When Bad Attorneys Get Caught (Don't Hold Your Breath)
On Monday night Phillip Mortilla, 37, of Wilton Manors, was seriously injured when a southbound car turned into the path of his motorcycle. Mortilla was thrown about 30 feet by the impact and suffered severe head injuries. He is in critical condition at Holy Cross Hospital in Fort Lauderdale.
When Louis Weinstein read that one-paragraph account of Mortilla's January 28, 1991, accident in the Fort Lauderdale Sun-Sentinel, something clicked. As an attorney whose entire practice revolves around personal injury cases, he realized that Phillip Mortilla's pain and suffering could be the answer to his prayers. Weinstein's law practice was in jeopardy because of a dearth of clients, and the one-third fee he could gain in a settlement-rich case like Mortilla's might tide him over a rough period.
For three weeks Mortilla lay comatose, but near the end of February he had regained consciousness. His condition, however, remained serious. He was partially paralyzed, unable to walk, and had limited control over his motor reflexes. He had to be strapped to his bed or wheelchair so he wouldn't fall out. He was often disoriented and incapable of conversation. And his injuries caused him to suffer from an imagined but insatiable hunger that led Mortilla to force large quantities of food into his mouth, to the point that he would be in danger of choking. As a result he was not permitted to eat or drink without supervision.
Weinstein knew none of this when he tried to slip quietly into Mortilla's hospital room. Judith Overman, a nurse on Mortilla's floor, was the first to notice Weinstein. "He seemed to be lost and looking for the room," Overman would recall later in a sworn statement. "He was a little disheveled." She had no idea who he was and when she saw him enter Mortilla's room, she followed him.
Overman found Weinstein sitting beside Mortilla, questioning him as to whether he was wearing a helmet at the time of the accident. Weinstein also had with him a briefcase with forms he hoped Mortilla would sign, retaining Weinstein as his attorney. Overman interrupted Weinstein's questioning and asked what he was doing. She claims Weinstein responded that he was Mortilla's attorney. Unsure if attorneys were allowed to visit Mortilla, Overman went to the nurses' station and checked Mortilla's visitor card. It stated that the patient's attorney was permitted to visit, but it did not identify the attorney by name. Still suspicious, Overman went back to Mortilla's room and found Weinstein feeding Mortilla from a tray of cookies.
Overman ordered Weinstein to stop and when she was sure Mortilla was okay, she left to call Mortilla's brother. The call wasn't necessary as the brother had just arrived at the hospital. "I asked him who he was," recalled Paul Mortilla, a Broward firefighter, "and he said, 'A friend.'" In a sworn statement, Paul Mortilla said the attorney initially refused to identify himself or explain why he was in Phillip's room. "Several times I asked him who he was or who he represented and I didn't get any answer," Paul Mortilla contended. "Finally I just said, 'Get the hell out of the room. Let's go outside.'"
When Mortilla discovered Weinstein was an attorney, his attention immediately turned to the Manila envelope Weinstein was carrying. Mortilla demanded to see the papers inside, fearful that his brother might have signed some type of agreement. He quickly went through the papers and found that although they were prepared for his brother to sign, no signature appeared on any. After Mortilla returned the Manila folder and told the attorney to leave his brother alone, Weinstein promptly left the hospital.
On the face of it, the incident represents an outrageous example of "solicitation," and it illustrates one of the principal reasons the solicitation of clients for attorneys is a felony in the State of Florida: It is considered a gross invasion of a family's privacy.
But the case of Louis Weinstein -- a case in which virtually none of the facts are in dispute and in which Weinstein readily admits going to the hospital with the intention of signing up Mortilla as a client -- also demonstrates how time-consuming and complex is the process by which an attorney is criminally prosecuted or administratively punished for the offense.
After the family reported the incident to police and the local office of the Florida Bar, the Weinstein case took two separate tracks. Because the incident occurred in Fort Lauderdale, it was up to the Broward State Attorney's Office to investigate and prosecute any potential criminal charges.
In addition to criminal charges, an attorney accused of misconduct such as solicitation also faces sanctions by his peers. And if the offense is grievous enough, the Florida Bar can petition the state Supreme Court to suspend or permanently ban an attorney from the practice of law. In an attempt to police its own ranks and instill public confidence in the nearly 41,000 attorneys in the state, the Florida Bar has established a long list of procedures to guide investigations of professional malfeasance. The process, however, can take years, and those delays can discourage victims from following through with complaints.
Regional Bar offices are staffed with attorneys, or "Bar prosecutors," who investigate all complaints filed against lawyers. Last year in Dade and Broward, the ten attorneys assigned to investigate complaints in South Florida examined more than 3000 claims of misconduct. (Statewide the Bar's 25 prosecutors investigated nearly 7500 accusations of wrongdoing.) "We have a pretty good staffing level," contends Tony Boggs, statewide director of lawyer regulation for the Bar. "Like any agency, we could always have more prosecutors, but we haven't requested any in the upcoming budget."
The Bar prosecutor examines the merits of each case, interviews potential witnesses, gathers evidence, and asks the accused attorney for an explanation. If the Bar prosecutor believes there is merit to the charge, the matter is scheduled for a grievance committee hearing. At any one time 72 grievance committees are impaneled across the state, each generally composed of nine members (six attorneys and three nonattorneys). Dade County alone has sixteen grievance committees. Broward has eight.
The hearings are closed to the public, and participants -- committee members, witnesses, attorneys -- are required to swear under oath that they will not divulge any details of the hearing, nor will they even acknowledge a hearing took place.
The hearing is usually conducted at a local Florida Bar office, which in Dade is located at 444 Brickell Avenue and in Broward at the Cypress Financial Center in Fort Lauderdale. Inside a conference room, the grievance committee gathers with the Florida Bar prosecutor and the attorney accused of misconduct, who also is entitled to bring a defense attorney.
Witnesses are called by each side and questioned by each committee member. The attorney accused of misconduct also can testify. At the end of the hearing the committee meets in executive session to decide if there is probable cause to believe the attorney is guilty of misconduct. If committee members suspect the attorney acted improperly, they refer the matter to the state Supreme Court. The state Supreme Court, in turn, appoints a "referee" -- usually a local circuit court judge -- to hold yet another hearing.
In preparing for the referee's hearing, the Bar prosecutor and the attorney for the accused are allowed to take sworn depositions from witnesses and to conduct the same type of investigation, known as "discovery," that attorneys are entitled to do in preparing for a civil or criminal trial. The hearing before the referee is often identical to the grievance committee hearing, with the same witnesses being called and the same evidence presented. After the hearing, the referee takes several weeks, sometimes months, to review the material and then issue a report. If the referee determines the attorney did indeed act improperly, he issues a recommendation regarding punishment.
But this is only a recommendation. The entire file is then sent to Tallahassee for review by the state Supreme Court. During this time, more motions and legal arguments are presented in writing to the court, and if the justices so desire, another hearing can be held, this time before all nine members of the high court.
In theory, according to the Bar's Tony Boggs, the entire process shouldn't take more than eighteen months. In practice, though, scheduling conflicts and other delays stretch the process to as long as three years. And although murderers have been tried, convicted, and sentenced to death in less time, Boggs argues that the Bar's disciplinary procedures are actually faster today than they were only a few years ago. "We're constantly looking for ways to streamline the system," he says.
Attempting to solicit Mortilla wasn't the only complaint filed against Weinstein. He was also under investigation for improperly soliciting clients through the mail. While attorneys are allowed to solicit specific clients using the U.S. mail, strict rules govern what can and cannot be said in such mailings. For instance, attorneys are not allowed to imply they can guarantee big-money settlements. In addition, lawyers must clearly mark letter and envelope as advertising. And obviously, the attorney is not allowed to lie about himself.
In late 1990, before walking into Mortilla's hospital room, Weinstein contacted through the mail two families who had each lost a loved one in separate automobile accidents. One of the families lost a fourteen-year-old son. Using what were essentially form letters, Weinstein, trying to tout his abilities, claimed credit for settling two "very large cases involving catastrophic automobile accidents."
As the Bar later determined, the cases for which Weinstein took credit were actually settled by other attorneys.
Eventually the complaints regarding the letters and the solicitation of Mortilla were joined together. And when the hearing was held before the referee, Weinstein pleaded for sympathy, maintaining he knew what he did was wrong. But he also contended that he didn't lie in the letters because he was initially involved in the two cases he cited. The referee, Dade Circuit Court Judge Paul Siegel, recommended Weinstein be suspended for 90 days.
In determining an attorney's punishment, officials can draw on an assortment of penalties -- from admonishment to disbarment. In between lies a range of possibilities: In an "admonishment," the attorney is told privately that what he did was wrong and he should never do it again. A "public reprimand" takes two forms. The first is the private public reprimand, in which the attorney is notified he is being reprimanded, and a brief notice is included in the Southern Reporter, a book that regularly lists all actions of the state's higher courts. The other form is the public public reprimand, which, in addition to the notice in the Southern Reporter, requires the attorney to attend the next scheduled meeting of the Florida Bar Board of Governors, and while standing at attention before Bar officials, he is told that what he did was wrong and he should never do it again. The attorney may also be required to pay the Bar's costs of investigating his conduct, as well as to take a class in ethical behavior.
Suspension and disbarment round out the options.
The referee's recommendation merely to suspend Louis Weinstein was met with shock and dismay among Bar officials, who immediately pleaded with the state Supreme Court to raise the punishment to disbarment. In his defense, Weinstein cited a number of cases in which attorneys who were far more successful than he at soliciting clients -- though perhaps not in hospital rooms -- were typically only suspended temporarily. He also wondered why his ill-conceived and badly bungled attempt to solicit Mortilla should be seen as being more heinous than the efforts of those cold and calculating attorneys who, through a network of informants, solicit dozens of cases every year. In essence, he argued, his real crime was that he failed to be more sophisticated in establishing a buffer between himself and the client he was trying to solicit. The high court didn't buy it. On September 27, 1993, 32 months after being caught in Phillip Mortilla's hospital room, the state Supreme Court finally rendered its decision: Louis Weinstein would be disbarred.
Weinstein has fared far better on the criminal side of his case. More than three years after the incident, the criminal charges brought by the Broward State Attorney's Office are still entangled in the courts. Weinstein's defense has been simple and effective. He argues that even though he went into the hospital room fully prepared to sign Mortilla as a client, he never actually did it.
It was a similar defense Weinstein used unsuccessfully during the Bar's grievance committee when his attorney at that time, Nicholas Friedman, argued: "I think to the credit of my client, with all due respect to his stupidity..., he did not commit the underlying offense of soliciting the gentleman because I think basically he recognized that the person was incompetent to sign the documents." And once Weinstein realized this, Friedman said, "the underlying integrity of my client came through."
While Friedman was unsuccessful in getting the Bar to accept the notion of his client's "underlying integrity," Weinstein's criminal attorneys persuaded a Broward circuit court judge to dismiss all criminal charges against him. "In order to be found guilty, he would have had to have actually requested to be hired," explains Weinstein's current attorney, Marc Nurik. None of the witnesses heard Weinstein ask to be hired. The nurse, Judith Overman, for instance, only heard him ask Mortilla if he had been wearing a helmet.
The State Attorney's Office appealed, and the Fourth District Court of Appeals reinstated the charges against Weinstein, but on technical grounds that Nurik believes leave open the door to another dismissal. "This has been a very difficult ordeal for him," Nurik says of his client. "The guy has already been more severely punished by being disbarred than any criminal court is going to do to him.
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