This action might not be possible to undo. Are you sure you want to continue?
Orange County Bar Association From: Lucey Olney 7-31-06 Re: grammatical errors and typos fixed Imagine being an 80 year old widow with your only income being a monthly social security check and some meager interest payments from some certificates of deposit that held the bulk of your life savings, approximately something less than $75,000. You had suffered a life-threatening stroke in the year 2000 and had to leave your home in Vero Beach where you had lived for 30 years, the last 7 years as a widow. Because of the stroke you move to Orlando to be near your 3 children (Lucey, Bill and Lynda). Bill is a successful young attorney whom you have entrusted with the power of attorney over your affairs. He promises to pay the mortgage on the new home in Orlando until your home in Vero Beach sells, which is valued at approximately $400,000. It takes a little over a year for the house to sell, but when it does for just under $400,000 you payoff the mortgage on the new Orlando home and reimburse your son for his help with the year or so worth of mortgage payments. A few weeks later, after 52 days of marriage to an Orange County Courthouse attorney named Stephanie Howell, your beloved son commits suicide with a shotgun in the bathroom of your home while you're only a few feet away in the living room looking over the morning paper. Two days later, your daughter-in-law of 52 days, Stephanie Howell takes the first legal steps as your son's widow to go after everything you own - your home and your life savings, because Bill had his name on everything - all financial assets, bank accounts and your new home that you had just paid off. The widow, Stephanie Howell is upset because she finds out that the day before he died, Bill had made out a will, disinheriting his new wife, Stephanie "to the fullest extent of the law" and appointing his Sister, Lucey Olney as executor to his estate. An estate which consisted of about $2000 in the bank and a 6 year old Ford Thunderbird. Essentially broke. And Stephanie Howell knew that when she married him. She also knew he had his name on everything his elderly mother owned. Everything. And she was 80 years old. Two days after Bill's death, Stephanie Howell retained the services of Akerman Senterfitt & Eidson, the biggest law firm in Florida. Stacey Cole, a partner at Akerman, Senterfitt and a leading recognized expert in real property probate and trust laws represents Ms. Howell. What we didn't know at the time was that Ms. Howell would have no financial constraints placed upon her whatsoever in her quest to secure her "ownership interests" in Mary Olney's home and life savings. Ms. Howell had the vast and unlimited resources of the biggest law firm in the state of Florida at her disposal. You see, Ms. Howell didn't have to pay anything out of pocket. We suspect Stacey Cole was putting on a "no holds barred", "pedal to the metal"
litigation pro bono. And if the elderly Mary Olney and her daughter Lucey Olney, personal representative to the estate of her brother Bill, didn't settle on Ms. Howell's terms - well, everything 80 year old Mary Olney owned would be at risk. That's what happens when you have to pay your own legal bills out of pocket and your 52 day daughter-in-law is being bankrolled by the biggest law firm in the state of Florida. We suspect this because Stephanie Howell was broke from her 5 year child custody battle with former husband Patrick Howell, which had started in 1999 and was running at the same time she was doing the probate litigation. Bill had been paying most if not all of her legal bills in the child custody case (probably why he was broke) and now he was gone. Stephanie Howell couldn't finance both cases at the same time and the child custody case was getting more and more contentious with depositions scheduled for the summer of 2002. The obvious strategy would be to get quick money from a probate settlement, using any means necessary (thru phone conversations with estate attorney, Peggy Hoyt) to coerce, intimidate and threaten the executor, Lucey Olney to cave in, for fear of seeing her elderly mother's meager life savings eaten away by the cost of litigation and / or attorney's fees. That quick money would then be used to finance the child custody case, Howell vs Howell 99-DR-2049, in which Ms. Howell was seeking total custody of her 4 year old son, Holden and a financial settlement from Patrick Howell on terms in excess of $500,000. (Both cases would settle a year later within weeks of each other). Because of the financial bind Ms. Howell was in, trying to litigate 2 potentially very expensive court actions, at the same time, Ms. Howell and her attorney were desperate to get a quick settlement (extort a quick settlement?) from 80 year old Mary Olney and her daughter Lucey. Stacey Cole knew that her client didn't have the financial resources to see the probate case through to its financially draining end, where the cost of Ms. Coles' litigation would far exceed any settlement monies that Ms. Howell would receive (after 15 months of Cole's representing Ms. Howell, resulting in one of the largest court case files in the Probate Division, Cole and Howell settled for $23,000 plus $3,000 in funeral reimbursement). After all, case law was on Mary Olney's side regarding the bank accounts and CD's, because even though Bill was a joint owner, he never had his mother's permission to access those monies for his own purposes and he never did. So that left only the house, where Bill's only contribution had been a year's worth of mortgage payments, that was reimbursed to him by his mother when her property sold. But Bill's half value of the home was put at $106,000 and Stephanie Howell's elective share would come to 30 % or approximately $32,000 max. That's if the case was litigated to the bitter end. Any reasonable settlement would have been much less, say $15,000 to $20,000, which Lucey had the estate attorney Peggy Hoyt offer almost from the very beginning. The case lasted from April
2002 to June 2003 and it would take another year for estate atty. Peggy Hoyt to finally close the estate. So Stacey Cole was put in a bind along with her client, Stephanie Howell, because, for all the bluster of protecting and securing Ms. Howell's elective share in a 52 day old marriage, they knew it was potentially going to be a very expensive fight, mostly because Bill Olney had made a will out the day before he died (with Peggy Hoyt) naming his sister, Lucey Olney as personal administrator and disinheriting his wife, Stephanie Howell Olney to the "fullest extent of the law". All the power lies with the personal administrator (see Florida Statute 733.60S General Powers of the Personal Representative). Ms Cole and Ms. Howell were besides themselves over that one little fact. So much that they began their little scheme to retain whatever little leverage they had in extracting (extorting?) a settlement from the estate (and so year old Mary Olney) by stopping the will from going through, which would have established Lucey Olney as the personal representative, and started the clock ticking on a 3 month time table for any objection by an interested person on the validity of the will. An objection which would have entailed more legal costs for Ms. Howell and one that was guaranteed to fail. The will had been prepared by estate planner Peggy Hoyt, a fellow student and friend of Bill's at Stetson Law School back in the early 90's. She knew Bill well. Two days after Bill died, on April 25, 2002 Ms. Howell walked down from her office in the Orange County Courthouse, where she worked as chief legal counsel to Clerk of Courts Lydia Gardner, and she walked into the office of the Probate Division on the 3rd floor where she promptly filed a caveat with the court. Stacey Cole signed on as the deslqnated Resident Agent. On the form it states, "Caveator requests that the Court not admit Will of the decedent to probate or appoint a personal representative without formal notice on the caveator." On May 14th all the paperwork was filed in the courthouse regarding the estate of William H. Olney and on May 16th the Order Admitting Will And Appointing Personal Representative, Lucey Olney was granted. On May 2Sth, Stacey Cole and her client Stephanie Howell forced the judge to issue an Order Vacating And Setting Aside The Order Admitting Will, because Stacey Cole and Stephanie Howell had not been notified as per the Caveat By Interested Person. The irritated judge ordered the clerk to notice Ms. Cole and Ms. Howell immediately. Cole and Howell had bought more time to stall the admission of the will and appointment of Lucey Olney as Personal Administrator, to give themselves more time to extract (extort?) a settlement with the threat of having the will thrown out as their main bargaining chip. I would also put forth my belief that Cole and/or Howell had something to do with Deputy Clerk Kathleen Smith failing to notice Cole and Howell about the May 14th filing of will-related court documents and for Smith failing to inform the judge about the "Caveat By An Interested
Person". It bought them 45 more days before the will was finally admitted on July 2, 2002 to extract (extort?) a settlement. Stacey Cole was careful to do most of the hard-ball stuff over the phone as opposed to putting it in writing. In that 45 day interim, which Cole and Howell had to feel was the time frame for the most leverage they would ever have in this probate action, they played hardball. Two days after the judge was forced to issue an order "Vacating And Setting Aside The Order Admitting The Will" Peggy received a letter (May 30, 02') in which Cole and Howell threaten to file suit to get the will thrown out unless a settlement could be reached first and if Stephanie Howell agreed to the terms it "would result in Stephanie's decision not to pursue litigation over the will." Here they're trying to clearly get this elective share issue settled before Lucey has been appointed Personal Representative by the Judge (July 2, 2002 effective date of order admitting will and appointing personal administrator). And they're trying to negotiate with an estate and personal representative that legally doesn't exist yet, because of their actions regarding their filing of the caveat with the Court and their actions resulting in the judge vacating his "Order Admitting The Will and Appointing A Personal Representative." On June 17, 2002 estate attorney Peggy Hoyt received a letter from Cole stating Howell's elective share at $67,500. but that it could possibly be more if Peggy was aware of any additional assets. Cole is putting Peggy Hoyt's integrity and reputation on the line with this query. After we saw the settlement demand of almost $70,000, (that's over $1300. a day for a 52 day marriage) all of it to come out of my 80 year old mother's pocket/life savings, we decided to pay Patrick Howell a courtesy call. We had heard from Bill that depositions were set to be taken in the child custody case, Howell vs Howell 99-DR-2049, sometime during the summer of 2002. I was not the personal administrator, I was a free agent. And my husband Louis would be dealing with Patrick Howell, himself. Louis gave Patrick Howell copies of 2 audio tapes that had been given to us by my brother Bill, a few days before he died. Bill confessed that he and Stephanie had been involved in a scheme to blackmail/extort Patrick Howell over the issue of his homosexuality in an effort to secure a windfall/financial settlement on Stephanie's terms that also included Stephanie getting total custody of the 4 year old Holden. Also remember that the child-custody battle had been ongoing since the birth of Holden, one of the reasons Ms. Howell had no money to finance any expensive probate action. Patrick Howell had been trying to keep his homosexuality private and out of the public view in order to maintain his career as an attorney without controversy. Stephanie Howell also knew that ex-husband Patrick Howell was interested in getting into politics and was considering a run for a seat in the state legislature. It was with this backdrop that atty. Stephanie Howell conspired, along with Bill, to extort/blackmail Patrick Howell. Those audio
tapes, both made just a few months earlier in October 2001, one in her home in College Park and the other in her office at the Orange County Courthouse, Clerk of Courts Administration Division, show exactly that, with threats being made to Patrick that if he didn't settle on Stephanie's terms, he would be exposed to his parents, his law firm and the public. The courthouse audio tape also has Bill and Stephanie accusing Patrick Howell of having physically removed the child custody courthouse case file, Howell vs Howell 99-Dr-2049 because of all the dangerous, humiliating and embarrassing information it contained about him, all planted by ex-wife and Orange County Courthouse attorney, Stephanie Howell. Of course Patrick had done no such thing, but it was the first indication that Stephanie Howell was abusing her position in the courthouse regarding public records and she would be receiving help from staff in the Domestic Division (supervisor Joan Harrelson) in the physical dislocation - hiding of such court case files, whenever Ms. Howell deemed it necessary to serve her purposes. If the child custody case file was "missing," Stephanie Howell knew where it was. On July 30, 2002, less than 2 months after we had given Patrick Howell the tapes, the Orlando Sentinel put him on the front page with the headline "Election 2002 - Gay GOP Candidate Makes Waves". It was a positive profile on Patrick Howell's decision to go public with the issue of his homosexuality and his effort to win a State House seat in District 36. The paper said "If elected Howell would be the first openly gay member of the Florida Legislature." The newspaper made no mention of our tapes and they would soon be endorsing Patrick Howell as the best candidate in the race. Stephanie Howell's ability to blackmail/extort ex-husband Patrick Howell had been taken away from her. The next day, July 31, 2002 Carlton Fields attorney Mark Rabinowitz deposed Stephanie Howell re: 99-DR-2049. Her attorney James Taylor was present. When attorney Rabinowitz brought forth the audio tapes and began to play them, both Taylor and Stephanie turned white. All color had been drained from their faces. (As told to us by Patrick Howell). Taylor himself was mentioned on the Courthouse tape as being ready to file damaging documents with the court unless settlement was agreed upon and that settlement was on Stephanie's terms and she was going to fax it to Patrick as soon as the taped telephone conversation was over. She verified Patrick's fax number on the illegally taped conversation and told him it was being sent to him immediately. After Patrick hangs up, you can hear Stephanie say on the tape, "I gotta go talk to Lydia." Needless to say, the deposition of Stephanie Howell taken on 7-31-02 in Howell vs Howell 99-DR-2049 was devastating. There was evidence of criminal wiretapping of a telephone call made from the Orange County Courthouse office of Stephanie Howell in an effort to secure a settlement on Stephanie's terms. The other tape, made at Stephanie's house on October 17, 2001, lasts more than 20 minutes and has Stephanie telling Patrick that her atty. James Taylor knows the attorneys at Patrick's law firm and that
Taylor's got an iron-clad case. Stephanie continuously makes threats to Patrick that he must settle on her terms or else. Clear evidence of Stephanie Howell extorting and threatening to blackmail Patrick Howell. If Stacey Cole wasn't told about the deposition of her client in Howell vs Howell, she certainly found out about the illegal recordings in the asset recovery letter requesting delivery of all wiretap recordings made by Stephanie Howell and Bill Olney, both at Howell's home and office at the Courthouse. On Sept. 16, 2002 estate attorney Peggy Hoyt, on behalf of personal representative Lucey Olney and her fiduciary responsibility to marshal assets, requested that certain items belonging to Bill Olney be delivered to Peggy's office. The request was not complied with. Soon after Bill's death all of his possessions at his workplace, the law firm of McEwan, Martinez, Luff, Duke, Ruffier, PA, had been removed by Carolyn Alvarez, attorney for Akerman Senterfitt and delivered to Stephanie Howell in violation of probate rules. We don't know what she got, what she removed or what she added. In January 2003, ten months after Bill's death, Peggy Hoyt received a letter from Stacey Cole that we were to pick-up items from the offices of Akerman Senterfitt which included documents, diplomas, and pictures. Still the asset recovery letter had not been complied with. Only items of Stephanie Howell's choosing were returned. On Sept. 26, 2002, six months after the suicide of her son, 80 year old Mary Olney felt compelled to retain Mark Lang as her attorney when it became obvious to everyone that she was in real danger of losing her home and life savings to her 52 day daughter-in-law Stephanie Howell. In November, Patrick Howell's attorney Mark Rabinowitz subpoenaed my husband and I to appear before Judge Bronson on November 18, 2002 re: Howell vs Howell 99-DR-2049. We were instructed to bring the tapes which were to be entered as evidence in Howell vs Howell. Orlando Sentinel reporter Anthony Colerossi was in attendance at the hearing (he had picked up copies of those tapes a few weeks earlier from my husband). After lengthy arguments from both sides, Judge Bronson told us he would reach a dectston on the admissibility of the tapes in 30 days at which point we were to return to the Court for his decision. We retained custody of the tapes, one of which was recorded just a few floors away in the Orange County Courthouse offices of Clerk of Courts, Lydia Gardner by her chief legal counsel Stephanie Howell on October 18, 2001. On December 12, 2002 in a letter to both Peggy Hoyt and Mary Olney's atty. Mark Lang, Stacey Cole puts forth the proposition that "Lucy, as personal representative, will be required to sue Mary to establish the amount of the elective share payable to Stephanie." Ms. Cole also states in her letter "The fight here is not between Stephanie and Mary. It is between Lucy, as personal representative, who owes Stephanie a fiduciary duty to protect and establish Stephanie's elective share, and Mary, who is opposing the
determination of the elective share. If Lucy is unable to fulfill her duty, then she should step down as personal representative ...." In furtherance of a scheme between Cole and Howell not to allow even the remotest of a possibility that they would be found out - that it would be found that Stephanie Howell was paying virtually nothing for her legal services being rendered by Akerman, Senterfitt vis-a-vis Stacey Cole and/or that Akerman, Senterfitt had vendor contracts with both Orange County and the Orange County Clerk of Courts and were thus forbidden to provide any free gift or services (Public Entity Crime, Fla. Statute 287.133) to an Orange County employee (especially one that was receiving praise in her job evaluations for her work "in the area of vendor contracts") - in furtherance of that scheme, among others, Stacey Cole put forth a request for protection on behalf of client Stephanie Howell and on January 13, 2003 Circuit Court Judge Lawrence Kirkwood issued an Order Granting Motion For Protective Order stating that Mary Olney shall not take the deposition of Stephanie Olney a/k/a Stephanie Howell. Now this woman who Bill had said, advised him, based on her years of experience as a courthouse attorney, that it would be a good idea to "put your name on all of your mother's assets" to save on probate delays and attorney fees in the event of the 80 year old's passing - that the family would be spared a lot of headache if Bill were a co-owner of everything his mother owned with the "right of survivorship". - now this woman, Stephanie Howell, would force an 80 year old to spend almost all of her life-savings because Howell and Cole, with the support of the Florida Legislature and Judge Lawrence Kirkwood, said that the "right of survivorship" in regard to assets that had previously all belonged to Bill's mother, Mary was stripped away from Mary Olney by the rights of a daughter-in-law of 52 days. The new law had just gone into effect 6 months before Bill died- a new law that Stacey Cole had personally helped draft in a probate committee in the Florida legislature. In fact, Cole and Howell had boasted of that very fact to estate attorney Peggy Hoyt. One of the architects of the "new law" now was going to devastate the Olney family with it if we didn't settle on Cole and Howell's dictated terms- or else. Bill Olney realized that he had been scammed by Orange County attorney Stephanie Howell, made the ultimate sacrifice on behalf of his beloved mother Mary, and committed suicide in the very home he thought he would save for her, not realizing that joint tenancy in common with the right of survivorship was legally worthless in protecting his mother Mary from "ownership interest" claimed by Stephanie Howell and Stacey Cole after his death. Ms. Howell's "ownership interest" gave Howell the right to force 80 year old Mary Olney out of her home through a partition sale (see Probate Code, FI. Statute 733.814 Partition for purpose of distribution) and would result in the liquidation of her meager life savings thru claims upon them made by Stephanie Howell and the subsequent attorney's fees paid by Mary Olney in a desperate attempt to stave off total ruination.
The instigator of all the misery that had befallen ex-husband Patrick Howell and the Olney family would now be put under the court's protection by Judge Kirkwood - Stephanie Howell would not be put under oath and forced to account for her guiding role in this sordid tale of blackmail, extortion, fraud and deceit and the attempt to enrich herself at the expense of her dead husband's elderly mother. And yet, Stacey Cole continued to insist that the personal administrator and her mother, Lucey and Mary, needed to be scheduled for deposition as soon as possible. On Feb. 13, 2003 Judge Kirkwood issued an Order Authorizing Family Allowance and ordered the Personal Representative Lucey Olney to pay $18,000 to Stephanie Howell, the maximum under the law. It could only come out of Mary Olney's pocket. This, after already going through approximately $50,000 in attorney's fees (final tally would be approximately $75,000. not counting the $26,000 settlement Mary was forced to pay, May 8, 2003, to Stephanie Howell). Why Judge Kirkwood would issue such an order is beyond comprehension since there was still a dispute on the table as to the amount of elective share that Howell was entitled to - Cole states exactly that in her Motion for Protective Order filed with the court on October 30, 2002, whereas she states to the court "Stephanie has filed a Notice of Election for her Elective Share. There is no dispute as to Stephanie's entitlement to her elective share. There is, however, a dispute as to the amount of the elective share." Stephanie Howell had relevant and pertinent information as to the Circumstances of how Bill's name ended up on everything his mother owned, since she was the architect of such a probate strategy in the first place. Howell cited her years of experience as an attorney in the courthouse when she advised Bill to use his power of attorney when necessary and become a joint owner to his mother'S assets, so as to protect the Olney family's interests upon Mary's passing. The issue of elective share was brought up immediately after Bill's death and Peggy Hoyt told Cole and Howell that right had been preserved with the will it was the question of what exactly was the elective share that estate attorney Peggy Hoyt and personal administrator Lucey Olney wanted the court to address. On September 13, 2002, Lucey Olney filed a Petition To Determine Elective Share. The estate, through Peggy and Lucey were eager to have this issue resolved through a fair hearing. Cole and Howell were not so eager to have a judge hear the circumstances surrounding what exactly constituted elective share. They wanted, coerced, pressured to get a settlement before such a determination was made. As such, they filed a motion To Strike Petition To Determine Elective Estate on January 30, 2003 saying the court had no right to make such a determination. On Feb. 13, 2003, Judge Kirkwood obliged Cole and Howell and issued an Order Granting Motion To Strike Petition To Determine Elective Share and
states that the personal representative is directed to follow the procedure set forth in Rule 5.360 Florida Probate Rules. Since Cole personally wrote up this order for the judge to sign, the inclusion of this directive to follow Rule 5.360 was her idea, and was intended to have Lucey Olney removed as Personal Administrator on any technicality (re: Rule 5.360) that would have been in violation of a court order. Lucey's status as Personal Administrator was now to be in jeopardy due to hyper-legal maneuvering on the part of the evercreative Stacey Cole. Judge Kirkwood also issued an Order Granting Motion to Strike Objection To Amount of Elective Share And Motion to Exclude NonEstate Assets. It was a good day for Cole and Howell. They were almost home free. On Feb. 26, 2003 Cole responds to Lang's request that Cole and Howell make a demand. Now, according to Stacey Cole, the possible elective estate has grown in size to $306,102.90 and the estimate of possible elective estate has now grown to $91,830.87. Cole is now stating that Howell's 30% share of half of everything Mary Olney owns is now over $90,000. If you do the math, Cole is saying that Mary Olney's estate is valued at more than $600,000. Cole knew that case law keeps Mary Olney's bank accounts and CD's out of the elective share. After all she was an expert in Litigation, Trusts Estates and Family Law, Commercial Litigation, Trusts, Estates and Guardian Litigation, and had been (the Florida Bar) Vice-Chair: Probate and Trust Law Section. But despite that, Mary Olney's assets consisted of a $212,000 house and approximately $200,000 in bank accounts and CD's, a figure that would be reduced to less than $90,000 by the time a settlement was reached 6 weeks later on May 8th. Cole knew she was stating a falsehood because she had nothing to back up a claim that Mary Olney was worth over $600,000. If so, let her show the documentation to the Florida Bar. If not, she is trying to extract (extort?) a settlement on a knowingly false assertion. Nevertheless, on March 14, Mary Olney, through Attorney Mark Lang offered $12,001. If you add that to the $18,000 Family Allowance Judge Kirkwood ordered paid to Howell that would total $30,000. Instead Cole and Howell settled 2 months later for $23,000 plus $3000 in funeral expense reimbursement. On Feb. 28, 2003 Mark Lang sent his paralegal, Tom Doolan to the Orange County Courthouse to research Stephanie Howell's child custody court case Howell vs Howell 99-DR-2049. My husband Louis had told Mark Lang about the deposition of Stephanie Howell that had been taken on July 31, 2002 and that we had been subpoenaed by Patrick Howell and his attorney to produce 2 illegally recorded audio tapes to the court for admission into Howell vs Howell. Two tapes that clearly showed what Stephanie Howell had been doing to Patrick Howell to coerce him to settle on her windfall/financial terms. And after all, Judge Kirkwood had just ordered that his colleague and chief legal counsel to the Clerk of Courts, Stephanie Howell, could not be deposed. As so ordered by the court on January 13, 2003.
Tom Doolan could not locate the child custody case file Howell vs Howell 99DR-2049. It was nowhere to be found, according to Tom Doolan's affidavit dated 5-20-03. Joan Harrelson, supervisor of Domestic Division Room 320, could not produce the public record for Tom Doolan to look at. The only other place it could be was in Judge Sprinkle's office, who now had taken over the case from Judge Bronson. But it was not there either. The clerk in Domestic said to Tom Doolan, "The file had been missing since January because there was an un-filed pleading with a January 2003 date on it that was just sitting there, not filed, for two months." Then on April 4, 2004 Tom Doolan contacted the courthouse to see if the public record Howell vs Howell 99-DR-2049 had been located. Judge Sprinkle's office again denied having the file. Then Tom Doolan asked to speak to the supervisor of Domestic Division Joan Harrelson, Rm. 320, where the public records are to be stored and maintained for the Clerk of Courts. Ms. Harrelson explained that Stephanie Howell had checked the file out and it was locked up in her office. Tom Doolan immediately requested the public record be made available for viewing and on April 10, 2003, the clerk's office called to say the file would be available for viewing. So it seems that Clerk of Courts Lydia Gardner's attorney, Stephanie Howell had a personal storage area in the offices of Lydia Gardner, to keep any public records she deemed fit, out of public view and away from lawful access by the public. In other words, any files that concerned Stephanie Howell weren't public records. Remember that on the courthouse tape recording of her conversation with ex-husband Patrick Howell, Stephanie had accused him of taking the court case file Howell vs Howell out of the courthouse. And Bill chimed in, "That would be a felony." And Ms. Howell stated to Patrick that she had witnesses that someone with Patrick's "badge" had absconded with the file. It seems that the court case file that Stephanie Howell formerly embraced as a damaging public record/court case file as to Patrick Howell's reputation and case, now contained something in it that Stephanie Howell didn't want in the public record - her deposition taken on July 31, 2002 in Howell vs Howell 99DR-2049. After the March 6, 2003 hearing before Judge Kirkwood, the transcript of which was filed in the case, Mark Lang casually mentioned to Stacey Cole and Stephanie Howell that Stephanie's court case file Howell vs Howell 99DR-2049 could not be located. Not to be found. Cole and Howell said nothing and just stared straight ahead. This one-sided exchange was not in the transcript as it was not relevant to the court hearing that day. It was strictly an aside to Cole and Howell. But Mary Olney was informed of that exchange a few days later while meeting with attorney Mark Lang. Then on March 14, 2003, Mark Lang filed Mary E. Olney's Proposal For Settlement To Stephanie Cunningham Olney Howell with the court, with an offer to settle for $12,001.
On April 1, 2003 my husband and I, along with Orlando Sentinel reporter David Damron, went to the Domestic Division, Room 320 to make a request for the viewing of public record court case file Howell vs Howell 99-DR-2049. The file clerk, Elaine Frederickson attempted to retrieve the file, but came back empty handed. She told us the file wasn't there, that maybe a judge had it, that it had been missing since January. A computer generated file tracking sheet called a CSI report verified what file clerk, Frederickson had said about the missing case file, except for the fact that Joan Harrelson was holding it for Stephanie Howell. Reporter Damron realized what my husband and I had told him about the mishandling of public records by the clerk's office might be true. When Louis asked to speak to the supervisor, reporter Damron left, probably not wanting to get caught up in the middle of a controversy. Five minutes later Dawn Braddy, the assistant to supervisor Joan Harrelson appeared with the file and handed it to us. (Dawn Braddy is presently employed as the manager of the Juvenile Center at Bumby and Michigan). We immediately asked for the clerk to copy the deposition of Stephanie Howell plus a few other documents and Louis took them to attorney Mark Lang. That same day. April 1, 2003, Lang proceeded to issue a notice of filing re: the deposition of Stephanie Howell in Howell vs Howell 99-DR-2049. It would now be a part of the probate case file re: The estate of William H. Olney Jr. In a later deposition taken on May 21, 2003 re: 03-DR-5311 Howell vs Vega & Olney, on page 18 Stephanie Howell says in answer as to how she found out her deposition from Howell vs Howell was now a part of the probate file, she replied: "My probate attorney called me and said - They have filed your deposition in this case. Do you have any idea why they would do that?" Stephanie told her, No. We went back to the courthouse the next day April 2, and did more research on Howell vs Howell 99-DR-2049 and made more copies. April 3rd we stayed home. On April 4th we showed up again and the clerk in Domestic Division room 320 said the file was gone. Then supervisor Joan Harrelson came out to tell us that Stephanie had the file, but if we waited, she would be bringing it down. My husband told me to wait in the hallway to avoid a confrontation and he remained in Rm. 320 Domestic Division. Five Orange County deputies showed up, 2 of them served me with an injunction and the other 3 deputies - went into Rm. 320 and served my husband also - it was a Temporary Injunction For Protection Against Repeat Violence and the petitioners were Stephanie and her son Holden. Louis Vega and Lucey Olney were named as Responents. It was signed by the judge in the child custody case - Sprinkel, and it was served on us while we were trying to gain access to a public record - the court case file from that child custody case. Stacey Cole was listed as a witness.
It stated in the complaint, "The Detective Jim Russell, (lead homicide investigator re: the suicide of Bill Olney, April 23, 2002) has informed me that respondent and his wife are both dealing with mental illness and are on 'heavy medication' and sometimes do not take their medications. I fear that respondents unstable mental condition coupled with his threats, anger and erratic behavior will cause him to bring harm to me or my family". The injunction form also has a checklist of questions "Case History and Reason for Seeking Petition". One of those questions says: Describe any other court case that is going on now or that happened in the past between Petitioner and Respondent (include case #): to which Stephanie writes: None directly between us. There is a probate case going on between myself and his family. This injunction served 3 purposes for Cole and Howell:
1. It got us thrown out of the Orange County Court House, with the threat of arrest if we came back (no more access to public record Howell vs Howell 99-DR-2049) 2. Under Florida law, the probate code, FI. Statute 733.303 Persons not qualified, it says: A person is not qualified to act as a personal representative if the person has been convicted of a felony, is mentally or physically unable to perform the duties, or is under the age of 18 years. Cole and Howell could now go to Judge Kirkwood and have both the personal representative and the successor personal representative removed and Stephanie Howell, the widow, would be appointed as the new personal representative. Judge Hauser had already Signed the permanent injunction notice of hearing paperwork pre-dated April 29, 2003, which inexplicably refers to "The Marriage Of Stephanie Howell And Holden Howell" (her son) and not to the injunction matter. Judge Hauser had also been one of the previous judges assigned to Howell vs Howell 99-DR-2049 and it was revealed at the preliminary hearing by Ms. Howell that she and Judge Hauser had a "special relationship" and that he had been helping her behind the scenes in the child custody case. At a preliminary hearing there is no questioning and my attorney Roger Weeden was surprised to hear such an admlsslon extemporaneously from Ms. Howell. Clearly Judge Hauser wanted off the case and had instructed Howell to make the admission. The hearing for a permanent injunction scheduled April 29, 2003 never happened. A continuance had been granted, depositions were scheduled for May 21, 2003 and Judge Hauser recused himself on 4-25-03. After he recused himself he somehow found the authority to come back into the case, 4 days later on 4-29-03 and issue "Until Further Notice Order" throwing the injunction into a quasi-permanent state, where it would remain for 10 months - we were given no opportunity to see a judge until we forced a status hearing in October, which led Ms. Howell to do a voluntary dismissal. of the injunction against the remaining respondent, Louis Vega.
3. Cole and Howell could use the injunction as a bargaining chip, which they did at the settlement talks on May 8, 2003, where they offered to drop the injunction against Lucey Olney but not Louis Vega. That was written in the settlement agreement that day. On April 7, 2003 my husband, Louis Vega, requested a meeting with representatives from the office of Martha Haynie, Orange County Comptroller, at which he delivered a letter, stating "The integrity of the Orange County Courthouse public records, for which Lydia Gardner has been elected to secure and safeguard for the public and make freely available to such public, has been compromised." He went on to describe for investigators the problems associated with court case file Howell vs Howell, 99-DR-2049, and the injunction that was filed to keep us from lawful access to a public record. He stated in his letter, "In conclusion, based on what I have seen and experienced, it is my belief that Orange County Courthouse records employees are taking courthouse files and documents without authorization, misplacing them, hiding them, making them unavailable to concerned parties (i.e. attorneys and their clients), and working on personal matters regarding personal cases while on the job as an Orange County Courthouse employee and at taxpayer expense." We also gave them a copy of the illegal recording made in the offices of Orange County Clerk of Courts, Lydia Gardner by her chief legal counsel and Orange County attorney, Stephanie Howell, on October 18, 2001 which was documented in the deposition of Stephanie Howell re: Howell vs Howell, 99-DR-2049. We believe this letter led to the removal of Stephanie Howell from the Orange County Courthouse as per the letter written by Howard Tipton, Chief Administrator Officer, The Office of Lydia Gardner, Orange County Clerk of Courts, on May 14, 2003 where it states that Stephanie Howell has given notice to leave the clerk's office. "Her last day looks like it will be Friday, June 13th." If you read the depositions taken of Lydia Gardner and Stephanie Howell taken on May 21, 2003 re: the injunction case no. 03-DR5311, no mention is made by either Lydia or Stephanie of any impending career change. Lydia Gardner professed total satisfaction with Stephanie's performance as her chief legal counsel and Stephanie makes no mention of the fact that she has already submitted her resignation to Lydia as the chief legal counsel to the Orange County Clerk of Courts, effective 6-13-03. On April 21, 2003 Cole and Howell responded to: "Mary E. Olney's First Set of Interrogatories To Stephanie Cunningham Olney Howell." and "Mary E. Olney's First Request To Produce To Stephanie Cunningham Olney Howell." In the Request to Produce on Schedule A: Item 10 is a request for, "A copy of your contract for the employment of the law offices of Akerman, Senterfitt & Eidson P.A. and/or Stacey Cole. Esq."
Their response: "Objection. This request is harassing and irrelevant and will not lead to the discovery of evidence." Item 11 states a request for "Copies of any andall invoices you have received from Law Offices of Akerman, Senterfitt & Eidson, P.A. and/or Stacey Cole, Esq. for attorney's fees and cost." Their response: "Objection. This request is harassing and irrelevant and will not lead to the discovery of admissible evidence. This request further seeks the disclosure of Attorneyclient privileged and work product protected material." In Howell's response to the First Set of Interrogatories it says:
Interrogatory 13 "State the date you hired Counsel, Stacey Cole, Esq. and/or the law offices of Akerman, Senterfitt & Eidson." Response: "Objection. This request is harassing and irrelevant and will not lead to the discovery of admissible evidence." Interrogatory 14 "State the amount of attorney's fees you have paid to Stacey Cole, Esquire/Law Offices of Akerman, Senterfitt & Eidson to date." Response: "Objection. This request is harassing and irrelevant and will not lead to the discovery of admissible evidence. This request further seeks the disclosure of attorney-client privileged and work product protected material." On May 8, 2003 all parties entered into mediation and a possible settlement of the case. Attorney, David Brennan was picked by Stacey Cole to be the mediation attorney. She would not agree to any of the. choices offered by Peggy Hoyt and/or Mark Lang. And so, David Brennan it was. The day of the mediation, May 8, 2003 the 3 parties to the case were segregated into their own rooms with David Brennan making the rounds. In attendance was personal administrator Lucey Olney and estate attorney Peggy Hoyt, Stephanie Howell, chief legal counsel to the Orange County Clerk of Courts and a widow in a marriage that lasted 52 days, and her attorney, stecre Cole of the law firm Akerman Senterfitt, and Mary Olney and her attorney Mark Lang. It was now 14 months since Stephanie Howell and her attorney Stacey Cole had filed a Caveat by Interested Person on April 25, 2002, two days after the death/suicide of Bill Olney. The court case file 48-2002-CP-1273-0 that was generated as a result of this case was one of the largest on file in the probate division of the Orange County Courthouse. It consisted of 2 large volumes of filings, pleadings, motions, court orders, etc. The first order of business in the mediation turned out to be the supposedly impartial David Brennan telling estate attorney Peggy Hoyt and personal administrator Lucey Olney, that the negotiations for the financial settlement would have to start from the elective share of $91,830.87 cited by Stacey Cole in a letter dated 2-26-2003, that was based on a possible elective estate
of $306,102.90. So right from the get-go Brennan was saying my mother's total asset worth was $612,206.00, a figure he could have only gotten from Stacie Cole. Yet Stacey Cole never produced any documentation to support how she came to the valuation of Howell's elective share and the total possible elective estate. And that was going be the starting point? I don't think so. I told Brennan we were starting at zero, which is what Stephanie Howell deserved and that is where Mark Lang started his negotiations. Then the supposedly impartial David Brennan said to me, that I was not qualified to be the personal administrator because I could not be fair to Stephanie since Mary was my mother and Bill was my brother. He then stated that Stacey Cole would have to be designated as the acting personal administrator so as to give her client Stephanie Howell a fair and impartial opportunity to exercise her rights under the law to the elective share that she was entitled to. I replied to Brennan, "Please explain how Stacey Cole, attorney for Stephanie Howell, could be an impartial personal administrator." And then estate attorney Peggy Hoyt stated, "If Lucey steps down, her husband Louis Vega would be next in line as the designated successor personal administrator as eppolnted by Bill Olney in his will." David Brennan never spoke to me again for the rest of the mediation. It was strictly between between Cole, Lang and Brennan. My mother agreed to settle for $23,000 plus $3000 in funeral expenses. Attorney Lang had previously said it would cost $25,000 to go to trial over this probate matter and that there was no guarantee what the outcome would be. So my mother settled for that amount. Cole and Howell insisted that the deposition of Stephanie Howell from Howell vs Howell 99-DR-2049 filed by Lang in the probate case was to be sealed. That was a condition of the settlement that was non-negotiable. If a successful settlement could be reached Cole and Howell offered to drop the injunction against Lucey Olney but not against Louis Vega. On April 14, 2004, my husband, Louis Vega, filed a civil action 04-CA-3307 against Stephanie Howell for the recovery of attorney fees re: injunction 03DR-5311, Howell vs Olney/ Vega. In July and August of 2004, Louis saw several articles regarding the violation of Florida's vendor "gift" laws whereas in one case two former government employees were convicted on unlawful-compensation charges for accepting gift cards from a Ponce Inlet company selling chemicals to the government. One gift card had a value of $460 and the other was valued at $550, according to court records. Louis decided to research as to whether Akerman, Senterfitt had vendor contracts with Orange County and/or the Orange County Clerk of Courts. His research online verified that, indeed, they were vendors of legal services to Orange County. A public records request to the Financial Services Division, Accounting Department Orange County Courthouse, made on April 5, 2005 revealed that Akerman Senterfitt also had vendor contracts for legal services with the Orange County Clerk of Courts while Stephanie Howell served as Chief Legal Counsel to the Clerk of
Courts, Lydia Gardner, and all through out the period that Stacey Cole of Akerman Senterfitt represented Stephanie Howell in the probate matter re: The Estate of William H. Olney Jr. On September 14, 2004 my husband's attorney, Jon Gutmacher, issued a subpoena upon the person of Robert Mellen, Esq., as managing partner, Akerman, Senterfitt & Eidson, P.A., for all billing records in that certain case handled by your attorneys (Stacey Cole) in that certain Orange County Circuit Court case, to wit: "In re: Estate of William H. Olney Jr. Case No. 482002-CP-1273-0., all records of payment received from or on behalf of your client in that case, Stephanie Cunningham Howell Olney and a copy of the retainer contract between client and your firm in the recited estate case (ie: 48- 2002-CP-1273-0). On September 28, 2004, Stephanie's Howell's attorney, Mayanne Downs, filed an objection with the court to plaintiff's notice of request for non-party production, one of the reasons given is that it seeks documents and/or other information covered by the attorney-client privilege, work product immunity or any applicable privilege or protection from discovery. Akerman Senterfitt did not comply with the subpoena. But it was at this point that Akerman, Senterfitt and managing partner Robert Mellen were officially put on notice regarding the "unusual circumstances" surrounding this case and the associated billing records. On January 7, 2005, my husband filed a complaint with Orlando FDLE stating that Florida's vendor gift laws were violated by Orange County attorney Stephanie Howell and her attorney, Stacey Cole of the law firm Akerman Senterfitt. It was a violation of law related to un-lawful compensation by a public official, who received free legal aid during the probate dispute from a law firm under contract to the Orange County Clerk of Court and also under contract to Orange County as vendors of legal services. On April 8, 2005, Akerman Senterfitt, Custodian of Records, Bob Nadeau (who was also the billing attorney in the Probate Division that Stacey Cole submitted her billing records to for processing), received the subpoena from FDLE Orlando to produce all billing records for legal services received by Stephanie Ann Howell from Law Offices of Akerman, Senterfitt & Eidson as it pertains to probate case # 48-2002-CP-1273-0. *Atty. Nadeau also has an extensive background in vendor contract work with Orange County, having performed as legal counsel for Orlando-Orange County Expressway Authority for years. Executive Director Hal Worrall had to resign from the Expressway Authority a few years ago over the issue of taping meetings and had to resign. The Orlando Sentinel ran an editorial calling for just that. The billing records submitted to FDLE by Akerman Senterfitt after disbursements and less the Professional Courtesy Reduction came to approx. $17,430.58 for a 15 month probate case heard in Orange County. They were clearly fraudulently submitted to the FDLE by Akerman Senterfitt to hide
their role, Stacey Cole's role and Stephanie Howell's role, in the violation of various state and federal statutes regarding obstruction, conspiracy, interfering in an official investigation, the submission of false documentation as to a lawful subpoena issued by a law enforcement agency, accessory, public corruption and "public entity crime" as defined in paragraph 287.33 (l)(g).FLORIDA STATUTES, meaning a violation of any state or federal law by a person with respect to and directly related to the transaction of business with any business, with any public entity or with an agency or political subdivision of any other state or of the United States, including, but not limited to, any bid or contract for goods or services to be provided to any public entity or an agency or political subdivision of any other state or of the United States and involving antitrust, fraud, theft, bribery, collusion, racketeering, conspiracy, or material misrepresentation.
Other violations of the law include: Abuse, Neglect, and Exploitation of Elderly Persons and Disabled Adults as defined in FI. Statute 825.101. Money Laundering, which, as defined by government regulators, has come to encompass any financial transaction which generates an asset or value as the result of an illegal act, which may involve actions such as tax evasion or false accounting. Chapter 812 Theft, Robbery, and related crimes whereas FI. Statute 812.0145: Theft from persons 65 years of age or older as defined in 812.012 Conduct previously known as stealing, larceny, purloining, abstracting, embezzlement, misapplication, misappropriation, conversion, or obtaining money or property by false pretenses, fraud, or deception. Title X: Public Officers, Employees, and Records FI. Statute 112.313 Solicitation or acceptance of gifts. Stacey Cole submitted false billing records re: her representation Stephanie Howell in the Estate of William H. Olney, Jr. of
We also allege that the gift of approx $100,000 in free and/or discounted legal services provided to Stephanie Howell by Akerman, Senterfitt and their agent Stacey Cole through their representation of Ms. Howell re: the Estate of William H. Olney, Jr., a case lasting 14-15 months in the Orange County 9th Circuit Court constituted a bribery of a public official. We believe Carolyn Alvarez, formerly a labor law attorney with Akerman, Senterfitt, who met with Ms. Howell, along with Stacey Cole, a few days after Bill's death, at Ms. Howell's home, has direct knowledge of Akerman's vendor status at the Orange County Clerk of Courts and knew of Ms. Howell's role in her work in the area of vendor contracts at the courthouse, and therefore
Stacey Cole, fellow attorney at Akerman, Senterfitt also had knowledge of Akerman's work in the area of vendor contracts in Orange County and with the Orange County Clerk of Courts. We also allege that the gift of approx $100,000 in free and/or discounted legal services provided to Stephanie Howell by Akerman, Senterfitt and their agent Stacey Cole through their representation of Ms. Howell re: the Estate of William H. Olney, Jr., a case lasting 14-15 months in the Orange County 9th Circuit Court constituted a bribery of a public official. We believe Carolyn Alvarez, formerly a labor law attorney with Akerman, Senterfitt, who met with Ms. Howell, along with Stacey Cole, a few days after Bill's death, at Ms. Howell's home, has direct knowledge of Akerman's vendor status at the Orange County Clerk of Courts and knew of Ms. Howell's role in her work in the area of vendor contracts at the courthouse, and therefore Stacey Cole, fellow attorney at Akerman, Senterfitt also had knowledge of Akerman's work in the area of vendor contracts in Orange County and with the Orange County Clerk of Courts. Under penalty of perjury, complete. I declare the foregoing facts are true, correct and
Lucey Oln y
THE FLORIDA BAR
JOHN F. HARKNESS,
DRIVE LAWYER REGULATION DEPARTMENT
DEPARTMENT 407/425-0473 www.FLABAR.ORG
August 7,2006 Stacey L. Cole P. O. Box 536424 Orlando, FL 32853-6424 RE: Complaint by Lucey V. Olney Case No. 2006-32,264 (09A)
Dear Ms. Cole: Enclosed you will find copies of correspondence received by The Florida Bar from the abovereferenced complainant. Please respond directly to this office within fifteen (15) days, with a copy to the complainant, and present your position. You are obligated to provide the complainant with a written response pursuant to R. Regulating Fla. Bar 4-8.4(g), and you are required to disclose to the partners and shareholders of your firm the existence and nature of this inquiry. Please fill out and return the enclosed disclosure form, using the above case number on all correspondence to this office. By copy of this letter, the complainant is advised that the bar's inquiry violations of The Rules Regulating The Florida Bar only, and will not particular legal problem. Upon receipt of your response, complainant this office any response or additional information complainant wishes Sincerely, will address possible directly address any has ten (10) days to submit to the bar to consider.
~Ann ~~~;nsel PATS/ja Enclosure cc:
Lucey V. Olney 3617 Foxcroft Circle Oviedo, FL 32765
LAW OFFICE OF STACEY
P. O. Box 536424 FL 32853-6424 407.616.5191 407.895.9553 FACSIMILE
August 21, 2006 Patricia Ann Toro Savitz, Esq. The Florida Bar 1200 Edgewater Drive Orlando, FL 32804-6314 Re: Complaint by Lucey V. Olney Case No. 2006-32,264 (09A)
Dear Ms. Toto Savitz: I write to respond to the captioned Complaint and provide my position thereto. I was retained by Stephanie Howell to represent her in connection with her claim for statutory spousal benefits from her deceased husband's estate. Each and every claim asserted on Ms. Howell's behalf was made pursuant to Florida statute. Moreover, as is always my practice, I sought to resolve as many issues as possible by way of negotiation and settlement with the opposing counsel, rather than by litigation. While the case was contentious, it was made so by the actions of the Complainant and not by the actions of myself or my client. The Complainant was the personal representative of the estate, and therefore a fiduciary who owed Ms. Howell fiduciary duties to properly administer the estate. Complainant was also the daughter of Mary Olney, the decedent's mother, and was further the joint account holder of the bank accounts at issue in determining Ms. Howell's spousal share. Thus, Complainant was inherently conflicted between her duties to Ms. Howell and her desire to protect and/or benefit her mother and herself. It was this conflict between her fiduciary duty and personal interest that resulted in the litigation. Complainant was represented by counsel throughout the proceedings (Margaret (Peggy) Hoyt, Esq.). By the Complaint, it appears that Complainant is asserting claims on behalf of her mother, Mary Olney. Mary Olney was represented during the litigation by Mark Lang, Esq. Once the issues in dispute were clearly identified, the parties agreed to mediate the case. Attached is a copy of the Mutual Settlement Agreement, signed by all parties and counsel, including Complainant, Peggy Hoyt, Mary Olney, and Mark Lang. Everyone agreed to bear their own attorney's fees and costs.
Simply stated, it appears that the gist of the Complaint is that the Complainant and her mother, Mary Olney, paid in excess of $75,000 to their attorneys (Hoyt and Lang) while Ms. Howell paid a lesser sum to Akerman Senterfitt for my services. It is unreasonable to assume that each party to a case should end up paying the same amount in legal fees. Rather, each attorney charges for the time he or she spends on the matter. Apparently, I spent less time on this dispute than Ms. Hoyt and Mr. Lang. I did not provide Ms. Howell "pro bono" services, but rather she was billed for
the time I actually expended on the file. I have never submitted "false billing records" in
this case Senterfitt provided employer gift laws,
or any other. What Ms. Howell paid in attorneys fees and costs to Akerman was the reasonable sum due for the services rendered. Finally, I have never legal services to the Orange County Clerk of Courts, which was Ms. Howell's at the time of the litigation. There was no violation of any of Florida's vendor nor any other violation of any other law.
I note that much of the Complaint addresses Ms. Howell's child custody litigation
with her ex-husband. I was not involved in that matter; Ms. Howell had other counsel representing her in that regard. If there is any further information I can provide, please do not hesitate to contact me. Very truly yours,
<;(1m Ii f1
Robert B. Nadeau, rr. Lsq. (wI enc.) Lucey V. Olney (wrJ..c~)
To: Florida Bar Association From: Lucey Olney September 12, 2006 Grammatical errors and typos fixed
In former Akerman, Senterfitt attorney and partner Stacey Cole's response to the complaint made to the Florida Bar July 31, 2006 re: Case No. 200632.264(09A), Ms. Cole states:
"The Complainant was the personal representative of the estate, and therefore a fiduciary who owed Ms. Howell fiduciary duties to properly administer the estate. Complainant was also the daughter of Mary Olney, the decedent's mother, and was further the joint account holder of the bank accounts at issue in determining Ms. Howell's spousal share. Thus, Complainant was inherently conflicted between her duties to Ms. Howell and her desire to protect and/or benefit her mother and herself. It was this conflict between her fiduciary duty and personal interest that resulted in the litigation."
I have never been a joint account holder, with my mother, Mary Olney, or my brother, Bill Olney of any bank accounts at issue in probate matter re: the estate of Wm. H. Olney, 4S-2002-CP-1273-0. Had I been a joint account holder, I would have been required make that declaration once I had been appointed personal administrator on July 2, 2002 and would have been readily removed as such, upon a motion that would have been most certainly made by Cole and Howell, and Judge Lawrence Kirkwood would have granted that motion as he did with virtually every other motion made by Cole and Howell in that probate matter. Especially the very crucial one that was granted Cole and Howell by Judge Kirkwood on February 13, 2003, that went to the very heart of the matter: Order Granting Motion To Strike Objection To Amount Of Elective Share and Motion To Exclude Non-Estate Assets. That order by Judge Kirkwood would take an estate that was financially insolvent and bestow upon it half of the net worth of an SO year old woman, to be taken from her home and life savings, in order to pay Cole and Howell's "statutory spousal benefits from her deceased husband's estate" re: a marriage that lasted 52 days and that was performed by Stephanie Howell's boss at the Courthouse, Lydia Gardner, Orange County Clerk of Courts. That order also guaranteed that Howell, Cole and the law firm Akerman, Senterfitt would be enriching themselves at the expense of an an elderly SO year old woman, who had just recently suffered a life-threatening stroke,
2 who had lost her beloved attorney son in a suicide, by shotgun to the heart, in her very own home where he had gone to seek refuge from wife, Stephanie Howell, and who had no idea that Howell had advised Bill to use his power of attorney to gain joint ownership of his mother'S home and life savings in order to spare the family probate expenses and attorney fees upon the mother, Mary's passing. After he had done so, Howell decided it would be a good idea to get married, to give her 4 year old son, Holden, a "real daddy" as opposed to "old daddy" who was a self professed homosexual. (See Orlando Sentinel's flattering profile cover story from July 30, 2002 on political candidate Patrick Howell, "Election 2002-Gay GOP Candidate Makes Waves", who, himself was under assault by ex-wife Stephanie Howell in a separate child-custody battle, ongoing for five years and which was the reason Stephanie Howell had no money to finance an expensive probate litigation.) Finally, to show the Florida Bar that Stacey Cole was being untruthful in her response re: Lucey's joint ownership with her mother of bank accounts, I am enclosing several documents to show that Cole and Howell never made that an issue and were actually asserting for the 14 month duration of the probate case that all assets at issue in the elective share dispute were coowned by Bill and his mother, Mary.
(1) Letter from Stacey Cole to Peggy Hoyt, dated June 17,2002 where Cole states that if "we enter into a Settlement Agreement whereby Stephanie's elective share is recognized ....Stephanie would allow probate of the Will and the appointrnent of Lucy as Personal Representative. However, it would be necessary for Lucy to waive any fee as personal representative". (2) Peggy Hoyt's response to aforementioned letter, stating" ...it is undisputed that Bill is named a a joint tenant with right of survivorship on Mary Olney's homestead property. Again, his name was added for convenience purposes."
"A successful claim will require that Mrs. Olney, a woman in her 80's sell her home and/or liquidate her life savings in order to satisfy the claim. It would be a very sad and unintended result. Mary Olney felt she was protecting herself and her assets by permitting her son to be a joint owner." (3) Affidavit of Mary E. Olney dated January 6, 2003, where she states that Bill was the only co-owner of the assets in dispute because "He advised me this would make it easier and cheaper for my survivors to avoid probate following my death".
Note that this correspondence was dated before Lucey was appointed personal representative and before Cole supposedly signed on, on July 2, 2002 and after Cole and Howell had filed their "questionable" Caveat By An Interested Person", whereby they forced the judge to vacate his order of May 16, 2002 appointing Lucey as personal administrator because someone in the very courthouse where Howell worked, from the Probate Division, (and that
3 someone is known to Stephanie Howell) conveniently forgot to notice Cole and Howell and the judge before he signed his order appointing the personal representative and opening the estate for probate. When someone files a complaint with the Florida Bar they are required to make a provision at the end of the complaint, whereas they have to add the statement, "Under the penalty of perjury" and sign it, attesting that what they are stating in their complaint is truthful and honest. I noticed that in her response, attorney Cole does not sign such an affirmation, because according to the bar, she is an officer of the court and always under oath by the nature of her professional duties and responsibilities. According to the 2006 Lawyer Discipline Report Card issued by HALT, cited in the Orlando Sentinel, March 33, 2006, only 3% of the complaints filed with the Florida Bar result in any disciplinary action and 97% of those complaints of misconduct by an attorney result in no disciplinary action. Either the complaint was found to be without merit, or the misconduct does not rise to the level of disciplinary action, because an attorney successfully asserts a defense that allows him or her to escape being held accountable for any grievous violation of the law, or serious misconduct that affected the representation of the client, a third party or the public. Now, in addition to claiming innocence of any wrongdoing, an attorney's defense can hinge on the use of 2 words: knowingly and fraudulently. It is difficult to assess a state of mind at the time of the misconduct. The knowingly defense serves as a convenient vehicle for the attorney to plead ignorance of the facts that led to the complaint. The fraudulently defense is a more strident threshold to cross based on its implications of criminality. Stacey Cole can claim neither defense. Knowingly, is not a tiny spot she has to stand on, before she knows there was wrongdoing on her part, on Stephanie Howell's part and on fellow Akerman Senterfitt attorney, Carolyn Alvarez's part. It took all three attorneys to launch this action which resulted in a fraud on the court, on the probate process and on a third party (the estate of William H. Olney and by extension, his 80 year old mother, Mary Olney). Knowingly, according to various ethics dictates either by the Florida Bar, The Model Rules of Professional Conduct and even as defined in many Florida Statutes, is a much encompassing concept. Knowingly, known, or knows, denotes actual knowledge of the fact in question. A person's knowledge of the fact in question. A person's knowledge may be inferred from circumstances. Reasonable or reasonably, when used in relation to conduct by a lawyer, denotes the conduct of a reasonable and prudent and competent lawyer.
4 Reasonably should know, when used in reference to a lawyer, denotes that a lawyer of reasonable prudence and competence would ascertain the matter in question. Fraud or fraudulently denotes conduct having a purpose to deceive, and not merely negligent misrepresentation or failure to appraise another of relevant information. If you go to the heart of our complaint, we allege that Stacey Cole and, by extension, Akerman, Senterfitt, had no right to represent Stephanie Howe", and thus provide her with either free and/or heavily discounted legal services, no matter what kind of contracted fee arrangement was in place. There was deception on the part of Cole and Howe", because we believed they would be reasonable as to a possible settlement (they brought up settlement June 17, 2002, after they forced Judge Turner to vacate his order admitting will and appointing personal representative); we knew Howe" didn't have the financial resources (Bi" had been paying a" legal bills in Howe" vs Howe") to pursue such a questionable claim re: Mary Olney's home and life savings. And we never would have settled the case on any terms, had we known that the violation of Florida's vendor "gift" laws, had been Howell's only way to hold the family financially hostage for over a year, with Cole's representation and with total disregard for any responsibility toward paying her legal bills. As of April, 2005, there was a $9,633.70 outstanding balance on the billing records, 2 years after the case had been settled. And there never would have been a 14 month court battle over Mary Olney's assets. Those legal services enabled Howe" to engage the Olney family and the courts in a litigation process that lasted far longer than Howe" could have ever afforded. That representation, under the law, should not have taken place under the circumstances because of Florida's vendor "gift" laws. Had Stephanie Howe" paid her way for such representation fairly and honestly, there would have been no violation of the law, no fraudulent conduct on the parts of Cole, Howe" and Alvarez and thus no grounds for a complaint. Akerman, Senterfitt attorney Carolyn Alvarez, and Stephanie Howe", worked in the same law firm in the late 90's, McEwan, Martinez & Dukes. Stephanie Howe" was procuring vendor contracts for legal services, on behalf of the Orange County Clerk of Courts with Akerman, Senterfitt attorney, Carolyn Alvarez beginning October 31, 2001. We have included copies of those contracts. Alvarez and Cole worked at the same law firm, Akerman, Senterfitt (one of Florida's largest and most powerful lobbying entities for decades) and Alvarez referred Howell's elective share case to Cole. Cole's billing attorney in the Akerman, Senterfitt probate division, Robert Nadeau, has an extensive background in vendor contract work for legal services, such as his work for the Orlando-Orange County Expressway
5 Authority, wherein, according to the minutes from the board meeting of the ExpressWay Authority, dated November 19, 1997 he states:
" ... historically the Authority has used the FOOT standard specifications as its base contract document. Over time, certain of those contract provisions have either been modified, added or deleted ..."
And he also states to the board regarding the legality of this selection process:
" ..the Authority without question has the right to select a contractor in this fashion. The Authority is not bound under the law to simply accept the lowest bid."
Alvarez and Cole met with Howell at her home a few days after Bill's death, and before his memorial service April 27, 2002, to discuss their strategy re: the probate elective share issue. On April 25, 2002, Howell and Cole filed their Caveat Notice, which enabled them to force the judge to vacate his order opening the estate for probate and the appointment of the personal representative. Alvarez knew Howell had no ability to finance any probate litigation due to the concurrently running child custody case, Howell vs. Howell 99-DR-2049, where Patrick Howell was being represented by Carlton Fields attorney Mark Rabinowitz. Howell tells Alvarez and Cole that Bill's name is on all of his mother, Mary's assets and that Mary Olney could be worth far more than they would discover the following year, through subpoena of all bank records and house documentation from the mortgage lender and the public record. Cole and Howell enter into a contingency fee agreement enabling Howell's carte blanche representation with unlimited resources provided by the biggest law firm in Florida, to extract (extort?) a settlement from a woman in her 80's with limited resources. One of the most important areas of concern for a large law firm such as, Akerman, Senterfitt is conflicts of interest, re: representation of potential clients. The government relations division, responsible for all vendor contracts and lobbying services goes the extra mile to insure they are complying with all laws, state and federal regarding those issues, because of their lucrative and politically sensitive nature. Being in violation of the 55.287.133 Public Entity Crime Act would have devastating consequences for a law firm such as Akerman, Senterfitt and would result in being placed on the convicted vendor list which could almost shut down the government relations division statewide. Also, they would have been in violation of Florida's lobbying laws re: Gifts to a public official. As such, they employ a corporate compliance officer/conflicts speclallst to monitor all such issues for the law firm. Carolyn Alvarez should have never been allowed to refer Howell's case to Stacey Cole and Stacey Cole should have never taken it, under the circumstances that had to be set in place that enabled Howell to engage in a civil action that was potentially open-ended as
6 far as Howell's financial responsibilities concerned. toward paying her legal bills were
Probate billing attorney for Akerman, Senterfitt, Robert Nadeau was also in a position to vent such conflicts, but instead he signs the most critical courtrelated documents related to the case and received a subpoena from the FDLE for all billing records, re: Stephanie Howell's representation in probate matter 48-2002-CP-1273-0. That subpoena was answered with fraudulent billing records, with illegal discounts being shown on those records. The final billing even had a remaining balance of almost $10,000 clearly indicating a gift of legal services to Stephanie Howell. And then somebody connected to Akerman, Senterfitt's interests gets the FDLE to shut down the investigation, even with no proof of any payments being made by Howell to Akerman, Senterfitt, and if there were any, they would prove to be nominal. Although our complaint to the Florida Bar concerns the unethical and more likely, illegal actions of Attorney Stacey Cole in her representation of fellow attorney, Stephanie Howell (re: probate case # 48-2002-CP-1273-0, the estate of William H. Olney), one must also note that the real nexus of the unethical! illegal behaviors and/or conduct was the former Chief Legal Counsel to the Orange County Clerk of Courts, Stephanie Howell. Not coincidentally, Stacey Cole is no longer employed as a partner in the Orlando offices of Akerman, Senterfitt & Eidson. Even though both attorneys have been separated from the positions they once held while pursuing their respective actions re: the egregious behavior concerning the probate of my late brother's estate, William H. Olney Jr. Esq. (in which my 80 year old mother's home and life savings were held hostage to Cole and Howell's settlement demands), one cannot deny the inevitability of one very disconcerting fact: each was acting as an agent of a public entity. In Howell's case it was the Orange County Clerk of Courts where she was a procuring agent of legal services and/or consultations by vendor contractor #1072 Akerman, Senterfitt & Eidson. In Cole's case, the former law partner was also acting as an agent for Akerman, Senterfitt & Eidson; and all work performed by Cole was to be remunerated back to Akerman, Senterfitt & Eidson of which Cole was a shareholder/partner. We can call the Orange County Clerk of Courts a public entity for obvious reasons. And now we will explain why under the Florida Statute law Akerman, Senterfitt & Eidson is also to be considered a public entity, by virtue of their contractual vendor services with virtually every level of government - city, county, state; and by virtue of their lobbying services re: all levels of government - city, county, state, and federal.
Thus Akerman, Senterfitt must adhere by all public entity laws that the Clerk of Courts is subject to, and that applies to all agents of Akerman, Senterfitt regardless if they have any direct personal involvement with lobbying and/or vendor contracts. The mere fact of the existence of a business relationship between Akerman, Senterfitt and the Clerk of Courts precludes the giving of any free goods or services and/or discounted goods or services to any employee of the Clerk of Courts by any agent of the law firm Akerman, Senterfitt as is alleged in my complaint to the Florida Bar regarding the free and/or heavily discounted legal services provided by Akerman, Senterfitt: vis-a-vis Stacey Cole in their representation of Orange County Clerk of Courts legal counsel, Stephanie Howell re: probate case #48-2002-CP-1273-0, the estate of Wm. H. Olney Jr. Esq. . This gift and/or discount was instrumental in enabling Ms. Howell's unconscionable and fraudulent conduct and the ability to proceed with a court action far longer than would have been possible (considering Ms. Howell's dire financial straits litigating both the probate case and the "5 year running" child custody case at the same time). The end result would be to put the financially insolvent estate of Wm. H. Olney, the 80 year old Mary Olney and her daughter Lucey in litigation hell. Howell, Cole and Akerman, Senterfitt were determined to extract their pound of flesh from the Olney family without any sense of moral compass. Unfortunately for them, that could not happen without the violation of various Florida statutes and, as a result, various federal statutes as well, and triggered the violation of Florida's Public Entity Crime Act by Akerman, Senterfitt and their agent, Stacey Cole. All this, for Stephanie Howell to end up with approximately $16,000, which is the net result of a $23,000 settlement (the other $3,000 was a reimbursement) and a billing from Akerman, Senterfitt & Eidson for 14 months of legal services that "supposedly" totaled $17,430.58 (after the "Courtesy Reduction Discount"). But in reality, Akerman, Senterfitt showed an outstanding balance of approx $10,000, (implicitly implying that Howell had paid approx $7000) which increased Howell's take to $26,000: the "net" $16,000 plus the outstanding balance of $10,000.
Under 2002 Florida Statutes Title XIV Taxation And Finance 55.218.72 Definitions--As used in this part
(9) "Agent" means project architect, project engineer, or any other agency or person acting on behalf of the local governmental entity.
Under 2002 Florida Statutes Title XLVI Abuse, Neglect, and Exploitation of Elderly Persons and Disabled Adults 55.825.101
8 Definitions.--As used in this chapter:
(1) "Business relationship" means a relationship between two or more individuals or entities where there exists an oral or written contract or agreement for goods or services. The Executive Director of the State Commission on Ethics, Bonnie J. Williams, told the Orlando Sentinel in October 2005, that: "The definition of lobbyist includes anyone doing business with a public agency." and that: "The commission rule contemplates that any person who tries to influence government decision-making for compensation is a lobbyist and that would include a person who is selling or tries to sell goods, or services to the government official's agency." Under 2002 Florida Statutes Title XIX Public Business, 55.287.133: Public entity crime; denial or revocation of the right to transact business with public entities. (e) "Person" means any natural person or any entity organized under the laws of any state or of the United States with the legal power to enter into a binding contract and which bids or applies to bid on contracts let by a public entity, or which otherwise transacts or applies to transact business with a public entity. The term "person" includes those officers, directors, executives, partners, shareholders, employees, members, and agents who are active in management of an entity. Under 2002 Florida Statutes Title X Public, Officers, Employees, And Records, 55.112.3148: Reporting and prohibited receipt of gifts by individuals filing full or limited public disclosure of financial interests and by procurement employees.-(c) "Person" includes individuals, firms, associations, joint ventures, partnerships, estates, trusts, business trusts, syndicates, fiduciaries, corporations, and all other groups or combinations. The Florida Public Corruption Study Commission was established by Governor Jeb Bush on Sept 15, 1999, to assure that the people of the State of Florida are served by elected and appointed officials and public employees who abide by the highest standards of behavior and official conduct. The results of their findings can be found at the Florida Department of Law Enforcement website as a 75 page report to Governor Bush. Most of their findings and recommendations have been adopted by the Florida Legislature and signed into law by Governor Bush.
9 On page 12 there is a substantial revision of 55.838.014 Florida Statute proposed whereas (as it relates to my complaint to the Florida Bar) vendor contractors such as Akerman, Senterfitt will now be considered public servants and thusly a public entity. The Commission recommends adopting a consistent definition of "corruptly" throughout statutory schemes addressing public servants. Two definitions exist currently: The definition drafted by the Commission says corruptly means knowledge that an act is wrongful and done with improper intent. A comprehensive definition of "public servant" is proposed, and is designed to include not only public employees but also specifically described non-governmental entities performing "privatized" governmental services and functions authorized by law or contract The definition of "benefit" is revised to incorporate the existing definition of "pecuniary benefit" to streamline the definition and its utilization throughout the chapter. The criminal sanctions would apply to any "public servant." Under 2003 Florida Statutes Title XLVI Crimes, Chapter 838 Bribery, Misuse of Public Office 55.838.014 Definitions: (1) "Benefit" means gain or advantage, or anything regarded by the person to be benefited as a gain or advantage, including the doing of an act beneficial to any person in whose welfare he or she is interested, including any commission, gift, gratuity, property, commercial interest, or any other thing of economic value not authorized by law. 6) "Public servant" means: (a) Any officer or employee of a state, county, municipal, or special district agency or entity; (b) Any legislative or judicial officer or employee; (c) Any person, except a witness, who acts as a master, receiver, auditor, arbitrator, umpire, referee, consultant, or hearing officer while performing a governmental function; or (d) A candidate for election or appointment to any of the positions listed in this subsection, or an individual who has been elected to, but has yet to officially assume the responsibilities of, public office. (7) "Service" means any kind of activity performed in whole or in part for economic benefit.
On page 14 the commission study further makes the inference that private entities can be considered public servants and thus a public entity if they are in a contractual relationship with the government "The Commission recommends creation of a new s. 838.22, providing an inference that the terms "privatize" or "privatization" in a statute, ordinance, resolution or contract providing for a private contractor to perform a function or
provide a service on behalf of government means that the private entity is in fact performing a governmental function or providing a governmental service. This helps to assure that private entities performing privatized functions are acting as "public servants" within the context of Chapter 838."
Lobbyists Prohibited To Gift A Public Official/Purchasing
Akerman, Senterfitt were not only contractual vendors with the Orange County Clerk of Courts, but according to the Florida Commission on Ethics, they would also be defined as active lobbyists with the Clerk of Courts, and that was their status even before Akerman, Senterfitt was retained by the Clerk of Courts chief legal counsel, Stephanie Howell for personal representation, re: the estate of Wm. H. Olney, Esq. in April of 2002. Ms. Howell's close personal friend (they had worked at the same Orlando law firm years earlier), Akerman, Senterfitt associate, Carolyn Alvarez, was the referring attorney in the retaining of the services of Stacey Cole, a leading recognized expert in real property, probate and trust laws, and a partner at Akerman, Senterfitt. Governor Jeb Bush's Deputy Chief of Staff, William Large was my brother'S best friend and best man at the wedding performed by Lydia Gardner on March 3, 2002. On April 25, 2002, two days after Bill died, William Large informed the family that he had visited his good friend, Stephanie Howell, and that he was concerned that she was in serious consultations with Carolyn Alvarez and another attorney from Alvarez's law firm, Akerman Senterfitt. We believe that attorney was Stacey Cole and the reason for that is Stephanie Howell had filed a caveat with the court and Stacey Cole had signed on as the deSignated Resident Agent--the date: April 25, 2002. Based on William Large's concerns, things did not bode well for the Olney family. When Stacey Cole signed on as the deSignated Resident Agent on April 25, 2002, she officially was put under the mandate of the Florida Probate Rules, Rule 5.030. Attorneys:
RULE 5.030. ATTORNEYS (a) Required; Exception. Every guardian and every personal representative, unless the personal representative remains the sole interested person, shall be represented by an attorney admitted to practice in Florida. A guardian or personal representative who is an attorney admitted to practice in Florida may represent himself or herself as guardian or personal representative.
(b) Limiting Appearance. An attorney of record for an interested person in a proceeding governed by these rules shall be the attorney of record in all other proceedings in the administration of the same estate or guardianship,
except service of process in an independent action on a claim, unless (1) at the time of appearance the attorney files a notice speCifically limiting the attorney's appearance only to the particular proceeding or matter in which the attorney appears, or (2) the court orders otherwise.
(c) Withdrawal or Limiting Appearance. An attorney of record may withdraw or limit the attorney's appearance with approval of the court, after filing a motion setting forth the reasons and serving a copy on the client and interested persons.
Because of Rule S.030(b) there is no dispute as to when Stacey Cole's billing records had to have started re: her representation of Howell in the estate of Wm. H. Olney, 48-2002-CP-1273-0-April 25, 2002, the date of the filing of the caveat by Cole and Howell.
Eight months earlier in a letter, embossed with Lydia Gardner's seal of the Clerk of the Circuit and County Courts, Orange County, dated September 12, 2001, to labor specialist, Carolyn Alvarez of the law firm Akerman, Senterfitt & Eidson, P.A., legal counsel, Stephanie Howell writes:
"Re: Anti-Harassment Training"
"Thank you for your recently submitted proposal to provide anti-harassment training to the Clerk of Courts organization. We are pleased to have your firm to provide this training and would like to confirm the details and costs associated with same." "Invoices will be paid in accordance with the State of Florida Prompt Payment Act." "We look forward to working with you in the coming weeks to educate and train all members of our organization on the effects of harassment in the workplace."
Now, not only was Akerman, Senterfitt the largest law firm in Florida, but under Florida's new lobbyist disclosure law, effective 2006, regarding the public filing of all fees and/or payments made to lobbying firms or entities, it was revealed that Akerman, Senterfitt is also among the highest paid lobbying firms in Florida, with first quarter disclosure for 2006 being reported at $1,000,000 or more. They are in the top tier of an elite club of the highest paid firms to lobby government officials and as such, they can take great pride in the accomplishments of their government-relations practice. If any lobbying firm or entity would be familiar with all aspects of the law governing their behavior in such endeavors, it would be Akerman, Senterfitt & Eidson, PA. And they surely were aware that the law prohibits elected officials/public officials/purchasing agents who are being lobbied, to receive any free and/or discounted gifts or services and/or gratuities worth more than $100 from anyone that is or has lobbied them, especially when they are in a position of public trust, and most especially when there is an ongoing business relationship between the governmental agency and the firm represented by the lobbyist.
12 The Florida State Commission on Ethics has made that one of the cornerstones of public ethics (re: lobbying) and was stated as such by the executive director of the Commission on Ethics Bonnie J. Williams in the Orlando Sentinel article, dated October 6. 2005, "Beary May Have Run Afoul of Gifts Law" (re: Orange County Sheriff Kevin Beary). It is not clear from the billing records submitted by Akerman, Senterfitt under subpoena to the FDLE in April of 2005 what kind of contract for employment and/or retainer contract was drawn up to establish the fee structure for legal services provided by Akerman, Senterfitt on behalf of Howell re: the estate of Wm. H. Olney Esq., but Cole's response to the Florida Bar complaint, August 21, 2006, clearly states there was no "pro bono" services provided but also states of Ms. Howell:
" ... she was billed for the time I actually expended on the file. I have never submitted "false billing records" in this case or any other. What Ms. Howell paid in attorneys fees was the reasonable sum due for the services rendered."
One thing that must be noted here, is that any statements made by Cole in her response to the complaint filed with the Florida Bar, is that she speaks not only for herself but also for Akerman, Senterfitt, where she was a partner. If Cole says the $17,000 billings are true and accurate, then Akerman, Senterfitt is also stating that. All her billings in her representation were submitted to the billing attorney, Robert Nadeau, who was served a subpoena in April 2005, by FDLE, to produce such billings. This was 7 months after Akerman, Senterfitt, Managing Partner, Robert Mellen, had been subpoenaed for the same billing records by my husband Louis and his attorney, because Howell had stated in her deposition, May 21, 2003, that her legal bills had been driven up by my carrying out of my fiduciary duties as personal representative, re: Howell vs. Olney/Vega case #03-DR-5311 & Vega vs Howell case #04-CA-3307 (35). Note that Cole was listed as a witness on that injunction filed April, 3, 2003. A lawful subpoena was not complied with by the largest law firm in the state of Florida, Akerman, Senterfitt. That is why we went to the FDLE in January 2005. The only other fee structures that could have been set forth in the contract for legal services would be either fixed fees, hourly charge or contingency fee. Fixed fees can be excluded by the nature of the case involved, (a complex probate action), contingency fees are never applicable to a probate case such as this, and that would only leave a billing based on hourly charge. In Cole's response to complaint by Lucey V. Olney case # 2006-32.264(09A) filed with the Florida Bar on July 31, 2006 you will notice that the letterhead has "Law Office of Stacey Cole".
When you are a solo practitioner, you are not subject to pressures of having to record between 2000 and 2500 hours of billable and non-billable work per year as was expected of associates or partners of the largest law firm in Florida, Akerman, Senterfitt. Non-billable work would involve community or professional work from Bar association functions, to work with community groups like the Rotary Club or the Junior League, to professional development and marketing of the firm's services. It remains to be seen if any of Ms. Cole's legal work, while a partner at Akerman Senterfitt, on behalf of client Stephanie Howell, chief legal counsel to the Orange County Clerk of Courts, would fall under the latter - The marketing of the firm's services. In paragraph 5 of Cole's response to complaint filed with the bar, Cole states,
"It appears that the gist of the complaint is that the complainant and her mother, Mary Olney, paid in excess of $75,000 to their attorneys (Hoyt and Lang) while Ms. Howell paid a lesser sum to Akerman Senterfitt for my services."
The actual monies paid to the two attorneys, Hoyt and Lang, was over $90,000. Hoyt billed approx $15,000 and Lang's billings totaled more that $75,000. The lesser sum Cole refers to was approx $17,000 for Cole's 14 month representation while Lang came into the case 6 months after Cole did (September 02) and he worked approx 8 1/2 months on behalf of client Mary Olney. Yet Cole's billings amounted to less than 1/4 of Mark Lang's. That was the billings from a partner at the largest law firm in the state of Florida Akerman, Senterfitt. Apparently their hourly billing rate are far lower than that of a solo practitioner in Winter Park. Or are they? We will supply the bar with estate attorney Peggy Hoyt's initial billings up to July 2, 2002 (which we want you to keep in your confidential file) when Cole filed An Appearance With the Court Notice on behalf of her "new" client Stephanie Howell. Peggy Hoyt had much interaction with Cole prior to that, and Cole's true billings could easily have approached $5,000 and most would have definitely eaten away at any retainer Howell would have paid Akerman, Senterfitt, forcing her to pay even more money upfront for ongoing and upcoming legal services. The elderly Mary Olney was writing checks in excess of $10,000 for legal work by her counsel Lang in anticipation of those legal services. In other words, Lang did no legal work without having funds provided by Mary Olney to finance such legal work first. That is called pay as you go. Hoyt and Lang documented every call made, the duration of the call and the subject matter discussed and billed their clients accordingly re: itemized billings, Cole's billing records should reflect the same. Note: We have submitted Peggy Hoyt's billings up to July, that will show much interaction, and the start date approx of Cole's representation.
14 In February 2003, Cole and Howell forced the family to pay $5,000 for Bill's 6 year old car, but Cole insisted that the cashier's check be made out to Akerman, Senterfitt, not Howell, which we believe was deposited in a trust account under Akerman's control. But the billing statement for February shows a $2,000 reduction in the running balance, which I believe is evidence that $3,000 was paid out to Howell yet the new outstanding balance as of February 28 is $3,921.25. From this point on the billings show no reductions, and the final balance shown as of June 17,2003 is $9,633.70 after another "Courtesy Reduction" of $1,000. When Stacey Cole submitted her response complaint by Lucey V. Olney, she included handwritten Mutual Settlement Agreement 1273-0 dated May 8, 2003, and signed by Cole. on 8/21/06 to the Florida Bar as an exhibit, the original from Probate case #48-2002-CPall parties including Howell and
In that agreement in Paragraph 3, it states that the estate and Mary E. Olney, shall jolntlv pay the total aggregate sum of $26,123.00 to Akerman, Senterfitt trust account on behalf of S.C.H.O., within 10 days of this agreement. Because Cole chose to include this document as an exhibit, re: her response to the complaint filed against her with the Florida Bar, we believe the Florida Bar has the right to examine transactions that occurred within that account, so as to ascertain all relevant facts and information, as to how the $5000 (and the settlement monies) paid to Akerman, Senterfitt on behalf of Stephanie Howell for the Ford Thunderbird she claimed ownership of, as part of the non-elective estate, were distributed. You will find that either she received the entire $5000, or that either, all of those monies or part of those monies, were used in connection with the "reduction" cited in the billing records of February 2003, which show a $2000 reduction in the running balance. So basically, I am saying that an examination of the trust account will shed light on the accuracy and/or the handling of the billing records, as they pertain to the $5000 payment that Cole insisted be made out to Akerman, Senterfitt, and also by similar inferences, as to how the $26,123 settlement check Mary Olney was instructed by Cole to make out to Akerman, Senterfitt was distributed. There is no better way to hide evidence of ethical violations and/or criminal violations than to hide them behind the time-honored and court sanctioned principle of attorney-client privilege and the associated "work product protected material". Cole and Howell did just that on April 21, 2003 in their response to "Mary E. Olney's First Set of Interrogatories to Stephanie Cunningham Olney Howell" and "Mary E. Olney's First Request To Produce To Stephanie Cunningham
15 Olney Howell." They refused to show a copy of the contract for the employment of the law offices of Akerman, Senterfitt & Eidson P.A. and/or Stacey Cole, Esq. They refused to show copies of any and all invoices received from Law Offices of Akerman, Senterfitt & Eidson, P.A. and/or Stacey Cole, Esq. for attorney's fees and cost. They refused to state the date Ms. Howell hired Counsel, Stacey Cole, Esq. and/or the law offices of Akerman, Senterfitt & Eidson. They refused to state the amount of attorney's fees Howell had paid to Stacey Cole, Esq./ law offices of Akermann, Senterfitt & Eidson to date. What Attorney Mark Lang and client Mary Olney didn't know to ask for, was copies of all vendor contracts for legal services with Stephanie Howell as procuring agent, between the Orange County Clerk of Courts and the law offices of Akerman, Senterfitt & Eidson. The Trust Account Tells The Story An examination of the Akerman Senterfitt trust account #2 0111 296 1, SunTrust Bank, Central Florida where my mother's settlement check, made out to Akerman, Senterfitt for $26,123, dated May 14, 2003 will show what Akerman, Senterfitt did with those settlement monies, includinq the $5,000 check made out to Akerman, Senterfitt as payment for Bill's car. Note that the final billing statement of June 17, 2003 does not show that any of the settlement monies went toward any reduction of the final billing. Florida courts have held that there must be some kind of contractual arrangement between attorney and client for a contingency fee to be allowable. Mary Olney gave Akerman, Senterfitt over $30,000 that was deposited in their trust account on behalf of client Howell. That was more than enough money to have covered their "supposed" cost for legal services, since their billing records showed a total of services and disbursements of $21,030.58, which was reduced to $17,430.58 after "Courtesy Reductions". Yet the billing records turned in 2 years later still show a balance of $9,633.70. Legally, according to Florida Bar guidelines re: trust accounts Rule 5-1.1, Akerman, Senterfitt was entitled to keep any monies from that trust fund to cover their costs, unless their was a contingency fee agreement, where they would be bound to only recover 1/3 of $23,000, which was the exact amount of the settlement (the other $3000 being reimbursement). Money or other property entrusted to a lawyer for a specific purpose, including advances for fees, costs, and expenses, is held in trust and must be applied only to that purpose. Money and other property of clients coming into the hands of a lawyer are not subject to counterclaim or setoff for attorney's fees, and a refusal to account for and deliver over such property upon demand shall be a conversion.
Advances for fees and costs (funds against which costs and fees are billed) are the property of the client or third party paying same on a client's behalf and are required to be maintained in trust, separate from the lawyer's property. Retainers are not funds against which future services are billed. Retainers are funds paid to guarantee the future availability of the lawyer's legal services and are earned by the lawyer upon receipt. Retainers, being funds of the lawyer, may not be placed in the client's trust account. The billing records submitted to the FDLE show intermittent reductions of the bill, implying Howell was making nominal payments for her legal services, but that stopped in February of 2003, at which point the bill only increases with no reductions, other than "Courtesy Discounts". The implication was that a contingency fee agreement into by Akerman, Senterfitt and client Howell. had not been entered
In a commentary/publication provided by the Florida Bar, entitled "How Do Attorneys Bill For Their Services?":
" ...In a contingency fee contract, you and your lawyer agree that the lawyer will not get paid any fees unless you win your case. However, even if you do not win your case, you will have to pay your attorney costs unless your contract speCifically says that you do not have to."
Because their bill showed a reduction in the running balance that exceeded their disbursements considerably it leads you to believe it could not be a contingency fee contract and that it was an hourly-fee set contract arrangement If you try to reconcile the billing record submitted to FDLE, an imbalance of $1,486.30 becomes apparent. That's one of the reasons we stated that the billing records were fraudulent. In addition, we believe that the outstanding balance on the billing records of approx $10.000, show that Akerman, Senterfitt provided legal services on behalf of Client, Howell, that resulted in a loss to the firm. How could that be considered a win re: their representation of client Howell, and how could that outstanding balance not be considered a gift to client, Howell, in violation of Florida's vendor gift laws, otherwise why have an outstanding balance of approx $10,000 and not a balance of zero for services rendered. Florida has adopted the lodestar approach for determining reasonable fees, and under the lodestar approach, the number of hours reasonably spent, multiplied by a reasonable hourly rate, establishes the lodestar. This figure may then be adjusted up based on a "contingency risk factor, or down, based on the results obtained if a party prevails on only some claims. Nevertheless, the "reasonable fee" doctrine still applies.
17 Florida recognizes 4 categories of cases for determining reasonable attorney fees. The first category is "public policy enforcement" cases. The second category concerns tort and contract cases. The fourth category involves class actions resulting in a common fund from which attorneys are to be paid. But the third category involves family law, eminent domain, and estate and trust proceedings, which have special factors that are relevant in setting the attorney fees. In some instances, a contingency fee arrangement is ethically prohibited or cannot be reasonably justified because "payment in some amount is assured". In this third category of cases, a contingency fee multiplier is not justified, although the basis lodestar method of computing a reasonable fee "may be an appropriate starting point."
"Payment in some amount is assured" clearly applied in the probate case: The estate of William H. Olney 48-2002-CP-1273-0. After all Akerman, Senterfitt attorney Stacey Cole helped draft the new probate law that guaranteed her client's elective share. The issue of elective share was brought up immediately after Bill's death and Peggy Hoyt told Cole and Howell in a letter that right had been preserved with the will.
So why did Akerman, Senterfitt, attorney Stacey Cole, and attorney Stephanie Howell feel it necessary to enter into a contingency fee agreement, especially when Akerman, Senterfitt were vendors of legal services with the Orange County Clerk of Courts, and where Stephanie Howell was the procuring agent of legal services for that same Orange County Clerk of Courts. Martindale.com has a profile on Stacey L. Cole where it lists a very impressive credit to her professional legal resume:
"The Florida Bar (Member, Sections on: Real Property; Probate; Trust Law; Member 1999-2004 and Vice-Chair 2001-2003, Probate Litigation Committee; Member, Probate Rules Committee, 1996-1998)"
Little did Stacey Cole Esq., realize, that when she, as part of the Florida Bar Association committee duly appointed to advise and propose changes to Florida's Probate Code which became effective on October 1, 1999 (signed into law by Governor Jeb Bush), to apply to the estates of the decedents dying on or after October 1, 2001, and which provides that: "the spouse may elect a share equal to 30% of the "elective estate", and defines "elective estate" all of the decedent's probate assets (as under the former law) plus all "pay on death", "transfer on death", "in trust for" or co-ownership with right of survival, including assets owned with the spouse as tenants by the entirety (the elective share portion being limited to the decedent's share of such property). There are exclusions, but basically everything the decedent owned is subject to the election, rather than simply the assets subject to probate. This is a major change."
And then reference source author Harry G. McConnell states furthermore: "Among the most significant changes are those affecting the elective share of a spouse. Florida has long allowed a husband or wife of a decedent to take a share of the decedent's property if the spouse did not want to accept what the decedent provided in his or her will. Under the old law, that amount was 30% of the fair market value of all property belonging to the decedent on his date of death, except for real property not located in the state. Excluded from the property "belonging to the decedent" was property which passed outside of probate, such as assets owned as a joint tenant with right of survivorship, bank accounts and securities held "in trust for" someone else, "pay on death accounts" and assets actually in a formal trust." © 2004 Smith, Hood, Perkins, Loucks, Stout, Bigman, Lane & Brock, P.A. Not once in Cole's response to the complaint filed with the Florida Bar by Lucey Olney, personal representative to the estate of her brother, William H. Olney Esq., does she state that she was using the new probate law, Elective Share Of Surviving Spouse: Rights In Community Property ss.732.2035 Property Entering Into Elective Estate, where for the first time in the history of Florida probate law (as of October 1, 2001, 7 months before Bill died), Akerman, Senterfitt attorney Cole and her client, Howell, had the right to nullify the time honored concept of "joint tenancy with the right of survivorship" (all of 80 year old Mary Olney's assets, home and life savings had Bill's name on them, since before his marriage to Stephanie Howell) and give a wife of 52 days the "ownership" rights to force the sale of the elderly woman's home through a partition sale ( see Probate Code, FI. Statute 733.814 Partition for purpose of distribution) and the liquidation of a lifetime of savings through claims upon them made by daughter-in-law, Stephanie Howell and the subsequent attorney's fees paid by Mary Olney in a desperate attempt to stave off total ruination .
...Iittle did Stacey Cole realize that in her eagerness to use the "new" probate laws that she herself helped draft, (as per her response to the Florida Bar complaint) to wit: "I was retained by Stephanie Howell to represent her in connection with her claim for statutory spousal benefits from her deceased husband's estate. Each and every claim asserted on Ms. Howell's behalf was made pursuant to Florida statute". "I did not provide Ms. Howell "pro bono" services, but rather she was billed for the time I actually expended on the file. I have never submitted "false billing records" in this case or any other. What Ms. Howell paid in attorney's fees and costs to Akerman, Senterfitt was the reasonable sum due for the services rendered."
19 Here Ms. Cole is telling the Florida Bar, in some kind of doctrinal subterfuge, that, there was, in fact, a contingency fee contract, under which the "reasonable fee doctrine" can be applied, as per the contract, whereas " ... what Ms. Howell paid in attorney's fees and costs ... " was justified by Akerman, Senterfitt collecting their one/third of the settlement, (as per their contract), 80 year old Mary Olney was forced to pay. We know this by a simple analysis of the billing records submitted to FDLE under subpoena to Custodian of Records, Robert Nadeau, of Akerman, Senterfitt, who also happened to be the billing attorney in the probate division and, in fact, signed the Cross Notice of Hearing, in Cole's absence, dated February 4, 2003. (Note: On that Cross Notice of Hearing you will find the following three motions that went to the heart of the dispute re: the issue of what exactly constituted the elective share, between the personal administrator, Lucey Olney, the elderly Mary Olney, and the wife of 52 days, Stephanie Howell thru her representation by Stacey Cole:
(1) MOTION TO STRIKE PETITION TO DETERMINE ELECTIVE ESTATE (2) MOTION TO STRIKE OBJECTION TO AMOUNT OF ELECTIVE SHARE AND MOTION TO EXCLUDE NON-ESTATE ASSETS (3) MOTION TO STRIKE NOTICE OF CLAIM
On February 13, 2003 Judge Lawrence Kirkwood ruled in favor of Stacey Cole of Akerman, Senterfitt and her client, Orange County Courthouse legal counsel to the Clerk of Courts, Stephanie Howell re: all three motions, and issued a directive/order that the personal representative is to follow the procedure set forth in Rule 5.360
Florida Probate Rules.)
In her response to the Florida Bar Cole states: "Moreover, as is always my practice, I sought to resolve as many issues as possible by way of negotiation and settlement with the opposing counsel, rather than by litigation. While the case was contentious, it was made so by the actions of the Complainant and not by the actions of myself or my client." Akerman, Senterfitt, and their attorneys, Robert Nadeau, Stacey Cole, and their client, Stephanie Howell had just managed to increase the value of the estate of William H. Olney by hundreds of thousands of dollars, from one that was financially insolvent, to one, that (because Bill had his name on everything his mother, Mary, owned) was now being valuated at half of the elderly mother'S "supposed total net worth", now over $600,000, which Cole states in a letter to attorney Mark Lang, estate attorney, Peggy Hoyt and personal administrator, Lucey Olney on February 26, 2003 (if you do the math, based on Cole's new demand for $91,830.87 as her client Howell's lawful elective share entitlement under the new Probate Code Statute ss.732.2035, co-written, by none other than Stacey Cole herself).
But Cole had already subpoenaed all of Mary Olney's financial records from the banks as to the house and the bank accounts and CDs, and all of Mary Olney's financials were now in Cole's possession. Those documents showed a house purchased 2 years earlier for $210,000 and savings well under $200,000. Akerman, Senterfitt's 1/3 fee, as per contingency agreement, would have amounted to approx $30,000 for 11 months of Cole's legal services on behalf of client, Howell. Based on Cole's "expert" status in Litigation, Trusts, Estates and Guardian Litigation at the biggest law firm in Florida her going rate surely would have been $400 per hour. Citing various legal authorities, sources and case law, the following comments, analysis, and rules of ethics, such as the Model Rules of Professional Conduct, can be found as to the propriety of a law firm and/or an attorney accepting a contingency fee based contract arrangement with a client, whereas they share an economic/financial interest in the outcome of the settlement with their client, for whom they are almost totally, if not totally, underwriting the cost of litigation, in their representation of such client. In layman's terms, that's called "bankrolling" the client. HALT, An Organization of Americans for Legal Reform herby submits comments regarding proposed amendments to the DC Rules of Professional Conduct:
" ...suggest that Rule1.5 expressly prohibit value-based (or percentage fee) billing as it is often allowed in probate cases. Percentage fees can be arbitrary and unfair way to calculate how much should be paid for probate work."
Value Billing and Lawyer Ethics, January 28th 2004:
" ...however, value billing in many ways turns the lawyer into a partner in the client's venture. No wise entrepeneur takes in a partner without asking what contribution he or she brings to the enterprise. The 'value' of that contribution to the entrepeneur depends greatly on how many others are capable and willing to provide the same investment, and not merely whether the project needs someone to provide the service or product."
From the House of Representatives 2001 Summary Of Passed Legislation: CS/SB 822, 2nd ENG. - Government Accountability by Governmental Oversight and Productivity; Dyer:
" ... any contract executed in violation of certain ethics provisions is void with respect to former state employees or former public officials and is voidable in the respect to any private-sector third party who employs or retains such former agency employee; requires that contingency fee contracts for private attorney services on behalf of the state must be commercially reasonable ..."
From "The Continuing Assault On the Citadel of Fiduciary Protection: 2000 Revision of Model Rule 1.5" by Lester Brickman:
"...The duties to act fairly and in a non-self-interested fashion, in particular, relate to the financial relationship between the lawyer and client and require that a lawyer present the client with information regarding the fee arrangement that approximates what the client would obtain if the client consulted a second lawyer for assistance in negotiating the fee arrangement with the primary lawyer. Fairness is to be determined according to a heightened fiduciary standard rather that the arms-lenqth marketplace standard. This standard, in turn, is commonly expressed as a requirement that fees must be reasonable." "...As a prophylactic measure, many states expressly prohibit self-dealing by fidUCiaries in an effort to protect decision making from being affected by selfinterest. See, e.g., N.Y. Est. Powers & Trust Law." "...Constructive fraud may be defined as a breach of duty which, irrespective of moral guilt and intent, the law declares fraudulent because of its tendency to deceive, to violate a confidence or to injure public or private interests which the law deems worthy of a special protection." Brown vs Lockwood "...Accordingly, a violation of a lawyer's fiduciary duty is not only a breach of the civil standard, creating liability for damages, but is often a violation of a specific ethical admonition as well. Likewise, a violation of an ethical duty may be a violation of civil law." Saucier vs Hayes Diary Prod. From: Fleming & Curti, P.A., Elder Law Issues, March 31, 2003: " ...Contingency fee agreements are common in personal injury cases and many other types of litigation. In some kinds of lawsuits (for example, divorce or criminal cases) contingency fee arrangements are banned as being against public policy. Are contingency fees permissible in probate cases, and particularly will contests? According to a recent Louisiana case, the answer is yes -- but only if the fees calculated on a contingency basis are "reasonable." *Note. These commentaries do not even take into consideration the conflictof-interest/statutory violations that would occur when a public official is procuring contracts with that law firm, at the very same time the contingency-fee agreement is in place re: a personal probate matter of that same public official, whereas, the contingency-fee agreement does not meet the "reasonable fee" standard. Ironically, much of this commentary has to do with the abuse of the client and the monies obtained as a result of recovery or settlement, for such client, resulting in the law firm and/or attorney enriching themselves far more than would have been considered reasonable and/or proper, under the circumstances of a fair and equitable distribution of recovery/settlement monies.
In other words, the client was getting unfairly ripped off by the fiduciary in charge of protecting their interests. In our case, which is a novel application of the term "reasonable fee", a third party (the estate of Wm. H. Olney and subsequently, 80 year old, Mary Olney) was damaged through a "fraud on the court", the probate process, the estate of Wm. H. Olney, and Mary Olney by Akerman, Senterfitt, their attorney Stacey Cole and client Stephanie Howell, when their arrangement, based on a contingency fee agreement allowed Akerman, Senterfitt to provide legal services at a loss to themselves (?) for a client that had no funds to finance such a lengthy and protracted litigation, in an elective share issue that was denied consideration by the aforementioned motions filed by Akerman Senterfitt attorney Robert Nadeau in his Cross Notice of Hearing on behalf of fellow Akerman, Senterfitt attorney Stacey Cole and their client, Stephanie Howell and the subsequent ruling by Judge Lawrence Kirkwood granting those motions. The damages exist because, in reality, a "gift" was made to Akerman, Senterfitt client, Howell, enabling such damages to occur to a third party, made possible by abuse of the "reasonable fee" doctrine in a legally twisted application whereas their client, Howell, used her fiduciary, Stacey Cole, and by extension, Akerman, Senterfitt to gain an economic/financial benefit at Akerman, Senterfitt's expense, and at expense of the third party. The gift manifested itself in various ways: (1) Stephanie Howell was procuring contracts with Akerman, Senterfitt attorney Carolyn Alvarez, (the referral attorney to fellow attorney at Akerman, Senterfitt, Stacey Cole), on behalf of the Orange County Clerk of Courts, and, thusly, any gifts to a procuring agent of government contracts was forbidden under: Fl. 55. 112.3148, 112.312, 112.313,838.016,838.022; future contract work from Akerman, Senterfitt could be construed as a reward by procuring agent Howell to Akerman, Senterfitt and possibly resulting in more free and/or heavily discounted legal services to be provided Howell for future legal needs, like an appeal of any unfavorable probate judgment and/or future lawsuits (2) the remaining balance on the billing records $9,633.70 (3) free and/or heavily discounted legal services in the probate matter, disguised as a contingency fee contract
...50 little did she realize that when she, on behalf of Akerman, Senterfitt, & Eidson P.A., agreed to represent Stephanie Howell, Esq., the chief legal counsel to Orange County Clerk of Courts, on a "contingency fee" basis, that it would be found out that she would be placing herself and by proxy, her firm, Akerman, Senterfitt in direct violation of Florida Bar Rules of Professional Conduct:
RULE 4-1.5 FEES AND COSTS FOR LEGAL SERVICES
Prohibited contingent fees
Subdivision (f)(3)(A) prohibits a lawyer from charging a contingent fee in a domestic relations matter when payment is contingent upon the securing of a divorce or upon the amount of alimony or support or property settlement to be obtained. This provision does not preclude a contract for a contingent fee for legal representation in connection with the recovery of post-judgment balances due under support, alimony, or other financial orders because such contracts do not implicate the same policy concerns.
Under the penalty of perjury I declare the foregoing facts are true correct and complete to the best of my knowledge.
Fl. 55.112.3148 Reporting and prohibited receipt of gifts by individuals filing full or limited public disclosure of financial interests and by procurement employees.-(b)1. "Lobbyist" means any natural person who, for compensation, seeks, or sought during the preceding 12 months, to influence the governmental decision making of a reporting individual or procurement employee or his or her agency or seeks, or sought during the preceding 12 months, to encourage the passage, defeat, or modification of any proposal or recommendation by the reporting individual or procurement employee or his or her agency. (c) "Person" includes individuals, firms, associations, joint ventures, partnerships, estates, trusts, business trusts, syndicates, fiduciaries, corporations, and all other groups or combinations. (e) "Procurement employee" means any employee of an officer, department, board, commission, or council of the executive branch or judicial branch of state government who participates through decision, approval, disapproval, recommendation, preparation of any part of a purchase request, influencing the content of any specification or procurement standard, rendering of advice, investigation, or auditing or in any other advisory capacity in the procurement of contractual services or commodities as defined in s. 287.012, if the cost of such services or commodities exceeds $1,000 in any year. (3) A reporting individual or procurement employee is prohibited from soliciting any gift from a political committee or committee of continuous existence, as defined in s. 106.011, or from a lobbyist who lobbies the reporting individual's or procurement employee's agency, or the partner, firm, employer, or princlpal of such lobbyist, where such gift is for the personal benefit of the reporting individual or procurement employee, another reporting individual or procurement employee, or any member of the immediate family of a reporting individual or procurement employee. (4) A reporting individual or procurement employee or any other person on his or her behalf is prohibited from knowingly accepting, directly or indirectly, a gift from a political committee or committee of continuous existence, as defined in s. 106.011, or from a lobbyist who lobbies the reporting individual's or procurement employee's agency, or directly or indirectly on behalf of the partner, firm, employer, or principal of a lobbyist, if he or she knows or reasonably believes that the gift has a value in excess of $100; however, such a gift may be accepted by such person on behalf of a governmental entity or a charitable organization. If the gift is accepted on behalf of a governmental entity or charitable organization, the person receiving the gift shall not maintain custody of the gift for any period of time beyond that reasonably necessary to arrange for the transfer of custody and ownership of the gift. (7)(a) The value of a gift provided to a reporting individual or procurement employee shall be determined using actual cost to the donor, less taxes and gratuities, except as otherwise provided in this subsection, and, with respect to personal services provided by the donor, the reasonable and customary charge regularly charged for such service in the community in which the service is provided shall be used. If additional expenses are required as a condition precedent to eligibility of the donor to purchase or provide a gift and such expenses are primarily
for the benefit of the donor or are of a charitable nature, such expenses shall not be included in determining the value of the gift.
112.312 Definitions.--As used in this part and for purposes of the provisions of s. 8, Art. II of the State Constitution, unless the context otherwise requires: 2) "Agency" means any state, regional, county, local, or municipal government entity of this state, whether executive, judicial, or legislative; any department, division, bureau, commission, authority, or political subdivision of this state therein; or any public school, community college, or state university. (3) "Breach of the public trust" means a violation of a provision of the State Constitution or this part which establishes a standard of ethical conduct, a disclosure requirement, or a prohibition applicable to public officers or employees in order to avoid conflicts between public duties and private interests, including, without limitation, a violation of s. 8, Art. II of the State Constitution or of this part. (4) "Business associate" business enterprise with joint venturer, corporate listed on any national or means any person or entity engaged in or carrying on a a public officer, public employee, or candidate as a partner, shareholder where the shares of such corporation are not regional stock exchange, or coowner of property.
(5) "Business entity" means any corporation, partnership, limited partnership, proprietorship, firm, enterprise, franchise, association, self-employed individual, trust, whether fictitiously named or not, doing business in this state.
(8) "Conflict" or "conflict of interest" means a situation in which regard for a private interest tends to lead to disregard of a public duty or interest. (9) "Corruptly" means done with a wrongful intent and for the purpose of obtaining, or compensating or receiving compensation for, any benefit resulting from some act or omission of a public servant which is inconsistent with the proper performance of his or her public duties. (12)(a) "Gift," for purposes of ethics in government and financial disclosure required by law, means that which is accepted by a donee or by another on the donee's behalf, or that which is paid or given to another for or on behalf of a donee, directly, indirectly, or in trust for the donee's benefit or by any other means, for which equal or greater consideration is not given within 90 days, including: 1. Real property. 2. The use of real property. 3. Tangible or intangible personal property. 4. The use of tangible or intangible personal property. 5. A preferential rate or terms on a debt, loan, goods, or services, which rate is below the customary rate and is not either a government rate available to all other similarly situated government employees or officials or a rate which is available to
similarly situated members of the public by virtue of occupation, religion, sex, or national origin. 6. Forgiveness of an indebtedness. 12. Services provided by persons pursuant to a professional license or certificate. 13. Other personal services for which a fee is normally charged by the person providing the services. 14. Any other similar service or thing having an attributable provided for in this section. value not already affiliation, age,
112.313 Standards of conduct for public officers, employees of agencies, and local government attorneys.-(1) DEFINITION.--As used in this section, unless the context otherwise requires, the term "public officer" includes any person elected or appointed to hold office in any agency, including any person serving on an advisory body. (2) SOLICITATION OR ACCEPTANCE OF GIFTS.--No public officer, employee of an agency, local government attorney, or candidate for nomination or election shall solicit or accept anything of value to the redolent, including a gift, loan, reward, promise of future employment, favor, or service, based upon any understanding that the vote, official action, or judgment of the public officer, employee, local government attorney, or candidate would be influenced thereby. (4) UNAUTHORIZED COMPENSATION.--No public officer, employee of an agency, or local government attorney or his or her spouse or minor child shall, at any time, accept any compensation, payment, or thing of value when such public officer, employee, or local government attorney knows, or, with the exercise of reasonable care, should know, that it was given to influence a vote or other action in which the officer, employee, or local government attorney was expected to partiCipate in his or her official capacity. (6) MISUSE OF PUBLIC POSITION.--No public officer, employee of an agency, or local government attorney shall corruptly use or attempt to use his or her official position or any property or resource which may be within his or her trust, or perform his or her official duties, to secure a special privilege, benefit, or exemption for himself, herself, or others. This section shall not be construed to conflict with s. 104.31. (7) CONFLICTING EMPLOYMENT OR CONTRACTUAL RELATIONSHIP.--
(a) No public officer or employee of an agency shall have or hold any employment or contractual relationship with any business entity or any agency which is subject to the regulation of, or is doing business with, an agency of which he or she is an officer or employee, excluding those organizations and their officers who, when acting in their official capacity, enter into or negotiate a collective bargaining contract with the state or any muniCipality, county, or other political subdivision of the state; nor shall an officer or employee of an agency have or hold any employment or contractual relationship that will create a continuing or frequently recurring conflict between his
or her private interests and the performance of his or her public duties or that would impede the full and faithful discharge of his or her public duties. (16) LOCAL GOVERNMENT ATTORNEYS.--
(a) For the purposes of this section, "local government attorney" means any individual who routinely serves as the attorney for a unit of local government. The term shall not include any person who renders legal services to a unit of local government pursuant to contract limited to a specitlc issue or subject, to specific litigation, or to a specinc administrative proceeding. For the purposes of this section, "unit of local government" includes, but is not limited to, municipalities, counties, and special districts. (b) It shall not constitute a violation of subsection (3) or subsection (7) for a unit of local government to contract with a law firm, operating as either a partnership or a professional association, or in any combination thereof, or with a local government attorney who is a member of or is otherwise associated with the law firm, to provide any or all legal services to the unit of local government, so long as the local government attorney is not a full-time employee or member of the governing body of the unit of local government. However, the standards of conduct as provided in subsections (2), (4), (5), (6), and (8) shall apply to any person who serves as a local government attorney. (c) No local government attorney or law firm in which the local government attorney is a member, partner, or employee shall represent a private individual or entity before the unit of local government to which the local government attorney provides legal services. A local government attorney whose contract with the unit of local government does not include provisions that authorize or mandate the use of the law firm of the local government attorney to complete legal services for the unit of local government shall not recommend or otherwise refer legal work to that attorney's law firm to be completed for the unit of local government. 838.016 Unlawful compensation or reward for official behavior.--
(1) It is unlawful for any person corruptly to give, offer, or promise to any public servant, or, if a public servant, corruptly to request, solicit, accept, or agree to accept, any pecuniary or other benefit not authorized by law, for the past, present, or future performance, nonperformance, or violation of any act or omission which the person believes to have been, or the public servant represents as having been, either within the official discretion of the public servant, in violation of a public duty, or in performance of a public duty. Nothing herein shall be construed to preclude a public servant from accepting rewards for services performed in apprehending any criminal. (2) It is unlawful for any person corruptly to give, offer, or promise to any public servant, or, if a public servant, corruptly to request, sollcit, accept, or agree to accept, any pecuniary or other benefit not authorized by law for the past, present, or future exertion of any influence upon or with any other public servant regarding any act or omission which the person believes to have been, or which is represented to him or her as having been, either within the official discretion of the other public servant, in violation of a public duty, or in performance of a public duty.
(3) Prosecution under this section shall not require that the exercise of influence or official discretion, or violation of a public duty or performance of a public duty, for which a pecuniary or other benefit was given, offered, promised, requested, or solicited was accomplished or was within the influence, official discretion, or public duty of the public servant whose action or omission was sought to be rewarded or compensated. (4) Whoever violates the provisions of this section shall be guilty of a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.
838.022 Official misconduct.-(1) It is unlawful for a public servant, with corrupt intent to obtain a benefit for any person or to cause harm to another, to: (a) Falsify, or cause another person to falsify, any official record or official document; (b) Conceal, cover up, destroy, mutilate, or alter any official record or official document or cause another person to perform such an act; or (c) Obstruct, delay, or prevent the communication of information relating to the commission of a felony that directly involves or affects the public agency or public entity served by the public servant. (2) For the purposes of this section:
(a) The term "public servant" does not include a candidate who does not otherwise qualify as a public servant. (b) An official record or official document includes only public records. (3) Any person who violates this section commits a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.
The Model Rules of Professional Conduct have been adopted by 46 states, one of which is Florida. The American College of Trust and Estate Counsel, or ACTEC has issued commentaries on MRPC 1.5: Fees
(a) A lawyer shall not make an agreement for, charge, or collect an unreasonable fee or an unreasonable amount for expenses. The factors to be considered in determining the reasonableness of a fee include the following: (1) the time and labor required, the novelty and difficulty of the questions involved, and the skill requisite to perform the legal service properly; (2) the likelihood, if apparent to the client, that the acceptance of the particular employment will preclude other employment by the lawyer; (3) the fee customarily charged in the locality for similar legal services; (4) the amount involved and the results obtained; (5) the time limitations imposed by the client or by the circumstances; (6) the nature and length of the professional relationship with the client; (7) the experience, reputation, and ability of the lawyer or lawyers performing the services; and (8) whether the fee is fixed or contingent. (b) The scope of the representation and the basis or rate of the fee and expenses for which the client will be responsible shall be communicated to the client, preferably in writing, before or within a reasonable time after commencing the representation, except when the lawyer will charge a regularly represented client on the same basis or rate. Any changes in the basis or rate of the fee or expenses shall also be communicated to the client. (c) A fee may be contingent on the outcome of the matter for which the service is rendered, except in a matter in which a contingent fee is prohibited by paragraph (d) or other law. A contingent fee agreement shall be in a writing signed by the client and shall state the method by which the fee is to be determined, including the percentage or percentages that shall accrue to the lawyer in the event of settlement, trial or appeal; litigation and other expenses to be deducted from the recovery; and whether such expenses are to be deducted before or after the contingent fee is calculated. The agreement must clearly notify the client of any expenses for which the client will be liable whether or not the client is the prevailing party. Upon conclusion of a contingent fee matter, the lawyer shall provide the client with a written statement stating the outcome of the matter and, if there is a recovery, showing the remittance to the client and the method of its determination. (d) A lawyer shall not enter into an arrangement for, charge, or collect: (1) any fee in a domestic relations matter, the payment or amount of which is contingent upon the securing of a divorce or upon the amount of alimony or support, or property settlement in lieu thereof; or (2) a contingent fee for representing a defendant in a criminal case. (e) A division of a fee between lawyers who are not in the same firm may be made only if: (1) the division is in proportion to the services performed by each lawyer or each lawyer assumes joint responsibility for the representation; (2) the client agrees to the arrangement, including the share each lawyer will receive, and the agreement is confirmed in writing; and (3) the total fee is reasonable.
ACTEC COMMENTARY ON MRPC 1.5 Basis of Fees for Trusts and Estates Services. Fees for legal services in trusts and estates matters may be established in a variety of ways provided that the fee ultimately charged is a reasonable one taking into account the factors described in MRPC L5(a). Fees in such matters frequently are primarily based on the hourly rates charged by the attorneys and legal assistants rendering the legal services or upon a mutually agreed upon fee determined in advance. Based on the revisions to MRPC 1.5 in 2002, unless the lawyer has regularly represented the client on the same basis or rate, the lawyer must advise the client of the basis upon which the legal fees will be charged and obtain the client's consent to the fee arrangement. As revised in 2002, the rule also requires a lawyer to inform the client, preferably in writing, before or within a reasonable time after commencing the representation, of the extent to which the client will be charged for other items, including duplicating expenses and the time of secretarial or clerical personnel. Any changes in the basis or rate of the fee or expenses shall be communicated to the client. Basing a fee for legal services solely on any single factor set forth in MRPC 1.5 is generally inappropriate unless required or allowed by the law of the applicable jurisdiction. In recent years courts in several states have, in effect, prohibited or seriously limited the use of fees based upon a percentage of the value of the estate. Most states allow a lawyer who serves as a fiduciary and as the lawyer for the fiduciary to be compensated for work done in both capacities. However, it is inappropriate for the lawyer to receive double compensation for the same work. Fee Paid by Person Other than Client. One person, perhaps an employer, insurer, relative, or friend, may pay the cost of providing legal services to another person. Notwithstanding the source of payment of the fee, the person for whom the services are performed is the client, whose confidences must be safeguarded and whose directions must prevail. Under MRPC L8(f) (Conflict of Interest: Prohibited Transactions) the lawyer may accept compensation from a person other than a client only if the client consents after consultation, there is no interference with the lawyer's independence of judgment or with the lawyer-client relationship, and the client's confidences are maintained. See ACTEC Commentary on MRPC 1.8 (Conflict of Interest: Prohibited Transactions). No Rebates, Discounts, Commissions or Referral Fees. The lawyer should not accept any rebate, discount, commission or referral fee from a nonlawyer or a lawyer not acting in a legal capacity in connection with the representation of a client. Even with full disclosure to and consent by the client, such an arrangement involves too great a risk of overreaching by the lawyer and the potential for actual or apparent abuse. The client is generally entitled to the benefit of any economies that are achieved by the lawyer in connection with the representation. The acceptance by the lawyer of a referral fee from a nonlawyer may involve an improper conflict of interest. See MRPC 1.7 (Conflict of Interest: General Rule) and MRPC 1.8 (Conflict of Interest: Current Clients: Specific Rules). In those jurisdictions that permit referral fees between lawyers, the lawyer should comply with the requirements of local law governing such matters, including full disclosure to the client. A lawyer is generally prohibited from sharing legal fees with nonlawyers. See MRPC 5.4 (Professional Independence).
Percentage, Excessive and Reasonable Fees Statute Florida:
Florida has enacted a comprehensive statute governing compensation of the attorney for a personal representative. Attorneys for personal representatives are entitled to "reasonable compensation" without court order. If the compensation is calculated pursuant to a statutory percentage fee schedule set forth in the statute, it is presumed to be "reasonable." Provision is made for payment for certain "extraordinary services," examples of which are included in the statute. Upon the ,petition of any interested person the court may increase or decrease the compensation for ordinary services or award compensation for extraordinary services (if the facts and circumstances of the particular administration warrant.) The statute also includes a list of factors for the court to use in determining what is "reasonable" and gives the court discretion to give such weight to each such factor as the court determines to be appropriate. Fla. Stats. § 733.6171 (eff. July 1, 1995). In re Estate of Platt, 586 So. 2d 328 (Fla. 1991). The court here held that it was inappropriate to determine the fees of a fiduciary and the fiduciary's lawyer solely according to a percentage of the value of the estate when governing statutes provide a number of factors to be considered in determining fees. (See discussion of Florida statute below.) MRPC 1.7: CONFUCT OF INTEREST: CURRENT CLIENTS (a) Except as provided in paragraph (b), a lawyer shall not represent a client if the representation involves a concurrent conflict of interest. A concurrent conflict of interest exists if: (1) the representation of one client will be directly adverse to another client; or (2) there is a significant risk that the representation of one or more clients will be materially limited by the lawyer's responsibilities to another client, a former client or a third person or by a personal interest of the lawyer. (b) NotWithstanding the existence of a concurrent conflict of interest under paragraph (a), a lawyer may represent a client if: (1) the lawyer reasonably believes that the lawyer will be able to provide competent and diligent representation to each affected client; (2) the representation is not prohibited by law; (3) the representation does not involve the assertion of a claim by one client against another client represented by the lawyer in the same litigation or other proceeding before a tribunal; and (4) each affected client gives informed consent, confirmed in writing.
MRPC 1.8: CONFUCT OF INTEREST: CURRENT CLIENTS: SPECIFIC RULES (a) A lawyer shall not enter into a business transaction with a client or knowingly acquire an ownership, possessory, security or other pecuniary interest adverse to a client unless: (1) the transaction and terms on which the lawyer acquires the interest are fair and reasonable to the client and are fully disclosed and transmitted in writing in a manner that can be reasonably understood by the client;
(2) the client is advised in writing of the desirability of seeking and is given a reasonable opportunity to seek the advice of independent legal counsel on the transaction; and (3) the client gives informed consent, in a writing signed by the client, to the essential terms of the transaction and the lawyer's role in the transaction, including whether the lawyer is representing the client in the transaction. (e) A lawyer shall not provide financial assistance to a client in connection with pending or contemplated litigation, except that: (1) a lawyer may advance court costs and expenses of litigation, the repayment of which may be contingent on the outcome of the matter; and (2) a lawyer representing an indigent client may pay court costs and expenses of litigation on behalf of the client. (i) A lawyer shall not acquire a proprietary interest in the cause of action or subject matter of litigation the lawyer is conducting for a client, except that the lawyer may: (1) acquire a lien authorized by law to secure the lawyer's fee or expenses; and (2) contract with a client for a reasonable contingent fee in a civil case.
(k) While lawyers are associated in a firm, a prohibition (a) through (i) that applies to anyone of them shall apply to all of them.
in the foregoing paragraphs
ACTEC COMMENTARY ON MRPC 1.8 Business Transactions with Client. MRPC 1.8(a) provides mandatory procedural safeguards when a lawyer engages in business transactions with a client. As explained in this Commentary, lawyers often provide services for clients that could be considered business transactions but should not be so considered. Like any lawyer, an estate lawyer who desires to enter a business transaction with a client should follow the procedures set forth in MRPC 1.8(a). As to lawyers who seek or receive a commission or referral fee from a third party when providing legal services to a client, see ACTEC Commentary on MRPC 1.5 (No Rebates, Discounts, Commissions or Referral Fees). Prohibited Transactions. Unless the lawyer complies with the requirements of MRPC 1.8(a), a lawyer generally should not enter into purchase or sale transactions with a client or with the beneficiaries of a fiduciary estate if the lawyer is serving as fiduciary or as counsel to the fiduciary.
MRPC 1.16: DECUNING OR TERMINATING REPRESENT ATION (a) Except as stated in paragraph (c), a lawyer shall not represent a client or, where representation has commenced, shall withdraw from the representation of a client if: (1) the representation will result in violation of the rules of professional conduct or other law;
ACTEC COMMENTARY ON MRPC 1.16 Mandatory Withdrawal/Prohibited Representation. A lawyer should never accept representation of a client or, having commenced the representation, continue same, unless the lawyer can perform the required work competently [see MRPC 1.1 (Competence) and ACTEC Commentary thereon]; can avoid conflicting interests [see MRPCs 1.7 (Conflict of Interest: Current Clients) and 1.8 (Conflict of Interest: Current Clients: Specific Rules) and ACTEC Commentaries thereon]; and is not physically or mentally impaired from diligently completing the representation [see MRPC 1.3 (Diligence) and ACTEC Commentary thereon]. Also, the representation must not result in the violation of any Rule of Professional Conduct applicable to the lawyer or any other law applicable to either the lawyer or the client.
ANNOTATIONS See Caveat to Annotations on page 12 (Limiting the Scope and Purpose of the Annotations)
Ethics Opinions ABA Formal Op. 96-404 (1996). This opinion is discussed in the Annotations following the ACTEC Commentary on MRPC 1.14. ABA Formal Op. 92-366 (1992). A lawyer who knows that the lawyer's client is using or will use the lawyer's services or work product to perpetrate a fraud must withdraw and may disaffirm any documents used by the client to further the fraud even if such a so-called "noisy" withdrawal inferentially reveals attorney-client confidential communications. A lawyer whose client has used the lawyer's services in the past to perpetrate a fraud which is no longer continuing, may but is not required to withdraw. Any such withdrawal may not be "noisy." MRPC 1.18: DUTIES TO PROSPECTIVE CLIENT (a) A person who discusses with a lawyer the possibility of forming a client-lawyer relationship with respect to a matter is a prospective client.
(b) Even when no client-lawyer relationship ensues, a lawyer who has had discussions with a prospective client shall not use or reveal information learned in the consultation, except as Rule 1.9 would permit with respect to information of a former client. (c) A lawyer subject to paragraph (b) shall not represent a client with interests materially adverse to those of a prospective client in the same or a substantially related matter if the lawyer received information from the prospective client that could be significantly harmful to that person in the matter, except as provided in paragraph (d). If a lawyer is disqualified from representation under this paragraph, no lawyer in a firm with which that lawyer is associated may knowingly undertake or continue representation in such a matter, except as provided in paragraph (d). (d) When the lawyer has received disqualifying information as defined in paragraph (c), representation is permissible if: (1) both the affected client and the prospective client have given informed consent, confirmed in writing, or; (2) the lawyer who received the information took reasonable measures to avoid exposure to more disqualifying information than was reasonably necessary to determine whether to represent the prospective client; and (i) the disqualified lawyer is timely screened from an participation in the matter and is apportioned no part of the fee therefrom; and (ii) written notice is promptly given to the prospective client. ACTEC COMMENTARY ON MRPC 1.18 Scope of MRPC 1.18. The lawyer's ability to enter into a lawyer-client relationship with a prospective client is governed primarily by MRPC 1. 7 (Conflict of Interest: Current Clients), which may prohibit the lawyer from entering into the relationship if there is a non-waivable conflict of interest. On the other hand, MRPC 1.18 necessarily implies that it applies only if the client does not retain the lawyer or the lawyer does not accept the representation. If the client hires the lawyer and the lawyer accepts the representation, confidentiality and conflict of interest issues will thereafter be resolved under MRPCs 1.6 (Confidentiality of Information), 1.7 (Conflict of Interest: Current Clients) and 1.9 (Duties to Former Clients). When a lawyer discusses confidential information with a prospective client, MRPC 1.18(b) prohibits in all cases the disclosure or use of confidential information thereafter except as permitted in MRPC 1.9 (Duties
to Former Clients) regarding a lawyer's disclosure or use of confidential information of a former client. However, as explained below, it may be possible for a lawyer to contract with a prospective client that the lawyer may disclose confidential information. See Agreement with Prospective Client to Waive Possible Conflict below. MRPC 1.1S(c) and (d) apply when a lawyer is contacted by a prospective client and the lawyer or the lawyer's firm either (i) currently represents a client adverse to the prospective client or (ii) in the future, accepts or considers accepting representation that is adverse to the prospective client. MRPC 4.1: TRUTHFULNESS IN STATEMENTS TO OTHERS In the course of representing a client a lawyer shall not knowingly: (a) make a false statement of material fact or law to a third person; or (b) fail to disclose a material fact to a third person when disclosure is necessary to avoid assisting a criminal or fraudulent act by a client, unless disclosure is prohibited by Rule 1.6. ACTEC COMMENTARY ON MRPC 4.1 MRPC 4.1 prohibits a lawyer from knowingly making false statements of fact or law to any third-party or knowingly failing to disclose material facts to any third-party under the circumstances described in paragraph (b). This rule must be considered in light of the lawyer's duties to the court, MRPC 3.3 (Candor Toward the Tribunal). In addition, the lawyer for a fiduciary is obligated to deal fairly and honestly with the beneficiaries of the fiduciary estate. See ACTEC Commentary on MRPC 1.2 (Scope of Representation and Allocation of Authority Between Client and Lawyer). In representing a fiduciary, the lawyer is bound by MRPC 3.3 (Candor Toward the Tribunal) in all relations with the court. MRPC 4.1 analogously to MRPC 3.3 (Candor Toward the Tribunal) if the lawyer is representing the fiduciary in dealing with benefiCiaries though MRPC 1.6 (Confidentiality of Information) applies in this context. Thus, if a fiduciary is not subject to court supervision and is therefore not required to render an accounting to the court but chooses to render an accounting to the beneficiaries, the lawyer for the fiduciary must exercise at least the same candor toward the beneficiaries that the lawyer would exercise toward any court having jurisdiction over the fiduciary accounting.
© Commentaries On The Rules Of Professional Conduct Fourth Edition 2006
RULE 4-1.5 FEES AND COSTS FOR LEGAL SERVICES (a) Illegal, enter into excessive advertising Bar. A fee Prohibited, or Clearly Excessive Fees and Costs. An attorney shall not an agreement for, charge, or collect an illegal, prohibited, or clearly fee or cost, or a fee generated by employment that was obtained through or solicitation not in compliance with the Rules Regulating The Florida or cost is clearly excessive when:
(1) after a review of the facts, a lawyer of ordinary prudence would be left with a definite and firm conviction that the fee or the cost exceeds a reasonable fee or cost for services provided to such a degree as to constitute clear overreaching or an unconscionable demand by the attorney; or (2) the fee or cost is sought or secured by the attorney by means of intentional misrepresentation or fraud upon the client, a non-client party, or any court, as to either entitlement to, or amount of, the fee.
(b) Factors to Be Considered in Determining
Reasonable Fees and Costs. a reasonable fee include:
(1) Factors to be considered as guides in determining
(A) the time and labor required, the novelty, complexity, and difficulty of the questions involved, and the skill requisite to perform the legal service properly; (B) the likelihood that the acceptance of the particular employment preclude other employment by the lawyer; (C) the fee, or rate of fee, customarily services of a comparable or similar nature; will
charged in the locality for legal
(D) the significance of, or amount involved in, the subject matter of the representation, the responsibility involved in the representation, and the results obtained; (E) the time limitations imposed by the client or by the circumstances and, as between attorney and client, any additional or special time demands or requests of the attorney by the client; (F) the nature and length of the professional relationship with the client;
(G) the experience, reputation, diligence, and ability of the lawyer or lawyers performing the service and the skill, expertise, or efficiency of effort reflected in the actual providing of such services; and
(H) whether the fee is fixed or contingent, and, if fixed as to amount or rate, then whether the client's ability to pay rested to any significant degree on the outcome of the representation. (2) Factors to be considered as guides in determining reasonable costs include: (A) the nature and extent of the disclosure made to the client about the costs; (B) whether a specific agreement exists between the lawyer and client as to the costs a client is expected to pay and how a cost is calculated that is charged to a client; (C) the actual amount charged by third party providers of services to the attorney; (D) whether specific costs can be identified and allocated to an individual client or a reasonable basis exists to estimate the costs charged; (E) the reasonable charges for providing in-house service to a client if the cost is an in-house charge for services; and (F) the relationship client. All costs are subject to the test of reasonableness set forth in subdivision (a) above. When the parties have a written contract in which the method is established for charging costs, the costs charged there-under shall be presumed reasonable. and past course of conduct between the lawyer and the
(c) Consideration of All Factors. In determining a reasonable fee, the time devoted to the representation and customary rate of fee need not be the sole or controlling factors. All factors set forth in this rule should be considered, and may be applied, in justification of a fee higher or lower than that which would result from application of only the time and rate factors. (d) Enforceability of Fee Contracts. Contracts or agreements for attorney's fees between attorney and client will ordinarily be enforceable according to the terms of such contracts or agreements, unless found to be illegal, obtained through advertising or solicitation not in compliance with the Rules Regulating The Florida Bar, prohibited by this rule, or clearly excessive as defined by this rule. (e) Duty to Communicate Basis or Rate of Fee or Costs to Client. When the lawyer has not regularly represented the client, the basis or rate of the fee and costs shall be communicated to the client, preferably in writing, before or within a reasonable time after commencing the representation. The fact that a contract may not be in accord with these rules is an issue between the attorney and client and a matter of professional ethics, but is not the proper basis for an action or defense by an opposing party when fee-shifting litigation is involved. (f) Contingent Fees. As to contingent fees:
(1) A fee may be contingent on the outcome of the matter for which the service is rendered, except in a matter in which a contingent fee is prohibited by subdivision (f)(3) or by law. A contingent fee agreement shall be in writing and shall state the method by which the fee is to be determined, including the percentage or percentages that shall accrue to the lawyer in the event of settlement, trial, or appeal, litigation and other expenses to be deducted from the recovery, and whether such expenses are to be deducted before or after the contingent fee is calculated. Upon conclusion of a contingent fee matter, the lawyer shall provide the client with a written statement stating the outcome of the matter and, if there is a recovery, showing the remittance to the client and the method of its determination. (2) Every lawyer who accepts a retainer or enters into an agreement, express or implied, for compensation for services rendered or to be rendered in any action, claim, or proceeding whereby the lawyer's compensation is to be dependent or contingent in whole or in part upon the successful prosecution or settlement thereof shall do so only where such fee arrangement is reduced to a written contract, signed by the client, and by a lawyer for the lawyer or for the law firm representing the client. No lawyer or firm may participate in the fee without the consent of the client in writing. Each participating lawyer or law firm shall sign the contract with the client and shall agree to assume joint legal responsibility to the client for the performance of the services in question as if each were partners of the other lawyer or law firm involved. The client shall be furnished with a copy of the signed contract and any subsequent notices or consents. All provisions of this rule shall apply to such fee contracts. (3) A lawyer shall not enter into an arrangement for, charge, or collect:
(A) any fee in a domestic relations matter, the payment or amount of which is contingent upon the securing of a divorce or upon the amount of alimony or support, or property settlement in lieu thereof; or (6) a contingent fee for representing a defendant in a criminal case.
(4) A lawyer who enters into an arrangement for, charges, or collects any fee in an action or claim for personal injury or for property damages or for death or loss of services resulting from personal injuries based upon tortious conduct of another, including products liability claims, whereby the compensation is to be dependent or contingent in whole or in part upon the successful prosecution or settlement thereof shall do so only under the following requirements: (A) The contract shall contain the following provisions: (i) "The undersigned client has, before signing this contract, received and read the statement of client's rights and understands each of the rights set forth therein. The undersigned client has signed the statement and received a signed copy to refer to while being represented by the undersigned attorney(s)." (ii) "This contract may be cancelled by written notification to the attorney at any time within 3 business days of the date the contract was signed, as shown below, and if cancelled the client shall not be obligated to pay any fees to the attorney for the work performed during that time. If the attorney has advanced funds to others in representation of the client, the attorney is entitled to be
reimbursed for such amounts as the attorney has reasonably advanced on behalf of the client." (B) The contract for representation of a client in a matter set forth in subdivision (f)(4) may provide for a contingent fee arrangement as agreed upon by the client and the lawyer, except as limited by the following provisions: (i) Without prior court approval as specified below, any contingent fee that exceeds the following standards shall be presumed, unless rebutted, to be clearly excessive: a. Before the filing of an answer or the demand for appointment of arbitrators or, if no answer is filed or no demand for appointment of arbitrators is made, the expiration of the time period provided for such action: 1. 33 1/3% of any recovery up to $1 million; , (C) Before a lawyer enters into a contingent fee contract for representation of a client in a matter set forth in this rule, the lawyer shall provide the client with a copy of the statement of client's rights and shall afford the client a full and complete opportunity to understand each of the rights as set forth therein. A copy of the statement, signed by both the client and the lawyer, shall be given to the client to retain and the lawyer shall keep a copy in the client's file. The statement shall be retained by the lawyer with the written fee contract and closing statement under the same conditions and requirements as subdivision (f)(5). (5) In the event there is a recovery, upon the conclusion of the representation, the lawyer shall prepare a closing statement reflecting an itemization of all costs and expenses, together with the amount of fee received by each participating lawyer or law firm. A copy of the closing statement shall be executed by all participating lawyers, as well as the client, and each shall receive a copy. Each participating lawyer shall retain a copy of the written fee contract and closing statement for 6 years after execution of the closing statement. Any contingent fee contract and closing statement shall be available for inspection at reasonable times by the client, by any other person upon judicial order, or by the appropriate disciplinary agency.
LAW OFFICE OF STACEY
Patricia Ann Toro Savitz, Esq. The Florida Bar 1200 Edgewater Drive Orlando, FL 32804-6314 Re:
P.O. Box 536424 FL 32853-6424 407.616.5191 407.895.9553 FACSIMILE email@example.com
Complaint by Lucey V. Olney Case No. 2006-32,264 (09A)
Dear Ms. Toro Savitz: I write to respond to the additional correspondence received from Lucey Olney dated September 12, 2006, and forwarded under cover of letter dated September 21, 2006. Stephanie Howell was free to retain any attorney to represent her in her deceased husband's estate. She chose Akerman Senterfitt. Throughout my representation of Ms. Howell, she was treated no differently than any other client of Akerman Senterfitt. She was charged for the services provided, and she paid for those services. The additional correspondence contends that a balance of $9,633.70 remained outstanding as of April 2005. This is false. The billing records indicate that the balance of $9,633.70 was paid in full on August 20, 2003. If there is any further information I can provide, please do not hesitate to contact me. Very truly yours,
Robert . LUCeyU~~y
Stacey L. (dole, Esq. Jr., Esq.
This action might not be possible to undo. Are you sure you want to continue?
We've moved you to where you read on your other device.
Get the full title to continue reading from where you left off, or restart the preview.