any follow up written investigative inquiry Bar

counselor the agency is conducting an investigation into the lawyer's conduct.

COUNT II

[TFB Case No. 2002-30,199(18B)]

The Florida Bar reaHeges paragraphs 1 and 2 as if set forth fully herein and

further alleges:

24. Thomas L. McGehee filed for a dissolution of marriage in District

Court, Clark County, Nevada on March 14,2001. The case was styled Thomas L.

McGehee v. Lois Kathryn McGehee, Case No. D266302. On May 11,2001, the

Nevada judge granted Mr. McGehee a divorce; the decree was entered on May 22,

2001. The Nevada court entered an Amended Decree on July 20, 2001.

25. In the interim, Ms. McGehee filed for dissolution of marriage in

Florida. Mr. McGehee was personally served in Nevada with the Florida action styled Lois K. McGehee v. Thomas L. McGehee, Case No. 05-2001-DR-XXXXXX, on May 3, 2001. Mr. McGehee's response was due on May 23, 2001.

26. On or about May 15,2001, Mr. McGehee hired respondent, via phone, to respond to the Florida dissolution action and protect his interest therein. Thereafter, Mr. McGehee immediately sent respondent the documents regarding both the Nevada and Florida dissolution proceedings, along with a check for

$1,000.

27. On May 22, 2001, Mr. McGehee flew from Nevada to Florida to meet with respondent. Mr. McGehee reiterated his desire to timely file a response in the Florida action. Respondent assured Mr. McGehee that respondent would do so.

28. At the meeting, respondent advised Mr. McGehee not to return to Florida, so that he might avoid the personal jurisdiction of the Florida court. Respondent failed to take into account the fact that Mr. McGehee had already been personally served.

29. Respondent stated he would file a motion for lack of jurisdiction and for failure to state a cause of action based upon the Nevada divorce decree. Respondent failed to file either motion or even a notice of appearance on Mr. McGehee's behalf.

30. In the beginning of June 2001, Mr. McGehee returned to Florida. Mr.

McGehee believed that respondent had filed a response in the Florida action. Thereafter, Mr. McGehee learned from the Brevard County Clerk that respondent had failed to file anything in the Florida action.

3l. On July 3, 2001, Mr. McGehee terminated the respondent's

representation. Mr. McGehee was forced to retain new counsel to represent him in the Florida action.

32. As a direct result of respondent's failure to serve an answer in the Florida action, Ms. McGehee, through her attorney, filed a motion for default on July 6, 2001. The court entered a default on July 20, 2001. Thereafter, Mr. McGehee's new counsel and Ms. McGehee's counsel stipulated to set aside the default.

33. Respondent failed to competently and diligently defend Mr.

McGehee's interests in the Florida dissolution action.

34. Respondent failed to perform any meaningful legal services for which he had been hired and paid.

36. On August 13,2001, The Florida Bar notified respondent, at his record Bar address, of the inquiry/complaint filed by Mr. McGehee and respondent's obligation to respond pursuant to the Rules Regulating The Florida

Bar. Respondent failed to respond to the Bar's inquiry.

36. On September 14,2001, the Bar again notified respondent, via certified mail at his record Bar address, ofMr. Mcflehee's complaint and respondent's obligation to respond. The United States Postal Service attempted to deliver the correspondence on September 15,2001, September 21,2001, and September 30,2001. It was returned to the Bar marked ttUNCLAIMED" on October 5, 2001. Respondent failed to claim the correspondence addressed to him from the Bar.

37. On October 9,2001, the Bar received respondent's response dated September 3, 2001. However, the envelope was postmarked October 4, 2001, approximately 71;2 weeks after the Bar's initial inquiry. Mr. McGehee did not receive the copy respondent sent him until October 9,2001. Respondent failed to timely respond to the Barts inquiries into this matter.

38. Wherefore, by reason of the foregoing, the respondent has violated the following Rules Regulating The Florida Bar: 4-1.1 for failing to provide competent representation to a client; 4-1.3 for failing to act with reasonable diligence and promptness in representing a client; 4-1.5(a) for entering into an agreement for, charging, or collecting an illegal, prohibited, or clearly excessive fee; and 4-8.4(g) for fail to respond, in writing, to any official inquiry by Bar counselor a

disciplinary agency when Bar counsel or the agency is conducting an investigation

into the lawyer's conduct. A written response shall be made: (1) within 15 days of

the date of the initial written investigative inquiry by Bar counsel, grievance

committee, or board of governors; (2) within 10 days of the date of any follow-up

written investigative inquiries by Bar counsel, grievance committee, or board of

governors.

COUNT III

[TFB Case No. 2002-31,129(18C)]

The Florida Bar realleges paragraphs 1 and 2 as if set forth fully herein and

further alleges:

39. On February 20, 2002, The Florida Bar notified respondent, via

written correspondence sent to his record Bar address, of the Bar's investigation

into alleged misconduct which occurred on January 14,2002. Respondent was

directed to respond in writing within 15 days from the date of the letter.

Respondent was notified of his obligation to respond pursuant to the Rules

Regulating The Florida Bar. Respondent failed to respond to the Bar's inquiry.

40. On March 20, 2002, the Bar again notified respondent of the

investigation and his obligation to respond in writing pursuant to the Rules

Regulating The Florida Bar . Respondent was directed to respond within 5 days

from the date of the letter. The letter was sent via certified mail and was received

by respondent's agent, Nicole Harvey, on March 21, 2002. Respondent failed to respond to the Bar's inquiry.

41. On July 2, 2002, the Bar notified respondent that the matter was being set for probable cause vote on July 22, 2002. Respondent was given yet another opportunity to respond in writing to the Bar's inquiries. Respondent failed to respond to the Bar.

42. Wherefore, by reason of the foregoing, the respondent has violated the following Rule Regulating The Florida Bar: 4-8.4(g) for failing to respond, in writing, to any official inquiry by Bar counselor a disciplinary agency when Bar counselor the agency is conducting an investigation into the lawyer's conduct. A written response shall be made: (1) within 15 days of the date of the initial written investigative inquiry by Bar counsel, grievance committee, or board of governors; (2) within 10 days of the date of any follow-up written investigative inquiries by Bar counsel, grievance committee, or board of governors.

WHEREFORE, The Florida Bar prays respondent will be appropriately disciplined in accordance with the provisions of the Rules Regulating The Florida Bar as amended.

Bar Counsel

2. Article Number

'·JJun II

OCT I , 2002

I HEREBY CERTIFY that I have served the original of the foregoing Complaint to the Clerk of the Supreme Court of Florida, Supreme Court Building, 500 S. Duval Street, Tallahassee, Florida, 32399-1927; a copy of the foregoing, by certified mail No. 71064575 1293 0486 1694, return receipt requested, on respondent, Billy Michael Thomas, 997 South Wickham Road, West Melbourne, Florida, 32904-1650; and a copy of the foregoing by first-class mail to Staff Counsel, The Florida Bar, 650 Apalachee Parkway, Tallahassee, Florida, 32399-

2300, on this qJh day of b t±rn2.eA , 2002.

ces R. Brown-Lewis Bar Counsel

NOTICE OF TRIAL COUNSEL

PLEASE TAKE NOTICE that the trial counsel in this matter is Frances R.

Brown-Lewis, Bar Counsel, whose address and telephone number are 1200 Edgewater Drive, Orlando, Florida, 32804-6314, (407)425-5424. Respondent need not address pleadings, correspondence, etc. in this matter to anyone other than trial