The Florida Bar v. Shoureas

• Decision Date: 19 August 2004
• Docket Number: No. SC03-293.,SC03-293.
• Citation: 892 So.2d 1002
• Parties: THE FLORIDA BAR, Complainant, v. Marjorie Hollman SHOUREAS, Respondent.
• Court: Florida Supreme Court

892 So.2d 1002

THE FLORIDA BAR, Complainant, v. Marjorie Hollman SHOUREAS, Respondent.

No. SC03-293.

Supreme Court of Florida.

August 19, 2004.

John F. Harkness, Jr., Executive Director, and John Anthony Boggs, Staff Counsel, Tallahassee, FL, and Adria E. Quintela, Bar Counsel, Fort Lauderdale, FL, for Complainant.

Kevin P. Tynan of Richardson and Tynan, P.L.C., Tamarac, FL, for Respondent.

PER CURIAM.

We have for review a referee's report regarding alleged ethical breaches by attorney Marjorie Hollman Shoureas. We have jurisdiction. See art. V, § 15, Fla. Const. We approve the referee's findings of fact and recommendations as to guilt with the exceptions noted herein. For the reasons explained below, we decline to approve the recommended discipline of disbarment and instead suspend Shoureas for a period of three years.

I. FACTS

The following facts are based on the factual findings in the referee's report. This proceeding involves alleged disciplinary violations arising from two client matters. In the first matter, Felipe Mantorval hired Shoureas to represent him in a personal injury claim against Publix Supermarkets. Shoureas accepted representation, collected a fee, and then took little or no significant action in the case. No suit ever was filed against Publix. Mantorval made numerous attempts to contact Shoureas, but Shoureas never returned the calls and Mantorval was unable to determine the status of his case. Further, Mantorval owed certain monies to Pilot Finance and he authorized Shoureas to pay Pilot Finance those monies out of any settlement he received from Publix. Shoureas, however, did not return Pilot Finance's inquiries. Pilot Finance filed a complaint with The Florida Bar and Shoureas failed to respond to the Bar's communications. Subsequently, Mantorval himself filed a complaint with the Bar and Shoureas again failed to respond to the Bar's letters.

In the second matter, Sylvia Herrera hired Shoureas to represent her in a dissolution of marriage proceeding. Shoureas accepted representation, collected a fee, and then took little or no significant action in the case. Herrera made numerous attempts to contact Shoureas but Shoureas never returned the calls and Herrera was unable to determine the status of her case. Herrera filed a complaint with the Bar and Shoureas failed to respond to the Bar's letters.

The Bar filed a seven-count complaint against Shoureas (four counts arising from the first client matter, three counts arising from the second matter), and she failed to respond. The referee granted the Bar's motion for default, entered a default against Shoureas regarding the charges made in the complaint, and scheduled a hearing for the purpose of determining sanctions. Shoureas did not attend the hearing and the Bar presented no evidence. Based solely on the pleadings and other documents filed in the case, the referee filed a report and recommended that Shoureas be found guilty of violating various provisions of the Rules Regulating the Florida Bar¹ and recommended that she be disbarred.²

Shoureas has petitioned for review, contending that disbarment is reserved for cases of gross misconduct where there is no hope for reformation or rehabilitation of the accused lawyer. She claims that such is not the case here. She further claims that the referee's recommended discipline fails to comport with the applicable standards governing the imposition of lawyer discipline.

II. ANALYSIS

A. Factual Findings and Recommendations as to Guilt

This Court's standard of review for evaluating a referee's findings of fact 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.

Florida Bar v. Rose, 823 So.2d 727, 729 (Fla.2002).

Because Shoureas did not contest the factual allegations in the Bar's complaint, the referee entered a default against her and that default now stands as a formal stipulation by Shoureas as to the correctness of the factual allegations contained in the complaint.³ To the extent the referee's findings of fact and recommendations as to guilt are reasonably supported by the factual allegations in the complaint, the default constitutes competent, substantial evidence supporting the referee's factual findings and recommendations as to guilt.⁴

Our review of the present record shows that the referee's factual findings and recommendations as to guilt are supported by competent, substantial evidence. Accordingly, we approve the findings of fact and recommendations that Shoureas violated the following Rules Regulating the Florida Bar: as to the case involving Mantorval: rules 4-1.1, 4-1.3, 4-1.4(a), 4-1.4(b), and 4-4.8(g); and as to the case involving Herrera: rules 4-1.3, 4-1.4(a), 4-1.4(b), and 4-8.4(g).

B. Recommended Discipline

When 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.⁵ In determining the proper sanction, the Court will take into consideration the three purposes of lawyer discipline:

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 fair 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.

Florida Bar v. Bailey, 803 So.2d 683, 694-95 (Fla.2001) (quoting Florida Bar v. Brake, 767 So.2d 1163, 1169 (Fla.2000)).⁶

As a general rule, the Court will not second-guess a referee's recommended discipline as long as it (1) is authorized under the Florida Standards for Imposing Lawyer Sanctions and (2) has a reasonable basis in existing case law.⁷ However, this Court has also explained the limited role that disbarment plays in the disciplinary process:

[D]isbarment is the extreme measure of discipline and should be resorted to only in cases where the lawyer demonstrates an attitude or course of conduct wholly inconsistent with approved professional standards. It must be clear that he is one who should never be at the bar.... A removal from the bar should therefore never be decreed where any punishment less severe, such as reprimand, temporary suspension or fine would accomplish the end desired.

Florida Bar v. Thomson, 271 So.2d 758, 761 (Fla.1972) (quoting State ex rel. Florida Bar v. Murrell, 74 So.2d 221, 223 (Fla.1954)); see also Florida Bar v. Simring, 612 So.2d 561, 571 (Fla.1993)

("[D]isbarment is the extreme measure of discipline and should be resorted to only in cases where the lawyer demonstrates an attitude or course of conduct wholly inconsistent with approved professional standards.") (quoting Florida Bar v. Pahules, 233 So.2d 130, 131 (Fla.1970)); Florida Bar v. Williams, 604 So.2d 447, 452 (Fla.1992) (same). In other words, disbarment "occupies the same rung of the ladder in these proceedings as the death penalty in criminal proceedings." Florida Bar v. Summers, 728 So.2d 739, 742 (Fla.1999) (quoting Florida Bar v. Hirsch, 342 So.2d 970, 971 (Fla.1977)).

Given the facts of this case, we conclude that suspension and not disbarment is the proper sanction under the Florida Standards for Imposing Lawyer Sanctions. A hierarchy of sanctions is authorized in cases where a lawyer fails to act with reasonable diligence in representing a client.⁸ Ordinarily, admonishment is the appropriate sanction when a lawyer is negligent and fails to act with reasonable diligence in representing a client and causes little or no actual or potential injury to a client.⁹ Public reprimand is the appropriate sanction when a lawyer is negligent and fails to act with reasonable diligence in representing a client and causes injury or potential injury to a client.¹⁰ Suspension is the appropriate sanction when a lawyer (a) knowingly fails to perform services for a client or engages in a pattern of neglect and (b) causes injury or potential injury to a client.¹¹ Finally, disbarment is the appropriate sanction when a lawyer (a) abandons his or her law practice or knowingly fails to perform services or engages in a pattern of neglect and (b) causes serious or potentially serious injury to a client.¹²

The presumptive sanctions assume the absence of aggravating or mitigating circumstances. In this case, the referee found as an aggravating circumstance that Shoureas had been disciplined earlier for a similar violation. Based on the record, that was a proper assessment. We note, however, that the suspension in the earlier case was imposed long after the two matters giving rise to the present disciplinary proceeding already had taken place.¹³ Shoureas thus did not have the benefit of the rehabilitative effect of the first disciplinary sanction at the time she engaged in the conduct that resulted in the present disciplinary violations. Further, the referee's finding of a pattern of misconduct is based on the prior disciplinary case and the two cases of client neglect that gave rise to this current disciplinary action.

The referee also found as an aggravating circumstance that Shoureas abandoned her law practice. This matter, however, was not mentioned in the complaint and there is no other evidence in the record supporting this circumstance. With respect to client injury, the referee found as an aggravating circumstance that Shoureas "has been indifferent ... to making restitution to her clients" and the referee recommended that Shoureas be ordered to...