author: THOMAS, Judge.

text:
    Damien D. COLLINS v. Grace WILLIAMS.
    2060222.
    Court of Civil Appeals of Alabama.
    April 13, 2007.
    Arthur P. Clarke, Mobile, for appellant.
    Kelli D. Taylor-Etheredge, Mobile, for ■ appellee.
   THOMAS, Judge.

In November 2006, Grace Williams, the mother of Damien D. Collins, petitioned to have Collins involuntarily committed. Collins was confined for evaluation for approximately six days, after which the probate court held a hearing on his commitment. After hearing the testimony of Dr. Douglas Ewing, the attending psychiatrist at BayPointe Adult Evaluation Unit, the facility at which the six-day evaluation of Collins occurred, the probate court ordered that Collins be committed to inpatient treatment at Searcy Hospital for a period not to exceed 150 days. Collins appeals.

Commitment proceedings are governed by the procedures outlined in Ala.Code 1975, § 22-52-1 et seq. See Webster v. Bartlett, 709 So.2d 1226 (Ala.Civ.App.1997)(holding that both original commitment proceedings and recom-mitment proceedings are governed solely by Alabama statutory law). To have properly committed Collins to inpatient treatment, the probate court must have found clear and convincing evidence of each of the following elements: (1) that Collins “is mentally ill”; (2) that Collins “poses a real and present threat of substantial harm to self and/or others”; (3) that Collins “will, if not treated, continue to suffer mental distress and will continue to experience deterioration of the ability to function independently”; and (4) that Collins “is unable to make a rational and informed decision as to whether or not treatment for mental illness would be desirable.” Ala.Code 1975, § 22-52-10.4(a).

The testimony of Dr. Ewing established that Collins had been confined for evaluation after an incident in October 2006 in which he brandished a weapon during an argument with his brother. According to Dr. Ewing, when Collins was first placed under observation, he admitted that he regularly used marijuana. Because marijuana can result in behavior patterns similar to those that resulted in Collins’s confinement, i.e., paranoia and other signs of psychosis, Collins was not placed on anti-psychotic medication despite the fact that Dr. Ewing and others on the observation team concluded that Collins suffered from psychosis. As Dr. Ewing explained, it was important to see if the marijuana was causing Collins’s symptoms, and because the medication would resolve the symptoms regardless of their cause, the team decided not to medicate Collins during the evaluation. Had the symptoms resolved, the team could have concluded that marijuana was causing Collins’s paranoid behavior.

Dr. Ewing commented that, although the observation team was not ready to make the diagnosis, it was possible that Collins also suffered from schizophreni-form disorder; he noted that Collins had a family member who was a diagnosed schizophrenic. Dr. Ewing noted that Collins also exhibited some antisocial personality traits. According to Dr. Ewing, Collins required “further evaluation to ascertain the exact nature of [his] psychotic symptoms, [and] whether, in fact, this does represent [a] first psychotic episode.”

When asked if Collins posed a danger to himself or to others, Dr. Ewing stated that it was a “distinct possibility.” He noted that, although Collins had been compliant and cooperative during the evaluation procedure, the event precipitating the evaluation and the filing of the commitment petition involved Collins’s brandishing a gun during an argument with his brother. Dr. Ewing commented that Collins showed very little insight regarding, and was glib and dismissive about, the events leading to the filing of the commitment petition; he commented that Collins had even dismissed the incident by using humor. Dr. Ewing admitted that while under observation Collins had not exhibited any overt delusional thoughts. However, Dr. Ewing explained that it was normal for a person suffering from psychosis and paranoia to be guarded and wary and said that such signs — the wariness, the guarded behavior, and the suspiciousness exhibited by Collins — were typical “soft” signs of paranoia. Dr. Ewing noted Collins’s lack of insight regarding his behavior and indicated that Collins would not be able to make informed and rational decisions about his need for mental-health treatment. Dr. Ewing testified that Collins, if left untreated, would continue to suffer from mental illness and would experience a deterioration of his ability to function independently-

The petition for involuntary commitment also indicates that Collins suffers from paranoia. According to the allegations in the petition, before Collins brandished the weapon, he told his mother that “they are watching him” and was walking around the house hitting the wall. In addition, the petition alleged that in the months before the October gun-brandishing incident, Collins believed that the telephone lines were tapped, that the computer was bugged, and that there was a camera on a pole in the backyard watching the house. The petition also noted that Collins required the window blinds to be turned a certain way out of fear of being watched.

Collins relies on this court’s opinion in Ryan v. Bartlett, 802 So.2d 1082 (Ala.Civ.App.2001), in which we reversed the re-commitment to inpatient treatment of Stephen Ryan because of the lack of proof that Ryan was a danger to himself or to others. Ryan’s treating psychologist, Dr. Eusebio Respicio, had testified that it was “a possibility” that Ryan, if he thought certain people were conspiring against him, could “call and threaten” or might attempt to “hit” those people. Ryan, 802 So.2d at 1083. However, Dr. Respicio testified that Ryan had not acted in a violent manner or made any threats during his four-month commitment to Searcy Hospital; Dr. Respicio also testified that he had no record of Ryan having hit anyone in the past or that Ryan had ever been criminally charged with assaulting or threatening anyone. Id. at 1084. Dr. Respicio further testified that Ryan could function in a coherent and calm manner in situations unrelated to his paranoid delusions and that “Ryan ‘really can keep it to himself. He doesn’t show evidence like [acting out or committing overt acts of violence].’ ” Id. Thus, we concluded that Dr. Respicio’s testimony that Ryan “might,” under some circumstances, threaten other persons when there was no evidence indicating that he had ever acted in a violent manner was insufficient to establish that Ryan posed a substantial danger to himself or to others, and, therefore, we held that the hospital had failed to prove that his recommitment was necessary as required by the statute. Id.

We agree with Williams that Ryan is distinguishable from the present case. In Ryan, Ryan had been in treatment at Se-arcy Hospital for approximately four months, during which he had not exhibited any violent behavior. Id. Although violent behavior or “threats” were possible reactions that Ryan could have once he were released, the hospital had no evidence indicating that Ryan had ever harmed anyone and could not rely on mere possibilities to restrain Ryan of his liberty. Id.

Collins, however, was confined for evaluation after an incident during which he brandished a weapon. Although Collins did not discharge the weapon, his use of it during an argument certainly indicated that he was at least capable of threatening violence in a volatile situation. Although Collins did not display any aggressive behavior during the six-day observation period, he had recently engaged in behavior that clearly “pose[d] a real and present threat of substantial harm” to himself or to others. § 22-52-10.4(a). Thus, in light of Collins’s very recent actions, we cannot agree that the mere fact that he had not displayed violence during his observation period is the equivalent to Ryan’s behaving rationally and without violence for a four-month period and having no history of assault. In addition, Dr. Ewing indicated that the risk of substantial harm to Collins and to others was not just possible but, instead, was “a distinct possibility” in light of Collins’s recent behavior of brandishing a weapon.

We conclude, therefore, that Williams presented clear and convincing evidence that Collins suffers from a mental illness; that he is unable to make an informed and rational decision concerning his need for treatment of that mental illness; that, without treatment, Collins would suffer continued deterioration as a result of his mental illness; and that, because of his mental illness, Collins poses a real and present threat of substantial danger to' himself and to others. We affirm the probate court’s commitment of Collins to Se-arcy Hospital for inpatient treatment for a period not to exceed 150 days.

AFFIRMED.

THOMPSON, P.J., and PITTMAN, and MOORE, JJ., concur.

BRYAN, J., concurs in the result, without writing.


source: Caselaw Access Project

author: PER CURIAM. PITTMAN, Judge, THOMPSON, Presiding Judge, BRYAN, Judge, MOORE, Judge,

license: Public Domain

text:
    DAVIS PLUMBING COMPANY, INC. v. William BURNS.
    2050480.
    Court of Civil Appeals of Alabama.
    April 20, 2007.

      Charles H. Clark, Jr., Martha Leach Thompson, and J. Brannon Maner of Huie, Fernambucq & Stewart, LLP, Birmingham, for appellant.
    William V. Powell, Jr., of Powell & Denny, P.C., Birmingham, for appellee.
    William K. Abell and Arthur Leslie of Shinbaum, Abell, McLeod & Vann, Montgomery, for amicus curiae Innoviant Pharmacy, Inc., in support of the appellee.
    D. Scott Wright and Thomas H. Nolan, Jr., of Wright, Green, P.C., Mobile, for amicus curiae Carlisle Medical, Inc., in support of the appellant.

       Although Judge Thomas and Judge Moore were not members of this court when this case was orally argued, they have listened to the audiotapes of that oral argument.

   On Application for Reheating

PER CURIAM.

This court’s opinion of December 8, 2006, is withdrawn, and the following is substituted therefor.

Davis Plumbing Company, Inc., petitioned this court for a writ of mandamus directing the trial court to vacate its order granting William Burns’s motion for a declaratory judgment and to enter an order in Davis Plumbing’s favor. We conclude that the trial court’s order was a final judgment, treat the petition for a writ of mandamus as an appeal, and affirm the judgment of the trial court.

Burns sued his employer Davis Plumbing for workers’ compensation benefits, alleging that he had sustained an injury as a result of a work-related accident. Burns and Davis Plumbing subsequently entered into a settlement agreement, which the trial court approved by order on November 18, 2005. The settlement agreement stated that Davis Plumbing did not dispute that Burns was permanently and totally disabled and that Burns would receive certain compensation for his disability. The settlement agreement also stated that Burns’s medical and vocational benefits were to remain open in accordance with the Alabama Workers’ Compensation Act, § 25-5-1 et seq., Ala.Code 1975 (“the Act”).

On January 24, 2006, Burns filed a “motion for declaratory judgment” against Davis Plumbing. The motion asserted that Burns was using “Innoviant Pharmacy/Workers Comp RX” (“Innoviant Pharmacy”) to fill prescriptions for medicines relating to his workers’ compensation disability. The motion asserted that, since December 27, 2005, Davis Plumbing had refused to pay for the workers’-compensation-related medicines obtained by Burns through Innoviant Pharmacy. Burns’s motion further asserted that Davis Plumbing had not paid for the prescription medicines because Davis Plumbing wanted Burns to use a pharmacy other than Inno-viant Pharmacy. The motion sought an order determining Burns’s right to use the pharmacy of his choice and Davis Plumbing’s obligation to pay for Burns’s prescription medicines. Following a hearing, the trial court entered an order granting Burns’s motion for a declaratory judgment. Davis Plumbing filed a “motion to reconsider,” which the trial court denied.

Davis Plumbing, apparently treating the trial court’s order as an interlocutory order, filed a petition for a writ of mandamus with this court. See Ex parte Turpin Vise Ins. Agency, Inc., 705 So.2d 368, 369 (Ala.1997) (“The writ of mandamus is an extraordinary writ that applies ‘where a party seeks emergency and immediate appellate review of an order that is otherwise interlocutory and not appeal-able.’ Rule 21(e)(4), Ala. R.App. P.”). However, because the trial court’s order conclusively determined the declaratory-judgment issue before the trial court and ascertained and declared the rights of Burns and Davis Plumbing, the trial court’s order was a final, appealable judgment. See George v. Sims, 888 So.2d 1224, 1226-27 (Ala.2004) (“ ‘A final judgment is an order “that conclusively determines the issues before the court and ascertains and declares the rights of the parties involved.” ’ ”). Davis Plumbing filed its petition for a writ of mandamus within the 42-day period allowed for filing a notice of appeal after the denial of Davis Plumbing’s postjudgment motion. See Rule 4(a)(1) and (3), Ala. R.App. P. Therefore, we elect to treat Davis Plumbing’s petition as an appeal. See, e.g., Ex parte W.H., Jr., 941 So.2d 290 (Ala.Civ.App.2006); and Wix Corp. v. Davis, 945 So.2d 1040 (Ala.Civ.App.2005).

Davis Plumbing argues on appeal that the trial court erred by concluding that Burns has the right to use the pharmacy of his choice to obtain his workers’compensation-related prescription medicines. Because Davis Plumbing’s appeal presents a purely legal issue, our review of the trial court’s judgment is without a presumption of correctness. § 25-5-81(e), Ala.Code 1975. The Act does not specifically address who has the authority in a workers’ compensation case to select the pharmacy to be used by the employee receiving workers’ compensation benefits. In Ex parte Brookwood Medical Center, Inc., 895 So.2d 1000, 1003 (Ala.Civ.App.2004), this court noted that the employer exercises “considerable control” over the compensation process:

“ ‘Section 25-5-77(a), Ala.Code 1975, a portion of the Act, provides, among other things, that an employer of an injured worker shall timely pay for that worker’s “reasonably necessary medical and surgical treatment and attention, physical rehabilitation, medicine, [and] medical and surgical supplies ... as the result of an accident arising out of and in the course of the employment.” See also § 25-5-77(h). That duty to pay is accompanied under the Act by a corresponding power in the employer to exercise considerable control over the medical care for which it must pay, including the right to choose the employee’s physician in the first instance and the right to compel the injured employee to submit to an examination by that physician at all reasonable times. See § 25-5-77(a) and (b), Ala.Code 1975. Although the Act provides that the employee may advise the employer if he or she is dissatisfied with the physician designated by the .employer, the employee’s remedy in such a circumstance is to select another physician from a panel or list of available physicians (usually four) specified by the employer. See § 25-5-77(a), Ala. Code 1975.’ ”

(Quoting Ex parte Alabama Power Co., 863 So.2d 1099, 1102 (Ala.Civ.App.2003).)

Davis Plumbing argues that the “considerable control,” 895 So.2d at 1003, granted to the employer by the Act includes the employer’s authority to select which pharmacy the injured employee must use. Although the Act grants the employer a measure of control over the workers’ compensation process, the Act does not grant the employer the authority to select which pharmacy an employee receiving workers’ compensation benefits must use. Section 25-5-77(a), Ala.Code 1975, provides that “the employer ... shall pay an amount not to exceed the prevailing rate or maximum schedule of fees as established herein of reasonably necessary ... medicine ... as may be obtained by the injured employee.... ” Davis Plumbing does not dispute that Burns’s prescription medicines are reasonably necessary or that the cost of his prescription medicines is within the prevailing rate or maximum schedule of fees; Davis Plumbing only disputes where those prescription medicines are to be obtained.' The Act establishes the employer’s obligation to pay for the employee’s medicine prescribed by an authorized physician pursuant to the conditions stated in § 25-5-77(a). However, the Act contains no provision excusing the employer from its obligation pursuant to § 25-5-77(a) to pay for the employee’s prescription medicine merely because the employee uses a pharmacy that was not selected by the employer.

Davis Plumbing also argues that the following provision of § 25-5-77(b), Ala. Code 1975, merits a reversal of the trial court’s judgment:

“If the injured employee refuses to comply with reasonable request for examination, or refuses to accept the medical service or physical rehabilitation, which the employer elects to furnish under this chapter, the employee’s right to compensation shall be suspended and no compensation shall be payable for the period of the refusal.... ”

Davis Plumbing notes that § 25-5-1(14), Ala.Code 1975, defines “medical” as “[a]ll services, treatment, or equipment provided by a provider” and that § 25-5-1(13), Ala.Code 1975, includes a “pharmacist” and a “pharmaceutical supply company” in its definition of “providers.” Therefore, Davis Plumbing argues, § 25-5-77(b) authorizes an employer to “elect” which pharmacy an injured employee must use. However, § 25-5-77(b) is inapplicable to the present case. The above-quoted provision of § 25-5-77(b) has no application if an authorized physician is providing treatment to the employee, as in the present case. See Sunnyland, Foods, Inc. v. Catrett, 395 So.2d 1005, 1008-09 (Ala.Civ.App.1980). “The purpose of [the above-quoted provision of § 25-5-77(b) ] is to prevent malingering by one drawing compensation or to determine if the claimed injury is real, reparable, or capable of being minimized.” Lewis G. Reed & Sons, Inc. v. Wimbley, 533 So.2d 628, 630 (Ala.Civ.App.1988). Moreover, § 25-5-77(b) “applies only to pending cases before final judgment of the circuit court, or after such judgment is procedurally reopened for alteration, amendment, or revision.” Cerrock Wire & Cable Co. v. Johnson, 533 So.2d 622, 625 (Ala.Civ.App.1988).

Davis Plumbing also contends that § 25-5-314, Ala.Code 1975, supports its argument that an employer has the authority to select the pharmacy to be used by an injured employee. Section 25-5-314, Ala.Code 1975, provides:

“Notwithstanding any other provisions of this article to the contrary, any employer, workers’ compensation insurance carrier, self-insured employer, or group fund, may contract with physicians, hospitals, and any other health care provider for the provision of medical services to injured workers at any rates, fees, or levels of reimbursement which shall be mutually agreed upon between the physician,' hospitals, and any other health care provider and the employer, workers’ compensation insurance carrier, self-insured employer, or group fund.”

Davis Plumbing argues that it will lose its ability to negotiate with pharmacies for lower rates as contemplated by § 25-5-314 if Davis Plumbing is not permitted to select the pharmacy that Burns and other injured employees must use. As we have stated, Davis Plumbing is obligated, pursuant to § 25-5-77(a), to pay for Burns’s reasonably necessary prescription medicines, in an amount not to exceed the prevailing rate or maximum schedule of fees, regardless of where those medicines are obtained. We find nothing in § 25-5-314 that would relieve Davis Plumbing from its obligation to pay for Burns’s prescription medicines. Section 25-5-314 merely permits the employer to contract with providers for a rate lower than the prevailing rate.

Davis Plumbing essentially asks this court to construe the Aet to establish a right in favor of employers that is not expressly granted in the Act. “An action brought under the Alabama Work[ers’] Compensation laws is purely statutory.” Slagle v. Reynolds Metals Co., 344 So.2d 1216, 1217 (Ala.1977). If the legislature had intended for an employer to have the authority to select the pharmacy to be used by an injured employee, the legislature could have granted that authority in the Act. See Ex parte Jackson, 614 So.2d 405, 407 (Ala.1993) (stating that the legislature knows how to draft a statute to reach a particular end and that “[t]he judiciary will not add that which the Legislature chose to omit”). We note that the legislature expressly granted employers certain rights regarding the selection of physicians and surgeons, see 25-5-77(a), Ala.Code 1975, but not pharmacies. Under the principle of expressio unis est exclusio alteri-us, “the expression of one thing implies an intent to exclude another not so expressed.” Ex parte Oswalt, 686 So.2d 368, 373 (Ala.1996). Moreover, the Act, “‘being remedial in nature, should be given liberal construction to accomplish the beneficent purposes, and all reasonable doubts must be resolved in favor of the employee.’ ” Ex parte Byrom, 895 So.2d 942, 946 (Ala.2004) (quoting Riley v. Perkins, 282 Ala. 629, 632, 213 So.2d 796, 798 (1968)).

“It is of course well understood that the only authority which has the power to make State laws is the legislature. [Article III,] Section 44 [of the Alabama] Constitution [of 1901].” Personnel Bd. of Mobile County v. City of Mobile, 264 Ala. 56, 60-61, 84 So.2d 365, 369 (1956). “It is [this court’s] job to say what the law is, not to say what it should be.” DeKalb County LP Gas Co. v. Suburban Gas, Inc., 729 So.2d 270, 276 (Ala.1998). Moreover, “[t]here is a presumption that the legislature did not intend to make any alteration in the law beyond what it declares either expressly or by unmistakable implication.” Beasley v. MacDonald Eng’g Co., 287 Ala. 189, 197, 249 So.2d 844, 851 (1971). The Act contains no provision granting an employer the right to select the pharmacy that an injured employee must use. The Act does, however, obligate an employer to pay for pharmacy expenses incurred by an injured employee in obtaining reasonably necessary prescription medicines. Accordingly, the trial court’s judgment declaring Burns’s right to use the pharmacy of his choice and Davis Plumbing’s obligation to pay for Burns’s pharmacy expenses is due to be affirmed.

Burns filed with this court a motion to strike an exhibit attached to Davis Plumbing’s reply brief. We deny Burns’s motion to strike as moot.

APPLICATION OVERRULED; OPINION OF DECEMBER 8, 2006, WITHDRAWN; OPINION SUBSTITUTED; AFFIRMED.

THOMAS, J., concurs.

PITTMAN, J., concurs specially.

THOMPSON, P.J., and BRYAN and MOORE, JJ., concur in the result, with writings.

PITTMAN, Judge,

concurring specially.

Having written both Ex parte Alabama Power Co., 863 So.2d 1099 (Ala.Civ.App.2003), and Ex Parte Brookwood Medical Center, Inc., 895 So.2d 1000 (Ala.Civ.App.2004), two cases upon which Davis Plumbing has placed great reliance, I fully endorse the principle that the Alabama Workers’ Compensation Act places “considerable control” in the hands of employers with respect to the medical and surgical care and treatment of injured employees. Considerable control of medical and surgical care is not, however, total control of all issues related to such care. Like Judge Thompson, I am loath to declare the existence of a power to dictate an employee’s choice of pharmacies when the Act itself does not expressly provide for such power, even if amending the Act to expressly confer such power might reasonably be viewed as furthering the cost-reduction goals that the legislature sought to further in its 1992 amendments to the Act (see Act No. 92-537, § 1, Ala. Acts 1992). I therefore concur in the main opinion.

THOMPSON, Presiding Judge,

concurring in the result.

The Alabama Legislature enacted Article 11 of the Workers’ Compensation Act in 1992 with the “express legislative intent of [the Article] to ensure that the highest quality health care is available to employees who become injured or ill as a result of employment, at an appropriate rate of provider reimbursement.” § 25 — 5—293(g), Ala. Code 1975. Section 25-5-293, Ala.Code 1975, of that article describes the duties of the director of the Department of Industrial Relations and provides for the appointment of advisory committees on workers’ compensation matters. One such advisory committee consists of “three pharmacists who are members in good standing with the Alabama Pharmaceutical Association.” § 25-5-293(d), Ala.Code 1975. The purpose of the committees, among other things, is to “guide the director and make recommendations to ascertain the prevailing rate of reimbursement or payment of medical costs in the State of Alabama” and to “guide the director in determining all other rules and regulations required to accomplish the intent of the Legislature in assuring the quality of medical care and achieving medical cost control.” § 25-5-293(d), Ala.Code 1975.

In keeping with the goal to achieve “medical cost control,” our legislature expressed its intent that “final reimbursements related to workers’ compensation claims be commensurate and in line with the prevailing rate of reimbursement or payment in the State of Alabama, or as otherwise provided in [Article 11].” § 25-5 — 293(f), Ala.Code 1975. “By definition, the prevailing rate of payment or reimbursement is self-defining and self-setting and shall be updated annually.” § 25-5-293(f).

The legislature established the above mechanism as the preferred cost-control method for pharmaceutical-care expenses in workers’ compensation cases in Alabama. The legislature did not provide for an additional cost-control measure of allowing the employer to select a specific pharmacy for the use of the employee.

“In the area of statutory construction, the duty of a court is to ascertain the legislative intent from the language used in the enactment. When the statutory pronouncement is clear and not susceptible to a different interpretation, it is the paramount judicial duty of a court to abide by that clear pronouncement. See Ex parte Rodgers, 554 So.2d 1120 (Ala.1989), and East Montgomery Water, Sewer & Fire Protection Authority v. Water Works and Sanitary Sewer Bd. of the City of Montgomery, 474 So.2d 1088 (Ala.1985). Courts are supposed to interpret statutes, not to amend or repeal them under the guise of judicial interpretation.”

Parker v. Hilliard, 567 So.2d 1343, 1346 (Ala.1990). We presume that the legislature would have provided in the Act for the employer to control the employee’s choice of which pharmacy to use had it desired to do so. “The judiciary will not add that which the Legislature chose to omit.” Ex parte Jackson, 614 So.2d 405, 407 (Ala.1993). Therefore, this court cannot hold the trial court in error for declining to go beyond the stated intent of the legislature by interpreting the Act in favor of Davis Plumbing.

BRYAN, Judge,

concurring in the result.

Although Davis Plumbing and the amici curiae present sensible policy reasons why an employer should have a statutory right to select the pharmacy used by an employee receiving workers’ compensation benefits, I note that “[a]ll questions of propriety, wisdom, necessity, utility, and expediency of legislation are exclusively for the Legislature” and are not questions for this court to decide. Johnson v. Price, 743 So.2d 436, 438 (Ala.1999). “‘[I]t is [the court’s] job to say what the law is, not what it should be.’ ” Bassie v. Obstetrics & Gynecology Assocs. of Northwest Alabama, P.C., 828 So.2d 280, 284 (Ala.2002) (quoting DeKalb County LP Gas Co. v. Suburban Gas, Inc., 729 So.2d 270, 276 (Ala.1998)). Therefore, I am constrained to agree with the result reached by the main opinion.

MOORE, Judge,

concurring in the 2'esult.

I concur in the result reached by the majority, but I do not agree with the reasoning of that opinion. The issue presented for our review is not whether the Alabama Workers’ Compensation Act, § 25-5-1 et seq., Ala.Code 1975 (“the Act”), grants to an employer the right to select the pharmacy at which an employee obtains his reasonably necessary prescription medication; it is whether the Act grants to an employee the right to obtain reasonably necessary prescription medication at a pharmacy of his or her own choosing.

It may be conceded that the Act does not expressly grant to an employer the right to select the pharmacy that dispenses reasonably necessary prescription medication to an employee. Section 25-5-77(a) does not specifically state that an employer may select an employee’s pharmacist; its selection procedures relate solely to physicians and surgeons.

Section 25-5-77(b) mentions an employer’s right to elect to furnish medical services. However, this reference to election dates back to the time when the workers’ compensation law conferred upon employers the right to elect whether to provide medical treatment beyond the statutorily required period. See Ala.Code 1940, § 293. The legislature eventually removed the elective feature of the medical-benefits statute, mandating payment of medical benefits so long as they are reasonably necessary. See Act No. 86, § 8, Ala. Acts 1975. Due probably to oversight, however, § 25-5-77(b) has never been amended to remove the reference to the former elective nature of the statute. However, this language does not express any intention that an employer has the right to select the provider of pharmaceutical services.

Section 25-5-314 provides that “any employer ... may contract with ... any ... health care provider for the provision of medical services to injured workers at any rates, fees, or levels of reimbursement which shall be mutually agreed upon between the ... health care provider ... and the employer.” The Act defines “provider” to include a “pharmacist ... or person or entity providing facilities at which the employee receives treatment.” Ala.Code 1975, § 25-5-1(13). However, the definition of “provider” contained in § 25-5-1 applies “unless the context shall clearly indicate a different meaning in the connection used.” Ala.Code 1975, § 25-5-1. Section 25-5-310(2) defines “medical services” as “[ajny and all medical or surgical services provided by physicians under this article [article 12 of the Act, §§ 25-5-310 to 25-5-340].” Section 25-5-310(3) defines “physician” as “[a] doctor of medicine or doctor of osteopathy licensed to practice medicine.” These definitions, which are contained in' the same article as § 25-5-314 and provide the context for that section, clearly evidence the legislative intent that § 25-5-314 is to apply solely to the selection of and payment to medical doctors. Thus, § 25-5-314 does not grant an employer any right to select the pharmacy at which an employee obtains his or her medication.

However, the omission of an express right of an employer to select a pharmacy does not imply the right of an employee to choose any pharmacy. That right must arise from the language of the Act, either expressly or by necessary implication. See Beasley v. MacDonald Eng’g Co., 287 Ala. 189, 197, 249 So.2d 844, 851 (1971).

Section 25-5-77(a) requires an employer to pay the actual costs of reasonably necessary medicine “as may be obtained by the injured employee.” Although this language has appeared in Alabama’s workers’ compensation law since its inception, see Act No. 245, § 18, Ala. Acts 1919, its meaning has never been considered. The language at issue was not derived from the Minnesota statute upon which Alabama’s first workers’ compensation law was based; rather, at the time Alabama’s workers’ compensation law was originally enacted, Minnesota law provided that the employer was obligated to pay for medical treatment “required at the time of the injury.” See State ex rel. Anseth v. District Ct. of Koochiching County, 134 Minn. 16, 20, 158 N.W. 713, 715 (1916) (citing § 18, Ch. 208, Minn. Laws 1915). A review of other state statutes from the time our workers’ compensation law was first enacted to the present shows that this clause is unique to Alabama.

When construing the Act, the court should give effect to the plain and ordinary meaning of its words. See Geter v. United States Steel Corp., 264 Ala. 94, 96-97, 84 So.2d 770, 772 (1956) (“[Legislative language which is clear and deliberately made[ ] is conclusive on the Court in regard to its meaning.”). The ordinary meaning of the words “as may be obtained by the injured employee” compel the conclusion that an employee has the right to obtain reasonably necessary prescription medication from the pharmacy of his or her own choosing. The statutory language “as may be obtained” unambiguously endorses any reasonable method by which an employee obtains medication, including the choice of pharmacy.

That is not to say that an employee has an unrestricted right to choose a pharmacy. A statutory right to medical benefits under § 25-5-77(a) may be waived or forfeited if the party seeking to enforce that right has acted inequitably. See Holy Family Catholic School v. Boley, 847 So.2d 371 (Ala.Civ.App.2002). For example, an employee may not randomly and repeatedly change pharmacies, thus forcing the employer to incur additional and unnecessary costs in establishing new accounts or new reimbursement plans with new pharmacies. An employee may not choose a pharmacy beyond a reasonable distance from his home simply to obtain additional mileage expenses. See Ala.Code 1975, § 25-5-77(f). When the workers’ compensation law grants the employee discretion, such as the choice to refuse medical treatment or suitable employment, this court has always held that the employee must exercise that discretion within the bounds of reason. See, e.g., Baptist Mem’l Hosp. v. Gaylor, 646 So.2d 93 (Ala.Civ.App.1994); and Kiracofe v. BE & K Constr. Co., 695 So.2d 62 (Ala.Civ.App.1997). If an employee unreasonably abuses the right to choose a pharmacy, the employer may petition the court having jurisdiction over any medical-necessity dispute to provide appropriate relief, up to and including termination of that right. See Boley, supra.

Because the Act expressly and unambiguously addresses who has the authority in a workers’ compensation case to select the pharmacy to be used by an employee receiving workers’ compensation benefits, I would affirm the judgment of the trial court without addressing any implication or policy reasons that may support a different selection method.

      . The definition in the Act of "providers” includes pharmacists. § 25-5-1(13), Ala.Code 1975.


author: WELCH, Judge.

text:
    Marshall MONTGOMERY v. STATE.
    CR-05-1560.
    Court of Criminal Appeals of Alabama.
    April 27, 2007.

      Marshall Montgomery, pro se.
    Kim T. Thomas, gen. counsel, and Tara S. Knee, asst. gen. counsel, Department of Corrections, for appellee.
   WELCH, Judge.

Marshall Montgomery, an inmate at El-more Correctional Facility in Elmore, Alabama, appeals from the circuit court’s dismissal of his petition for a writ of habeas corpus. Montgomery filed his petition against the State Department of Corrections (“DOC”), alleging that the DOC had miscalculated the expiration date of his sentence. Specifically, Montgomery contends that the DOC was not deducting all of his “jail credit,” as it had been ordered by the sentencing court.

The record shows that on April 15, 2002, the Jefferson Circuit Court imposed four 15-year prison sentences on Montgomery, to be served concurrently, for his four convictions of criminal possession of a forged instrument. Five and one-half months later, on October 4, 2002, the Jefferson Circuit Court imposed an additional 15-year prison sentence on Montgomery for his conviction of possession of a controlled substance. That sentence was to be served concurrently with the four sentences imposed on April 15, 2002.

A petition for writ of habeas corpus is the proper method by which an inmate tests whether the DOC has properly calculated the time the inmate is to spend in prison. Day v. State, 879 So.2d 1206, 1207 (Ala.Crim.App.2003); and Breach v. State, 687 So.2d 1257 (Ala.Crim.App.1996). We assume the DOC’s calculations are correct unless there is some proof to the contrary. Morrison v. State, 687 So.2d 1259 (Ala.Crim.App.1996).

Montgomery appears to argue that, because his sentences are to be served concurrently, all five sentences should end on the same date, i.e., the date the original four sentences were to end. He contends that the additional five months he is now scheduled to spend in prison beyond his initial scheduled release date is the result of the DOC’s failure to properly deduct jail credit from his sentence.

Alabama law provides that, when computing deductions for incentive time, what Montgomery characterized as “jail credit,”

“[w]hen a prisoner is serving two or more sentences which run concurrently, the sentence which results in the longer period of incarceration yet remaining shall be considered the term to which such prisoner is sentenced for the purpose of computing his release date and correctional incentive time.”

§ 14-9-41(g)(2), Ala.Code 1975.

In Morrison v. State, 687 So.2d 1259 (Ala.Crim.App.1996), the inmate was sentenced to serve 15 years in prison in 1986. In 1993, he was sentenced to a 10-year sentence to be served concurrently with his 15-year sentence. This Court held that under § 14-9-41(g)(2),

“because the expiration date of the April 20, 1993, sentence was beyond the expiration date of the 15-year sentence, the sentence imposed on April 20, 1993, in essence caused the 15-year sentence to cease to exist, and the appellant no longer benefitted from any good time he may have acquired on the 15-year sentence.”

685 So.2d at 1261. See also, Henley v. Johnson, 885 F.2d 790, 793-94 (11th Cir.1989); and Powell v. State, 726 So.2d 735 (Ala.Crim.App.1997).

Here, Montgomery was initially sentenced to serve 15 years in prison on April 15, 2002. On October 4, 2002, he was sentenced to another 15-year sentence to be served concurrently with the sentences imposed on April 15. Therefore, Montgomery’s April 15, 2002, sentence in essence ceased to exist and his scheduled release date should be calculated from the start of his October 4, 2002, sentence. Thus, Montgomery’s total period of incarceration will be expanded by the five-month difference between his April 15 and October 4, 2002 sentences. Accordingly, DOC did not miscalculate Montgomery’s scheduled release date.

Montgomery contends that he is entitled to a hearing on his petition. The dismissal of a petition for a writ of habeas corpus is reviewed under an abuse-of-discretion standard. A circuit court may summarily deny a habeas petition without holding an evidentiary hearing if the pleadings are sufficient to show that there is no merit to the petition. Ward v. State, 929 So.2d 1048, 1050 (Ala.Crim.App.2005).

Here, among the pleadings and papers the trial court had before it when reviewing Montgomery’s petition were his sentencing dates, certified documents indicating the amount of jail credit he had earned for each of his five convictions, and an affidavit from Kathy Holt, correctional records director for the DOC, explaining the DOC’s calculation of Montgomery’s scheduled release date. Montgomery’s petition itself sets forth the dates upon which he was sentenced and the terms of those sentences. Based upon that information, it can be determined that the “additional” five months of imprisonment added to Montgomery’s original scheduled release date when he was sentenced for a separate conviction five months later was not a miscalculation.

The pleadings alone were sufficient to show that there was no merit to Montgomery’s contention that the DOC miscalculated his scheduled release date. Therefore, the trial court did not abuse its discretion in dismissing Montgomery’s petition without a hearing.

Finally, Montgomery contends that the trial court erred in dismissing his petition after the circuit clerk had already entered a default in this case. The record shows that Montgomery moved for entry of default pursuant to Rule 55, Ala. R. Civ. P., when the DOC failed to respond to his petition within 45 days. The circuit clerk entered a default based upon Montgomery’s application for default.

We recognize that the Alabama Rules of Civil Procedure apply to habeas corpus proceedings to the extent that the practice in this matter is not provided by statute. Rule 81(a)(13), Ala. R. Civ. P.; see also Ex parte Rayburn, 366 So.2d 708 (Ala.1979). “[T]he purpose of the writ of habeas corpus is to afford relief against actual restraints upon liberty.” Ex parte Boykins, 862 So.2d 587, 591 (Ala.2002).

Default judgments are authorized by Rule 55, Ala. R. Civ. P., which applies in cases in which a plaintiff has filed a civil action seeking relief and the named defendant fails to properly respond within the time allowed by the Alabama Rules of Civil Procedure. Rule 55(a) provides that “[wjhen a party against whom affirmative relief is sought has failed to plead or otherwise defend as provided by these rules and that fact is made to appear by affidavit or otherwise, the clerk shall enter the party’s default.”

Federal cases construing the Federal Rules of Civil Procedure are persuasive authority in construing the Alabama Rules of Civil Procedure because the Alabama Rules of Civil Procedure were patterned after the Federal Rules of Civil Procedure. Borders v. City of Huntsville, 875 So.2d 1168, 1176 n. 2 (Ala.2003). The United States Courts of Appeals for the Sixth, Seventh and Eleventh Circuits have recognized that “a default judgment is not contemplated in habeas corpus cases.” Aziz v. Leferve, 830 F.2d 184, 187 (11th Cir.1987), citing United States ex rel. Mattox v. Scott, 507 F.2d 919 (7th Cir.1974), and Allen v. Perini, 424 F.2d 134 (6th Cir.1970).

In Scott, the United States Court of Appeals for the Seventh Circuit agreed with Professor Moore’s treatise on federal practice that “the Advisory Committee [for the Federal Rules of Civil Procedure] did not intend to provide for a habeas corpus petitioner’s release in the event of a failure to make a timely return, for the burden of default would then fall upon the community at large.” United States ex rel. Mattox v. Scott, 507 F.2d at 924, citing 7 Moore’s Federal Practice, 2d ed., 81.05(4).

. In Allen, the United States Court of Appeals for the Sixth Circuit held that Rule 55(a), F.R. Civ. P., has no application in habeas corpus cases and that the return to a petition for habeas corpus is not an answer within the meaning of Rule 12, F.R.Civ. P. In reaching its holding, the Allen court reasoned that the failure of the prisoner’s custodian to make a timely return does not operate to discharge the prisoner.

“The burden to show that he is in custody in violation of the Constitution of the United States is on the prisoner. The failure of State officials to file a timely return does not relieve the prisoner of his burden of proof. Default judgments in habeas corpus proceedings are not available as a procedure to empty State prisons without evidentiary hearings. We conclude that the failure of the Office of the Attorney General of Ohio to file a timely return does not afford a basis for instanter relief. Despite the delinquency of the State, the District Court was obligated to decide the case on its merits. We conclude that in spite of the untimeliness of the State’s return, the District Court would have no power to grant the writ of habeas corpus in the absence of an evidentiary hearing and unless and until the averments of the petition have been proved by competent evidence.”

Allen, 424 F.2d at 138.

In State v. Malone, 654 So.2d 92 (Ala.Crim.App.1995), this Court reversed the trial court’s order denying the DOC’s motion to set aside the entry of a default judgment in favor of an inmate, even though the DOC had failed to make a timely return to the inmate’s petition for the writ of habeas corpus. In its order granting the default judgment, the trial court stated that the order “is not intended to address the merits of the Petitioner’s claims. The judgment is solely procedural and entered due to the Respondent’s failure to comply with the Order of the Court” setting a deadline by which the DOC was to respond to the prisoner’s petition. 654 So.2d at 93.

In reversing the trial court’s order, this Court found that “the circuit court may have granted the petitioner retroactive good time credit to which he is not entitled.” 654 So.2d at 94. This Court remanded the case to the trial court to determine the merits of the prisoner’s petition for the writ of habeas corpus. In other words, this Court found that the trial court had no power to grant the relief sought in the petition merely on the basis of the State’s untimely response to the prisoner’s petition. Such a finding eviscerates Rule 55, Ala. R. Civ. P., and renders any default judgment meaningless in a habeas action.

Here, Montgomery filed a petition for a writ of habeas corpus in which he sought to have a court review of the legality of his term of incarceration. Such relief cannot be afforded simply by the circuit clerk’s entry of default. We are persuaded by the rationales set forth in the federal opinions discussed above. Accordingly, we now hold that Rule 55, Ala. R. Civ. P., has no application in habeas corpus cases, and the fact that the circuit clerk entered a default against DOC in this case is of no legal consequence. To the extent this opinion is in conflict with State v. Malone, 654 So.2d 92 (Ala.Crim.App.1995), Malone is hereby overruled.

We have reviewed the issues raised by Montgomery in his petition for writ of habeas corpus and find that he is not entitled to the relief requested.

The judgment of the trial court is affirmed.

AFFIRMED.

McMILLAN, SHAW, and WISE, JJ., concur. BASCHAB, P.J., concurs in the result.


author: PER CURIAM.

text:
    THE FLORIDA BAR, Complainant, v. Roland Raymond ST. LOUIS, Jr., Respondent.
    No. SC04-49.
    Supreme Court of Florida.
    May 3, 2007.

      John F. Harkness, Jr., Executive Director, Kenneth Lawrence Marvin, Director of Lawyer Regulation, and James A.G. Davey, Jr., Bar Counsel, The Florida Bar, Tallahassee, FL, for Complainant.
    Roland Raymond St. Louis, Jr., pro se, Coral Gables, FL, for Respondent.
   PER CURIAM.

We have for review a referee’s report recommending that Roland Raymond St. Louis, Jr., be found guilty of professional misconduct for violating a number of the Rules Regulating the Florida Bar. The referee is recommending several sanctions, the most significant of which are a sixty-day suspension, probation for three years, and forfeiture of $2,277,663 to The Florida Bar’s Clients’ Security Fund. We have jurisdiction. See art. V, § 15, Fla. Const.

For the reasons explained herein, we disapprove the referee’s recommendation that St. Louis be suspended. Instead, we impose disbarment. Further, in addition to disgorgement of $2,277,663, we order St. Louis to pay interest on that amount.

BACKGROUND

St. Louis was a shareholder in the law firm of Friedman, Rodriguez, Ferraro, and St. Louis (FRF &. S). ■ The firm was hired to represent twenty clients who sought to sue DuPont Corporation for damages allegedly resulting from use of the DuPont product Benlate, a fungicide that was suspected of causing severe crop damage and was recalled from the market in March 1991, which lead to mass tort litigation by farmers against DuPont. The partners in the firm were Paul D. Friedman, Diane D. Ferraro, Roland R. St. Louis, and Francisco R. Rodriguez. The Florida Bar brought separate disciplinary actions against the four named partners of the firm alleging that they committed misconduct by engaging in a secret “engagement agreement” with the DuPont Corporation, solely for their own financial benefit, while they were representing the clients in the Benlate cases against DuPont. Based on the partners’ separate acts of misconduct, they received different sanctions.

Ferraro received a public reprimand and made restitution of $425,000 to the clients. Fla. Bar v. Ferraro, 839 So.2d 700 (Fla.2003) (table citation). The sanction was based on the referee’s finding that Ferraro had “absolutely nothing to do with the settlement negotiations with DuPont” and did not even know about the engagement agreement until well after her former partners received the prohibited funds. Due to these facts, the referee ultimately recommended a public reprimand.

Friedman did not know about the engagement agreement until after it had been executed. Thus, he had a comparatively small role in the firm’s misconduct. Also, Friedman cooperated with the Bar and he paid restitution before his disciplinary case was reviewed by this Court. However, Friedman partook in the financial benefits of the unethical engagement agreement, exposed the Benlate clients to potential harm by engaging in the conflict of interest, and acquiesced in the firm lying to the clients. Friedman’s misconduct merited a ninety-day suspension and payment of restitution in the amount of $910,000. Fla. Bar v. Friedman, 940 So.2d 428 (Fla.2006) (table citation).

St. Louis and Rodriguez were the firm’s principal actors in developing and executing the engagement agreement. They created a conflict of interest when they executed the engagement agreement with DuPont, placing their financial interests above those of their Benlate clients. See Fla. Bar v. Rodriguez, 959 So.2d 150 (Fla.2007) (imposing a two-year suspension on Rodriguez). As discussed herein, St. Louis engaged in additional misconduct, including acts of dishonesty such as lying to a judge and the Bar regarding the secret engagement agreement. Clearly, St. Louis’s cumulative misconduct is the most egregious.

FACTS

With regard to St. Louis, a referee issued a report making the following findings and recommendations.

St. Louis and Rodriguez were the firm’s primary lawyers working on the Benlate matters. St. Louis, who had been practicing law for approximately fourteen years, brought the Benlate clients to FRF & S. He had primary authority for communicating with the clients, and he was the main strategist in the case.

The Engagement Agreement Between the Firm and DuPont. In 1994, Jim Davis, the owner of Davis Tree Farm (Davis), came to St. Louis, who agreed to take over Davis’s Benlate case from a previous firm that had quit the case. If the Davis case went to trial, it had fair prospects of a recovery, although the liability, causation, and damages elements of Ben-late cases can be difficult to prove. Davis’s previous lawyer advised Davis that he thought the most DuPont would offer in settlement would be $200,000.

Over the next two years, St. Louis and FRF & S were representing nineteen additional Benlate claimants. DuPont vigorously defended itself with carefully calculated strategies and “scorched earth” discovery tactics. St. Louis aggressively pursued discovery, motion practice, and investigations. He documented a pattern and practice of DuPont’s deliberate discovery abuse. By “diligent and extraordinary” efforts, St. Louis discovered a secret Benlate field test DuPont conducted .in 1992 in Costa Rica, in which Benlate had severely damaged the plants. He proved that DuPont had concealed or destroyed all of the physical evidence of that test, and that DuPont had denied under oath that the test even took place. St. Louis parlayed that evidence, together with other DuPont discovery violations, into a 110-page motion for sanctions, asking the trial judge to strike DuPont’s pleadings in the Davis case. The judge agreed, and orally advised the parties that she was striking DuPont’s pleadings as a sanction. The judge encouraged DuPont to settle the case.

As a result of the judge’s anticipated written order, DuPont actively sought to settle all twenty cases. During the settlement discussions, Rodriguez learned that DuPont was requesting the firm to cease representing any Benlate plaintiffs as a condition of the settlement. At various points in the negotiations, DuPont raised the issue of the firm not bringing any future Benlate cases. Initially, St. Louis refused to discuss such an “engagement agreement.” Nevertheless, the firm researched the issue with regard to rule 4-5.6(b) of the Rules Regulating the Florida Bar. The rule provides that a lawyer shall not participate in offering or making “an agreement in which a restriction on the lawyer’s right to practice is part of the settlement of a client controversy.”

DuPont made substantial offers for all the cases except Davis’s. The amounts exceeded what the clients could have reasonably expected to recover if them cases went to trial. However, these nineteen Benlate clients had only marginal claims unless their cases were tied to the Davis case. Thus, because the Davis case was still unsettled, the parties agreed to submit the case to mediation. The parties employed a mediator, who was the special master for Benlate cases in Dade County.

During a recess in mediation, the trial judge entered a written order striking DuPont’s pleadings in the Davis case. This had the effect of vitiating all of the irrevocable settlement offers made by DuPont over the prior month of negotiations. To salvage the situation, both parties contacted the mediator to secure an emergency hearing before the trial judge for 8:30 the next morning. Thereafter, the mediation evolved into a settlement negotiation of the Davis case. That evening, the negotiations resulted in a $30 million settlement for the Davis case. DuPont’s offers were irrevocable for sixty days with the following contingencies: (1) the trial judge’s order striking DuPont’s pleadings would be vacated and sealed without any publicity; (2) all offers to all plaintiffs were contingent on actual settlement of the Davis case and another case brought by Fred Haupt; and (3) the settlement figures were to be kept confidential. The confidentiality of the settlement offers made to each client was ensured by a “hold back” provision that retained ten percent of the clients’ settlement funds in escrow for two years. Those funds would be forfeited to DuPont if there were a breach of confidentiality.

After the settlement numbers were agreed upon in negotiation, the mediator reported to FRF & S that DuPont’s counsel insisted that the firm agree not to bring any future Benlate cases against DuPont. St. Louis and Rodriguez initially rejected this condition, but DuPont’s counsel insisted on the engagement agreement, asserting that it was DuPont’s policy to secure such an agreement. The referee noted that the main proponents of the scheme were the attorneys for DuPont. In fact, DuPont’s counsel referred to an article purportedly written for an American Bar Association publication that allegedly supported them position. The article allegedly described a practice where opposing attorneys are retained by the defendant, which would supposedly prevent the plaintiffs attorney from suing the defendant in the future. St. Louis testified that FRF & S asked the mediator whether agreements like this were done and that the mediator responded in the affirmative. Ultimately, St. Louis and Rodriguez agreed to DuPont’s conditions. St. Louis went with DuPont’s counsel to draft the engagement agreement and finalize the settlement agreement.

The engagement agreement stated that the firm accepted DuPont’s offer to be retained for $6,445,000 and to perform unspecified work concerning Benlate matters. The engagement agreement provided that the work for DuPont was to commence “upon completion of all activities on behalf of our existing Benlate clients.” Based on that provision, the referee found that St. Louis did not become an agent of DuPont, had no conflict of interest with his clients or DuPont, and did not violate rule 4-1.7(a) (representing adverse interests) of the Rules Regulating the Florida Bar. The referee found that St. Louis had violated rule 4-1.7(b) (duty to avoid limitation on independent professional judgment) because the exercise of his independent professional judgment was limited by his own interest in keeping the engagement agreement a secret from his clients.

FRF & S received the $6,445,000 from DuPont for the engagement agreement. Although DuPont and FRF & S agreed that payments for work in the future were to be based on the FRF & S standard hourly rate, at no time did St. Louis or DuPont’s counsel expect the firm to actually represent DuPont. The true purpose of the engagement agreement was to create the appearance of a conflict so FRF & S might circumvent Rule Regulating the Florida Bar 4-5.6(b).

St. Louis testified that, in his estimate, the value of potential future Benlate business that FRF & S surrendered to DuPont far exceeded $6.4 million. However, he claimed that if the firm had not agreed to DuPont’s demand regarding the engagement agreement, the value of nineteen of the Benlate.claims (other than the Davis claim) would have been greatly diminished. Thus, before the referee, St. Louis asserted that he was acting in the best interests of his clients when he signed the engagement agreement for $6,445,000. Nevertheless, the unrefuted evidence shows that the $59,000,000 paid to the clients and the $6,445,000 paid to FRF & S for the engagement agreement were separate funds. The $6,445,000 was not taken from funds that were available to the clients.

St. Louis and the DuPont attorneys finished drafting the engagement and settlement agreements in the early morning-hours. St. Louis signed the engagement agreement and the settlement agreement on behalf of FRF & S. At the time, St. Louis was aware that rule 4 — 5.6(b) (a lawyer shall not participate in making an agreement in which a restriction on the lawyer’s right to practice is part of the settlement) prohibited the making of such an agreement. The referee found that by entering into this agreement, St. Louis violated rule 4-5.6(b). In turn, St. Louis also violated rule 4-8.4(a) (a lawyer shall not violate the Rules of Professional Conduct) of the Rules Regulating the Florida Bar.

At 8:30 a.m., the parties appeared before the trial judge and announced that a settlement had been reached. FRF & S and DuPont did not disclose any of the details to the judge.

Aftermath of the Settlement and Engagement Agreements. After the settlement, St. Louis traveled around the state meeting with the Benlate clients, presenting the DuPont settlement offers. He urged them to accept the settlements. In fact, he informed some clients that if they did not accept, FRF & S would withdraw as them lawyers. St. Louis did not tell the nineteen clients about FRF & S’s engagement agreement with DuPont or that FRF & S was now retained by DuPont. Further, each client received a redacted copy of the settlement agreement containing only his own settlement offer and an authorization to settle form.

Eventually, every client ended up authorizing the settlement, although some clients were dissatisfied and demanded more information. One client, Jerry Gil-ley, demanded to know the specifics of the settlement negotiations. St. Louis refused to tell Gilley anything other than the dollar amount he would receive. In addition, St. Louis refused to advise Gilley. Thus, Gil-ley was compelled to hire another attorney, Marc P. Ossinsky, to uncover the details of the settlement negotiations. St. Louis refused to provide Ossinsky or Gil-ley any information regarding the engagement agreement. By his behavior, St. Louis failed to keep his clients reasonably informed about the status of the engagement agreement and therefore violated rule 4-1.4(a) (informing client of status of representation) of the Rules Regulating the Florida Bar. Further, St. Louis failed to explain the terms of the settlement to the extent reasonably necessary for his clients to make informed decisions regarding the representation and the offer from DuPont, even though there were specific inquiries regarding the terms of the settlement agreement. Thus, St. Louis also violated rule 4-1.4(b) (duty to explain matters to client).

By purposefully not disclosing the engagement agreement, St. Louis was protecting FRF & S’s interest in the $6,445,000, his own interest in his share of that fee ($2,277,663), and DuPont’s economic interests by not having it publicly disclosed that it had paid a law firm in violation of rule 4-5.6(b). Such information could have caused DuPont serious financial and legal harm because it had ongoing Benlate litigation across the country. Thus, the referee found St. Louis’s exercise of his independent professional judgment was materially limited by his own financial interest. Therefore, he violated rule 4-1.7(b) (duty to avoid limitation on independent professional judgment) of the Rules Regulating the Florida Bar.

Except for Davis Tree Farms, none of the clients were told of the engagement agreement. St. Louis knew that the clients had not been told, did not tell them himself, and never explained the terms of the engagement agreement to any of his clients. Thus, he failed to keep his clients reasonably informed about the status of the engagement agreement and, therefore, violated rule 4-1.4(a).

Thereafter, St. Louis accepted his share of the $6,445,000 engagement agreement, which was $2,277,663. By accepting those proceeds, St. Louis ratified the terms of the engagement agreement. Also, St. Louis participated fully in all of the discussions and negotiations with DuPont concerning the engagement agreement. Thus, in executing the engagement agreement and keeping it secret from his clients, on behalf of the firm, St. Louis also violated rule 4-5.1(c) (a lawyer is responsible for another lawyer’s violations of the Rules of Professional Conduct under certain circumstances) of the Rules Regulating the Florida Bar.

The referee also found that the $6,445,000 engagement agreement payment was in violation of rule 4-5.6(b) and, therefore, was a prohibited fee. Thus, St. Louis also violated rule 4-1.5(a) (an attorney shall not enter into an agreement for, charge, or collect an illegal, prohibited, or clearly excessive fee or cost) of the Rules Regulating the Florida Bar.

1997 Bar Investigation. In 1997, having received informal complaints, the Bar conducted an investigation into allegations that the $59,000,000 settlement agreement was not explained to the clients and that it was a prohibited aggregate settlement.

In January 1997, St. Louis sent a letter to Bar Counsel Elena Evans, which served as his response to the complaints. In that response, he made the following statement: “It is therefore disappointing that Mr. Ossinsky would continue to insist that we have withheld some kind of ‘documentation’ relating to the settlement negotiations; we simply cannot furnish him with what does not exist.” This statement was false because the engagement agreement did exist, and it had not been disclosed to Ossinsky or the. Bar. At the time St. Louis made the statement, he knew his statement was false. It was a misrepresentation that was material to the Bar’s investigation. Thus, St. Louis violated rules 4-8.1(a) and 4-8.4(c) (engaging in conduct involving misrepresentation) of the Rules Regulating the Florida Bar.

The Bar received additional complaints from several former Benlate clients. The Bar’s counsel for these investigations was Joan Fowler, and the Grievance Committee member was Jeanette Haag. At the request of St. Louis and Rodriguez, a meeting was arranged with these Bar representatives in Inverness. Prior to the meeting, Fowler had telephone conversations with St. Louis and Rodi'iguez in which she asked them to bring all documents relating to the settlements to the Inverness meeting. The meeting was held in Haag’s office, with Haag, Fowler, St. Louis, Rodriguez, and Robert Batsel, the attorney representing St. Louis and Rodriguez, present.

Batsel advised St. Louis that he had a duty to answer all of the Bar’s questions fully and truthfully, and to supply all documents that were responsive to an inquiry by the Bar. However, Batsel also advised St. Louis that he was not required to volunteer the existence of the engagement agreement or the confidential terms of the settlement.

Pursuant to the Bar’s direction that St. Louis and Rodriguez bring any documents they wanted the Bar to review, they brought a box of records to the Inverness meeting. Although the records of the settlement and the engagement agreement were in the box, the engagement agreement was neither inspected by the Bar nor brought to the Bar’s attention. There are two versions of what transpired at this meeting. St. Louis and Rodriguez contend that no question was asked that would require them to show the engagement agreement to the Bar. In contrast, Fowler testified that St. Louis and Rodriguez pulled documents out of the box one at a time, showed them to the Bar representatives, and explained each document. Fowler testified that she believed she had seen all of the documents in the box. Thus, she was under a misapprehension that she had seen all of the documents. St. Louis never revealed the existence of the engagement agreement to Fowler or Haag, even when Fowler asked Rodriguez and St. Louis if they had received money from DuPont. This issue was discussed in the context of $245,000 that appeared to have been paid directly to the firm by DuPont. The Bar’s concern was whether this was a payoff for an agreement not to represent future Benlate plaintiffs against DuPont. Thus, at that time, Fowler was under the misapprehension that the $245,000 was the payment by DuPont to FRF & S for a restriction on the right to practice. When Fowler inquired about that money, St. Louis stated that the amount was an award of sanctions against DuPont on the Davis case. Fowler believed this was a complete answer. However, at this point St. Louis knew or should have known of Fowler’s misapprehension, yet St. Louis failed to correct it. Nor did St. Louis disclose the existence of the engagement agreement.

The referee found St. Louis’s purposeful omission created a misunderstanding for Fowler. St. Louis’s conduct, from the start, was designed to gain Fowler’s trust by his offer of complete cooperation with the investigation, his willingness to travel to Inverness, and his eagerness to meet face to face to explain his position. Yet, while St. Louis knew the engagement agreement was relevant to the investigation of the settlements of the clients’ claims, he deliberately obfuscated matters and omitted showing the engagement agreement to Fowler. Thus, St. Louis violated rule 4-8.1(b) (a lawyer in connection with a disciplinary matter shall not fail to disclose a fact necessary to correct a misapprehension) of the Rules Regulating the Florida Bar. Because St. Louis had requested the meeting to explain his position and demonstrate the good work he had performed for his clients, he had a duty to volunteer the engagement agreement to Fowler, especially because he knew at the time that he had created the misunderstanding. Yet, St. Louis purposefully failed to correct the misunderstanding. Thus, he violated rule 4-8.1(b) by his omission, and rule 4-8.4(c) (a lawyer shall not engage in conduct involving dishonesty, fraud, deceit, or misrepresentation) by engaging in this misrepresentation to the Bar investigators.

Misrepresentation to Judge Wilson. In October 2000, St. Louis appeared before Circuit Judge Thomas S. Wilson, Jr., while representing Carolyn W. Smith in a malpractice action against her former lawyers, who had represented Smith in a Benlate claim against DuPont. Defendant’s counsel moved to disqualify St. Louis because of a conflict of interest. Even though St. Louis knew that the engagement agreement with DuPont was material to the conflict of interest issue, he failed to disclose its existence to the circuit judge.

Judge Wilson later discovered the existence of the engagement agreement and a prior disciplinary consent judgment regarding the settlement. He asked St. Louis why he should not provide that information to the Bar. In response, St. Louis claimed: “I disclosed to The Florida Bar at the time I was questioned every piece of information, every document at my disposal.” The referee found this statement to be false because the engagement agreement had not been disclosed to the Bar. Further, at the time St. Louis made this statement to Judge Wilson, St. Louis knew it was false. He also knew that it concerned a fact that was material to the inquiry of Judge Wilson regarding a possible conflict of interest in the malpractice case.

Judge Wilson asked St. Louis if he did not have the $6,445,000 agreement at his disposal, did not know about it, or whether it did not exist. St. Louis replied: “No, Your Honor, I’m not telling you that. I am telling you, sitting as the Court presiding over this case, that I made full disclosure to The Florida Bar.” This statement was false because St. Louis had not disclosed the engagement agreement to the Bar. Further, St. Louis knew that the statement was false when he made the statement to Judge Wilson. The referee found that St. Louis’s statements to Judge Wilson were misrepresentations that violated rules 4-3.3 (candor toward the tribunal) and 4-8.4(c) of the Rules Regulating the Florida Bar.

Defenses Raised by Respondent. Before the referee, St. Louis raised three affirmative defenses (1) the constitutionality of rule 4 — 5.6(b); (2) he acted under duress, coercion, and necessity; and (3) he acted on the advice of counsel.

The referee found that rule 4 — 5.6(b), the practice restriction rule, is constitutional on its face and as applied. The referee also found that the policy reasons for the rule directly apply to this case. When DuPont issued its ultimatum that the firm be retained, DuPont effectively made St. Louis, who the referee stated was among the most qualified Benlate plaintiffs’ lawyers in the world, unavailable to future claimants.

Next, the referee found that duress, coercion, and necessity were not viable defenses to the rule violations under the facts of this case. As a matter of law, fear of not receiving money cannot be the basis for a claim of duress. Also, St. Louis’s argument that the settlement had to be finalized on the night in question does not amount to coercion. St. Louis further testified that he was acting in his clients’ best interests by entering into the engagement agreement. As a matter of law, that is not a defense to rule violations.

Lastly, St. Louis raised advice of counsel as a defense to some of the alleged rule violations. Rule 4-5.2(a) of the Rules Regulating the Florida Bar states that a lawyer is bound by the rules of professional conduct even if the lawyer is instructed otherwise by another person. Thus, a defense based on advice of counsel is not available to respondents in Florida Bar discipline cases unless specifically provided for in a rule or considered as a matter in mitigation.

Findings as to Guilt. The referee found St. Louis guilty of violating Rules Regulating the Florida Bar 4-1.4(a) (informing client of status of representation); 4-1.4(b) (duty to explain matters to client); 4-1.5(a) (prohibited fees); 4-1.7(b) (duty to avoid limitation on independent professional judgment); 4-3.3 (candor toward a tribunal); 4-5.1(e) (responsibilities of a partner); 4-5.6(b) (restriction on right to practice); 4-8.1(a) (knowingly making a false statement of material fact); 4 — 8.1(b) (failure to disclose a fact necessary to correct a misapprehension); 4-8.4(a) (violating or attempting to violate the rules of professional conduct); and 4-8.4(c) (engaging in conduct involving misrepresentation).

Disciplinary Recommendations. With regard to aggravating factors, the referee found that St. Louis (1) had a dishonest motive; (2) submitted false statements during the disciplinary process; and (3) had substantial experience in the practice of law based on his fourteen years of experience as a lawyer when he entered into the practice restriction. However, the referee noted that St. Louis had no substantial experience in mass tort litigation.

With regard to mitigating factors, the referee found that St. Louis (1) had no prior disciplinary record; (2) was inexperienced in the practice of mass tort litigation; (3) had good character or reputation; and (4) has shown remorse for violating the rules and for what this has done to his family. The referee further noted that St. Louis has been through a significant amount of turmoil and that he and his family have been financially damaged by this experience.

As to discipline, the referee recommended that St. Louis (1) be suspended from the practice of law for sixty days; (2) be placed on probation for three years during which time he would be required to perform one hundred hours of pro bono services per year and to take five additional ethics hours per year; and (3) forfeit $2,277,663 to The Florida Bar’s Clients’ Security Fund in accordance with rule 3-5.1(h) of the Rules Regulating the Florida Bar. The referee found that such a forfeiture is authorized and that it is not a fíne. The referee also awarded costs to the Bar in the amount of $72,218.37.

On Review. Before this Court, the Bar filed an initial brief seeking disbarment and review of the referee’s finding that St. Louis did not violate rule 4-1.7(a). St. Louis filed an amended answer brief and initial brief on cross appeal, in which he raised numerous issues.

ANALYSIS

1998 Consent Judgment and Res Judicata. St. Louis argues that the Bar’s claims are barred by the doctrine of res judicata. In 1998, St. Louis and the Bar entered into a consent judgment regarding disciplinary proceedings against St. Louis based on his misconduct in dealing with the firm’s twenty Benlate clients. St. Louis asserts that the instant case is a subsequent attempt by the Bar to discipline him for conduct relating to the Ben-late clients and that the doctrine of res judicata applies to this proceeding.

We disagree. The Bar was not precluded from bringing a second complaint that is based on the firm’s secret agreement with DuPont. The doctrine of res judicata applies when all four of the following conditions are present: (1) identity of the thing sued for; (2) identity of the cause of action; (3) identity of persons and parties to the action; and (4) “identity of quality in persons for or against whom claim is made.” McGregor v. Provident Trust Co. of Philadelphia, 119 Fla. 718, 162 So. 323, 328 (1935); see also Palm AFC Holdings, Inc. v. Palm Beach County, 807 So.2d 703, 704 (Fla. 4th DCA 2002). Thus, the causes of action must be closely related for the doctrine of res judicata to apply. See Hay v. Salisbury, 92 Fla. 446, 109 So. 617, 621 (1926).

With regard to St. Louis, the previous and current proceedings broadly stem from his representation of the Benlate clients in a lawsuit against DuPont. However, the previous case focused on how FRF & S dealt with its clients and whether the firm improperly negotiated an aggregate settlement for the clients. In contrast, the current case is based on the secret engagement agreement that FRF & S arranged directly with DuPont while still representing its Benlate clients. Where “the second action between the same parties is upon a different claim or demand, the judgment in the prior action operates as an estoppel only as to those matters in issue or points controverted, upon the determination of which the finding or verdict was rendered.” Gray v. Gray, 91 Fla. 103, 107 So. 261, 262 (1926) (quoting Cromwell v. County of Sac, 94 U.S. 351, 353, 24 L.Ed. 195 (1876)). Thus, the current case is not barred by res judicata as it is based on a different cause of action, i.e., St. Louis’s relationship with DuPont. See Fla. Bar v. Gentry, 447 So.2d 1342 (Fla.1984) (holding that because subsequent Bar allegations were based on separate, additional, and continuing misconduct, there was no identity of facts for res judi-cata to bar the proceedings).

Findings of Fact. St. Louis challenges the referee’s findings of fact. He contends the referee’s finding that he, made a material misrepresentation when responding to Bar Counsel Evans’s initial inquiry letter is not supported by the record. A referee’s finding of fact carries with it a presumption of correctness that should be upheld unless clearly erroneous or without support in the record. Fla. Bar v. Barrett, 897 So.2d 1269, 1275 (Fla.2005). Absent a showing that the referee’s findings are clearly erroneous or lacking in evidentiary support, this Court is precluded from reweighing the evidence and substituting its judgment for that of the referee. Id.

In January 1997, St. Louis sent the response letter to Bar Counsel Evans, in which he stated: “It is therefore disappointing that Mr. Ossinsky would continue to insist that we have withheld some kind of ‘documentation’ relating to the settlement negotiations; we simply cannot furnish him with what does not exist.” When St. Louis wrote that response, he knew that the engagement agreement existed because he had assisted in drafting it. Further, he knew that it had not been disclosed to Gilley, Ossinsky, or the Bar. Thus, it is clear St. Louis lied to the Bar when he claimed that he was not withholding any documents and that no other documents existed. The referee’s factual findings on this point are supported by the record.

Next, St. Louis claims the referee’s finding that St. Louis failed to correct the apparent misapprehension of Bar investigators at the Inverness meeting is also not supported by the record. He argues that he did not lie to the investigators. In contrast to St. Louis’s assertions, however, the record supports the referee’s finding. St. Louis admitted that he did not want to divulge the engagement agreement to the Bar. In fact, he purposefully avoided disclosing the engagement agreement to the Bar investigators. Based on St. Louis’s handling of the documents that were brought to the meeting and displayed by St. Louis to the Bar investigators, Fowler was under a misapprehension that she had seen all of the documents in the box.

Rule 4-8.1 of the Rules Regulating the Florida Bar provides that a lawyer, in connection with a disciplinary matter, shall not “fail to disclose a fact necessary to correct a misapprehension known by the person to have arisen in the matter or knowingly fail to respond to a lawful demand for information” from a bar admissions or bar disciplinary authority. The rule may be violated by an omission in connection with a disciplinary investigation of the lawyer’s own conduct. Thus, rule 4-8.1 imposes an affirmative duty upon lawyers to abide by high standards of truthfulness and candor in order to maintain the integrity of the profession. We conclude that the record and the rule support the referee’s findings in this case.

St. Louis also challenges the referee’s finding that he made deliberate misrepresentations of material facts to Judge Wilson. St. Louis asserts that he merely “misspoke” when telling Judge Wilson that he had engaged in “full disclosure” with the Bar. We strongly disagree with St. Louis’s characterization of his statements and conclude that the record supports the referee’s findings. Judge Wilson questioned St. Louis because of an allegation that St. Louis had a conflict of interest that could result in disqualification. Obviously, at that time, St. Louis knew that he had previously signed the engagement agreement with DuPont, which would create a conflict of interest for St. Louis regarding Benlate cases. The record clearly demonstrates that St. Louis did not answer Judge Wilson with candor and truthfulness. Thus, the referee’s findings are amply supported.

Violation of Rule U-l. 7(a). The Bar argues that the referee was clearly erroneous in failing to find that St. Louis violated rule 4 — 1.7(a) (representing interests adverse to his clients). We agree. The referee’s determination that St. Louis was not guilty of violating rule 4-1.7(a) was a legal conclusion. This Court’s scope of review in attorney disciplinary actions is broader for legal conclusions than it is for factual findings. See Fla. Bar v. Joy, 679 So.2d 1165 (Fla.1996). Rule 4-1.7(a) provides that a lawyer shall not represent a client if representation of that client will be directly adverse to the interests of another client unless (1) the lawyer reasonably believes the representation will not adversely affect the lawyer’s responsibilities to and relationship with the other client; and (2) each client consents after consultation. The rule imposes a mandatory prohibition on such representation, unless the lawyer meets the two-step exception. St. Louis did not meet those steps.

With regard to the first step, St. Louis knowingly entered into the engagement agreement with DuPont, forming a lawyer-client relationship with DuPont while still representing the Benlate clients. The record reveals that St. Louis even pressured some of his Benlate clients to accept DuPont’s settlement offer. He informed clients that he would cease representing them unless they accepted the settlement, although he refused to inform those clients of the settlement details. In addition, St. Louis decided not to inform his clients about his decision to represent DuPont, the very decision he made while negotiating their cases against DuPont. Thus, the record demonstrates that through his actions St. Louis had divided loyalties, and' that his divided loyalties could have adversely affected his Benlate clients. As to the second step, the record also demonstrates that St. Louis did not consult with or receive the consent of the Benlate clients before he entered into the engagement agreement. In fact, St. Louis went to great efforts to keep the engagement agreement secret from his Benlate clients.

St. Louis continued to advise his Benlate clients after he signed the secret engagement agreement with DuPont. He actually represented the Benlate plaintiffs for two years after signing the engagement agreement by acting as the escrow agent who administered the ten percent holdback monies. Thus, St. Louis was representing adverse interests because he was on retainer to DuPont during that period. Accordingly, we disapprove the referee’s finding. We conclude that St. Louis violated rule 4-1.7(a) through his actions.

Constitutionality of Rule 4-5.6(b). St. Louis asserts that rule 4-5.6(b) (restriction on practice) is unconstitutional. He broadly claims that the rule lacks a reasonable relation to a legitimate purpose and represents the taking of a lawyer’s liberty or property rights without due process and adequate compensation. Rule 4-5.6(b) states that a “lawyer shall not participate in offering or making ... an agreement in which a restriction on the lawyer’s right to practice is part of the settlement of a client controversy.” The constitutionality of rule 4 — 5.6(b) is determined by applying the rational basis test. See generally DeBock v. State, 512 So.2d 164, 168 (Fla.1987) (stating that there is a “rational basis” for holding attorneys to different standards than other regulated professionals); In re Fla. Bar Amendment to Code of Prof'l Responsibility (Contingent Fees), 349 So.2d 630, 635 (Fla.1977) (applying rational basis test in analyzing proposed amendment that impinged upon constitutional guarantee of freedom of contract). The rational basis test is two-pronged: (1) whether there is a legitimate state interest to be served; and, if so, (2) whether the rule bears some reasonable relationship to that legitimate state interest. See Amerisure Ins. Co. v. State Farm Mutual Auto. Ins. Co., 897 So.2d 1287, 1290 (Fla.2005).

St. Louis incorrectly claims that rule 4-5.6(b) does not bear a rational relationship to a legitimate state purpose. Clearly, the legitimate state purpose is to promote public welfare and the public’s trust and confidence in the legal process, thus satisfying the first prong of the rational basis, test. The second prong is satisfied because rule 4-5.6(b) promotes public welfare by prohibiting lawyers from entering in engagement agreements and thereby ensuring that (1) the public has access to qualified attorneys; (2) clients’ awards are based on the merits of their claims; and (3) no conflicts exist between the interests of present and future clients. See ABA Comm, on Ethics and Profl Responsibility, Formal Op. 371 (1993). Thus, rule 4-5.6(b) does not wantonly or arbitrarily interfere in the private rights of individuals.

St. Louis also asserts that rule 4-5.6(b) infringes on his liberty and property rights inherent in his freedom to contract and practice law. He overlooks the crucial point that the practice of law is not a right, but a conditional and revocable privilege. See DeBock, 512 So.2d at 168. Moreover, the freedom to contract may be duly limited in the interest of public welfare. In re Fla. Bar Amendment, 349 So.2d at 634 (stating that the freedom to contract is not an absolute right, but a qualified right and therefore subject to a reasonable restraint in the interest of public welfare). Thus, the rule regulates the privilege to practice law for the public’s best interests. Accordingly, we conclude that the rule passes the rational basis test and is constitutional.

Rule of Lenity and Bar Proceedings. St. Louis claims that the referee erroneously rejected the “rule of lenity” when he examined the allegations of rule violations and the fee forfeiture issue. He claims that the rules regarding the forfeiture of fees are ambiguous and, therefore, the rules should be construed in favor of the accused, ie., St. Louis should not be subject to this sanction. We disagree. Typically, the rule of lenity, as codified in section 775.021, Florida Statutes (2006), only applies in the criminal context. See, e.g., Jones v. State, 728 So.2d 788 (Fla. 1st DCA 1999). The rule is applicable where the language of a criminal statute is susceptible to differing interpretations, thus allowing for construction in favor of the accused. Id. § 775.021(1). Further, section 775.021(3) provides that “[t]his section does not affect the poiver of a court to punish for contempt or to employ any sanction authorized by law for the enforcement of an order or a civil judgment or decree.” (Emphasis added.) Bar disciplinary proceedings, as in the instant case, are not considered civil or criminal, but are quasi-judicial. See Fla. Bar v. Rotstein, 835 So.2d 241, 243 (Fla.2002). Thus, the rule of lenity does not apply to bar proceedings, where this Court has the inherent power to employ any lawfully authorized sanction to discipline Florida attorneys. Accordingly, we approve the referee’s finding that the rule of lenity does not apply to this case.

Asserted Defenses. St. Louis claims that the referee erred in finding that the defenses of duress, necessity, and coercion are inapplicable in this case. He contends that the referee’s legal conclusion that “fear of not receiving money cannot be a basis for a claim of duress” is erroneous. Further, St. Louis reasons that he was in a difficult position when DuPont insisted that the engagement agreement was necessary to settle the cases.

The defenses of duress, necessity, and coercion are rarely presented in bar proceedings. In Florida Bar v. Wishart, 543 So.2d 1250, 1251 (Fla.1989), we approved the referee’s rejection of the necessity defense when Wishart, a lawyer and step-grandfather, sought custody of his step-granddaughter and in the process disobeyed court orders and claimed a necessity defense to protect his step-granddaughter from harm. Similarly, in this case, the referee ruled that duress, coercion, and necessity are not viable defenses to St. Louis’s rule violations under these facts. There is no authority to support St. Louis’s claims, but there is authority for the referee’s finding. See Wishart. Accordingly, we conclude that the referee properly found that the defenses of duress, necessity, and coercion are inapplicable in this case.

Disciplinary Sanction. The Bar argues that the referee’s recommended disciplinary sanction of suspension is not supported and that disbarment is the appropriate sanction. We agree. St. Louis engaged in several acts of dishonesty. He violated rules 4-3.3 and 4-8.4(c) when he made false statements to Judge Wilson. This Court typically imposes the severe sanction of disbarment on lawyers who intentionally lie to a court. An officer of the court who knowingly seeks to corrupt the legal process can expect to be excluded from that process. See Fla. Bar v. Kickliter, 559 So.2d 1123 (Fla.1990) (disbarring attorney who committed a fraud on the court); Fla. Bar v. Agar, 394 So.2d 405 (Fla.1980) (disbarring attorney who solicited false testimony, thereby allowing his client to perpetrate a fraud on the court).

In addition, St. Louis engaged in further violations of rule 4-8.4(c) when he made a false representation and committed an omission to two Florida Bar representatives. Further, he deliberately did not tell his clients about the engagement agreement. Thus, it is clear that St. Louis engaged in an extensive pattern of intentional deceit.

Disbarment is appropriate “when a lawyer intentionally engages in conduct that is a violation of a duty owed as a professional with the intent to obtain a benefit for the lawyer or another, and causes serious or potentially serious injury to a client, the public, or the legal system.” Fla. Stds. Imposing Law. Sanes. 7.1. At the time St. Louis made the misrepresentations to Judge Wilson and the Bar representatives, he knew his statements were false. Also, he knowingly failed to inform his Benlate clients about the engagement agreement and the conflict of interest. He intentionally engaged in these misrepresentations, violating the duties he owed as a professional, in order to preserve his portion of the $6,445,000 engagement agreement. These acts of deceit were detrimental to the legal system, negatively impacting the proceedings before Judge Wilson and St. Louis’s representation of his Benlate clients.

Further, when St. Louis entered into the engagement agreement, he violated rule 4-5.6(b) by restricting his right to practice. Attorneys who engage in such engagement agreements receive severe sanctions, even when the misconduct is far less egregious than that in the instant case. See In re Hager, 812 A.2d 904 (D.C.2002)(suspending for one year a lawyer who, while representing fifty clients in claims against a manufacturer, secured a side agreement with the manufacturer involving restricting his right to practice, dropping the pending case, and maintaining confidentiality about the side agreement); In re Brandt, 331 Or. 113, 10 P.3d 906 (2000)(imposing thirteen-month and twelve-month suspensions on two lawyers, one with a prior disciplinary record and the other without, for entering into a side agreement with the adversary to act as legal counsel). In light of the severe sanctions imposed on attorneys who have engaged in secret engagement agreements and St. Louis’s extensive acts of deceit, we conclude that disbarment is the appropriate sanction.

Forfeiture of the Prohibited Fee. St. Louis challenges the referee’s recommendation that he forfeit the funds he acquired through the engagement agreement. The funds for the engagement agreement were not a portion of the clients’ settlement. The engagement agreement funds were from the separate agreement between FRF & S and DuPont. Thus, as the funds were never client funds, it would be improper to provide the funds to the clients as restitution.

The proceeds from the engagement agreement are a prohibited fee, which are addressed by rule 3-5.1(h). The rule provides, in pertinent part:

Forfeiture of Fees. An order of the Supreme Court of Florida or a report of minor misconduct adjudicating a respondent guilty of entering into, charging, or collecting a fee prohibited by the Rules Regulating The Florida Bar may order the respondent to forfeit the fee or any part thereof.... [A] fee otherwise prohibited by the Rules Regulating The Florida Bar may be ordered forfeited to The Florida Bar Clients’ Security Fund and disbursed in accordance with its rules and regulations.

Thus, pursuant to rule 3-5.1(h), the referee appropriately recommended forfeiture of the prohibited fees to the clients’ security fund.

St. Louis disagrees with the referee’s recommendation and relies on Florida Bar v. Frederick, 756 So.2d 79 (Fla.2000), to argue that fines are not permitted in disciplinary cases. St. Louis is correct that fines are not allowed. However, in the context of this case, his reliance on Frederick is misplaced and his argument is without merit. Frederick does not address the distinct concept of disgorgement of prohibited fees pursuant to rule 3-5.1(h).

Next, St. Louis argues that he should be permitted to retain the prohibited fee. We disagree. Allowing St. Louis to keep these funds would permit him to benefit from his own wrongdoing. Reimbursing DuPont would also be improper because DuPont has “unclean hands” and is partially responsible for the instant misconduct. The only remaining option is payment to the Florida Bar Clients’ Security Fund, a fund that compensates clients who have been harmed by their lawyers.

Requiring St. Louis to disgorge his prohibited fee to the Clients’ Security Fund is in accord with the three well-established principles that this Court has set for attorney discipline.

[Sanctions imposed for unethical conduct by members of the Bar must serve three purposes.
First, the judgment must be fair to society, both in terms of protecting the public from unethical conduct and at the same time not denying the public the services of a qualified lawyer as a result of undue harshness in imposing penalty. Second, the judgment must be fair1 to the respondent, being sufficient to punish a breach of ethics and at the same time encourage reformation and rehabilitation. Third, the judgment must be severe enough to deter others who might be prone or tempted to become involved in like violations.

Fla. Bar v. Thue, 244 So.2d 424, 425 (Fla.1971) (quoting Fla. Bar v. Pahules, 233 So.2d 130, 132 (Fla.1970)). Permitting St. Louis to retain his ill-gotten gains would fail to provide a deterrent and could actually encourage misconduct by unethical lawyers, who would seize an opportunity to reap huge monetary rewards. Moreover, society would be harmed by allowing St. Louis to benefit in such a substantial way from his misconduct.

In In re Hager, 812 A.2d 904 (D.C.2002), the District of Columbia Court of Appeals examined a situation similar to the instant case. An attorney representing clients in a potential class action against a shampoo manufacturer entered into a settlement whereby clients would receive full purchase price refunds for the shampoo. The attorney was to be paid $225,000 in fees and expenses by the manufacturer, in return for agreeing not to represent present or future clients on similar claims against the manufacturer. Further, the attorney was not to disclose this agreement and the amount of his payment to the clients. Id. at 908. The court found that the attorney violated bar rules and it considered ordering him to disgorge his ill-gotten fees. The court speculated that restitution to the clients was inappropriate, but it was deeply concerned about the attorney’s unjust enrichment. Id. at 922-23. Eventually, as part of his reinstatement proceedings, the attorney was required to place the improper fees into a client security fund. See In re Hager, 878 A.2d 1246 (D.C.2005).

Based on the clear language of rule 3-5.1(h), the three purposes of attorney discipline, and Hager, we approve the referee’s recommendation that St. Louis be required to disgorge the prohibited fee into the Clients’ Security Fund. Further, after considering the referee’s report, we modify the amount that the referee recommended for disgorgement. Footnote 18 of the referee’s report sets out the computation for determining the amount of $2,277,663. We defer to the referee as the finder of fact on this figure. However, we note that the referee recommended that this total be reduced by the amount St. Louis paid in taxes. We disagree. St. Louis can seek a refund of those taxes from the Internal Revenue Service. Thus, we require St. Louis to disgorge the full amount of $2,277,663, plus interest. Interest shall be calculated as starting on August 12, 1996, the date the firm received the $6,445,000.

CONCLUSION

Accordingly, Roland Raymond St. Louis, Jr., is hereby disbarred. The disbarment will be effective thirty days from the filing of this opinion so that St. Louis can close out his practice and protect the interests of existing clients. If St. Louis notifies this Court in wilting 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 disbarment effective immediately. St. Louis shall accept no new business from the date this opinion is filed until he is readmitted to the practice of law in Florida. Further, St. Louis is required to disgorge $2,277,663, plus interest, to The Florida Bar Clients’ Security Fund.

Judgment is entered for The Florida Bar, 651 East Jefferson Street, Tallahassee, Florida 32399-2300, for recovery of costs from Roland Raymond St. Louis, Jr., in the amount of $72,218.37, for which sum let execution issue.

It is so ordered.

LEWIS, C.J., and WELLS, ANSTEAD, PARIENTE, QUINCE, CANTERO, and BELL, JJ., concur.

      . The referee found that entering into this agreement violated rule 4-5.6(b) (restriction on the right to practice) of the Rules Regulating the Florida Bar and resulted in the acceptance of a prohibited fee in violation of rule 4-1.5(a) of the Rules Regulating the Florida Bar.

      . In July 1996, Rodriguez asked an associate to research whether the firm could ethically agree to DuPont's condition that the firm not litigate against DuPont in the future. The associate researched the issue and reported to Rodriguez that the law was unclear, but he thought that DuPont's objective could be achieved by DuPont engaging the firm after the firm finished its representation of the twenty Benlate clients. This is the action the firm subsequently undertook.

      . Similarly, other jurisdictions have held that the defense is not available in bar discipline proceedings. In People v. Katz, 58 P.3d 1176, 1187 (Colo.P.D J.2002), that court said: "It is the individual attorney’s duty and obligation to comply with the Rules of Professional Conduct. The attorney may not delegate that duty or responsibility to another under the umbrella of advice of counsel and thereby create a defense to a violation of those Rules.”