SC04-700 – The Florida Bar v. Shelley Goldman Maurice

SUPREME COURT CASES

Laws-info.com » Cases » Florida » Supreme Court » 2007 » SC04-700 – The Florida Bar v. Shelley Goldman Maurice

State: Florida

Court: Supreme Court

Docket No: sc04-700

Case Date: 04/12/2007

Plaintiff: SC04-700 – The Florida Bar

Defendant: Shelley Goldman Maurice

Preview:Supreme Court of Florida
No. SC04-700
THE FLORIDA BAR,
Complainant,
vs.
SHELLEY GOLDMAN MAURICE,
Respondent.
[April 12, 2007]
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
- 2 -

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).
- 3 -

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
- 4 -

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
- 5 -

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
1.   Eric is Gerard Spelker’s middle name.
- 6 -

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
- 7 -

opportunity to buy the condominium supports the referee’s conclusion that her
desire conflicted with her duties toward the heirs under the will.
We conclude that competent, substantial evidence supports the referee’s
findings.
Conclusions of Guilt
Maurice also challenges the referee’s conclusions that she violated rules 4-
1.1 (competent representation) and 4-1.8 (representing a client with a conflict of
interest).                                                                             “A referee’s findings of fact regarding guilt carry a presumption of
correctness that should be upheld unless clearly erroneous or without support in the
record.”  Fla. Bar v. Brown, 905 So. 2d 76, 80 (Fla. 2005) (quoting Fla. Bar v.
Wohl, 842 So. 2d 811, 814 (Fla. 2003)).   “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.”   Fla. Bar v. Wohl, 842 So. 2d 811, 814 (Fla. 2003) (quoting Fla. Bar
v. Sweeney, 730 So. 2d 1269, 1271 (Fla. 1998)).
The referee found that Maurice violated rules 4-1.1, 4-1.3, 4-1.4(a), 4-1.7, 4-
3.2, and 4-8.4(a).  Significantly, Maurice was neither charged with violating nor
did the referee conclude that she violated rule 4-1.8.  Maurice may have meant to
contest the referee’s conclusion that she violated rule 4-1.7.
- 8 -

The evidence and factual findings support the referee’s conclusion that
Maurice violated rules 4-1.1 and 4-1.7(b).  Maurice’s belief that the condominium
could be treated as an estate asset although it had previously been deeded to Gerard
and William Spelker is sufficient to establish a violation of rule 4-1.1.  See
generally Fla. Bar v. Batista, 846 So. 2d 479 (Fla. 2003) (holding that an attorney
violated the competence rule by failing to determine the probable outcome in his
clients’ cases within a reasonable time and failing to communicate the
unavailability of a result to his clients).   The referee found that probate proceedings
were unnecessary, as most of Helen Spelker’s property was either exempt or
transferred upon her death.  Maurice failed to explain this to the heirs.  Maurice
opened an estate in an attempt to ensure that Oliveri was given the opportunity to
purchase the condominium from Gerard and William Spelker.  She did not tell
Pamela Spelker or her attorney that the ownership of the condominium had been
transferred to Gerard and William in November 1998 and she did not provide a
copy of the quitclaim deed she had prepared.  The referee found that Maurice’s
judgment regarding the necessity of an estate was clouded by her expressed
concern for Helen Spelker’s caretakers, one of whom was Oliveri.  These actions
establish a violation of rule 4-1.7(b) in that her desire to ensure that Gerard and
William Spelker gave Oliveri a chance to purchase the condominium conflicted
with her duty to her clients, Helen Spelker’s heirs.
- 9 -

Maurice has failed to meet her burden of proving that the referee’s
conclusions that she violated rules 4-1.1 and 4-1.7(b) are clearly erroneous or
lacking in evidentiary support.  Accordingly, we approve the referee’s conclusions
of guilt.
Aggravating and Mitigating Factors
Maurice argues that the referee failed to find several mitigating factors,
including: (1) no prior disciplinary history;2 (2) Maurice is a self-starter who put
herself through law school while working at a law firm and set up her own practice
two years after law school; (3) the complaining party did not pay any money to
Maurice and did not lose any during the course of Maurice’s representation; (4) she
paid the Bar’s costs within two weeks of the referee’s decision; (5) she completed
all required CLE credits during her reporting cycle and has never been in violation
of the CLE requirements; (6) she has always taken more CLE than necessary; (7)
she has conducted a seminar on real estate transactions; and (8) she is a
chairperson and has been a chairperson of the local bar association’s real estate
committee for the past four years.  According to Maurice, the referee also failed to
consider the mitigating factor that Maurice made a timely good-faith effort to make
restitution or to rectify the consequences and there was no monetary loss to the
complaining parties.
2.   Despite Maurice’s argument, the referee did find this mitigating factor.
- 10 -

The Bar asserts that there is no basis in standard 9.3 of the Florida Standards
for Imposing Lawyer Sanctions for the additional mitigating factors that Maurice
claims exist and that the referee correctly found that the only mitigating factor
extant here is the fact that Maurice has no prior disciplinary record.
A referee’s findings of mitigation and aggravation, like other factual
findings, carry a presumption of correctness that should be upheld unless clearly
erroneous or without support in the record.   Fla. Bar v. Arcia, 848 So. 2d 296 (Fla.
2003).
Some of the factors Maurice identifies could possibly relate to the mitigating
factors identified in standard 9.3, as follows:                                         (1) the absence of a dishonest or
selfish motive (the complaining party did not pay any money to Maurice and did
not lose any during the course of Maurice’s representation); (2) a timely good-faith
effort to make restitution or to rectify the consequences of misconduct (she paid
the Bar’s costs within two weeks of the referee’s decision; she completed all
required CLE credits during her reporting cycle and has never been in violation of
the CLE requirements); or (3) character or reputation (Maurice is a self-starter who
put herself through law school while working at a law firm and set up her own
practice two years after law school; she has always taken more CLE than
necessary; she has conducted a seminar on real estate transactions; and she is a
- 11 -

chairperson and has been a chairperson of the local bar association’s real estate
committee for the past four years).
Maurice does not expressly tie these facts to any of the mitigating factors.
Even if these “facts” are interpreted as relating to the mitigating factors identified
above, Maurice has failed to demonstrate that the referee’s failure to find that these
mitigating factors applied in this case was clearly erroneous or without support in
the record.  We therefore approve the referee’s findings regarding aggravating and
mitigating factors.
Recommended Sanction
The referee recommended a two-year suspension, various courses of
continuing legal education offered by the Bar, and payment of the Bar’s costs.
Maurice argues that the recommendation of a two-year suspension is not supported
by caselaw or the standards.  We agree and disapprove that recommendation.
The Court’s scope of review in reviewing a referee’s recommendation of
discipline is broader than that afforded to the referee’s findings of fact because it is
ultimately the Court’s responsibility to order the appropriate sanction.   Fla. Bar v.
Miller, 863 So. 2d 231, 235 (Fla. 2003); Fla. Bar v. Anderson, 538 So. 2d 852, 854
(Fla. 1989); see also art. V,  ' 15, Fla. Const.  Generally, however, we will not
second-guess the referee’s recommended discipline as long as it has a reasonable
basis in existing caselaw and the Florida Standards for Imposing Lawyer
- 12 -

Sanctions.  Fla. Bar v. Brown, 905 So. 2d 76, 83-84 (Fla. 2005); Fla. Bar v.
Temmer, 753 So. 2d   555, 558 (Fla. 1999).
The referee cited no standards to support his recommendation of a
suspension in this case, but some standards do apply.   See  Fla. Stds. Imposing
Law. Sancs. 4.12 (suspension is appropriate when a lawyer knows or should know
that he is dealing improperly with client property and causes injury or potential
injury); 4.42 (suspension is appropriate when a lawyer knowingly fails to perform
services for a client and causes injury or potential injury or when a lawyer engages
in a pattern of neglect with respect to client matters and causes serious or
potentially serious injury); 4.52 (suspension is appropriate when a lawyer engages
in an area of practice in which the lawyer knowingly lacks competence, and causes
injury or potential injury to a client); 4.62 (suspension is appropriate when a
lawyer knowingly deceives a client and causes injury or potential injury).
As the standards do not suggest the appropriate length of a suspension, the
Court examines caselaw to determine whether the referee’s recommendation of a
two-year suspension has a reasonable basis.   The referee did not cite to any cases
in support of his recommendation.  The cases cited by the Bar in its brief, Florida
Bar v. Cimbler, 840 So. 2d 955 (Fla. 2002); Florida Bar v. Jordan, 705 So. 2d 1387
(Fla. 1998); and Florida Bar v. Theed, 246 So. 2d 745 (Fla. 1971), support
- 13 -

suspension as the appropriate sanction, but also demonstrate that a two-year
suspension is too harsh.
In Cimbler, we suspended an attorney for one year, followed by three years’
probation, for neglecting to perform post-closing activities for a real estate
transaction, failing to attend a hearing in a suit for specific performance, failing to
notify his clients of their depositions, and other instances of neglect in three
different cases.  The referee found three aggravating factors:  prior discipline for
similar misconduct (ninety-day suspension and three years’ probation); multiple
offenses; and indifference to restitution as to a specific client.  The referee found
six mitigating factors:  timely and good-faith efforts to make restitution or to
rectify the consequences of her misconduct; full and free disclosure in the
disciplinary proceedings; reputation for good character; physical or mental
disability; interim rehabilitation; and remorse.
In Jordan, we suspended the attorney for one year for failing to file an
amended complaint within the twenty-day deadline in a civil suit; failing to return
numerous phone calls from his co-counsel and his client; failing to respond to a
show cause order from the trial court as to why the suit should not be dismissed for
lack of prosecution, which resulted in the suit’s dismissal; failing to advise his co-
counsel or his client of the suit’s dismissal; failing to seek reinstatement of the suit;
and failing to advise his client to seek independent legal representation before
- 14 -

attempting to negotiate with her to privately settle any claim she might have had
against him for legal malpractice.  The attorney had been previously disciplined
four times, the fourth resulting in a ninety-one-day suspension.  The last three of
the four prior discipline cases resulted from similar misconduct.
In Theed, we suspended an attorney for one year for improperly handling the
assets of an estate, including using estate funds for his own personal use; failing to
administer the estate properly; failing to account to the parties whom he
represented, ignoring their request for information, ignoring the request of their
attorney, and failing to act properly in all respects as an attorney and executor.  The
attorney had repaid the estate, before the imposition of discipline, for the estate
funds he had used.
The misconduct of the attorneys in these three cases was similar, but more
egregious than Maurice’s.  Maurice has been a member of the Bar for over two
decades and has no prior discipline.  Maurice’s actions resulted in the heirs and
true owners of the condominium having to wait several months to obtain what was
rightfully theirs, but she did not profit from it.3   Rather, she seems to have been
motivated by a genuine but misguided desire to fulfill what she believed were
Helen Spelker’s true wishes for the disposition of her property.  According to her
3.   The Bar’s complaint alleged Maurice violated rule 4-1.5(a) (entering into
an agreement for, charging, or collecting an illegal, prohibited, or clearly excessive
fee), but the referee did not find a rule 4-1.5(a) violation.
- 15 -

brief, she has already reimbursed the Bar for its costs and has already taken the
CLE courses recommended by the referee.
Accordingly, based on the caselaw discussed above imposing one-year
suspensions for more egregious misconduct of a repetitive nature, we conclude that
the two-year suspension recommended by the referee is not reasonably supported
by the caselaw.  We disapprove that recommendation and instead suspend Maurice
for ninety days.  The other conditions recommended by the referee are approved.
Conclusion
Based on the foregoing, we approve the referee’s factual findings and
conclusions as to guilt, but disapprove the referee’s recommended sanction of a
two-year suspension.  We approve the other recommended conditions concerning
continuing legal education and reimbursement of the Bar’s costs.
Shelley Goldman Maurice is hereby suspended from the practice of law for
ninety days.  The suspension will be effective thirty days from the filing of this
opinion so that Maurice can close out her practice and protect the interests of
existing clients.  If Maurice notifies this Court in writing that she is no longer
practicing and does not need the thirty days to protect existing clients, this Court
will enter an order making the suspension effective immediately.  Maurice shall
accept no new business from the date this opinion is filed until her suspension is
completed.
- 16 -

Judgment is entered for The Florida Bar, 651 East Jefferson Street,
Tallahassee, Florida 32399-2300, for recovery of costs from Shelley Goldman
Maurice in the amount of $1,399.00, for which sum let execution issue.
It is so ordered.
WELLS, ANSTEAD, PARIENTE, QUINCE, CANTERO, and BELL, JJ., concur.
LEWIS, C.J., concurs in result only.
THE FILING OF A MOTION FOR REHEARING SHALL NOT ALTER THE
EFFECTIVE DATE OF THIS SUSPENSION.
Original Proceeding - The Florida Bar
John F. Harkness, Jr., Executive Director and Kenneth L. Marvin, Director of
Lawyer Regulation, The Florida Bar, Tallahassee, Florida, and Alan Anthony
Pascal, Bar Counsel, The Florida Bar, Fort Lauderdale, Florida,
for Complainant
Shelley Goldman Maurice, pro se, Boynton Beach, Florida,
for Respondent
- 17 -

Download sc04-700.pdf