In the Matter of Fincourt B. Shelton An Attorney at Law
Argued: April 18, 2019
Docket No. XIV-2016-0725E
A. Brodsky Chief Counsel.
Racz appeared on behalf of the Office of Attorney Ethics.
Respondent did not appear, despite proper notice.
W. Clark, Chair.
Honorable Chief Justice and Associate Justices of the Supreme
Court of New Jersey.
matter was before us on a motion for reciprocal discipline
filed by the Office of Attorney Ethics (OAE), following
respondent's four-year suspension in Pennsylvania for his
violation of the Pennsylvania equivalents of New Jersey
RPC 1.1(a) (gross neglect); RPC 1.2(a)
(failure to abide by a client's decisions regarding the
scope and objectives of representation and failure to consult
with a client about the means to pursue them); RPC
1.4(c) (failure to explain the matter to the extent
reasonably necessary to permit the client to make informed
decisions regarding the representation); RPC 1.5(a)
(unreasonable fee); RPC 1.7(a)(2) (conflict of
interest); RPC 1.8(a) (improper business
transaction); RPC 1.16(a)(3) (failure to withdraw
after the lawyer is discharged); RPC 3.1 (frivolous
claims); RPC 3.3(a)(1) (false statement of material
fact or law to a tribunal); RPC 4.1(a)(1) (false
statement of material fact or law to a third person);
RPC 8.4(c) (conduct involving dishonesty, fraud,
deceit or misrepresentation); and RPC 8.4(d)
(conduct prejudicial to the administration of justice).
reasons set forth below, we determined to grant the motion
for reciprocal discipline and recommend that respondent be
was admitted to the Pennsylvania bar in 1980, to the New
Jersey bar in 1987, to the New York bar in 2000, and to the
Georgia bar in 2007.
has been ineligible to practice law in New Jersey since
September 12, 2016, for his failure to pay the annual
assessment to the New Jersey Lawyers' Fund for Client
Protection. On September 7, 2018, respondent was temporarily
suspended from the practice of law for failing to comply with
a fee arbitration decision.
29, 2015, the Pennsylvania Office of Disciplinary Counsel
(ODC) filed a Petition for Discipline arising from
respondent's mismanagement of two separate estate
matters. Because respondent did not file an answer, the
factual allegations were deemed admitted. At an October 16,
2015 disciplinary hearing, respondent appeared pro se. On
June 8, 2016, the hearing committee recommended a three-year
suspension. On August 23, 2016, the Disciplinary Board for
the Supreme Court of Pennsylvania (PDB) issued its Report and
Recommendations in which it made the following findings of
fact and conclusions of law.
February 12, 2007, Geraldine Lorenzo died intestate in
Philadelphia, Pennsylvania. On April 17, 2007, Phyllis M.
Aristotele renounced her right to administer Lorenzo's
estate with the Register of Wills of Philadelphia County in
favor of respondent, who then was appointed as administrator,
in addition to his role as the attorney for the estate.
Thereafter, respondent filed a petition identifying
Aristotele as Lorenzo's aunt and a surviving heir. She
21, 2007, Lorenzo's real estate sold for $200, 000.
Respondent was present at the closing and received a $10, 000
fee for professional services related to the sale of the
property. On July 2, 2007, respondent filed an Inventory and
Inheritance Tax Return with the Register of Wills in
connection with Lorenzo's estate. Under penalty of
perjury, respondent listed the value of her estate as $35,
700, despite his awareness that her real estate had sold for
$200, 000 merely eleven days earlier, and despite his
previous filing of a Petition for Probate on April 17, 2007,
listing the value of the property at $180, 000.
argued before the PDB that the $37, 500 value he claimed was
correct because it was the assessed value determined by the
county tax assessment. The PDB rejected this assertion,
noting that respondent failed to apply the "common level
ratio to the assessment in violation of the procedure stated
on the sole exhibit introduced by
respondent listed, as beneficiaries on the Inventory and
Return, Lorenzo's son, Moustafa A. Baker-Moustafa, and a
non-relative named Elizabeth Bonk. On the same return, he
listed "Personal Representative Commissions [respondent]
$3, 500; Attorney Fees $7, 000." This, too, was a
knowingly false statement because, as of July 2, 2007,
respondent had issued to himself checks totaling $32, 200 and
had received $10, 000 in commission and attorney fees for the
sale of the real estate.
December 19, 2007, respondent issued a $10, 000 loan to
Enhanced Recovery Solutions, LLC (ERS) from Lorenzo's
estate. His close relationship with this entity was evidenced
by his reference to ERS as "we" in his testimony
before the PDB. The loan term was for one year at an annual
interest rate of fifteen percent. Respondent, who had
invested his own money in ERS, admitted that he previously
had loaned monies to ERS from three or four of his clients.
January 14, 2008, respondent made another $10, 000 loan from
Lorenzo's estate, to Dana and Ervin Asbury, for eighteen
months at an annual interest rate of 15%. On March 13, 2007,
respondent had filed a medical malpractice suit in the
Delaware County Court of Common Pleas on behalf of Dana. The
purpose of the loan from the Lorenzo estate was to pay two
doctors for their testimony at the malpractice trial.
did not advise Dana, in writing, to seek the advice of
independent legal counsel or provide her a reasonable
opportunity to do so. Dana did not give informed consent to
the essential terms of the loan or respondent's role in
the transaction, including whether respondent was
representing Dana in the transaction. Dana repaid the loan in
full, with interest, on February 10, 2009.
September 16, 2010, almost three years after the first loan
to ERS, respondent issued a second loan for $50, 000 to ERS
from Lorenzo's estate, in return for a position on
ERS' board and a percentage of the company's net
profits. The loan term was for eighteen months at an annual
interest rate of 12%. The PDB found this loan to be another
breach of respondent's fiduciary duty to Lorenzo's
estate. As of the date of the PDB hearing, no interest or
principal payments had been made from ERS to Lorenzo's
estate on either of its loans, and respondent had made no
attempt to collect payments on behalf of the estate.
31, 2011, Nina Stryker, Esq., on behalf of seven individuals,
filed a petition for declaratory judgment, in the
Philadelphia County, Orphans' Court Division, to
determine the proper heirs of Lorenzo's estate.
Respondent filed an answer on June 8, 2011. The court ordered
respondent to file an accounting of his administration of the
estate. On September 16, 2011, he filed an accounting for the
period February 12, 2007 to September 8, 2011.
accounting, respondent listed an August 26, 2008 disbursement
of $35, 000 to Elizabeth Bonk, relating to a home repair
loan. Respondent made no such disbursement and knew it was
false when he included it in the accounting. Additionally,
respondent represented in the accounting that $15, 000 had
been paid to him for "commission and attorney
fees." Respondent also knew this was false because, as
of September 16, 2011, he had taken $60, 700 for counsel fees
and commissions in connection with Lorenzo's estate. Upon
cross examination, respondent claimed that it was "a
mistake," "erroneous," and that "I was
under pressure. I was just trying to get something to the
court. I really was. . . I just didn't pay attention, and
I printed it out, and I sent it."
one year later, on January 7, 2013, after several motions by
the parties, a hearing was held at which the judge commented
"to say the least, the accounting has so many material
discrepancies in it that it would be impossible. . . to
confirm the account . . . ." The court granted
respondent leave to file an amended accounting to conform to
the testimony presented. On February 22, 2013, respondent
filed an amended accounting in which he misrepresented that
he had been paid a total of $54, 200 in fees and commissions,
knowing that he had received $60, 700 in fees and
commissions. He also continued to omit the Lorenzo Estate
loans to ERS and Asbury from any accounting. In the
aggregate, respondent's fees and commissions, along with
the unpaid loans to ERS, totaled $120, 700, or 51.08% of the
value of the estate.
12, 2013, respondent and the petitioners executed a
settlement agreement and mutual release regarding
Lorenzo's estate. Respondent agreed to pay the heirs of
the estate $131, 000, which included the balance remaining in
Lorenzo's bank account, $10, 000 for excessive fees and
commissions, $60, 000 as repayment of the two promissory
notes issued to ERS, and $1, 505.82 as interest due on the
two ERS loans. Respondent promptly paid the remaining bank
account balance, but nothing more and thus, $71, 505.82
remains outstanding under the settlement agreement.
Stryker discovered that, on August 16, 2012, respondent had
filed for personal bankruptcy, ten months prior to the
execution of the settlement agreement. Respondent had a duty
in his bankruptcy proceeding to list Lorenzo's estate and
the petitioners as parties entitled to notice of the filing,
which he did not do. Respondent also failed to notify the
court and the interested parties about his bankruptcy.
Therefore, the PDB concluded that "respondent had no
authority to undertake personal financial obligations during
the bankruptcy proceedings."
also found respondent's collection of $60, 700 in counsel
fees and commissions in connection with Lorenzo's estate
"clearly excessive and/or illegal." Respondent kept
no record of his time spent on estate matters, and although
he claimed that he usually charged a flat fee for estate
matters, he had no fee agreement at all with the estate. At
the declaratory judgment hearing, Stryker testified, based on
her thirty years of Orphans' Court work, that
respondent's fee should have been between $10, 000 and
$12, 000, in light of the size and complexity of the estate.
She added that, in most cases where an attorney has the dual
role of attorney and administrator, compensation tends to be
no more than seven percent of the value of the estate.
Stryker also objected to respondent's loan of estate
monies, as a breach of his fiduciary duty. The PDB found
Stryker's testimony credible.
testified that, "I felt that I was entitled to whatever
fee I got because that was my first time ever being around
dead folks, and I didn't realize it smelled so
bad." He added that he acted as both attorney
and administrator and tried not to exceed ten percent of the
gross value of the estate when he calculated his fee.
Respondent's fees and commissions before consideration of
the ERS loans amounted to 30.26% of the gross estate.
March 13, 2014, respondent resigned as Administrator of
March 19, 2005, Gabriel Robles died intestate, survived by
his mother, Lourdes Sierra, and his eight-year-old child,
Aisya. Sierra was appointed Administrator of the Robles
Estate by the Register of Wills of Philadelphia County. She
retained the law firm of Pelagatti and Pelagatti (Pelagatti)
to investigate medical malpractice and wrongful death claims
against Temple University Hospital in connection with
Robles' death. The applicable statute of limitations
expired prior to Pelagatti's initiating suit. Therefore,
in June 2008, Sierra hired the Colleran Law Firm to bring a
legal malpractice action ...