Take Something Out

Robert "Chick" Weiner is a veteran Coral Gables attorney. Like more than half of all his fellow attorneys in Dade County, he reserves a portion of his practice for clients who can't afford legal services. In fact, Weiner is somewhat of an overachiever in the pro bono arena, having been honored by the Dade County Bar Association in 1993 for his work with a youth-mentoring program.

Luis Rodriguez, before he died from AIDS in 1994, was a nurse. He first met Weiner after Hurricane Andrew damaged his small home in southwest Dade, subjecting him to a year of fruitless attempts to collect repair money from his insurance company. In desperation he turned to the Dade Bar's Put Something Back pro bono program and was deemed deserving of free counsel.

When a PSB staffer asked Weiner to take Rodriguez's case, the attorney accepted, but he explained to Rodriguez that he preferred to work on contingency -- meaning he would be paid a portion of whatever money he collected from the insurance company on his client's behalf. He even had Rodriguez sign a form granting him 33 percent of the claim.

"That's very rare," notes Put Something Back director Sharon Langer. "Of the thousands of people we heard from after Andrew, maybe two or three attorneys, tops, charged for their services." Not that there's anything improper about collecting on contingency, Langer adds, as long as the client agrees.

Yet while Rodriguez signed the contingency contract permitting Weiner to tap into the insurance settlement, Rodriguez's cousin Estrellita Dion, who acted as translator at the initial meeting with Weiner, believes the nurse may not have realized exactly what he was doing.

"To Luis's understanding, Mr. Weiner wasn't supposed to collect anything," Dion would later state in a deposition. "Mr. Weiner had said, I believe that his exact words were, 'Luis, you need to sign this paper. This says that I take 30 or 40 percent of whatever we recuperate.' And Luis said okay, you know, something is better than nothing, and he signed the paper.

"When we walked out of the office, as we were walking to the car, [Luis] said to me, 'I'm kind of confused because he's a public defender, he's not supposed to be taking any percentage from recuperation of -- from the hurricane.'"

Weiner wound up recovering about $17,000 from the insurance company. Under Florida law, an attorney who sues an insurance company and wins is entitled to claim fees and costs from the company. But collecting the fees is a bothersome process, requiring a court hearing and detailed documentation of work performed. Weiner opted for an easier route: He simply took his 33 percent from the insurance company's payment to Rodriguez.

He also submitted forms to the PSB program claiming that the 55 hours he worked for Rodriguez were pro bono.

"It's either pro bono or it's fee," snaps Langer, racking her brain for an appropriate metaphor. "It's like fish and fowl. It's like apples and oranges. You can't have it both ways."

Now members of Rodriguez's family are saying Weiner is trying to have it more than both ways. About $50,000 more. That's the value of Rodriguez's life insurance policy, of which Weiner asserts he is the sole beneficiary. And he has filed suit to collect the cash. Family members have filed their own suit, insisting the attorney was never the intended beneficiary and that he is profiting from his client's legal ignorance.

Federal magistrate Barry Garber heard testimony from both sides earlier this month. He is expected to rule on the entire dispute sometime in October.

"I was very nice to him," Weiner responds in his deposition when asked why Rodriguez would have designated him to receive the money. "I understood from someone that he had seen five or six lawyers before coming to my office, who basically wouldn't talk to him because of the AIDS virus. I was always cordial and straightforward with him. We had developed a rapport, otherwise -- those are the reasons that I can think of at this time."

Rodriguez's health was failing when he met Weiner in May 1993. By November of the following year, AIDS had him near death. Dion claims that a week before he died, Rodriguez discussed with her his plans to give his entire modest estate to his sister Teresa, who was planing to emigrate from Cuba.

"When he was talking to me about Teresa, I said to him, 'Luis, did you at any point leave a will, because you know how your family is. You know when you die this is gonna be -- this is gonna be bad.'

"And he said to me, 'Yes, there's a will made, and I remember putting an arrow on a piece of paper that says for a will, to refer to Robert Weiner.'

"So I said to him, 'So you left the will with Robert Weiner?'
"And he said, 'Yes, he took -- he's taking care of everything.'"
In his deposition Weiner denies ever speaking to Rodriguez about a will or a life insurance policy. He also claims to have been completely dumbfounded when, after Rodriguez passed away, Rodriguez's mother brought into his Coral Gables office a signed change-of-beneficiary form from the life insurance policy.

"When Weiner sees the change-of-beneficiary form, allegedly for the first time, he says, 'Well, it appears that I am the beneficiary under this policy,'" remarks Mariano Sole, an attorney who represents Rodriguez's mother. "The family thought he was joking, but he told them that there was nothing else he could do for them."

There never was a will. Weiner, a sole practitioner since 1973, says he's written only three wills in his career, and that those were done only as favors for members of his family. Without a will, Rodriguez's house -- which aside from the insurance policy is his only possession -- is tied up in probate.

In addition to Rodriguez's mother and Weiner, a third person has staked a claim on his insurance policy. James McGinnis, Rodriguez's long-time partner, asserts that because he was the original beneficiary when Rodriguez purchased the policy in 1990, the money should go to him. McGinnis's claim was dismissed -- but not before he stated in a deposition that Rodriguez believed Weiner was handling his will, not inheriting his money.

Soon after a visit with Weiner, McGinnis said under oath, Rodriguez received a change-of-beneficiary form from the insurance company and insisted that Weiner's name be filled in, per the attorney's instructions. "He kept persisting that that was the right thing and I said that, well, Mr. Weiner is a lawyer. I guess he knows what he's doing," the deposition reads.

McGinnis filled out the contract with Weiner's name inserted on the beneficiary line. "[B]ut right beside I put a note explaining -- at least I tried to explain -- that he was going to be in charge of the will," the deposition continues. "It didn't mean that he was going to be the beneficiary of the insurance."

Weiner declined to comment for this story on the grounds that the case is pending. In his deposition he admits that he once announced his intention to withdraw his claim for the money but later changed his mind. "I felt that this is what Mr. Rodriguez wanted, and that there was a reason for him to make me the beneficiary," he states, then goes on to speak of his plans to donate "some" of the money to AIDS charities.

"What rubs me the wrong way is that this is a pro bono case," exclaims Larry Besser, an attorney who represents Rodriguez's estate. "To me it's unethical for an attorney to try to take advantage of a confusing document for personal gain. And even if his name was put on it, he shouldn't keep the money. That's not representing the best interests of his client.


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