Supreme Court of Florida

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No. SC15-1323

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THE FLORIDA BAR,

Complainant,

vs.

MICHAEL EUGENE WYNN,

Respondent.

[February 16, 2017]

PER CURIAM.

We have for review a referee’s report recommending that Michael Eugene

Wynn be found guilty of professional misconduct and suspended for ninety days, 

followed by two years of probation with conditions. We have jurisdiction. See art. 

V, § 15, Fla. Const. As discussed below, we disapprove of the referee’s 

recommended discipline and instead impose a one-year suspension, followed by 

two years’ probation. 

FACTS

On July 21, 2015, The Florida Bar filed a complaint against Respondent 

Wynn alleging ethical misconduct in connection with his representation of a client, 
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Sylvia Rhodes, in a landlord-tenant matter. The complaint was referred to a 

referee, and the parties subsequently entered into a stipulation of the facts and rule 

violations. The referee approved the stipulation, and in his report, provided the 

following findings of fact:

On October 10, 2013, Respondent emailed Ms. Rhodes informing her 

that $500 was needed for the costs of deposition transcripts. On 

October 10, 2013, Ms. Rhodes paid $500 to Respondent to be used 

towards the cost of deposition transcripts and wrote in the memo 

“Legal Fees.” Respondent deposited the $500 into his business 

operating account on October 15, 2013, rather than to his trust 

account. Respondent failed to pay for the deposition transcripts as had 

been intended. Beginning in December 2013, Ms. Rhodes made 

several inquiries about the status of the deposition transcripts. In early 

January 2014, after another email inquiry by Ms. Rhodes, Respondent 

had a phone conversation with Ms. Rhodes and informed her that due 

to his financial problems he used the funds to pay for law firm 

expenses, such as electricity and rent. During the conversation, 

Respondent indicated he could obtain a loan to pay for the deposition 

transcripts; however, Ms. Rhodes indicated she would pay the court 

reporter directly. Respondent further agreed to repay the funds to Ms. 

Rhodes when he had the financial ability to do so. Respondent 

converted the $500 to pay for business expenses of Michael E. Wynn 

P. A., as well as for other purposes. Respondent failed to hold the 

$500 that was intended for costs in his trust account. A review of 

Respondent’s bank records revealed the funds were used on items 

other than rent and electricity. On January 7, 2014, Ms. Rhodes 

issued a new check for $500 directly to the court reporter to obtain the 

necessary deposition transcripts, as agreed to by Respondent and Ms. 

Rhodes. By email in March 2014, Ms. Rhodes again asked 

Respondent about repayment of the initial $500. By reply email, 

Respondent stated that he would repay Ms. Rhodes as soon as he 

could. By email on September 15, 2014, Ms. Rhodes again inquired 

about the status for the repayment of the initial $500 and requested 

that Respondent to repay the funds by Christmas time. By reply email 

on September 15, 2014, Respondent reiterated to Ms. Rhodes that he 

had completed additional post-judgment legal services which were not 
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part of the original representation and that the fees for services were 

higher than the $500 Respondent owed Ms. Rhodes. Respondent 

further offered to forgo billing Ms. Rhodes for the additional services 

in exchange for not having to remit the $500 owed. Respondent never 

executed a new representation agreement for additional services with 

Ms. Rhodes. There was never an understanding or agreement that the 

$500 could be applied towards legal fees. In October 2014, Ms. 

Rhodes filed a Bar grievance against Respondent. On November 8, 

2014, Respondent arranged for Ms. Rhodes and Mr. Rhodes to meet 

him at MidFlorida Bank in Arcadia, Florida in order to repay the 

$500. During the meeting, Respondent presented Mr. and Mrs. 

Rhodes with a receipt of funds he drafted. Ms. Rhodes signed the 

document, which was notarized, without any discussion about its 

contents. The receipt of funds indicated that the funds were repaid 

and requested that the Bar complaint be dismissed. Respondent 

repaid the $500 upon the condition that Ms. Rhodes would request 

dismissal of the Bar grievance she filed against Respondent. By letter 

dated November 9, 2014, Respondent provided a copy of the receipt 

of funds to the Bar and requested closure of the file. Respondent did 

not provide the required Certificate of Disclosure form. By email on 

November 12, 2014, Respondent was informed by the Bar that his 

written response to the allegations was required along with his 

required completed disclosure form. In response to the grievance, 

Respondent provided a Certificate of Disclosure form, dated 

November 16, 2014, wherein he incorrectly completed the section for 

Sole Practitioner and certified that he was “not presently affiliated 

with a law firm and was not affiliated with a law firm at the time of 

the act(s) giving rise to the complaint in The Florida Bar File No. 

2015-10,358 (20A).” At the time Respondent completed the 

November 16, 2014, disclosure form, he was employed by the Office 

of Regional Conflict Counsel, Second District, in Fort Myers, Florida. 

Respondent failed to timely notify his superiors with the Office of 

Regional Conflict Counsel, Second District, of the grievance filed 

against him as required by Rule 3-7.1 (f). Respondent did not provide 

notice of the grievance to his superiors with the Office of Regional 

Conflict Counsel, Second District, until December 2, 2014.
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Rep. of Ref. 2-3. Also based on the stipulation, the referee recommended that 

Respondent be found guilty of violating Rules Regulating the Florida Bar 3-7.1(f)

(Notice to Law Firms), 4-1.5 (Fees and Costs for Legal Services), 4-8.4(d)

(Misconduct—a lawyer shall not engage in conduct prejudicial to the 

administration of justice), and 5-1.1 (Trust Accounts).

As for discipline, the referee recommended that Respondent be suspended 

for ninety days, followed by two years of probation during which Respondent 

would be required to participate in mentor monitoring, submit quarterly reports by 

a CPA, if in private practice, undergo an office procedures and record-keeping 

analysis by and under the direction of Diversion/Discipline Consultation Service 

(formerly LOMAS), and attend ethics school, a trust accounting workshop, and a 

stress management workshop. The referee also recommended that Respondent pay 

the Bar’s costs. The Bar seeks review of the referee’s recommended discipline and 

argues that a one-year suspension is the appropriate sanction. 

ANALYSIS

In reviewing a referee’s recommended discipline, this Court’s scope of 

review is broader than that afforded to the referee’s findings of fact because it is 

the Court’s ultimate responsibility to order the appropriate sanction. See Fla. Bar 

v. Anderson, 538 So. 2d 852, 854 (Fla. 1989); see also Art. V, §15, Fla. Const. 

However, generally speaking the Court will not second-guess the referee’s 
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recommended discipline as long as it has a reasonable basis in existing case law 

and the Florida Standards for Imposing Lawyer Sanctions. See Fla. Bar v. 

Temmer, 753 So. 2d 555, 558 (Fla. 1999). 

Here, the Bar does not dispute the referee’s reliance upon Florida Standards 

for Imposing Lawyer Sanctions 4.0 (Violation of Duties Owed to Clients) and 7.0 

(Violations of Other Duties Owed as a Professional) in recommending that 

Respondent be suspended under standards 4.12 and 7.2, rather than disbarred under 

standards 4.11 and 7.1. The Bar concedes that the referee properly found 

significant mitigating circumstances that weigh in favor of suspension rather than 

disbarment in this case. The Bar does dispute, however, the referee’s 

recommendation as to the appropriate length of the suspension. 

We agree with the Bar that the referee’s recommendation of a ninety-day 

suspension does not have a reasonable basis in existing case law. First, the main 

case relied upon by the referee, Florida Bar v. Lopez, 83 So. 3d 710 (Fla. 2012), is 

an unpublished disposition, approving an uncontested report of referee; thus, it 

cannot constitute “case law” providing a reasonable basis for the referee’s 

recommendation. Second, none of the other published cases cited by the referee, 

which are all more than approximately twelve years old, support a short-term nonrehabilitative suspension. In Florida Bar v. Frederick, 756 So. 2d 79 (Fla. 2000), 

the Court imposed a ninety-one-day suspension on an attorney who had engaged in 
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a convoluted series of unethical acts pertaining to funds he received from 

prospective class action clients. Subsequently, the attorney, prior to withdrawing 

from the representation, negotiated a settlement with the clients involving a refund 

to the clients in exchange for their agreement not to contact The Florida Bar or to 

withdraw any complaint already filed against him. The attorney also employed 

and improperly permitted a disciplinarily resigned attorney to have direct contact 

with a client. In Florida Bar v. Smith, 866 So. 2d 41 (Fla. 2004), the Court 

imposed a one-year suspension on an attorney who deposited a $1665 check from a 

client for filing fees into her operating account and then used the funds for other 

expenses; failed to diligently represent that client and another client in an 

immigration matter; and issued a worthless check. The referee in Smith found 

significant mitigation in the form of, among other things, very serious medical 

issues, an absence of dishonest or selfish motive, rehabilitation, and remorse. In 

Florida Bar v. Corces, 639 So. 2d 604 (Fla. 1994), the Court imposed a two-year 

suspension where an attorney intentionally debited a client trust account over 

$6000, used the funds to pay personal bills, then over the course of twenty months 

repaid the deficit in the client trust account. Finally, in Florida Bar v. McNamara, 

634 So. 2d 166 (Fla. 1994), an attorney converted for his own use a $5000 check 

from a third party that was either to be held in escrow or be used to reduce his 
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client’s tax obligation. Although the Court noted that there was evidence in the 

record to support several mitigating factors, we imposed a three-year suspension. 

Here, as in several of the cases discussed above, Respondent converted 

client funds for his own use and repaid the funds at a later time. In addition, as in 

Frederick, he attempted to condition the repayment upon the client’s agreement not 

to complain to the Bar about his misconduct. Based on the existing case law, we

conclude that the Bar is correct that a one-year suspension, followed by two years’ 

probation with the conditions recommended by the referee, is warranted. As we 

have noted many times, misuse or misappropriation of client funds is one of the 

most serious offenses a lawyer can commit, and disbarment is presumed to be the 

appropriate punishment. Fla. Bar v. Travis, 765 So. 2d 689, 691 (Fla. 2000). We 

see no reason under the circumstances of this case, even given the referee’s 

uncontested findings of mitigation, to impose anything less than a rehabilitative 

suspension. 

CONCLUSION

Accordingly, Michael Eugene Wynn is hereby suspended from the practice 

of law for one year, followed by two years of probation under the terms and 

conditions as set forth in the referee’s report. The suspension will be effective 

thirty days from the filing of this opinion so that Wynn can close out his practice 

and protect the interests of existing clients. If Wynn notifies this Court in writing 
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that he is no longer practicing and does not need the thirty days to protect existing 

clients, this Court will enter an order making the suspension effective immediately. 

Wynn shall fully comply with Rule Regulating the Florida Bar 3-5.1(g). Further, 

Wynn shall accept no new business from the date this opinion is filed until he is 

reinstated.

Judgment is entered for The Florida Bar, 651 East Jefferson Street, 

Tallahassee, Florida 32399-2300, for recovery of costs from Michael Eugene 

Wynn in the amount of $3,975.45, for which sum let execution issue.

It is so ordered.

LABARGA, C.J., and PARIENTE, LEWIS, QUINCE, CANADY, and 

POLSTON, JJ., concur.

LAWSON, J., did not participate.

THE FILING OF A MOTION FOR REHEARING SHALL NOT ALTER THE 

EFFECTIVE DATE OF THIS SUSPENSION.

Original Proceeding – The Florida Bar

John F. Harkness, Jr., Executive Director, The Florida Bar, Tallahassee, Florida; 

Adria E. Quintela, Staff Counsel, The Florida Bar, Sunrise, Florida; and Chardean 

Mavis Hill, Bar Counsel, The Florida Bar, Tampa, Florida,

for Complainant

Edward Joseph Kelly, Fort Myers, Florida, and Robert Gary Hines, Fort Myers, 

Florida,

for Respondent