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Business Observer Friday, Feb. 27, 2004 15 years ago

No Laughing Heirs (Tampa edition)

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Philip Winston Dann lost his right to practice law for his representation of an elderly miser who left his fortune to Dann. Should he be a lawyer again?

No Laughing Heirs (Tampa edition)

Philip Winston Dann lost his right to practice law for his representation of an elderly miser who left his fortune to Dann. Should he be a lawyer again?

By Janet Leiser

Managing Editor

It sounds like an ethical dilemma contrived by a law professor: An elderly client with more than $1 million and no known heirs doesn't have many years left. He tells his lawyer he wants to leave all of his money to him.

What should a lawyer do?

St. Petersburg attorney Philip Winston Dann called a colleague to draft a will for his client Walter Vossiek, a retired engineer with Ford Motor Co. Dann's inheritance seemed like a sure thing when Vossiek, 93, died June 22, 1997.

Then Dann's former secretary, Suzanne Howard Goldstone, told the Florida Bar that Vossiek, a penny pincher who wore ill-fitting, secondhand clothes and went without air conditioning during Florida's hot summers to save money, had suffered dementia for years. The will he had signed, making Dann the sole beneficiary, even misspelled his name, "Vossick."

Dann's expected inheritance turned into a costly legal fight with the Florida Bar, and Vossiek's long lost cousins in Missouri, who according to Florida law would have inherited his fortune if the old man hadn't signed a will. Vossiek's estate was valued in October 2001 at $1.7 million.

Nearly seven years after Vossiek's death, Dann's legal problems continue. He is fighting to regain his law license, which was suspended by the Florida Supreme Court in April 2002. And in a settlement two years ago, he gave $880,000 to Vossiek's 18 cousins, who had never met the man or heard of his wealth prior to his death. One was a first cousin, the others second or third. Their Missouri attorneys received $218,000.

In the legal profession, the cousins are considered intestate heirs. Some call them "laughing heirs."

"They laughed their way to the bank. The money fell from heaven," said Steven Hearn, a Tampa lawyer who represented Dann in the Vossiek probate case, 97-3782-ES4, in Pinellas County.

Still, it hasn't been all bad for Dann, the grandson of Herman Dann, a St. Petersburg pioneer and Democratic state senator in the 1930s. Even after the settlement with Vossiek's cousins, Dann reaped between $880,000 to $1 million from the trust, including his legal fees, according to testimony at a Feb. 16 hearing before Hillsborough Circuit Chief Judge Manuel Menendez.

To practice law again in Florida, Dann must convince Menendez, the referee in the case, of his rehabilitation. Menendez will make a recommendation to the Florida Supreme Court. Usually the high court accepts a referee's recommendation, although the court previously sent the Dann case back to Menendez after the 1999 hearing in which the bar sought to disbar Dann.

At the all-day Feb. 16 hearing in downtown Tampa, Dann's attorney, Scott Tozian, portrayed his client as contrite. He has done volunteer work at St. Petersburg High School in the past five months.

All those negative things Dann said to other lawyers about the Florida Bar, he now claims he didn't really mean them. He was just upset at how bar prosecutor Brett Geer went after him for his representation of Vossiek. He points to Geer's subsequent resignation from the bar as evidence Geer was "an overzealous prosecutor."

"I was very frustrated by Brett Geer's tactics," Dann said. "I felt some of them were improper."

Last summer, Dann said he retook the ethics portion of the bar exam and passed it. In the future, Dann said, he'll "take the high road if there's any question at all ethically speaking about doing something."

Dann and Tozian declined comment for this article.

The Florida Bar, which opposes Dann's reinstatement, called four witnesses, including two St. Petersburg attorneys - John Ellis, a sole practitioner, and Michael Kiernan of Abbey, Adams, Byelick, Kiernan Mueller & Lancaster LLP. Both said Dann shouldn't be readmitted to the bar.

Speaking on Dann's behalf were Hearn; two Pinellas County judges, circuit Judge John Lenderman and Senior Judge Robert Beach; and two Pinellas attorneys, Wally Pope and William J. Keane.

"I think this is an aberration. I think it is not reflective of the man," Keane said of the charge that Dann acted unethically and in violation of Florida Bar Rules of Conduct in his handling of the Vossiek case.

"I think he has learned his lesson," said Pope, a former Clearwater Bar Association president and a partner in Johnson Pope Bokor Ruppel & Burns LLP.

Pope, who has known Dann since law school at the University of Florida, said he wouldn't put his own reputation on the line if he didn't have confidence in Dann. "If he ever does anything this stupid again he'd better not ever call me to testify for him again," Pope said.

Both attorneys said Dann is an intelligent, knowledgeable lawyer.

"As he told me when we talked about this, he screwed up big time," said Keane of Keane Reese & Vesely PA. "This thing is troublesome to me because of the way I've always regarded Phil as one of the lawyers that would stand against the tide."

Keane, who said he recently read the previous referee report by Menendez on Dann's handling of the Vossiek case, said, "It's not a very proud picture."

In addition to being named Vossiek's heir, Dann gave $10,000 gifts to himself, his wife, who is a Pinellas school principal, and their daughter, from the trust prior to Vossiek's death, according to court testimony.

Also, while Vossiek was alive, Dann borrowed $45,000 to buy a Mercedes Benz. He repaid $35,000.

On another occasion, he took an advance of $69,000 through a wire transfer, he said. Dann said he repaid $270,000, plus interest, that he had borrowed as a mortgage loan.

Goldstone, who wasn't called to testify, declined comment for this article. But she said she understands why people are reluctant to come forward with allegations of wrongdoing for fear of being victimized.

The Pinellas-Pasco State Attorney's Office investigated Dann's handling of the Vossiek matter and declined to prosecute. "We found insufficient evidence to support a criminal charge," said State Attorney Bernie McCabe. Two assistant state attorneys previously told Menendez that Goldstone's statements were inconsistent.

Judge Lenderman, who has known Dann since they were students at St. Petersburg High School, testified at the Feb. 16 hearing by telephone. "I don't think there has ever been a question about Phil's moral standing and character," Lenderman said. "From what I can tell and what I know, this is a real aberration."

Dann was initially bitter toward the bar, Lenderman said. But in the past year or so he has acknowledged his mistakes.

At the hearing, Hearn testified that he advised Dann to settle with Vossiek's cousins. "Both parties had legal positions that in good faith they could bring before a court," said Hearn, who estimated Dann paid him between $50,000 and $75,000 for representation in the probate case.

To overturn the will, the heirs would have had to prove that Vossiek was unduly influenced or lacked mental capacity, Hearn said.

Bar Prosecutor Jodi Anderson asked Hearn why the 17-page settlement agreement contained a confidentiality clause. "It's a fairly standard thing I include in settlement agreements," Hearn said.

Dann testified that he wanted the confidentiality clause to prevent the heirs from talking to the news media.

Anderson asked Hearn: "What about the provisions that required the heirs to provide written statements to the state attorney and the bar withdrawing their complaints against the bar?"

Tozian objected, citing a mischaracterization by Anderson of the agreement. Menendez overruled.

"That's not a normal provision," Hearn said. "But that was something that we requested be placed in there. I don't believe there was any requirement that any complaints be withdrawn or that they take any affirmative action."

Anderson then read the agreement, which is not part of the public probate file: "The heirs, through their counsel, also will provide written or other statements directly to the Florida Bar indicating this agreement is intended to exculpate Dann from liability related to the Vossiek trust."

Hearn said, "Yes, that's what it says. We negotiated it on behalf of Phil Dann."

To which Anderson asked, "Practically speaking, Mr. Dann's conduct in handling the underlying case didn't pass the smell test, did it?"

Said Hearn: "The initial facts as you saw them without looking into them further certainly didn't pass the smell test. I agree."

Columbia, Mo., attorney Mark D. Pfeiffer, who represented the heirs, also said Dann's handling of the Vossiek trust "didn't pass the smell test."

Still, Pfeiffer acknowledged it would have been difficult to prove Vossiek was not competent when he executed the will.

The atttorney, William Griffin, who drafted the will "would in effect have to come in and say he too had violated the principals of the code of ethics by allowing his client to sign that document, and I just didn't think there was a good chance of that occurring," Pfeiffer said. "So quite frankly that was probably one of the major reasons that my clients ultimately decided to resolve the case."

Tozian pointed out that Griffin hadn't been disciplined by the bar one time in 30 years.

Michael Delvesco, whose late grandmother-in-law, Mary Forsey, was Vossiek's 40-year companion prior to her 1991 death, testified by telephone from Orlando. He was the only non-lawyer to testify.

At Dann's initial hearing, Delvesco and his wife, Leigh, testified about how frugally Vossiek had lived, even going so far as to refuse to buy medication for Forsey because he said it cost too much.

Delvesco said he was disappointed in how Dann's discipline has been handled. "I feel very strongly that if somebody off the street, like myself, were to be involved in those kind of activities, you wouldn't be talking to me at the bar office. I'd be in jail," he said.

Delvesco mentioned an Apopka man who was recently jailed for months for taking a lawnmower and wheelbarrow from a person's estate he was overseeing.

"I think Mr. Dann has behaved in an unprofessional, unethical manner," Delvesco said. "I think the way he has behaved is a slam against the legal profession. I'm being very honest with you. We all hear the lawyer jokes."

Not all lawyers stand by Dann. Two attorneys, who have known Dann for years, testified on behalf of the bar.

A Polk County judge allowed Kiernan to take a break from a trial in Bartow to testify by telephone at the Dann hearing. Kiernan, of St. Petersburg, said Dann had told him the Florida Bar was "a communist organization he had total disdain for, and he thought he had been railroaded and he had no intention of ever practicing law again."

On another occasion, Kiernan ran into Dann at Harvey's Fourth Street Grill, St. Petersburg, where Dann regularly eats lunch. "Phil referenced that he had been railroaded by a disgruntled employee," Kiernan said. "That no one ever lost any money ¦ He was disgusted with the entire process of the bar."

Kiernan was troubled by what he considers Dann's refusal to accept responsibility. "I feel very strongly he should not be readmitted," Kiernan said. "From my contact with Phil, it was very obvious to me and very troubling that he had absolutely no remorse and took no responsibility for what had happened."

Attorney John Ellis, admitted to the Florida Bar in 1962, is the one that Goldstone turned to in 1997 with concerns about Dann's behavior in the Vossiek matter. In the 1980s, Dann and Ellis had offices in the same building.

Ellis consulted with another attorney and told Goldstone she was duty bound to go to the bar with her concerns that Dann abused the trust prior to Vossiek's death. "I know the girl very well," Ellis said. "I think she's extremely honest."

When Ellis learned Dann was seeking readmission, he reviewed the Vossiek probate file, two volumes, at the clerk's record storage center.

Dann "fought like a tiger to avoid disclosure of the assets," Ellis said. His actions were "extremely deliberate and intentional."

"I feel he does not have integrity and honesty to continue in the practice of law," Ellis said as he sat across the table from Dann.

How Phillip Dann, lawyer, broke the rules

The Florida Supreme Court in 2002 adopted the report of referee on remand, which suspended St. Petersburg lawyer Philip Dann from the practice of law for 91 days and required him to prove his rehabilitation prior to reinstatement. Following are excerpts of the rule violations:

Rule 4-1.5 (e) When a lawyer has not regularly represented a client, the basis or rate of the fee shall be communicated to the client, preferably in writing, before or within a reasonable time after commending the representation.

Finding of fact: "No reliable evidence exists of the basis or rate upon which respondent charged Mr. Vossiek. Rather Ms. Goldstone, respondent's secretary, would not pay fees according to any time records submitted by respondent, but simply upon respondent's request. Respondent testified that he did keep time records of his work on Mr. Vossiek's trust, but the file disappeared from his computer. ¦ The records relating to the fees demonstrate large amounts of money being withdrawn from the trust in relatively short periods of time."

Rule 4-1.8 (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 the 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 to the client in a manner that can be reasonably understood by the client; (2) the client is given a reasonable opportunity to seek the advice of independent counsel in the transaction; and (3) the client consents in writing thereto.

Finding of fact: "Respondent, in the name of Philip W. Dann PA, borrowed money from the trust in the form of a balloon note and mortgage for $60,000 on June 28, 1993, which was due June 28, 1996. The note was not paid until Nov. 6, 1996, and while the loan documents provided for a late payment penalty, none was paid. ¦ Respondent did not advise Mr. Vossiek to seek the advice of independent counsel prior to consenting to the note. ¦

"Repondent's actions amount to self-dealing and are a clear violation of Rule 1.8(a). Respondent also violated this rule by providing for his wife, daughter and himself to receive $10,000 gifts from the trust on two separate occasions. There is an inconsistency between a gift authorization letter signed by Mr. Vossiek on July 10, 1996, and two letters sent by respondent on July 10, 1996, to banks seeking early redemption of certificates of deposit. A series of similar letters seeking early redemption were sent out in August of 1994. In the letters sent to the banks, respondent states, 'Mr. Vossiek has not yet been declared incompetent although there is virtually no question that a court would make such a determination.' However, on that same date, respondent had 'the incompetent' Mr. Vossiek sign a letter authorizing respondent to make gifts not to exceed $10,000 to himself, his family, or other persons. In order for the gift letter to be valid, Mr. Vossiek had to be capable of making a competent decision regarding the gifts. This inconsistency clearly exhibits the inappropriateness of the $10,000 gifts from the trust. ¦"

Rule 4-1.8(c): A lawyer shall not prepare an instrument giving the lawyer or a person related to the lawyer as parent, child, sibling, or spouse any substantial gift from a client, including a testamentary gift, except where the client is related to the donee.

Finding of fact: "Respondent drafted letters for Mr. Vossiek's signature authorizing respondent to make gifts from Mr. Vossiek's trust, not to exceed $10,000, to himself, the beneficiaries of respondent's estate, or other persons. Subsequently, respondent withdrew a total of $60,000 from the trust by making gifts of $10,000 each to himself, his spouse and his daughter, on two separate occasions."

Rule 4-1.14(a): When a client's ability to make adequately considered decisions in connection with the representation is impaired, whether because of minority, mental instability or for some other reason, the lawyer shall, as far as reasonably possible, maintain a normal client-lawyer relationship with the client.

Finding of fact: "Respondent violated this rule by taking the balloon note and mortgage out against the trust and by having Mr. Vossiek sign a letter authorizing $10,000 gifts while at the same time claiming to various banks that Mr. Vossiek was incompetent. ¦ Furthermore, a videotape introduced at trial showed Mr. Vossiek repeatedly asking respondent for $10,000 from the trust so that Mr. Vossiek could have cash at his disposal. Respondent continually denied Mr. Vossiek's request for access to his own money. Although it is not known whether Mr. Vossiek lacked testamentary capacity during respondent's representation of his estate, it is clear that Mr. Vossiek's mental state was compromised in some respect. Respondent took advantage of Mr. Vossiek's mental disabilities by not allowing Mr. Vossiek to have any control over his own money and by improperly handling his role as a trustee."

Rule 4-8.4 (c): A lawyer shall not engage in conduct involving dishonesty, fraud, deceit, or mispresentation.

Finding of fact: "Respondent engaged in various acts of misrepresentation and deceit when he secured letters signed by Mr. Vossiek authorizing $10,000 gifts, while at the same time claiming in letters sent to some of Mr. Vossiek's financial institutions that Mr. Vossiek was incompetent. Respondent also engaged in such prohibited conduct by not enforcing the late penalty provision on the balloon note when he was approximately five months late in repayment."

Aggravating factors: "Selfish or dishonest motive; substantial experience."

Mitigating factors: "No prior disciplinary record; full and free disclosure to disciplinary board or cooperative attitude toward proceedings; character and reputation (respondent enjoys an AV rating and presented testimony as to his good character and reputation from his brother-in-law, a highly respected and regarded estate and tax attorney, as well as two circuit court judges and a district court of appeal judge)."

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