
    THE FLORIDA BAR, Complainant, v. Lawrence H. HIPSH, Sr., Respondent.
    No. 61806.
    Supreme Court of Florida.
    Dec. 1, 1983.
    John F. Harkness, Jr., Executive Director, Stanley A. Spring, Staff Counsel and Mary Ellen Bateman, Bar Counsel, Tallahassee, for complainant.
    Leo A. Thomas of Levin, Warfield, Mid-dlebrooks, Mabie, Thomas, Mayes & Mitchell, Pensacola, for respondent.
   PER CURIAM.

This disciplinary proceeding is before the Court on complaint of The Florida Bar, the report of the referee, and respondent’s petition for review. We have jurisdiction pursuant to article V, section 15, Florida Constitution.

Respondent contests certain findings of fact and conclusions made by the referee in his report and further contends that the recommended discipline is inappropriate under the facts of this case.

The referee found that respondent and his employees and associates earned a total fee of $2,866.00 for work on an admiralty dispute. The retaining agreement was in writing and included a retainer’s fee of $5,000.00. The referee further found that respondent refused to refund that portion of the retainer fee unearned by him under the terms of the fee agreement and thus violated Florida Bar Code of Professional Responsibility Disciplinary Rule 2-106(A). The referee then recommended that respondent be suspended from the practice of law for thirty days, that at the end of said term of suspension he be reinstated upon proof of rehabilitation and restitution to the client of $2,134.00 with interest from July 21, 1980, that he be placed on probation for three years, and that he pay the costs of these proceedings.

We concur with the referee in that his findings of fact, conclusions and recommendation of guilt are supported by clear and convincing evidence. We disagree with the referee, however, as to the discipline. Under the facts of the instant case, the proper penalty is a public reprimand, restitution, and costs. We therefore order respondent, Lawrence H. Hipsh, Sr., to appear personally before the Board of Governors of The Florida Bar, at a time and place to be determined by the Board, to receive the reprimand. Respondent shall also pay restitution to Wallace K. Cady in the sum of $2,134.00, with interest from July 21, 1980 at eight percent per annum.

Costs of these proceedings in the amount of $2,015.34 are also assessed against respondent.

It is so ordered.

ALDERMAN, C.J., and OVERTON, MCDONALD, EHRLICH and SHAW, JJ., concur.

ADKINS, J., dissents with an opinion, in which BOYD, J., concurs.

ADKINS, Justice,

dissenting.

I respectfully dissent. The record does not establish, with undisputed testimony, that Hipsh refused to refund an unearned portion of the retainer fee. The record shows only that said attorney requested an opportunity to first review complainant’s file in order to determine what, if any, refund complainant was entitled. Hipsh’s request and subsequent conduct were not unreasonable given the fact that both the number of hours he worked on this case and the hourly rate to be charged were (and still are) in question.

After detailed review of this record, it is my firm belief that the charge brought by The Florida Bar is structured around nothing more than a basic fee dispute between client and attorney. The Integration Rule of The Florida Bar, Rule 11.02(4), expressly restricts the scope of discipline for such conflicts, stating, in pertinent part:

Controversies as to the amount of fees are not grounds for disciplinary proceedings unless the amount demanded is clearly excessive, extortionate, or the demand is fraudulent.

(Emphasis added.) Here, there is no clear showing of “excessiveness” which would mandate attorney discipline. Hipsh has consistently maintained that, prior to the instant complaint, Swindle (primary counsel for the cause) reported that the $5,000 fee had been legitimately earned. He further contends that his subsequent dealings with complainant were conducted pursuant to his reliance on Swindle’s report. Moreover, expert testimony proffered by Hipsh indicates that, given the type work done on the case, the $5,000 fee was not a clearly excessive amount. The record manifests, at very minimum, a substantial confusion concerning the fee arrangement and the evidence provided therein was far from clear and convincing that Hipsh had charged or collected an excessive fee. See The Florida Bar v. Rayman, 238 So.2d 594 (1970).

Therefore, inasmuch as this matter involves a fee dispute and there was no clear and convincing showing that the fee was excessive, the issue is not a proper subject for disciplinary proceeding. See Integration Rule of The Florida Bar, Rule 11.02(4).

BOYD, J., concurs.  