Allegation
She intentionally attempted to recover a fee of $1,100 as guardian over the person of J.L, when in fact, she was only guardian over his estate. In her effort to explain her conduct to the court after it discovered the charge, she falsely claimed that the entry on the invoice she submitted for payment of this amount was at first for “mileage” and subsequently due to an “auto correct” error when typing in the amount. Both the trial judge and Judge C found her explanation to lack credibility.
Response
(Click on Attachment for supporting document)
In the Disciplinary Recommendation, the Special Administrator states “Ms. Marino addressed the attempt to bill a $1,100 flat fee for “what the trial court had discerned to be services as guardian over the person” and further stated “Ms. Marino reported that the entry was a ‘typo’ and she meant to charge for ‘mileage’ rather than a ‘monthly fee’.” He further stated that with regard to my testimony, the misstatement and then correction as to the basis for the error, left “the undersigned dubious of her proffer.” He noted the trial court also, “did not find that offering credible’.” (All statements, Attachment 1)
Had there been a proper examination of this matter by either the trial court or the special Administrator, evidence and testimony would have revealed the clerical error was as I represented to both the trial court (Attachment 4) and at the disciplinary hearing (Attachment 5). Additionally, this clerical error was not only overlooked by me but also by the financial representative who was sent a copy of the invoice and made payment.
The invoice reflecting the $1,100 charge (Attachment 2) reflects the itemization of all out-of-pocket expenses dated 9/30/2013, the last day of the month, as was customary on all my invoices. The 4 units of “Monthly Fee-Gu…” is followed by an entry for 40 units of “Mileage”. An examination of my hand written time sheet (Attachment 3), reflects 4 units of mileage for a trip on 9/5, 4 units for a second trip on 9/6 and 36 units of mileage for a trip on 9/11, for a total of 44 units of mileage. It is the first entry for 4 units that was erroneously entered as “Monthly Fee-Gu…”, with the second entry for 40 units correctly itemized as mileage.
With regard to my misstatement at the disciplinary hearing characterized as “dubious”, it is not unreasonable that without documentation in hand, I would erroneously recall reference to an entry made three years prior. A misstatement that was corrected during the same examination when the document was provided (Attachment 6).
In his Disciplinary Recommendation, the Special Administrator also comments that he “is disturbed that the invoice included in Exhibit 37 [at the disciplinary hearing] ‘was only produced at the insistence of the [trial] court’ in February, months after her original request for approval of additional fees. As such, without searching court inquiry, ‘this $1,100 would have been paid without anyone knowing the difference’.” (Attachment 7)
The Special Administrator bases his conclusion on erroneous statements made by the trial court that invoices were not provided until February, 2015. (Attachment 8). On December 19, 2014, the first and only trial court hearing in this matter, the transcript reflects a complete set of invoices was provided to the trial court. (Attachment 9). This was done without request by the trial court, to ensure the court had a complete set of invoices in addition to the invoices the court acknowledged were already contained in court file. (Attachment 10)
The Special Administrator also holds out as evidence, trial court statements and conclusions that I intentionally tried to hide payment of $4,800 in fees by providing an invoice dated July 2014 for $0.00. (Attachment 11 & 12) Notwithstanding the date of the $0.00 invoice was after the date of the $4,800.00 payment (Attachment 13), had an inquiry been made or examination of the invoices completed, it would have revealed there was already an invoice for July 2014 (Attachment 14) and $.00 invoice was exactly as I represented; an invoice generated in error (Attachment 15)
Clerical errors on invoices submitted to the court are hardly an uncommon event. The determination my clerical error was an intentional attempt to charge for work not performed is unsupported by any evidence or testimony and clearly refuted by the documentation available.