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Florida Bar v. Pellegrini6/18/1998
We have for review the complaint of The Florida Bar and the referee's amended report regarding alleged ethical violations by attorney Santiago S. Pellegrini. We have jurisdiction. Art. V, ยง 15, Fla. Const. For the reasons expressed in this opinion, we approve the referee's factual findings and recommendations and the referee's recommended discipline. We suspend Pellegrini from the practice of law for three years from the date of the referee's amended report, July 18, 1997, and continuing thereafter until he proves rehabilitation as provided in rule 3-5.1(e), Rules Regulating the Florida Bar.
Pellegrini was suspended from the practice of law by emergency order of this Court on August 9, 1995, based on allegations of trust fund violations and his failure to produce records required by a Bar subpoena. The Bar ultimately filed a five-count amended complaint against Pellegrini. Subsequently, this Court ordered Pellegrini to show cause as to why he had failed to comply with the emergency suspension order. The Court consolidated the two matters for final hearing. The Bar disputes certain factual findings and recommendations contained in the referee's report and the recommended discipline.
PROCEEDINGS BEFORE REFEREE
The parties do not dispute the referee's findings and recommendations on counts I, II, and V, or on the order to show cause. Pellegrini admitted that he failed to produce records related to his trust account required by Bar subpoena as alleged in count I. The referee recommended finding Pellegrini guilty on count I of violating rules 4-1.15(a)(client's funds to be held in trust), 4-1.15(d) (compliance with trust accounting rules) and 5-1.1(d) (failure to maintain minimum trust accounting records), and not guilty of violating rule 5-1.1(a)(money entrusted to attorney for specific purpose to be held in trust and applied only to that purpose). In count II, the referee found that Pellegrini collected an excessive contingency fee from a client and misappropriated other monies from the client's settlement funds. The client retained Pellegrini under a contingency fee arrangement to represent her in a personal injury action. Pellegrini filed a complaint in circuit court seven days after the settlement check was mailed and one day before the client signed a release accepting the settlement. The tortfeasor never filed an answer or a demand for arbitration. Pellegrini collected forty percent of the total settlement. The referee found that Pellegrini misappropriated other monies from the client's settlement funds but that Pellegrini repaid the amounts in full after the Bar began its investigation. Pelligrini claimed he withheld this money in order to negotiate on her medical bills. The client testified that Pellegrini withheld $12,000 from her settlement for payment of her medical bills. Pellegrini ultimately repaid her approximately $2,000 after the Bar began its investigation.
The referee recommended finding Pellegrini guilty on this count of violating rules 4-1.15(a)(client's funds to be held in trust), 4- 1.5(f)(4)(B) (limitation on contingency fees), 4-8.4(b)(committing a criminal act that reflects adversely on the lawyer's honesty, trustworthiness, or fitness as a lawyer), 4-8.4(c)(engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation), and 5- 1.1(a)(money entrusted to attorney for specific purpose to be held in trust and applied only to that purpose), Rules Regulating The Florida Bar. The referee recommended finding Pellegrini not guilty of violating rule 4-8.4(a) (lawyer shall not violate Rules of Professional Conduct), Rules Regulating The Florida Bar.
The referee recommended a finding of not guilty on count V in which the Bar a
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