The Florida Bar v. Brian P. Rush

Supreme Court of Florida
____________

No. SC2020-1685
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THE FLORIDA BAR,
Complainant,

vs.

BRIAN P. RUSH,
Respondent.

May 4, 2023

PER CURIAM.

Respondent, Brian P. Rush, seeks review of a referee’s report

recommending that he be found guilty of professional misconduct

and suspended from the practice of law for three years for failing to

follow his client’s directives and placing his personal pecuniary

interests ahead of the client’s stated goals. 1 Rush challenges the

referee’s findings of fact and recommendations as to guilt, arguing

that his conduct did not violate any of the Rules Regulating The

1. We have jurisdiction. See art. V, § 15, Fla. Const.
Florida Bar (Bar Rules). He also asserts that because he is not

guilty of misconduct, he should not be sanctioned and assessed the

Bar’s costs. We disagree, and for the reasons discussed below, we

approve the referee’s report in its entirety and suspend Rush from

the practice of law for three years.

I. BACKGROUND

North Park Isles and JT North Park (collectively North Park),

both limited liability companies, were owned by three managing

members, Todd Taylor, Jack Suarez, and Bob Suarez. North Park

owned property in Hillsborough County that was the subject of an

eminent domain action by the Florida Department of Transportation

(FDOT). North Park and FDOT reached an agreement to relocate a

planned drainage pond on the property.

In anticipation of further litigation, Taylor hired Rush in 2014.

On behalf of North Park, Taylor signed a fee agreement stating that

Rush’s legal costs and expenses would be paid by the State of

Florida and FDOT. The agreement also stated that if the legal

representation was terminated, North Park would be obligated to

pay the reasonable value of Rush’s services.

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In October 2017, the circuit court entered an order of taking

for the North Park property necessitating a determination of

compensation for the taking. Rush argued that the current

placement of a drainage pond would restrict access to the land

destroying its developmental value, but that FDOT could move the

pond and restore approximately $8,000,000 in value to the land.

This would constitute a nonmonetary benefit, and the enhanced

value of the land would entitle Rush to an award of statutory

attorney’s fees. Initially, North Park went along with Rush’s

argument as the eventual buyer, Jeffery Hills, wanted the pond

moved to accommodate model home frontage.

At first, Hills had difficulty obtaining financing and was paying

extension fees on the purchase contract. In the spring of 2018,

Hills’ financing was approved, but the bank would not fund the

closing until the eminent domain case concluded. At that point,

North Park’s objectives changed, and Rush was told that the goal

was to settle the eminent domain action quickly to facilitate the sale

of the property. Thereafter, Rush began filing a series of

unauthorized pleadings and motions in the eminent domain case

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seeking to preserve and advance his claim for attorney’s fees based

on his nonmonetary benefits argument.

North Park met with Rush to discuss the plan of negotiating

an expediated settlement to facilitate the sale of the property.

During the meeting, Rush reminded North Park that termination of

his services would make North Park responsible for paying his legal

fees and costs. When asked to approximate the amount, Rush

estimated his legal fees and costs to be somewhere between

$300,000 and $1,000,000. Though North Park no longer wanted

Rush to pursue his argument for nonmonetary benefits, it was

afraid to terminate Rush’s representation because of the potential

liability for a million dollars in fees. North Park emphasized to

Rush that the pending sale of the property was the priority and that

the closing needed to occur by the end of April 2018.

North Park enlisted its real estate counsel, Richard Petitt, to

assist with getting Rush to settle the eminent domain case quickly.

But Rush continued to file pleadings with the court that advanced

his argument for nonmonetary benefits. Then, prior to consulting

with North Park, Rush sent FDOT a settlement proposal waiving

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monetary benefits in favor of Rush’s nonmonetary benefits

argument.

In mid-April 2018, at North Park’s urging, Petitt filed a notice

of appearance in the eminent domain case on behalf of North Park.

He instructed Rush not to file anything further without first

obtaining client consent, communicated through Petitt. Despite

this clear directive, Rush continued to file pleadings seeking

approximately $1,400,000 in attorney’s fees based on his argument

for nonmonetary benefits.

Rush’s unwillingness to cooperate with Petitt ultimately

resulted in the circuit court becoming confused as to who was

representing North Park. It refused to rule on any pending motions

until the issue was resolved. North Park told the court that it was

unsure what to do about Rush because it was concerned about its

potential million-dollar fee liability.

Based on prior interactions with Rush and safety concerns,

the FDOT attorney, Aloyma Sanchez, brought Phillip Hobby, an

independent contractor, with her to a hearing in July 2018. After

the hearing, Rush was very angry and threatened to sue Sanchez

for tortious interference of his fee agreement with North Park,
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accused her of scheming to defraud him of attorney’s fees, and

threatened to file a Bar complaint against her. Rush continued to

berate her and followed the pair out of the courthouse. Later, Rush

admitted he threatened to sue Sanchez but denied threatening to

file a Bar complaint, though he felt he could have filed one based on

a comment Sanchez made about an expert witness fee that Rush

claimed was disparaging. Sanchez reported the incident to Petitt

and her supervisor and asked Hobby to write a memorandum

recounting his observations of the encounter. Because of this

interaction, FDOT refused to reach an informal settlement with

North Park and insisted on formal mediation or a trial to have third-

party oversight.

Unable to clarify the representation issue, Petitt sent a client-

approved settlement offer to Rush to sign and submit to FDOT,

specifying that there be no modifications. Fearing that the wording

of the agreement would constitute waiver of his attorney’s fees,

Rush altered the language without consulting or informing North

Park or Petitt and submitted the new version to FDOT. After this

unauthorized submission, North Park terminated Rush’s

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representation and he withdrew from the case, though the court

retained authority to determine his attorney’s fees.

In August 2018, Rush sued North Park seeking fee arbitration

and raising 21 causes of action. All claims were denied, and North

Park was declared the prevailing party in a detailed 32-page order.

Rush attempted to set aside the findings made by the arbitrator and

the parties later entered into a settlement agreement.

Rush also filed and recorded two lis pendens encumbering the

property at issue in the eminent domain case. Because Rush had

no recorded interest in the subject property, the court dissolved

both lis pendens. Rush then filed another lawsuit against Hills, the

property purchaser, the individual who had previously held the

purchase agreement, and the bank financing the purchase.

In November 2018, North Park and FDOT reached a

settlement after formal mediation that did not include relocation of

the drainage pond. The stipulated final judgment was entered in

January 2019, and FDOT paid North Park the monetary value of

the property taken and the expert fees. Rush continued to seek

attorney’s fees based on his nonmonetary benefits argument despite

the agreement. He claimed that North Park, Petitt, and FDOT
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engaged in a conspiracy to settle for a low amount to preclude his

recovery of fees. Rush called the stipulated final judgment

“fraudulent” and a “sham” and attempted to have it undone.

Based on the above findings, the referee recommends that

Rush be found guilty of violating Bar Rules 4-1.2 (Objectives and

Scope of Representation), 4-1.4 (Communication), 4-1.5 (Fees and

Costs for Legal Services), 4-1.7 (Conflict of Interest), 4-3.1

(Meritorious Claims and Contentions), 4-3.4 (Fairness to Opposing

Party and Counsel), and 4-8.4(d) (Misconduct).

The referee found one mitigating factor (absence of prior

disciplinary record) and five aggravating factors: dishonest or selfish

motive in seeking greater attorney’s fees against the client’s

interests and direction; multiple offenses (seven); bad faith

obstruction of the disciplinary proceedings by demonstrating

improper and unprofessional behavior throughout the disciplinary

process; refusal to acknowledge the wrongful nature of the conduct

by showing no remorse and portraying himself as the victim of

illegal conduct of others; and substantial experience in the practice

of law (admitted in 1982 and representing clients in eminent

domain cases since 1987). The referee recommends that Rush be
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suspended from the practice of law for three years and be assessed

the Bar’s costs.

II. ANALYSIS

A. Findings of Fact and Recommendations as to Guilt

Rush challenges the referee’s findings of fact and

recommendations of guilt concerning all seven Bar Rule violations.

Our review of a challenge to the referee’s findings of fact is limited,

and if the findings of fact are supported by competent, substantial

evidence in the record, we will not reweigh the evidence and

substitute our judgment for that of the referee. See Fla. Bar v.

Alters, 260 So. 3d 72, 79 (Fla. 2018) (citing Fla. Bar v. Frederick,

756 So. 2d 79, 86 (Fla. 2000)). Generally, “the referee is in a

unique position to assess witness credibility” based on being able to

observe live testimony, and because of this, the factual findings by

the referee are given great deference. Fla. Bar v. Ratiner, 238 So. 3d

117, 121 (Fla. 2018) (citing Fla. Bar v. Germain, 957 So. 2d 613,

621 (Fla. 2007)). To the extent a party challenges the referee’s

recommendations concerning guilt, the referee’s factual findings

must be sufficient under the applicable rules to support the

recommendations. See Fla. Bar v. Patterson, 257 So. 3d 56, 61 (Fla.
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2018) (citing Fla. Bar v. Shoureas, 913 So. 2d 554, 557-58 (Fla.

2005)). The burden is on the party challenging the referee’s

findings of fact and recommendations concerning guilt to

demonstrate that there is no evidence in the record to support those

findings or that the record evidence clearly contradicts the

conclusions. Germain, 957 So. 2d at 620.

Bar Rule 4-1.2

Under Bar Rule 4-1.2(a), “a lawyer must abide by a client’s

decisions concerning the objectives of representation . . . [and]

whether to settle a matter.” R. Regulating Fla. Bar 4-1.2. Rush

argues that he believed North Park’s main objective was to have the

pond relocated and that his continued argument for nonmonetary

benefits supported this objective. However, Jack Suarez and Petitt

testified at the final hearing that once Hills was able to get

financing, the priority was to settle the eminent domain case as

quickly as possible to facilitate the sale of the land to Hills. Rush

actively frustrated this goal of a quick settlement by continuing to

argue for nonmonetary benefits. We conclude that the record

supports the referee’s findings of fact and that such findings are

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sufficient to support the recommendation that Rush violated Bar

Rule 4-1.2.

Bar Rule 4-1.4

Bar Rule 4-1.4 states a lawyer must “reasonably consult with

the client” about accomplishing objectives and “explain a matter to

the extent reasonably necessary to permit the client to make

informed decisions regarding the representation.” R. Regulating

Fla. Bar 4-1.4(a)(2), (b). Here, Rush admitted that he failed to notify

or consult with North Park before sending FDOT a settlement

agreement purporting to waive monetary benefits. Rush argues

that North Park had implicitly agreed to this settlement agreement

based on prior conversations, but Sanchez testified that Rush was

never authorized to waive compensation. Rush also admitted to

materially altering the client-approved version of the settlement

agreement and submitting it without notifying North Park or Petitt

of the alterations. Rush continued filing unauthorized pleadings

that supported his nonmonetary benefits argument despite North

Park’s instructions to the contrary. Further, Rush failed to

adequately explain his fee agreement, thereby causing North Park

to fear that it would be responsible for as much as a million dollars
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in attorney’s fees if Rush’s representation was terminated. This

estimation of fees was not explained to North Park by Rush and was

based on the argument for nonmonetary benefits being successful,

which it was not. Therefore, we determine that the record supports

the referee’s findings of fact and that such findings are sufficient to

support the recommendation that Rush violated Bar Rule 4-1.4.

Bar Rule 4-1.5

Bar Rule 4-1.5(a) states that a “lawyer must not enter into an

agreement for, charge, or collect an illegal, prohibited, or clearly

excessive fee or cost,” and a fee “is clearly excessive” either when

the fee is “clear overreaching or an unconscionable demand” or the

fee is sought “by means of intentional misrepresentation or fraud

upon the client.” R. Regulating Fla. Bar 4-1.5. Here, the fee

agreement stated that FDOT would pay Rush’s fees unless the

representation was terminated. If the representation was

terminated, North Park would be responsible to pay the reasonable

value of Rush’s services. Rush claimed that under this agreement,

he was entitled to the full amount of potential statutory fees based

on his argument for nonmonetary benefits.

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Attorney’s fees in eminent domain cases, as relevant here, are

governed by section 73.092, Florida Statutes (2019), 2 which states

that fees are “based solely on the benefits achieved for the client”

meaning the difference “between the final judgment or settlement

and the last written offer made by the condemning authority before

the defendant hires an attorney,” which can include “nonmonetary

benefits obtained for the client through the efforts of the attorney”

to the extent that they can be quantified. The statutory fee

schedule allows 33% of any benefit obtained up to $250,000, plus

25% of a benefit between $250,000 and $1 million, plus 20% of any

benefit exceeding $1 million. § 73.092(1)(c), Fla. Stat.

Rush was seeking fees based on his argument that moving the

retention pond would provide a nonmonetary benefit to the client,

the value of which would be $8,300,000. Based on the statute, the

attorney’s fees would equal approximately $1,730,000. However,

Rush never achieved the nonmonetary benefits for the client. There

was not an agreement to move the pond before Rush was fired, and

2. Section 73.092 remained unchanged during Rush’s
representation of North Park.

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pond relocation was not included in the mediated settlement

agreement or the final judgment. Seeking compensation based on

benefits never obtained is patently unreasonable. After the

mediated settlement agreement, the amount of attorney’s fees due

to Rush was calculated to be $110,000.

Thus, Rush’s interpretation of his fee agreement and relentless

attempts to seek these fees constitute an attempt to collect an

illegal, prohibited, or clearly excessive fee or cost in violation of the

rule. We conclude that the record supports the referee’s findings of

fact and that such findings are sufficient to support the

recommendation that Rush violated Bar Rule 4-1.5.

Bar Rule 4-1.7

Bar Rule 4-1.7 states that a lawyer must not represent a client

if “there is a substantial risk that the representation . . . will be

materially limited by . . . a personal interest of the lawyer.” R.

Regulating Fla. Bar 4-1.7(a)(2). Here, despite North Park’s desire to

settle the matter quickly with FDOT to facilitate the sale of the

property, Rush kept filing unauthorized motions seeking to advance

his claim of nonmonetary benefits, which would result in a greater

attorney fee award for Rush. Rush argues that North Park’s
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original goal was to have the pond moved as a nonmonetary benefit,

and he continued to fight for that goal. However, Rush’s focus was

on obtaining greater attorney’s fees for himself, and his continued

argument for nonmonetary benefits delayed the settlement of the

eminent domain case and could have caused the sale of the

property to fall through. Rush’s interest in obtaining greater

attorney’s fees was in direct conflict with the client’s goal of settling

the case quickly. We conclude that the record supports the

referee’s findings of fact and that such findings are sufficient to

support the recommendation that Rush violated Bar Rule 4-1.7.

Bar Rule 4-3.1

Bar Rule 4-3.1 states a “lawyer shall not bring or defend” a

claim “unless there is a basis in law and fact for doing so that is not

frivolous.” R. Regulating Fla. Bar 4-3.1. Rush argues he was

entitled to seek his attorney’s fees from his former client and none

of his filings were ever deemed frivolous by the courts. However, in

seeking payment of fees, Rush filed two lis pendens to encumber

the property, which were subsequently dissolved. Rush did not

have more than an equitable interest in the property, which was an

insufficient basis for his lis pendens actions. Rush also filed
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numerous lawsuits seeking legal fees based on his unsuccessful

nonmonetary benefits argument. Rush also attempted to have the

mediated settlement in the eminent domain case set aside as he

claimed it was a “sham” and “fraudulent.” We conclude that the

record supports the referee’s findings of fact and that such findings

are sufficient to support the recommendation that Rush violated

Bar Rule 4-3.1.

Bar Rule 4-3.4

Bar Rule 4-3.4 states that an attorney must not “threaten to

present disciplinary charges under these rules solely to obtain an

advantage in a civil matter.” R. Regulating Fla. Bar 4-3.4(h). The

attorney for FDOT, Sanchez, testified that Rush threatened to file a

Bar complaint against her for disparaging his expert witness by

commenting that his fee seemed excessive. Rush argues he never

threatened to file a Bar complaint and Sanchez’s testimony was not

corroborated. However, the referee is given great deference with

respect to live testimony in determining credibility of witnesses.

The referee here found Sanchez’s testimony to be credible and

generally corroborated by the email she sent to her supervisor after

the encounter and by Hobby’s testimony. Therefore, we determine
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that the record supports the referee’s findings of fact and that such

findings are sufficient to support the recommendation that Rush

violated Bar Rule 4-3.4.

Bar Rule 4-8.4(d)

Bar Rule 4-8.4(d) states a lawyer must not “engage in conduct

in connection with the practice of law that is prejudicial to the

administration of justice.” R. Regulating Fla. Bar 4-8.4(d). Here,

Rush attempted to set aside the mediated settlement between North

Park and FDOT, filed a lawsuit against his former client and the

buyer of the property, was unprofessional to opposing counsel, and

intentionally impeded the settlement of the eminent domain case on

multiple occasions. None of his various lawsuits and attempts to

undo the settlement were successful, but Rush did delay North

Park from settling the issue and selling the property. North Park

had to pay additional attorney’s fees to defend against Rush’s

various attacks. We conclude that the record supports the referee’s

findings of fact and that such findings are sufficient to support the

recommendation that Rush violated Bar Rule 4-8.4. See Patterson,

257 So. 3d at 64 (finding violation of rule 4-8.4(d) where lawyer’s

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pursuit of his own interests hindered the client’s ability to obtain a

more favorable outcome).

B. Discipline

We now turn to the referee’s recommended discipline, a three-

year suspension. A referee’s recommended discipline must have a

reasonable basis in existing case law and the Florida Standards for

Imposing Lawyer Sanctions. See Fla. Bar v. Picon, 205 So. 3d 759,

765 (Fla. 2016); Fla. Bar v. Temmer, 753 So. 2d 555, 558 (Fla.

1999). 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, ultimately, it is this Court’s responsibility

to order the appropriate sanction. See Fla. Bar v. Kinsella, 260 So.

3d 1046, 1048 (Fla. 2018); Fla. Bar v. Anderson, 538 So. 2d 852,

854 (Fla. 1989); see also art. V, § 15, Fla. Const.

Here, the referee recommends a three-year suspension. Rush

argues that he should not be sanctioned or taxed with the Bar’s

costs because he is not guilty of violating the Bar Rules. He

presented no argument to this Court or to the referee as to why a

lengthy rehabilitative suspension is not appropriate for his

misconduct. Based on Rush’s repeated failure to accede to North
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Park’s clear directives and his unwillingness to put his client’s

interests over his own pecuniary gain, as well as his conduct toward

other attorneys involved in the eminent domain proceedings, we

agree with the referee that Rush’s deliberate disregard of his

professional obligations warrants a severe sanction.

We conclude that the referee’s recommendation of a three-year

suspension has a reasonable basis in the Standards for Imposing

Lawyer Sanctions. See Fla. Stds. Imposing Law. Sancs. 4.3(b)

(“Suspension is appropriate when a lawyer knows of a conflict of

interest, does not fully disclose to a client the possible effect of that

conflict, and causes injury or potential injury to a client.”); 6.2(b)

(“Suspension is appropriate when a lawyer knowingly . . . causes

interference or potential interference with a legal proceeding.”);

7.1(b) (“Suspension is appropriate when a lawyer knowingly engages

in conduct that is a violation of a duty owed as a professional and

causes injury or potential injury to a client, the public, or the legal

system.”).

We also conclude that the recommended sanction has a

reasonable basis in existing case law. This case is analogous to

Florida Bar v. Adorno, 60 So. 3d 1016 (Fla. 2011), where we
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suspended a lawyer for three years for negotiating to the detriment

of other class members when he settled a class action settlement for

named plaintiffs in an amount “grossly disproportionate to the

value of their individual claims” and received a $2 million fee for his

firm. Id. at 1024. There, the referee found three aggravating

factors: prior discipline (private reprimand); multiple offenses

(violation of rules 4-1.5, 4-1.7, and 4-8.4(c) and (d)); and

substantial experience in the practice of law. Id. at 1023. Here,

Rush sought unreasonable attorney’s fees to the detriment of North

Park, among other misconduct, and the referee recommends guilt

for seven rule violations, including the same three found in Adorno,

4-1.5, 4-1.7, and 4-8.4(d). This case is also like Adorno in that,

here, the aggravating factors found by the referee substantially

outweighed the mitigating factors. Thus, it appears that a three-

year suspension is reasonable.

We conclude that Rush’s behavior warrants a three-year

suspension and that he shall pay the Bar’s costs.

III. CONCLUSION

Accordingly, we approve the referee’s report in its entirety.

Brian P. Rush is hereby suspended from the practice of law for
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three years. The suspension will be effective thirty days from the

filing of this opinion so that Rush can close out his practice and

protect the interests of existing clients. If Rush notifies this Court

in writing 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. Rush shall fully

comply with Bar Rule 3-5.1(h) and Bar Rule 3-6.1, if applicable. In

addition, Rush shall accept no new business from the date this

opinion is filed until he is reinstated. Rush is further directed to

comply with all other terms and conditions of the report.

Judgment is entered for The Florida Bar, 651 East Jefferson

Street, Tallahassee, Florida 32399-2300, for recovery of costs from

Brian P. Rush in the amount of $19,761.47, for which sum let

execution issue.

It is so ordered.

MUÑIZ, C.J., and CANADY, LABARGA, COURIEL, GROSSHANS,
and FRANCIS, JJ., concur.

THE FILING OF A MOTION FOR REHEARING SHALL NOT ALTER
THE EFFECTIVE DATE OF THIS SUSPENSION.

Original Proceeding – The Florida Bar

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Joshua E. Doyle, Executive Director, The Florida Bar, Tallahassee,
Florida, Patricia Ann Toro Savitz, Staff Counsel, The Florida Bar,
Tallahassee, Florida, Mark Mason, Bar Counsel, The Florida Bar,
Tallahassee, Florida, and Kimberly Anne Walbolt, Bar Counsel, The
Florida Bar, Tampa, Florida; and Kevin W. Cox, Tiffany
Roddenberry, and Kathryn Isted of Holland & Knight, LLP,
Tallahassee, Florida,

for Complainant

Brian P. Rush of Woodlief & Rush, P.A., pro se, Tampa, Florida,

for Respondent

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