The Florida Bar v. Curtis S. Alva

Supreme Court of Florida
____________

No. SC2021-1564
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THE FLORIDA BAR,
Complainant,

vs.

CURTIS S. ALVA,
Respondent.

October 17, 2024

PER CURIAM.

We have for review a referee’s report recommending that

Respondent, Curtis S. Alva, be found guilty of professional

misconduct in violation of the Rules Regulating The Florida Bar and

that he be suspended from the practice of law for one year and

ordered to pay restitution. Respondent has petitioned for review,

challenging the referee’s recommendations as to guilt and the

recommended discipline.1 For the reasons discussed below, we

approve the referee’s findings of fact and recommendations of guilt

1. We have jurisdiction. See art. V, § 15, Fla. Const.
as to Bar Rules 3-4.3 (Misconduct and Minor Misconduct), 4-1.5(a)

(Fees and Costs for Legal Services), and 4-8.4(a) (A lawyer shall not

violate or attempt to violate the Rules of Professional Conduct . . . .).

However, we disapprove the referee’s recommendations of guilt as to

Bar Rule 4-1.4(b) (Communication) and find Respondent not guilty

of violating this rule. We also approve the referee’s recommended

discipline of a one-year suspension but do not order Respondent to

pay restitution.

I

On September 19, 2016, Respondent’s law firm Alva & Gleizer,

PLLC was engaged to represent Dr. ColorChip Corp. (Dr. ColorChip)

and Daniel McCool, the president of Dr. ColorChip, in a dispute

against William McLean. The engagement was reduced to writing

and signed by McCool in his capacity as the president of Dr.

ColorChip.

The engagement letter specified that the hourly rate for

attorney time was $400 and that the hourly rate for paralegal time

was $100. The engagement letter required McCool and Dr.

ColorChip to pay a $25,000 retainer if the matter progressed to

litigation. The letter also stated that Respondent would invoice the

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clients monthly and that payment would be due within 10 days.

Further, the engagement letter explained that the retainer would be

applied to any unpaid invoices after 10 days. The retainer was to

be held in trust and any unapplied retainer was to be refunded

upon termination of the representation. Finally, any amendments

to the agreement had to be in writing and signed by all parties.

The court proceedings commenced, and the clients remitted

the $25,000 retainer to Respondent to be held in trust. In the

months that followed, Respondent invoiced the clients, and the

clients promptly paid the invoices. At times, Respondent sent more

than one invoice in a month, and on occasion, Respondent asked

the clients to pay sooner than 10 days after the date of the invoice.

On January 9, 2018, Respondent sent the “December invoice”

for work performed between December 1, 2017, and December 29,

2017. The invoice represented 66.8 hours worked for a total of

$25,040. McCool testified that he was out of the country when

Respondent sent the invoice. On February 5, McCool notified

Respondent by e-mail that he had received the invoice but that the

company needed to discuss and review the bill. McCool testified

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that he delegated the task of reviewing the invoice to Patricia

O’Rourke, an employee of Dr. ColorChip.

In a February 13 e-mail, O’Rourke advised Respondent that

McCool had forwarded three invoices, including December, to her

for review. In a second e-mail dated February 16, O’Rourke asked

Respondent seven questions about the December invoice so she

could conclude her review of the invoice. Five days later, O’Rourke

sent a follow-up e-mail because she had not received answers to her

questions.

On February 21, Respondent replied to O’Rourke’s e-mail

stating that he would be happy to answer the questions if they were

being asked in good faith. He then conditioned his decision to fully

respond to the questions on the clients paying $18,240 toward the

December invoice. Respondent stated that if the clients did not pay

that amount, he would not believe they were questioning the bill in

good faith. He also informed the clients that he would either

enforce the contract as written and seek the $25,040 or charge the

clients a higher rate which would result in a $125,000 bill.

Furthermore, Respondent warned that if he believed there was no

good faith on the clients’ part, he would make a claim for bad faith,

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misrepresentation, and punitive damages, seeking treble damages

in the amount of $375,000.

McCool sent Respondent an e-mail on February 26, asking

questions about the December invoice. That same day, Respondent

replied to his e-mail and sent Invoice #95 to the clients, requesting

payment in the amount of $126,650. In this invoice, Respondent

billed the clients an additional $150 an hour for attorney time and

$25 an hour for paralegal time for a total of 1,032.5 hours,

representing all the hours that Respondent had previously billed.

The effect of this bill was to retroactively and unilaterally increase

the hourly rate, above that in the engagement letter, for all the work

Respondent’s firm previously performed and for which the clients

had previously paid. The engagement letter between the parties did

not provide for this penalty.

The next day, McCool notified Respondent by e-mail that he

had authorized his bank to pay $25,040, the full amount of the

December invoice. On March 7, Respondent sent McCool an e-mail

thanking him for payment of the December invoice.

However, on March 20, Respondent sent the clients a

statement showing that the $25,000 retainer had been deducted

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from Respondent’s trust account and that the clients owed an

overdue balance of $101,834.95 based on Invoice #95 (applying a

retroactive increase in the hourly billing rates). On April 9, McCool

sent an e-mail to Respondent requesting the return of the $25,000

retainer. The next day, Respondent replied:

There is no return due. There is a balance due in excess
of $100,000.00. The $25,000.00 retainer payment was
applied to the unpaid invoice and the balance in your
retainer account is $0. Please make a check for the
balance and let me know when I can pick it up. If you do
not intend to pay in full, please let me know promptly so
I can pursue collection.

Ultimately, in a separate civil action, the clients sought return

of the $25,000 retainer fee from Respondent’s firm, arguing that it

amounted to a double payment of the December 2017 invoice. On

May 31, 2022, the court granted summary judgment in favor of the

clients and a final judgment was entered, ordering that the clients

were entitled to the return of their retainer fee.

On these facts, the referee recommended that Respondent be

found guilty of violating Bar Rules 3-4.3, 4-1.4(b), 4-1.5(a), and

4-8.4(a). The referee found that the clients had a history of paying

Respondent timely and in full for more than one year before they

questioned the December invoice and that the clients’ request to

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review the December invoice was reasonable. Furthermore, the

referee did not find reasonable Respondent’s claim that the clients

were questioning the bill in bad faith. Finally, the referee rejected

Respondent’s argument that he had a right to nullify the

engagement agreement and seek restitution from the clients by

charging them at an increased hourly rate retroactive to the

initiation of representation for failing to pay the December invoice

within 10 days.

In recommending discipline, the referee found four aggravating

factors under Standard for Imposing Lawyer Sanctions (Standard)

3.2 (Aggravation): (1) dishonest or selfish motive; (2) refusal to

acknowledge the wrongful nature of conduct; (3) substantial

experience in the practice of law; and (4) indifference to making

restitution. The referee found three mitigating factors under

Standard 3.3 (Mitigation): (1) absence of a prior disciplinary record;

(2) full and free disclosure to the Bar or cooperative attitude toward

the proceedings; and (3) character or reputation.

As a sanction, the referee recommended that Respondent be

suspended from the practice of law for one year and ordered to pay

the Bar’s costs in these proceedings, totaling $22,866.60.

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Additionally, the referee recommended that Respondent be ordered

to pay restitution in the amount of $25,000 to Dr. ColorChip.

Respondent filed a notice of intent to seek review of the report

of referee, challenging the referee’s recommendations of guilt as well

as the recommended discipline.

II

A

Respondent challenges the referee’s recommendations of guilt

as to Bar Rules 3-4.3, 4-1.4(b), 4-1.5(a), and 4-8.4(a). To the extent

Respondent challenges the referee’s recommendations as to guilt,

“the referee’s factual findings must be sufficient under the

applicable rules to support the recommendations as to guilt.” See

Fla. Bar v. Patterson, 257 So. 3d 56, 61 (Fla. 2018) (citing Fla. Bar v.

Shoureas, 913 So. 2d 554, 557-58 (Fla. 2005)). Ultimately, as the

party challenging the referee’s conclusions, Respondent has the

burden to demonstrate that there is no evidence in the record to

support those findings or that the record evidence clearly

contradicts the conclusions. Fla. Bar v. Germain, 957 So. 2d 613,

620 (Fla. 2007).

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Respondent does not dispute the facts of the case but argues

that he was permitted to nullify his engagement agreement and

demand restitution in the form of a retroactive hourly billing

increase because his clients did not pay the December invoice

within 10 days of receipt. We disagree.

While restitution is an available remedy for breach of contract,

the proper place to seek such a remedy is in civil court. There, a

trier of fact would determine if the clients materially breached the

engagement agreement by paying the December invoice several

weeks late because they had questions about the bill, despite

making all prior payments on time.2

Instead of following this course of action, Respondent declared

his clients’ breach sufficient to nullify the contract, refused to

2. Demonstration of a material breach “is a prerequisite under
the restitution theory.” Beefy Trail, Inc. v. Beefy King Int’l, 267 So.
2d 853, 857 (Fla. 4th DCA 1972) (citing Corbin on Contracts, Vol. 5,
s 1104). “A minor breach by one party does not discharge the
contractual duty of the other party; and the latter being still bound
to perform as agreed can not be entitled to the restitution of
payments already made by him or to the value of other part
performances rendered.” Id. (quoting Corbin on Contracts, Vol. 5, s
1104, at 562-65).

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address their billing questions, alleged bad faith, and threatened to

sue them for $375,000. He then issued Invoice #95 to the clients,

demanding they pay $126,650 that represented increased hourly

rates retroactive to the initiation of the representation. Moreover,

Respondent then refused to return the $25,000 retainer fee even

after the clients paid the full amount owed on the December

invoice. In essence, as the referee found, by refusing to return the

retainer fee, it was as if Respondent was paid twice for the

December invoice. Respondent had no legitimate basis to make

these unilateral monetary demands or retain his clients’ money in

excess of the properly billed amounts pursuant to the engagement

agreement.

Moreover, the circuit court in the clients’ civil case against

Respondent granted summary judgment in favor of the clients and

ordered Respondent to return the retainer fee. Respondent

concedes that he lost the case and that the retainer fee was

returned to the clients. The referee properly relied on the circuit

court’s findings that the clients had a zero-balance owed to

Respondent after they paid the December invoice. See Fla. Bar v.

Gwynn, 94 So. 3d 425, 430 (Fla. 2012) (noting that a referee in a

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Bar disciplinary proceeding may “properly rely upon facts

established in orders and decisions of other tribunals to support his

or her findings of fact”).

B

Turning now to the specific rule violations, Respondent

challenges the referee’s findings that he violated Bar Rule 3-4.3.

That rule states, in part: “The commission by a lawyer of any act

that is unlawful or contrary to honesty and justice may constitute a

cause for discipline whether the act is committed in the course of

the lawyer’s relations as a lawyer or otherwise . . . .” As detailed

above, Respondent had no legitimate basis to demand the clients

pay $126,650 in what he determined were retroactive amounts due,

nor to refuse to return the clients’ $25,000 retainer fee. This

conduct was worsened by his immediate threats to sue the clients

when they made, as determined by the referee, legitimate inquiries

about the bill. He also refused to answer those questions unless

the clients first paid a portion of the bill, despite their consistent

history of prompt payments. As such, his actions were “contrary to

honesty and justice.” See Fla. Bar v. Cocalis, 959 So. 2d 163, 166-

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67 (Fla. 2007) (finding a lawyer violated rule 3-4.3 by engaging in

unprofessional and unethical conduct).

C

Also, Respondent challenges the referee’s recommendation

that he be found guilty of violating Bar Rule 4-1.5(a), which

provides that “[a] lawyer must not . . . charge, or collect an illegal,

prohibited, or clearly excessive fee or cost.” A fee is “clearly

excessive” if “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

lawyer” or “the fee or cost is sought or secured by the lawyer by

means of intentional misrepresentation or fraud upon the client.”

R. Regulating Fla. Bar 4-1.5(a)(1)-(2).

The Bar contends that Respondent charged an illegal or

excessive fee by charging the clients $126,650, which was the

retroactive difference between the amount the clients already paid

under the engagement agreement and the amount Respondent

believed was the “fair market value” for his work. As discussed

above, we conclude that Respondent had no basis to demand this

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payment from his clients. As such, Respondent’s attempt to collect

this amount by invoicing the clients for the total and then refusing

to remit the retainer balance to the clients constituted a clearly

excessive and unconscionable fee in violation of this rule. See Fla.

Bar v. Kavanaugh, 915 So. 2d 89, 93 (Fla. 2005) (finding attorney

violated Bar Rule 4-1.5(a) when he retained a contingency fee that

was a larger percentage of his client’s recovery than was provided

for in the contingency fee agreement).

D

Next, Respondent contests the referee’s recommendation that

he be found to have violated Bar Rule 4-8.4(a), which proscribes a

lawyer from violating or attempting to violate the Rules of

Professional Conduct. Because we approve the recommendations of

guilt as to Bar Rule 4-1.5(a), we also approve the recommendation

of guilt as to this rule. See Fla. Bar v. Herman, 8 So. 3d 1100, 1106

(Fla. 2009).

E

Also, Respondent challenges the referee’s recommendation

that he be found to have violated Bar Rule 4-1.4(b). The Bar

argues, and the referee found, that Respondent failed to properly

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inform his clients that he would seek to charge them higher hourly

rates if they did not pay the invoice within 10 days.

Bar Rule 4-1.4(b) requires that a lawyer “explain a matter to

the extent reasonably necessary to permit the client to make

informed decisions regarding the representation.” The comments to

the rule elaborate that “[t]he client should have sufficient

information to participate intelligently in decisions concerning the

objectives of the representation and the means by which they are to

be pursued, to the extent the client is willing and able to do so.”

The comments also provide examples of the necessary

communication between a lawyer and client, such as explaining a

negotiation proposal, discussing general strategy and likelihood of

success, and consulting on litigation tactics that may result in

significant expense.

We find that this rule does not apply to the conduct at issue

here. The issue is not Respondent’s failure to properly

communicate the terms of engagement or provisions of the

agreement. The Bar does not allege nor do the facts support that

the clients misunderstood or were not properly advised about the

terms of the agreement. The issue is that Respondent did not follow

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the agreement but instead unilaterally declared the engagement

agreement void and then demanded a sum of money from the

clients, the amount of which he derived without regard to the rates

set forth in the engagement agreement. Therefore, we disapprove

the referee’s recommendation that Respondent be found to have

violated Bar Rule 4-1.4(b).

III

We also address the referee’s recommended discipline of a one-

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) (citing 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 the Court’s

responsibility to order the appropriate sanction.” Id. (citing Fla. Bar

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

Fla. Const.

Under Standard 7.1 (Deceptive Conduct or Statements and

Unreasonable or Improper Fees), “[s]uspension is appropriate when

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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.” Whereas a “[p]ublic

reprimand is appropriate when a lawyer negligently 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.”

Respondent argues that under this Standard, a public

reprimand, if anything, would be appropriate in his case. However,

Respondent fails to address the distinctions between these

subdivisions; namely, the subdivisions differ in whether the

attorney’s conduct was knowing or negligent. Standard 1.2 defines

“knowledge” as “the conscious awareness of the nature or attendant

circumstances of the conduct but without the conscious objective or

purpose to accomplish a particular result.” “ ‘Negligence’ is the

failure of a lawyer to heed a substantial risk that circumstances

exist or that a result will follow . . . .” Fla. Std. Imposing Law.

Sancs. 1.2.

Considering these definitions, it is apparent that Respondent

acted knowingly. Moreover, his clients were injured because he

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refused to answer their questions regarding the December invoice

unless they paid $18,240 toward that invoice and threatened to sue

them for bad faith seeking $375,000. Then, he invoiced them for

$126,650 in an effort to compel the clients to pay higher rates

retroactive to the initiation of the representation, and he retained

the $25,000 retainer fee even after the clients paid the December

invoice. These actions resulted in the clients having to sue

Respondent in civil court for the return of their retainer fee and

later defend their judgment on appeal. A retainer that they

requested be returned in 2018 was not returned to them until the

litigation concluded in 2024.

Further, we conclude that considering the aggravating and

mitigating circumstances reflected in the record, the recommended

sanction of a one-year suspension has a reasonable basis in the

Standards. In this case, as noted above, the referee found four

aggravating factors and three mitigating factors. “[A] referee’s

findings of mitigation and aggravation carry a presumption of

correctness and will be upheld unless clearly erroneous or without

support in the record.” Germain, 957 So. 2d at 621. We find no

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error in the determination of these factors and approve the referee’s

findings.

Our precedent also supports the imposition of a one-year

suspension. In Florida Bar v. Draughon, this Court rejected the

referee’s recommendation of a public reprimand and suspended the

attorney for one year for one violation of Bar Rule 3-4.3,

emphasizing that the Court has “consistently stated that basic

fundamental dishonesty is a serious flaw, one which cannot be

tolerated by a profession that relies on the truthfulness of its

members.” 94 So. 3d 566, 571 (Fla. 2012). In that case, a

bankruptcy court had determined that Draughon had fraudulently

transferred property without consideration to avoid paying a

creditor. Id. at 568. We explained that this Court “expects

members of the Bar ‘to conduct their personal business affairs with

honesty and in accordance with the law.’ ” Id. at 571 (quoting Fla.

Bar v. Hall, 49 So. 3d 1254, 1261 (Fla. 2010)). That cannot be said

of Respondent’s conduct, here. We conclude that he violated Bar

Rule 3-4.3 when, without basis in his engagement agreement with

the client, he demanded an arbitrary and punitive fee, threatening

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the client with collections proceedings that he knew would have

been baseless.

In Florida Bar v. Rush, 361 So. 3d 796 (Fla. 2023), this Court

suspended a lawyer for three years for seeking approximately $1.73

million in attorney’s fees, even though the lawyer never established

a statutory right to such fees. Rush threatened his clients with a

baseless claim of legal fees and costs totaling between $300,000

and $1 million in the event the client fired him, which appeared to

be a calculation of what he would have earned as a statutory fee if

the litigation was successful. Id. at 799. Rush’s actions initially

dissuaded the clients from terminating representation, but when

the clients eventually terminated the representation, Rush sued his

former clients and attempted to undo a negotiated settlement. Id.

at 800. While the misconduct in Rush was more egregious than

Respondent’s and resulted in more significant rule violations, it

does bear similarities. This Court determined that it was “patently

unreasonable” for Rush to seek compensation based on benefits

never obtained. Id. at 803. That is what Respondent tried to do

here, when he baselessly demanded a fee that had not been agreed

to by the parties and refused to refund the client’s retainer.

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Last, Respondent challenges the referee’s recommendation to

order him to pay $25,000 in restitution. Since Respondent’s appeal

has concluded, the Bar concedes that this issue is now moot.

Because Respondent has represented to this Court that the

$25,000 was held in an appeals bond and has been returned to the

clients, we do not order Respondent to pay restitution in this case.

We conclude, based on a review of relevant case law, and the

aggravating and mitigating factors found by the referee, that a one-

year suspension is the appropriate sanction in this case.

IV

Accordingly, we approve the referee’s findings of fact and

recommendations of guilt as to Bar Rules 3-4.3, 4-1.5(a), and

4-8.4(a). However, the referee’s recommendation of guilt as to Bar

Rule 4-1.4(b) is hereby disapproved, and we find Respondent not

guilty of violating this rule. Respondent is hereby suspended from

the practice of law for one year. Respondent’s suspension will be

effective 30 days from the filing of this opinion so that he can close

out his practice and protect the interests of existing clients. If

Respondent notifies this Court in writing that he is no longer

practicing and does not need the 30 days to protect existing clients,

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this Court will enter an order making the suspension effective

immediately. Respondent shall fully comply with Rule Regulating

The Florida Bar 3-5.1(h). Further, Respondent shall accept no new

business from the date this opinion is filed until he is reinstated.

Respondent shall also fully comply with Rule Regulating The Florida

Bar 3-6.1, if applicable.

Judgment is entered for The Florida Bar, 651 East Jefferson

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

Curtis S. Alva in the amount of $22,866.60, for which sum let

execution issue.

It is so ordered.

MUÑIZ, C.J., and CANADY, COURIEL, GROSSHANS, FRANCIS,
and SASSO, JJ., concur.
LABARGA, J., concurs in part and dissents in part with an
opinion.

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

LABARGA, J., concurring in part and dissenting in part.

I concur with the majority’s decision as to the referee’s

findings of fact, findings in aggravation and mitigation, and

recommendations of guilt. I also concur with the majority’s

decision to disapprove the referee’s recommendation of restitution.

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However, because I cannot agree with the majority’s decision to

accept the referee’s recommendation that Respondent be suspended

from the practice of law for one year, I respectfully dissent.

The facts presented during the evidentiary hearing before the

referee revealed a hotly contested fee dispute between a lawyer and

his clients—a situation not uncommon in our judicial system.

Ultimately, the matter was litigated in court where the trial judge

granted summary judgment in favor of the clients and Respondent

was ordered to return the $25,000 retainer in question. After losing

his appeal of the trial court’s ruling, Respondent returned the

retainer to his former clients as ordered by the trial court and the

case came to an end.

In considering the appropriateness of the referee’s

recommendation, I find it significant that Respondent has been a

member of The Florida Bar since September 30, 1999—

approximately 25 years. It is even more significant that he has

never been disciplined by this Court. While Respondent’s actions in

his pursuit of legal fees in this case may have been overly

aggressive and without legal support, I do not believe his actions

warrant a one-year suspension. I would instead impose a public

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reprimand to be administered by the President of The Florida Bar

before the Board of Governors.

I would also enter a judgment for The Florida Bar for recovery

of costs from Respondent Curtis S. Alva in the amount of

$22,866.60.

Original Proceeding – The Florida Bar

Joshua E. Doyle, Executive Director, Patricia Ann Toro Savitz, Staff
Counsel, Mark Lugo Mason, Bar Counsel, The Florida Bar,
Tallahassee, Florida, and Joi Pearsall, Bar Counsel, The Florida
Bar, Sunrise, Florida,

for Complainant

Curtis Alva of the Law Office of Curtis Alva, Riviera Beach, Florida,

for Respondent

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