By Michael E. Miller
By Allie Conti
By David Villano
By Jose D. Duran
By Michael E. Miller
By Allie Conti
By Kyle Swenson
By Luther Campbell
In its broad outlines, the battle over Dora Pomeranc's guardianship and estate is similar to other family struggles over inheritances. It involves lacerating accusations about who loved whom best, the sudden appearance of a new and suspect will, and charges that a guardian improperly appropriated money.
As part of its mandate, the probate court investigates such charges. This is done through hearings and trials, which are conducted by the probate judge. The judge may also see fit to appoint an independent monitor to review the files, or a curator to take control of the assets of an estate. According to experienced probate lawyers, if the evidence supports the allegations, the court can take action against offenders, usually by requiring them to reimburse the estate for any assets that have been misused.
The court itself, and the professionals who work there, are governed by federal and state law, the Florida probate code, Florida guardianship law, the rules of professional conduct, and the code of judicial conduct A strictures designed to counterbalance common human frailties: tendencies toward favoritism, prejudice, and greed. The rules are enforced in a variety of ways. A judge's decision, made at any point in a proceeding, can be appealed to a higher court; and the Florida Bar and the Judicial Qualifications Commission can discipline errant lawyers and judges.
But critics of the court argue that the potential for abuse persists, especially in probate, where a few dozen attorneys specializing in estate and guardianship law try their cases in front of four white male judges, one of whom (Newman) has been there for six years, another for ten. The brotherhood, inevitably, begets charges of conflicts of interest. And it's not just a question of friendship impinging on the impartiality of the bench. Probate judges have the power to dispense not only justice, but lucrative employment opportunities, as well: Curatorships or monitor posts can generate up to $100,000 in fees. When these positions are awarded to friends of the judge, the odor of impropriety is unavoidable, and it attaches itself even to the most venerable of jurists.
In 1992, in the wake of the Court Broom corruption scandal, the Dade County Bar Association asked respected lawyer Richard Milstein to look into the system by which attorneys were appointed to probate cases. Although such appointments are often specified in the deceased's will, in many cases a probate judge had discretion to appoint whomever he saw fit. Milstein today says frankly: "Would certain judges favor certain people? Yes. Did it appear improper? Absolutely yes."
In an effort to clean up the process, Milstein and some other attorneys helped the court institute the "probate wheel," a system by which judges are required to make blind appointments. Any local lawyer who is interested in obtaining an appointment in probate and is familiar with the Florida probate codes can sign up at the clerk's office. Judges are allowed to bypass the wheel, though, if they feel a case requires a special skill, such as bilingual abilities, medical knowledge, or complicated asset management.
Milstein also tried to institute a tracking system by which the court would keep a record of who got which appointments, and whether the appointments were pro bono or paid positions. (As much as 70 percent of the appointments made by the wheel system are pro bono.) "We were told that it would be an administrative nightmare," Milstein recalls.
The wheel system that was implemented in 1992 does not encourage scrutiny of "off the wheel" appointments. Indeed there is no systematic way to verify how many high-fee positions are awarded to judges' friends under the justification that they possess special expertise, or even how many times a specific lawyer is appointed off the wheel by a particular judge. "There are some people who are being appointed off the wheel more often than others," Milstein says, adding that both the judge and the lawyer can be at fault. "The system is not perfect," he admits. "We are aware of it. Maybe the wheel needs a bit more inflating."
Irving Yedwab began working on the Dora Pomeranc case in the summer of 1994, not long after Dora had died. One of Shirley Levinson's sisters asked him to examine the expenses Levinson had incurred during her two and a half years of caring for their elderly Aunt Dora. A childless widow with a sizable nest egg, Dora had been diagnosed with senile dementia and judged by the court to be unable to care for herself.
In this way, from September 5, 1991, Dora and her $750,000 estate became a ward of the court. The 86-year-old woman obviously needed a guardian, someone appointed by the court to handle an incapacitated person's financial and personal affairs until his or her inevitable death. And there is nothing unusual about such a situation; in 1995 alone, 1344 similar guardianship cases were filed in Dade County. Dora's case, however, immediately took some intriguing turns.
Practically from the guardianship's inception, Dora's fate was affected by the old-boy network at the courthouse. Pending the court's approval of a petition filed by Shirley Levinson, in which she asked to be named her aunt's official caretaker, Newman appointed Miami Beach attorney Stanley Pred to act as emergency guardian. At the time, of course, the probate wheel did not exist, so Pred's appointment came at Newman's discretion. A former law partner of Newman before the judge was appointed to the bench, Pred received $5000 for paying Dora's outstanding bills and reviewing her assets. He also arranged for her to move into the Palace at Kendall, an adult congregate living facility -- a type of nursing home that fosters independent living.