By Joan C. Rogers
Two law firm associates violated a criminal theft statute, warranting their
suspension from practice, when they took some of their employer's client files
for their own use in setting up a new practice, the Florida Supreme Court
decided Sept. 6 (Florida Bar v.
Winters, Fla., No. SC10-1332, 9/6/12).
In a per curiam opinion, the court imposed a 60-day suspension on one of the
lawyers who took files out at lunch and had them copied; the other lawyer, who
kept control of some files after leaving the firm, received a 91-day suspension.
The lawyers' appropriation of their employer's client files for their own
purpose constituted not only criminal theft but also dishonesty and conduct
prejudicial to the administration of justice, the court added.
The case involves Tampa personal injury lawyers William H. Winters and Marc
E. Yonker, who left their employment with the Law Firm of Richard Mulholland and
Associates in 2001 to start their own practice.
After Winters and Yonker left, Mulholland sued them on a variety of theories,
seeking as damages the fees they received from settling cases they took to their
new firm. The jury found in favor of Mulholland against both Winters and
Yonkers, but only Winters appealed.
As recounted in Winters v. Mulholland, 33 So. 2d 54, 26 Law. Man.
Prof. Conduct 88 (Fla. Dist. Ct. App. 2010), the jury found that Winters
committed civil theft in violation of Fla. Stat. §772.11, which allows for
treble damages, and awarded Mulholland $748,502.90. The trial court remitted the
damages award to $383,105 but then trebled it to $1,149,315.
While saying that “The facts in this case are enough to make any legal ethics
professor cringe,” the appeals court threw out the jury verdict. It said there
was no evidence that Winters's conduct, “loathsome as it might have been,”
actually caused any of the clients to leave with a resulting loss of fees to the
Six months after the appellate decision, the Florida Bar filed disciplinary
charges against Winters and Yonker, contending that they violated numerous
ethics rules in the course of making secret plans to leave the Mulholland
A referee found that Yonker took client files from the Mulholland firm during
a lunch break and had information in them copied for his own personal use, and
that this conduct “was not within the scope of his employment and was not done
for advancing the good of the law firm.”
As for Winters, the referee found that he “maintained control over less than
ten files” after leaving the Mulholland firm, and that the firm recovered those
files within a few days.
The referee proposed that Winters and Yonker receive an admonition for
briefly holding themselves out as partners with a third lawyer who ultimately
decided not to join their new firm, and for violating Rule 3-4.3 of the Rules
Regulating the Florida Bar, which permits discipline for “any act that is
unlawful or contrary to honesty and justice.”
The supreme court's opinion in the disciplinary matter omits most of the
colorful allegations made in the civil case, such as the claim that the lawyers
received help from a former Mulholland paralegal who was Winters's paramour and
who hacked into the firm's computer system and altered client contact data so
that Mulholland would have difficulty contacting the departing clients.
Although the referee recommended that Winters and Yonker be found not guilty
of the most serious disciplinary charges, the court took a much different
The court agreed with the bar that the lawyers' personal use of the
Mulholland firm's client files constituted acts of criminal theft under Fla.
Stat. §812.014(1), and that this criminal act inherently reflected adversely on
their honesty, trustworthiness, or fitness as lawyers, in violation of Florida
Rule of Professional Conduct 4-8.4(b). (Apparently no criminal charges were ever
brought against Winters and Yonker. No mention of criminal proceedings is made
in either the appellate opinion in the civil case or the supreme court's opinion
in the disciplinary proceeding.)
The criminal theft statute defines the offense as follows:
A person commits theft if he or she
knowingly obtains or uses, or endeavors to obtain or to use, the property of
another with intent to, either temporarily or permanently:
(a) Deprive the other person of a
right to the property or a benefit from the property.
(b) Appropriate the property to his or
her own use or to the use of any person not entitled to the use of the
“Winters' and Yonker's conduct in appropriating client files from their
employer for their own personal use constitutes theft,” the court declared.
The court also ruled that the lawyer's conduct in copying client files and
maintaining possession of client files without the Mulholland firm's permission
violated Rule 4-8.4(c) (conduct involving dishonesty, fraud, deceit, or
The same conduct, the court ruled, also violated Rule 4-8.4(d) (conduct in
connection with law practice that is prejudicial to administration of justice).
Because the lawyers' misconduct occurred in their capacities as associate
attorneys of the Mulholland firm, it was sufficiently “in connection with the
practice of law” to be covered by this rule, it found.
On the question of appropriate discipline, the court concluded that in light
of these three additional rule violations, the referee's recommended
admonishment would not be a sufficient sanction. Florida bar rules make clear
that minor misconduct is the only type of conduct for which an admonishment is
an appropriate sanction, and that misconduct may not be regarded as minor if it
involved dishonesty, misrepresentation, deceit, or fraud, the court
The court suspended Winters from the practice of law for 91 days, which will
require him to petition for reinstatement before resuming practice. Yonker
received a 60-day suspension.
Florida now has a professional conduct rule that regulates contact with
clients when lawyers leave law firms or when firms dissolve. Winters and Yonker
were not charged with violating that rule, the court said, because it did not
exist when their misconduct occurred in 2001.
Rule 4-5.8, which went into effect Jan. 1, 2006, forbids a lawyer who is
leaving a firm to contact clients unilaterally about the departure unless
good-faith negotiations with the firm to craft a joint notice to clients have
failed. When a joint notice has not been negotiated, a lawyer's individual
notice to clients must spell out their choices and inform them about their
potential liability for prior legal services and costs. The rule specifies that
the contract for legal services, not the rule, creates the legal relationships
between the client and the law firm and between the client and individual
lawyers, including the ownership of the client's file. See 21 Law. Man. Prof.
The Florida Bar was represented by Executive Director John F. Harkness Jr.
and Staff Counsel Kenneth L. Marvin, Tallahassee, Fla., along with Bar Counsel
Henry L. Paul and Assistant Bar Counsel Chardean M. Hill, Tampa, Fla.
Donald A. Smith Jr. and Todd W. Messner of Smith, Tozian & Hinkle, Tampa,
represented Winters and Yonker.
Full text at http://op.bna.com/mopc.nsf/r?Open=kswn-8xwrdd.
The ABA/BNA Lawyers’ Manual on Professional Conduct is a joint publication of the American Bar Association Center for Professional Responsibility and Bloomberg BNA.
Copyright 2012, the American Bar Association and The Bureau of National Affairs, Inc. All Rights Reserved.