Franks tells New Times she recalls the memo, but says Elliston's precarious financial condition wouldn't have swayed her.
"The court does not ask about a fiduciary's own assets when we are appointing them," she says. "It's only relevant that some bonding company is going to insure them. As long as a legitimate bonding company comes forward and tells me, 'Judge I'm going to insure this fiduciary, and it will cover all the unrestricted assets and the income for one year,' that's all I care about."
Charles Arnold, a veteran Phoenix Probate/Mental Health attorney who represented FSI in some cases, disagrees with Franks.
"I have the greatest respect for Pam as a judge," he says, "but I think there's a higher calling here, a higher responsibility, because it's a fiduciary responsibility. Judges are the last line of defense -- and if the court's not there for the wards, who will be?"
Adds Fred Gamble, the attorney involved in the Black estate case: "I'd like to ask why the courts aren't doing background checks and audits to see if someone is financially irresponsible. Typically, an embezzler is someone who is having financial problems."
In early 1998, Franks placed a moratorium against appointing Elliston to any new guardian/conservator cases. Her action came shortly after she'd ordered Elliston to "personally appear and show cause why Fiduciary Services Inc. should not be removed as conservator, held in contempt of court, and/or have other sanctions imposed against it" in the case of an aged, incapacitated Phoenix woman named Anne Swanson.
Elliston hadn't been paying Swanson's bills because the judge wouldn't release certain funds until FSI proved it had increased the surety bond to cover any potential losses. FSI had failed to increase the bond -- usually a simple task -- for months. Franks held a contempt hearing on the matter January 6, 1998.
Franks told Elliston and the attorney in the case, Paul Blunt, to submit proof of the increased bond within a day, or she'd kick FSI off the case. Finally, they complied.
"At the December 19, 1997, hearing, Ms. Elliston advised the court that FSI was in violation of bonding orders in three cases," Franks wrote after the hearing. "Counsel advise the court that they have reviewed FSI's cases and have determined that FSI is, in fact, in violation of bonding orders in seven cases. . . . Counsel avow they will perform internal reviews . . . to ensure that FSI is, in fact, in compliance with all existing orders, not only for obtaining bonds, but for restricting accounts, records restrictions of real estate, and filing inventories and accountings."
Shortly before Franks left the Probate/Mental Health bench, she also scheduled new hearings before her successor, Judge Daughton, on several other Elliston cases in which estate accountings were late and incomplete. Those hearings ended without sanctions being imposed against Elliston, FSI or her attorneys.
Judge Franks also ended her moratorium against appointing Elliston to any new cases.
"The private fiduciary acting as conservator for the estate shall provide competent management of the property and income of the estate. In the discharge of this duty, the private fiduciary shall exercise intelligence, prudence and diligence and avoid any self-interest."
-- from the Arizona Supreme Court Code of Conduct for private fiduciaries
FSI was falling apart by early 1999, but it was business as usual for the firm at Probate Court. Only Jack Cox -- the courthouse gadfly who watched with undisguised glee a few weeks ago when Nancy Elliston got hauled off to jail -- was saying anything bad about her.
Though FSI's accountings were coming in even later than usual, the court commissioners continued to rubber-stamp almost every application for fee approval that she and her attorneys submitted.
In March 1999, City of Phoenix ombudsman specialist Annette Buchanan wrote to commissioner Gary Donahoe about one of Elliston's guardian/conservator clients, Lois J. Clark.
"I am writing to make you aware of a recent situation," Buchanan wrote. "Several attempts have been made by the family to reach Nancy Elliston from Fiduciary Services regarding failure [to pay Clark's bills]. She has not responded. . . . We would like to make you aware of the court-appointed fiduciary's inaction on this case."
Elliston resigned as Clark's guardian/conservator a week later.
Donahoe ordered Elliston to file her final accounting of her work within two months, or by May 18. That date came and went without Elliston doing as ordered, but Donahoe didn't react until August 4 -- two and a half months late -- when he set a September 7 hearing to discuss things.