FLORIDA BAR v. GELFAND (2025)

Mr. Gelfand, you are here today to receive a public reprimand because you violated Rules Regulating The Florida bar in two disciplinary cases. As to Count I, you were found in violation of Rules 3-4.3 (Misconduct and Minor Misconduct); 4-1.18(a)-(c) (Duties to Prospective Client); 4- 8.4(a) (A lawyer shall not violate or attempt to violate the Rules of Professional Conduct, knowingly assist or induce another to do so, or 6 do so through the acts of another); and 4-8.4(d) (A lawyer shall not engage in conduct in connection with the practice of law that is prejudicial to the administration of justice). As to Count II, you were found in violation of Rules Rule 4-1.4(b) (A lawyer shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation); and Rule 4-1.5(f)(4)(B) (Contingent Fees․ The contract for representation of a client in a matter set forth in subdivision 4-1.5(f)(4) may provide for a contingent fee arrangement as agreed on by the client and the lawyer, except as limited by the following provisions).

By order of the Supreme Court of Florida dated September 19, 2024, you were found to have engaged in professional misconduct when:

Mr. Gelfand, as to Count I of The Florida Bar's Complaint, in November 2016, a prospective client had a consultation with you regarding a potential civil claim against Duck Eye, LLC. In furtherance of these discussions, prospective client provided your law office a flash drive that contained numerous confidential documents. The prospective client also sent you numerous emails that prospective client characterized as privileged. Ultimately, the prospective client chose to hire other counsel but the flash drive remained in your law firm's possession. In April 2017, just prior to filing suit against Duck Eye, LLC., prospective client and his counsel were notified that you would be representing Duck Eye, LLC., in the forthcoming civil action. On April 11, 2017, counsel sent an email to your referencing the alleged conflict of interest with her clients and Duck Eye, LLC. You researched whether a conflict of interest existed and based upon that research, concluded there to be no conflict under these circumstances. You replied to the email and denied any conflict existed and continued your representation of Duck Eye, LLC. On May 5, 2017, counsel filed a Verified Motion to Disqualify Counsel for Defendant. In your June 30, 2017, Affidavit of Scott N. Gelfand in Opposition to Plaintiffs’ Motion to Disqualify Defendant's Counsel, you stated, “I never looked at the thumb drive and had no reason to do so because the Plaintiffs never retained my firm.” After an evidentiary hearing on July 10, 2017, the trial court entered an Order granting the motion to disqualify. After the order was entered, you returned the flash drive to prospective client. The prospective client then hired a forensic examiner to determine if the flash drive had been accessed while in your law firm's possession. It was determined the flash drive was accessed several times. However, on October 2, 2017, an evidentiary hearing was held where your paralegal testified that it was, she who accessed the flash drive after reaching into her drawer to search for an empty flash drive to use for another matter. You also testified that you had not accessed the flash drive. Following the October 2, 2017, evidentiary hearing, the trial judge found your testimony that you had not accessed the flash drive credible and that rather, your paralegal had accessed the flash drive.

Mr. Gelfand, as to Count II of The Florida Bar's Complaint, on or about October 6, 2017, a client retained you to represent him in a property and/or personal injury claim arising from mold growth and/or dust mite proliferation. The terms of the retainer agreement stated the representation was on a “pre-suit basis” and provided for a contingency fee of 40% to be applied to sums recovered pre-suit. The client stated his initial consultation was with your legal assistant and she was his only point of contact for approximately 9 months until the client rejected the first settlement offer. However, you contend that the legal assistant was not the only contact during this time period. The client accepted the second settlement offer related to the representation and received 60% of the $50,000.00 settlement proceeds. On or about August 21, 2018, the client notified you of his intent to dispute the 40% fee set forth in the retainer agreement and took the position that you were not entitled to any fee whatsoever. Thereafter, you disbursed 33.3% of the settlement as fees and placed the remaining 6.7% or $3,500.00, the disputed portion of the proceeds, in escrow pending resolution of the dispute. In mitigation, you have returned the disputed funds to the client.

Mr. Gelfand, you come here today pursuant to an Order of the Supreme Court of Florida, entered on September 19, 2024, that approved the Report of Referee, and directed that you receive a public reprimand to be administered by the Referee.

Lawyers are officers of the court and are sworn to uphold the integrity of the judicial system. When attorneys engage in misconduct it casts doubt over the fair and impartial administration of justice. By engaging in this misconduct, you not only blemished your own reputation, but you have tainted the reputation of the profession as a whole. Actions such as yours reduce respect for the legal profession and diminish the effectiveness of our system of justice.

This Public Reprimand is now part of your permanent Florida Bar disciplinary record. You are further advised that while this Public Reprimand does not affect your privilege of practicing law, future misconduct will. The lawyers of Florida expect your future conduct be in compliance with your oath and you should demand the same of yourself.

DONE AND ADMINISTERED this 2nd day of January, 2025.

Maxine D. Cheesman, Referee