The Florida Bar v. Maurice

• Decision Date: 12 April 2007
• Docket Number: No. SC04-700.,SC04-700.
• Citation: 955 So.2d 535
• Parties: THE FLORIDA BAR, Complainant, v. Shelley Goldman MAURICE, Respondent.
• Court: Florida Supreme Court

955 So.2d 535

THE FLORIDA BAR, Complainant, v. Shelley Goldman MAURICE, Respondent.

No. SC04-700.

Supreme Court of Florida.

April 12, 2007.

John F. Harkness, Jr., Executive Director and Kenneth L. Marvin, Director of Lawyer Regulation, The Florida Bar, Tallahassee, FL, and Alan Anthony Pascal, Bar Counsel, The Florida Bar, Fort Lauderdale, FL, for Complainant.

Shelley Goldman Maurice, pro se, Boynton Beach, FL, for Respondent.

PER CURIAM.

We review a referee's report regarding alleged ethical breaches by Shelley Goldman Maurice. We have jurisdiction. See art. V, § 15, Fla. Const. We approve the referee's findings of fact and conclusions as to guilt. We disapprove the recommended discipline of a two-year suspension and impose in its stead a ninety-day suspension.

Factual and Procedural Background

The Florida Bar filed a one-count complaint against Maurice, alleging that Maurice engaged in unethical conduct in administering a probate estate. Maurice admitted several of the factual allegations of the complaint, denied others, and denied violating any of the rules with which she was charged. After a hearing, the referee filed his report with the Court. The referee found that Maurice prepared a quitclaim deed for a client, Helen Spelker, in November 1998, which transferred ownership of her condominium to her son, Gerard Spelker, and her grandson, William Spelker, but reserved to Helen Spelker a life estate in the condominium. The quitclaim deed was duly recorded in the public record, making Gerard and William Spelker vested remaindermen.

Several months later, in August 1999, Maurice prepared a new will for Helen Spelker. The will purported to bequeath the condominium and the rest of her belongings to Gerard and William Spelker, and to William's mother, Pamela Spelker, to be divided equally among them. The will also required the heirs to sell the condominium to Arthur Oliveri (Oliveri), Helen Spelker's neighbor and caretaker, for not less than $38,000.

Helen Spelker died in April 2001, without revoking the quitclaim deed to the condominium. The bulk of her estate was exempt or transferred upon her death, making the opening of an estate unnecessary. The heirs hired Maurice to probate the estate and to handle the proper disposition of the property. Without advising the heirs of the quitclaim deed making Gerard and William Spelker the full owners of the condominium upon Helen Spelker's death or that no estate was necessary, Maurice opened formal estate proceedings. Maurice's judgment regarding the necessity of an estate was clouded by her expressed concern for Helen Spelker's caretakers.

Maurice further advised the heirs that a trust should be created for William Spelker, who was a minor, so that proceeds from the sale of the condominium could be placed in trust. The provision in the will requiring the heirs to establish a trust also named Maurice as trustee. Maurice's actions created a conflict of interest between herself and the heirs and delayed the sale of the condominium.

The referee concluded that Maurice violated Rules Regulating the Florida Bar 4-1.1 (failing to provide competent representation to a client), 4-1.3 (failing to act with reasonable diligence and promptness in representing a client), 4-1.4(a) (failing to keep a client reasonably informed about the status of a matter and to promptly comply with reasonable requests for information), 4-1.7(b) (representing a client when the lawyer's exercise of independent professional judgment may be materially limited by the lawyer's responsibilities to another client, to a third person, or the lawyer's own interest), and 4-3.2 (failing to make reasonable efforts to expedite litigation consistent with the interests of the client). These violations were alleged in the Bar's complaint. In addition, the referee found Maurice violated rule 4-8.4(a) (violating or attempting to violate the Rules of Professional Conduct).

The referee did not make any findings as to whether Maurice violated several rules with which she had been charged, specifically rules 4-1.4(b) (failing to explain a matter to the extent reasonably necessary to permit the client to make informed decisions), 4-1.5(a) (entering into an agreement for, charging, or collecting an illegal, prohibited, or clearly excessive fee), 4-8.4(c) (engaging in conduct involving dishonesty fraud, deceit, or misrepresentation), and 4-8.4(d) (engaging in conduct that is prejudicial to the administration of justice). In effect, this is a finding that the Bar failed to present clear and convincing evidence that Maurice violated these rules.

With regard to discipline, the referee found two aggravating factors: (1) vulnerability of the victim and (2) substantial experience in the practice of law. The referee found the sole mitigating factor of absence of a prior disciplinary record. The referee recommended a two-year suspension, proof of completion of continuing legal education (CLE) programs entitled Practicing with Professionalism, Basic Probate and Guardianship, and Ethics Seminar, and reimbursement of the Bar's costs.

Maurice challenges several of the referee's factual findings, conclusions of guilt, and the recommendation of a two-year suspension.

Factual Findings

Maurice takes issue with the referee's finding that she opened probate proceedings when it was unnecessary to do so, that she misrepresented to the heirs the need to open probate proceedings, and that she caused a delay in the closing for the sale of the condominium owned by Gerard and William. She argues that the Bar failed to prove intent and that the record fails to establish intent.

The party contending that the referee's findings of fact are erroneous carries the burden of demonstrating that there is no evidence in the record to support those findings. Fla. Bar v. Carlon, 820 So.2d 891, 898 (Fla.2002). Maurice testified that she prepared a quitclaim deed for Helen Spelker before she prepared Helen Spelker's will. The quitclaim deed, which was introduced into evidence, transferred ownership of the condominium to Gerard and William Spelker.

Maurice testified that Helen Spelker wanted Gerard and William Spelker to have her condominium and did not want her other son or her daughter to have it or anything else. The quitclaim deed was prepared and filed to transfer ownership of the condominium. The quitclaim deed passed remainder interests in the condominium to Gerard and William Spelker when it was completed.

When Helen Spelker died, her life estate ended and Gerard and William Spelker became full owners of the condominium. Not only was there no need for the condominium to be passed through the estate, passing it through the estate was a nullity. It was no longer Helen Spelker's condominium to bequeath. Because Maurice prepared the quitclaim deed and knew the deed had been recorded and never changed before Helen Spelker's death, she knew it was not an estate asset.

Maurice's justification for treating the condominium as an estate asset was that she wanted to ensure the disinherited children could not challenge Gerard and William Spelker's ownership of the condominium. Maurice testified as follows:

The condominium went through the estate process for protection of creditors because we wanted to make sure that — There were two family members that were rather irate that they had not been in the estate, so we were attempting to protect the condominium as homestead property.

And then there was — and the will directs that the condominium, except for real estate which is presently put in convenience the name of myself and my son, Eric Spelker and William Spelker, everything else would go by rights of survivorship.¹

And the bills for the estate which were to be paid out of the sale of the proceeds of the property . . . (inaudible).

So it was our duty to make sure that it went through the estate so it could be sold and protected from claims of creditors.

It is clear that the referee did not accept this explanation. A referee's assessment of a witness's credibility is reviewed for abuse of discretion. Fla. Bar v. Charnock, 661 So.2d 1207, 1209 (Fla.1995).

At least two other possible reasons exist for Maurice to open probate and treat the condominium as an estate asset — (1) to earn fees as the estate's administrator; or (2) to ensure that Oliveri would be given the right of first refusal to buy the condominium from the new owners, Gerard and William Spelker. The referee did not find that Maurice opened probate to generate fees. Nor did he find that Maurice violated rule 4-1.5(a) (prohibiting an attorney from entering into an agreement for, charging, or collecting an illegal, prohibited, or clearly excessive fee).

The second possible motive, to ensure that Oliveri was given the right of first refusal, is supported by the findings. The referee found that Maurice's judgment about the need for an estate "was clouded by her expressed concern for Helen Spelker's caretakers" and that her opening an estate placed her "in conflict with the heirs of the estate who sought her counsel after Helen Spelker passed." He concluded her conduct had violated rule 4-1.7(b) (prohibiting a lawyer from representing a client when the lawyer's exercise of independent professional judgment may be materially limited by the lawyer's responsibilities to another client, a third person, or by the lawyer's own interest).

Here, there were two possible inferences to be drawn about Maurice's motives for opening an estate and including the condominium as an estate asset when she knew the condominium already belonged to Gerard and William Spelker. Either one would have resulted in the violation of at least one of the rules charged. The referee obviously rejected one inference, but found the other. In addition, Maurice's own testimony that she was trying to ensure that Oliveri was given the opportunity to buy the condominium supports the referee's conclusion that her desire...