The Florida Bar v. Shoureas, SC03-1194.
| Decision Date | 12 October 2005 |
| Docket Number | No. SC03-1194.,No. SC03-1333.,SC03-1194.,SC03-1333. |
| Citation | 913 So.2d 554 |
| Parties | THE FLORIDA BAR, Complainant, v. Marjorie Hollman SHOUREAS, Respondent. The Florida Bar, Complainant, v. Marjorie Hollman Shoureas, Respondent. |
| Court | Florida Supreme Court |
John F. Harkness, Executive Director, John Anthony Boggs, Staff Counsel, The Florida Bar, Tallahassee, FL, and Adria E. Quinela, Bar Counsel, Fort Lauderdale, FL, for Complainant.
Kevin P. Tynan of Richardson and Tynan, P.L.C., Tamarac, FL, for Respondent.
We have for review the referee's reports in two cases involving ethical breaches by Marjorie Hollman Shoureas. We have jurisdiction. See art. V, § 15, Fla. Const. We consolidate the cases for purposes of this opinion. We approve the referee's findings of fact, recommendations as to guilt, and recommended discipline, with the exceptions noted below.
This case involves disciplinary violations arising from two client matters. In the first matter, Lavont Flanders hired Shoureas to represent him in two civil cases. Flanders subsequently made numerous attempts to contact Shoureas concerning the cases, but she never returned his phone calls or replied to his letters. In one of the cases, Shoureas failed to execute a summons and complaint, failed to meet discovery deadlines, and was ordered to show cause why the case should not be dismissed for lack of prosecution. In the other case, Shoureas failed to execute a summons, and Flanders himself had to arrange for the summons to be served. That case was dismissed for lack of prosecution. Flanders filed a complaint with The Florida Bar concerning both cases. In the second matter, Magnolia Jager hired Shoureas to represent her in an employment discrimination dispute. Shoureas accepted representation and collected a fee and then never returned Jager's phone calls or replied to her letters. Jager filed a complaint with The Florida Bar.
Upon investigation, the Bar filed a four-count complaint against Shoureas. Counts I and II addressed Flanders's complaint, and Counts III and IV addressed Jager's complaint. The referee recommended that Shoureas be found guilty as follows:
A. As to Count I: By the conduct set forth above, Respondent violated R. Regulating Fla. Bar Rule 4-1.1 ; Rule 4-1.3 []; Rule 4-1.4(a) []; Rule 4-1.4(b) []; and Rule 4-8.4(a) [].
B. As to Count II: By the conduct set forth above, Respondent violated R. Regulating Fla. Bar Rule 4-8.4(g) [].
C. As to Count III: By the conduct set forth above, Respondent violated R. Regulating Fla. Bar Rule 4-1.1 ; Rule 4-1.3 []; Rule 4-1.4(a) []; Rule 4-1.4(b) []; Rule 4-1.5(a) []; and Rule 4-8.4(a) [].
D. As to Count IV: By the conduct set forth above, Respondent violated R. Regulating Fla. Bar Rule 4-8.4(g) [].
The referee made the following recommendation as to disciplinary measures to be imposed:
I recommend that Respondent be suspended for three years from the practice of law, said suspension to run concurrent and coterminous with her suspension in Supreme Court Case No. SC03-293. Respondent shall also pay $100 to Ms. Jager as restitution within sixty days of the order of the Supreme Court. During the course of her suspension, the Respondent is to continue her treatment and counseling with Dr. Ryan and Florida Lawyers Assistance, Inc. The appropriateness of any probationary terms upon reinstatement should be addressed in the reinstatement proceeding.
In recommending imposition of the above disciplinary measures, the referee considered the following factors:
After finding Respondent guilty but prior to making my disciplinary recommendation, I considered the following personal history and prior disciplinary record of Respondent, to wit:
Age: 52.
Date admitted to The Florida Bar: March 31, 2000.
Prior disciplinary convictions and disciplinary measures imposed therein: Respondent has been disciplined twice since her admission to The Florida Bar in 2000. The Florida Bar Case Nos. 2002-50,966 and 2002-51,254, Supreme Court Case No. SC02-2226 — Respondent was suspended for ninety-one days for neglecting clients; The Florida Bar Case Nos.2002-51,797 and 2003-50,524, Supreme Court Case No. SC03-293 — Respondent was suspended for a period of three years for neglecting clients.
The Bar has petitioned for review, seeking disbarment rather than a three-year suspension. Shoureas, on the other hand, asks the Court to approve the recommended discipline.
The Court's standard of review for evaluating a referee's factual findings and recommendations as to guilt is as follows:
This Court's review of such matters is limited, and if a referee's findings of fact and conclusions concerning guilt are supported by competent, substantial evidence in the record, this Court will not reweigh the evidence and substitute its judgment for that of the referee.
Fla. Bar v. Rose, 823 So.2d 727, 729 (Fla.2002). Implicit in this standard is the requirement that the referee's factual findings must be sufficient under the applicable rules to support the recommendations as to guilt. See Fla. Bar v. Spear, 887 So.2d 1242, 1245 (Fla.2004).
In the present case, neither party contests the referee's factual findings or recommendations as to guilt. Our review of the record shows that, with a single exception noted below, the referee's findings and recommendations are supported by competent, substantial evidence. Shoureas admitted virtually all the violations outlined above in her initial pleading. We approve the referee's factual findings and recommendation that Shoureas be found guilty of violating the following rules: rule 4-1.1 (); rule 4-1.3 (); rule 4-1.4(a) (); rule 4-1.4(b) (); rule 4-8.4(a) (); and rule 4-8.4(g) ().
The only exception to the foregoing analysis is the alleged violation of rule 4-1.5(a) (). On this charge, Shoureas denied the allegation in the complaint; the Bar presented no evidence directed to this issue below; and the referee made no specific findings with regard to a violation of this provision. In fact, at the conclusion of the final hearing, the referee stated: Despite this statement, the written report contains a recommendation that Shoureas be found guilty of violating rule 4-1.5(a). Our review of the record reveals no competent, substantial evidence to support this recommendation and we therefore decline to approve this specific portion of the report and recommendation.
With regard to the referee's recommended discipline, the Court's standard of review is slightly different. We have consistently held that:
In reviewing a referee's recommended discipline, this Court's scope of review is broader than that afforded to the referee's findings of fact because, ultimately, it is our responsibility to order the appropriate sanction. However, generally speaking, this Court will not second-guess the referee's recommended discipline as long as it has a reasonable basis in existing case law and the Florida Standards for Imposing Lawyer Sanctions.
Fla. Bar v. Springer, 873 So.2d 317, 321 (Fla.2004) (citations omitted). In the present case, the recommended discipline of three-years' suspension meets this...
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