Posts Tagged ‘ethics’

Court Invalidates Will and Trust Naming Lawyer as Beneficiary

JULY 11, 2016 VOLUME 23 NUMBER 26
One principle governing lawyers is obviously and intuitively correct: A lawyer may not prepare a will or trust (or, for that matter, any other document or arrangement) by which a client makes any substantial gift to the lawyer. Similarly, lawyers are precluded from preparing documents giving or leaving anything of value to the lawyer’s close family members, either.

The American Bar Association, in its “Model Rules of Professional Conduct,” codified the principle. Rule 1.8(c) of the Model Rules says:

“A lawyer shall not solicit any substantial gift from a client, including a testamentary gift, or prepare on behalf of a client an instrument giving the lawyer or a person related to the lawyer any substantial gift unless the lawyer or other recipient of the gift is related to the client. For purposes of this paragraph, related persons include a spouse, child, grandchild, parent, grandparent or other relative or individual with whom the lawyer or the client maintains a close, familial relationship.”

That rule has been adopted in 49 states, the District of Columbia and the U.S. Virgin Islands. Some of those jurisdictions may have modified the rule slightly, but the basic principle is pretty nearly universal. It also is clearly appropriate.

But lawyer ethics rules are not the same as laws, and it is not that hard to imagine that an ethically-challenged lawyer might be willing to violate the rule — if he or she could still inherit a substantial estate, it might not matter whether the license to practice law is revoked. Most court decisions dealing with lawyers who write themselves into wills (they are blessedly rare) recognize that the document itself should also be found to be invalid, at least to the extent of any gifts to the lawyer or his/her family.

You may have noticed that there is just one U.S. state which has not adopted the ABA’s Rule 1.8. In fact, California has not adopted any of the ABA’s Model Rules. What California has done, though, is to adopt an even stronger law. Under its law governing wills and trusts, any document prepared by anyone in a fiduciary relationship with the signer is presumed to be invalid — and the law is clear that lawyers are fiduciaries. In other words, California’s go-it-alone approach to this issue results in a stronger proscription than in most states.

That provision was put to the test last month in a case involving 74-year-old California lawyer John F. LeBouef, who was accused of having prepared (and possibly forged) a will and trust naming himself as principal beneficiary of a client’s $5 million estate.

LeBouef’s client, himself 73 years old at the time of his death, had been in poor health since the death (seven years before) of his life partner. The client was reported to have serious problems with alcohol, to the point that neighbors reported that he frequently would fall down in his home, howl like a dog, and occasionally soil himself.

The client had two nieces who were probably named as his principal beneficiaries in a will and trust he signed in 2006. “Probably” because, as it turns out, the original documents were lost — in a burglary of the client’s home after his death, in which his prior estate planning documents (and LeBouef’s laptop computer) were among the only items stolen. At trial, the probate court judge found LeBouef’s testimony about the burglary, the preparation of the new documents, and the client’s intentions all unbelievable.

Some part of the judge’s incredulity was related to LeBouef’s prior behavior. It developed that, after he helped an 86-year-old caretaker claim a $2.5 million inheritance from the estate of the man she had cared for, LeBouef’ marred his client (he would have been about 60 at the time) and, ultimately, inherited the bulk of her estate. Meanwhile, another, 90-year-old, client of LeBouef’s had left most of her $1.3 million estate to LeBouef’s life partner (and business partner), Mark Krajewski. LeBouef had prepared the four amendments to that client’s trust, of course.

After the California probate judge invalidated the will and trust naming LeBouef, she also ordered him to pay the client’s nieces over $1.2 million legal fees — those fees and costs were incurred in their successful challenge of the documents prepared by LeBouef. Perhaps the most impressive act of bravado, though, was LeBouef’s final request of the probate court: he asked the court to approve payment of a fee to him for acting as trustee during the litigation, including a separate fee for managing the trust’s real estate (including the decedent’s home, in which LeBouef lived for three years rent-free). The probate judge declined the request.

The California Court of Appeals reviewed the case and, in a strongly-worded decision, approved the probate court’s rulings on every score. In fact, the Court of Appeals directed that a copy of its decision should be sent to the State Bar of California and to the local prosecutor’s office. “We express no opinion on discipline and/or the decision to initiate criminal prosecution,” wrote the Court. Butler v. LeBouef, June 20, 2016.

Reporting Abuse, Neglect or Exploitation of Vulnerable Adults

DECEMBER 23, 2013 VOLUME 20 NUMBER 48

As people live longer and the elderly population increases, so does the likelihood of abuse, neglect and exploitation of vulnerable adults. Lawyers, accountants, doctors, nurses, caretakers, bankers — indeed, any professional — faces a growing probability that at some point they will be confronted with the issue of whether to report suspected abuse, neglect or exploitation. For lawyers, especially, the ethical requirement that client confidences be maintained can complicate the problem.

There were over 1,600 allegations of abuse, neglect or exploitation of vulnerable adults reported in Pima County, Arizona (the Tucson area) last year. Surprisingly, fewer than 1% of these were reported by legal professionals. Arizona law imposes an affirmative duty on attorneys to report suspected exploitation of a vulnerable adult to the authorities. Arizona Revised Statutes § 46-454(b) requires any attorney who is responsible for preparing the tax records of a vulnerable adult, or responsible for any “action concerning the use or preservation of the vulnerable adult’s property and who, in the course of fulfilling that responsibility, discovers a reasonable basis to believe that exploitation of the adult’s property has occurred or that abuse or neglect of the adult has occurred shall immediately report or cause reports to be made …”

Keep in mind that an individual does not have to be “elderly” to be a vulnerable adult. Any adult who is unable to protect himself or herself from abuse, neglect or exploitation by others because of a physical or mental impairment is a vulnerable adult. The definition of vulnerable adult is broad and so are the types of abuse and exploitation that the statute is intended to cover. Financial exploitation of vulnerable adults occurs with alarming frequency and in many cases goes unreported because the victim may not be aware of the ways in which he or she is being exploited.

Reports of suspected abuse can be made to the City Police, County Sheriff or (statewide) Adult Protective Services. The Pima County Public Fiduciary also handles cases of suspected financial exploitation. Even if suspected abuse is later found to be unsubstantiated, there are no penalties for good faith reporting. Any attorney who makes a report in good faith is likely to have some civil and/or criminal immunity from liability. You can make a report anonymously, however, the law requires that the report be made immediately, otherwise you may be found guilty of a class 1 misdemeanor.

So, you may be reading this and thinking: “how can I uphold my duty of confidentiality to my client if I suspect that he or she may be a victim of abuse, neglect or exploitation?” How is it possible to balance this ethical duty when reporting of suspected abuse is mandatory? In Arizona, you will not breach your duty of confidentiality if you reveal only information to the extent you believe is necessary to comply with a law that requires the disclosure of such information.

Arizona’s version of the ethical rules governing lawyers provides specific guidance to attorneys in cases where an attorney believes that his or her client of diminished capacity is at “risk of substantial physical, financial or other harm unless action is taken and cannot adequately act in the client’s own interest.” In these specific cases, an attorney may take “reasonably necessary protective action,” including consulting with individuals or entities who may be able to protect a client with diminished capacity.  In taking any protective action, among other considerations, an attorney may be guided by the client’s best interests or the wishes and values of the client.

Pima County (and Arizona) is home to a growing number of seniors and vulnerable adults. As we consider the ways our practices can build a healthy community, we must remember the duty of advocacy we owe our clients. If you suspect a case of abuse is occurring and feel unsure about your duty to report, then reach out to one of our colleagues who specialize in professional responsibility or call the Arizona State Bar Ethics Hotline.

What about lawyers practicing in other jurisdictions? State laws vary — many states have mandatory reporting requirements but quite a few of them either do not extend to, or specifically exempt, lawyers from coverage. The ethical rules permitting disclosure when the client is at risk, however, have been adopted in substantially similar form in almost every state.

What about other professionals? Arizona’s mandatory reporting law is very clear: doctors and other medical providers are covered as to reporting abuse, neglect and exploitation, and accountants and tax preparers are covered as to reporting exploitation. Other states vary, with some focusing on medical providers and others on social workers and government officials. If you work with seniors and/or adults with diminished capacity, you should check into your state laws regarding mandatory reporting of abuse, neglect and/or exploitation.

Lawyer Suspended for Bad Special Needs Trust Advice

MAY 16, 2011 VOLUME 18 NUMBER 18
Sometimes in our zeal to help solve problems we lawyers can get carried away. We are constrained by ethical rules to avoid conflicts of interest. We also have to act competently. In a case involving an injured young man, a special needs trust and the state’s Medicaid claim against the trust, New Hampshire lawyer Paul Bruzga fell short.

Mr. Bruzga’s problems started with a tragedy that had nothing to do with him. George Doherty was injured, and in a coma. His brother Steven started a guardianship action. George and Steven’s sister didn’t think Steven was the right person to be appointed, and she objected. The court appointed Mr. Bruzga as attorney for George Doherty, to protect his interests in the contested guardianship.

Mr. Bruzga learned that Steven Doherty had applied for Medicaid coverage for his brother’s substantial medical bills. He pointed out to Mr. Doherty that his brother would not be eligible for Medicaid unless a special needs trust was established to handle all of George Doherty’s money. To this point, it appears that Mr. Bruzga’s advice — and his behavior as a lawyer — was fine. But then he took the first of several wrong steps.

When Steven Doherty asked for help setting up a special needs trust for his brother, Mr. Bruzga went ahead and drafted the document and filed it with the court for approval. Later he insisted that he was doing this as attorney for George Doherty, the injured client. He also negotiated a settlement between George Doherty’s brother Steven and their sister, and he insisted that this, too, was done as lawyer for George Doherty — but his behavior was easy to challenge when he signed the court pleadings as Steven Doherty’s attorney.

George Doherty, the injured brother and beneficiary of a newly-minted special needs trust, unfortunately died a few months later. Under the terms of the special needs trust his funds would first have to be used to pay back the New Hampshire Medicaid program for care he had received. But up to that point, neither Mr. Bruzga nor Mr. Doherty had even told the Medicaid agency about the special needs trust.

Several months later, when Medicaid had not requested repayment from the trust, Mr. Bruzga advised Mr. Doherty that he could just write checks from the trust to himself and his sister. Of course, the reason Medicaid had not sent a bill might have been related to the fact that no one had ever told them the trust existed — or, indeed, even that George Doherty had died.

Coincidentally or not, the state Medicaid agency had just begun to ask questions as the final trust checks were being written. A few days before advising Mr. Doherty to distribute the remaining trust assets to himself and his sister, Mr. Bruzga had heard from a Medicaid fraud investigator, who left a message expressing his concern that there was a special needs trust they had never heard about. Mr. Bruzga left a voice message for the investigator, and shortly thereafter counseled Mr. Doherty to close out the trust.

Within a two-month period, Mr. Bruzga exchanged messages with the Medicaid investigator, filed a final accounting with the court on behalf of Mr. Doherty, and advised Mr. Doherty to tell the court that Medicaid had not filed a request for repayment and that his final distributions should be approved. Then the Medicaid investigator sent a demand for repayment to Steven Doherty and his sister, noting that the distributions should never have been made. Then the sister filed a complaint with the New Hampshire Attorney Discipline Office, which investigated Mr. Bruzga’s behavior.

Throughout all of these periods, Mr. Bruzga spoke with Steven Doherty regularly and billed him monthly for his work. He signed some pleadings indicating he represented Mr. Doherty, even though he had originally been appointed by the court as the attorney for George Doherty, the injured brother. Though he sometimes indicated that he did not think he represented Steven Doherty, he gave him specific and direct advice at each turn in the case.

The Attorney Discipline Office decided that Mr. Bruzga had a serious conflict of interest in trying to represent Steven Doherty as his brother’s guardian and as trustee, while he was really supposed to be the brother’s lawyer. The Office also decided that Mr. Bruzga had simply given bad advice — legal advice that was clearly wrong — to Mr. Doherty.

The New Hampshire Supreme Court agreed. Lawyers are supposed to avoid conflicts of interest. They are also supposed to be competent. The Court decided that Mr. Bruzga had failed on both counts. Because he “knowingly rendered incompetent advice,” his license to practice law was suspended for six months. Bruzga’s Case, May 12, 2011.

Interestingly, the court never did get around to deciding what the appropriate sanction might be for Mr. Bruzga’s failure to recognize or avoid the conflict of interest. Though failure to act competently might ordinarily result in just a public reprimand, said the justices, his failure was so much worse that the suspension was appropriate — and so they did not need to decide what (presumably lesser) sanction might have been in order for the conflict of interest. It didn’t help Mr. Bruzga’s case that he had been in trouble with the attorney discipline process twice before in his 33-year legal career.

How much money was at issue? Not much. The total value of the special needs trust was about $50,000 and the Medicaid claim was about $74,000. It is hard to figure out what motivated Mr. Bruzga to give such breathtakingly bad legal advice.

Attorney Disciplined for Advice to Ignore POA Limitations

JANUARY 3, 2011 VOLUME 18 NUMBER 1
Lawyers, of course, grapple with ethical issues constantly. Elder law attorneys see particular ethical issues recur frequently. Sometimes the lawyer’s eagerness to accomplish the client’s wishes can cloud the lawyer’s ethical judgment. Sometimes the lawyer’s fascination with what might be done can even gallop ahead of the client’s wishes.

None of that is terribly profound or original. Last month, however, we were reminded of how easy it is to get enamored of a particular legal stratagem even though it may not be appropriate in a given case. The notion surfaced in the form of a Minnesota disciplinary proceeding involving attorney Donald W. Fett.

Mr. Fett was consulted by a man (we’ll call him Richard here, just to give him a name) whose brother (let’s call him Martin) was failing. Martin had moved into a nursing home, where he was likely to spend the rest of his life. Martin was unmarried, had no children, and was worth a little more than $600,000.

Martin had already signed a power of attorney naming Richard as his agent. Minnesota law provides a simplified form for powers of attorney, and it has a space where the signer can indicate whether his agent will have the authority to make gifts, including to himself. Martin had checked the line to give Richard the power to make gifts of Martin’s property, but not to Richard himself.

Mr. Fett knew that Martin’s money would be used up in relatively short order if it had to be spent on his nursing home care. Richard had told him that Martin would not want that to happen if it could be avoided, and Mr. Fett could see a way to allow at least a portion of Martin’s money to be protected. In a letter to Richard, and in several follow-up communications, he outlined his plan.

Basically, Mr. Fett suggested that Richard could make a gift of nearly all of Martin’s money, leaving him less than $3,000 (the asset limit in Minnesota for Medicaid assistance with long-term care — note that the limit is even lower in most states). That would make Martin ineligible for Medicaid assistance, but only for a limited time. The money that Richard had given away could be given back over the next couple of years, and then the ineligibility period would expire and Richard could keep the remaining money aside until after Martin’s death. That way at least a portion of his assets could go to the people he had named in his will — including Richard, his other siblings, and some charities.

The fly in the ointment for Mr. Fett’s advice: Martin’s power of attorney had expressly prohibited gifts to Richard himself. In order for the plan to work, though, Richard would have to be confident that Martin’s money would be used to benefit Martin during the ineligibility period. It was a conundrum.

Mr. Fett’s proposed solution was to have Richard liquidate all of Martin’s investments, transfer them to a bank account in Richard’s and Martin’s names as joint owners, and then withdraw them from the bank into his own name. That way, he apparently reasoned, Richard wouldn’t be using the power of attorney in a way that was prohibited — he would instead be using general rules governing joint accounts.

Richard was apparently suspicious of Mr. Fett’s advice, and eventually he consulted another attorney. That resulted in a complaint to the Minnesota disciplinary commission, the Office of Lawyers Professional Responsibility. After hearings the Office recommended that Mr. Fett be publicly reprimanded and placed on probation for a year.

The Minnesota Supreme Court agreed, and upheld both the discipline and the sanction. The Court’s opinion takes a dim view of Mr. Fett’s argument that he was not really recommending a course of action in violation of the limitation in the power of attorney. The Court notes that even if Richard could have used the joint tenancy account to circumvent the limitations of his brother’s power of attorney, Mr. Fett’s correspondence with his client failed to explain the distinction in sufficient detail to allow Richard to make an informed decision about how to act.

The Court notes that Mr. Fett’s failure to give his client complete information could have subjected Richard to serious problems. He might be held liable to return all of Martin’s money, and perhaps even triple the amount transferred. He could even be criminally charged. Mr. Fett gave him none of that information. His failure to fully inform his client was also a failure to provide competent representation, and a violation of the ethics rules for lawyers.

Mr. Fett had been a lawyer for over thirty years, and had limited his practice to estate planning and elder law matters for about six years prior to his contact with Richard. Because of that experience in the practice, and particularly in elder law, the Court determined that the sanction could be higher than would otherwise be implemented. Mr. Fett also had a history of disciplinary actions, having appeared before the Office of Lawyers Professional Responsibility five times over two decades.

The Court also considered mitigating factors such as lack of harm to either Richard or Martin (Mr. Fett’s advice was not followed) and lack of improper motive or harmful intent on Mr. Fett’s behalf. Those were not sufficient to offset the recommendation for a public reprimand, however. In Re Petition for Disciplinary Action Against Fett, November 24, 2010.

Is there a larger message in Mr. Fett’s disciplinary proceeding? We think there is, and it is this: just because a legal strategy might work, it does not follow that it must be implemented, or even that it is a good strategy. Careful consideration of all the negatives is important, and complete information should be shared with the client.

Lawyer Suspended After Filing Guardianship Petition on Client

JUNE 22, 2009  VOLUME 16, NUMBER 45

A lawyer’s job is, of course, to help his or her client to accomplish the client’s goals. Sometimes, though, the client’s capacity may be diminished, and particularly in the elder law practice. What should the lawyer do when the client seems to be vulnerable to financial exploitation, or physical or emotional abuse? How far may the lawyer go to protect the client? When does the lawyer have a duty to take action?

The rules of ethics governing lawyers actually address the question. The American Bar Association has developed “Model Rules of Professional Responsibility,” which have been adopted (in some form) in nearly every state. One of those Model Rules, Rule 1.14, addresses how to deal with a client with diminished capacity. The central principle: a lawyer should strive to “maintain a normal client-lawyer relationship” with the client, despite the diminished capacity. The Rule specifically recognizes that sometimes it can even be necessary for the lawyer to initiate some sort of protective action — possibly including a guardianship or conservatorship proceeding.

Stephen Eugster, a Spokane, Washington, lawyer, thought he faced that question. An elderly widow had consulted him about the estate plan she and her husband had set up before the husband’s death. Although the plan gave considerable control to her son, the widow no longer trusted the son to handle her finances. She wanted to remove him as her agent and trustee, and try to make him return assets she thought had improperly been transferred into his control.

Mr. Eugster prepared new documents naming himself as agent and trustee, and had his client sign them. Then he approached the son about getting further information and transfer of assets. As it happened, the son was also a former client of Mr. Eugster’s.

After a brief inquiry Mr. Eugster decided that his client’s son was acting properly. He wrote to his client, suggesting that she should be willing to trust her son and let him once again take responsibility for all her finances. She responded by seeking advice from a different lawyer, and her new attorney sent Mr. Eugster a letter dismissing him and revoking his authority under powers of attorney and the trust.

That apparently set off Mr. Eugster’s alarm bells. He was convinced, he said later, that his client must not have been competent, and that the new lawyer and her new trustee must have exercised undue influence over her. Without consulting or even visiting her, he filed a petition seeking appointment of her son as her guardian.

Several months, one professional mental evaluation and $13,500 later, the client conclusively established that she was competent and acting on her own initiative. The guardianship petition was dismissed. The client, however, complained to the Washington State Bar Association.

After a lengthy investigation and hearing process the Disciplinary Board of the Bar recommended that Mr. Eugster should be disbarred. The Washington Supreme Court, in a 5-4 vote, softened the punishment to an 18-month suspension and an order that he repay the legal fees his former client incurred to defend the guardianship. Disciplinary Proceeding Against Eugster, June 11, 2009.

Mr. Eugster had argued that Rule 1.14 recognized that he might have an obligation to actually file the guardianship petition, and that he truly believed that his client was at risk. The Disciplinary Board pointed out that Mr. Eugster had not actually made an investigation to determine whether his client’s capacity had slipped since had last seen her several months before, and that in any event his Petition revealed extensive information obtained from his client during the representation. The Court agreed with the Bar that Mr. Eugster had violated his ethical duties in a number of ways, including acting against his client’s interest, seeking a resolution that ran counter to the purpose for which she had retained him, and disclosure of client confidences.

Four Justices dissented from the Supreme Court’s opinion. All four of them would have imposed permanent disbarment rather than the 18-month suspension of Mr. Eugster’s law license.

What might Mr. Eugster have done if he did think he needed to “protect” his client? The ABA’s Rule 1.14 actually provides several suggestions, none of which Mr. Eugster seems to have considered. As part of the Rules, the Bar offers detailed Comments that lawyers can look to when trying to resolve ethical dilemmas. Comment [5] to Rule 1.14 gives some useful guidance to lawyers who may be concerned about a client’s vulnerability. The basic idea behind the comment: a guardianship petition, while permitted, should be the last resort, after consultations with other professionals, family members, state protective services and other individuals or groups. Always the lawyer should keep in mind the client’s wishes, values, best interests and goals .

Ironically, the lawyer who took over Mr. Eugster’s client seems to have reviewed Rule 1.14 and the Comments — and acted accordingly. One of the suggestions made by the Comment is that the lawyer might seek out appropriate professional services and use powers of attorney and other protective arrangements short of court action. The new lawyer’s approach followed those suggestions perfectly: he had the client sign a new trust and powers of attorney, naming a professional fiduciary to manage her affairs. That allowed the client’s interests to be protected without compromising her desire not to extend her son’s authority over her personal or financial affairs.

Attorney Prepares Will Leaving Client’s Estate to His Daughter

APRIL 24, 2006  VOLUME 13, NUMBER 43

Sarah Ann Ester Straw went to her lawyer, N. Frank Lanocha, to have a will prepared. According to Mr. Lanocha, she wanted to leave the bulk of her estate to the lawyer’s daughter, Teresa Lanocha-Sisson. He prepared a will that did exactly that—in fact, it left $1,000 to Mr. Lanocha’s wife Teresa W. Lanocha, $2,000 to area charity Chimes, Inc., and the balance of the estate to Mr. Lanocha’s daughter.

There is a well-recognized ethical rule, however, that prohibits lawyers from writing themselves or family members into wills. There is an exception when the will is being prepared for a family member of the lawyer, but Ms. Straw had no familial relationship with Mr. Lanocha, his wife or daughter. There is a second exception for bequests that are not “substantial,” but the will Mr. Lanocha prepared clearly did not fit within that exception.

When Ms. Straw died and her will was submitted to probate, the judge assigned to the case was troubled by Mr. Lanocha’s conduct. A complaint to the Attorney Grievance Commission initiated a proceeding seeking to discipline Mr. Lanocha.

The Maryland Court of Appeals (the state’s highest court—equivalent to the Supreme Court of most other states) ultimately agreed that Mr. Lanocha had behaved improperly. The only sanction for his misbehavior, however, was a public reprimand—Mr. Lanocha’s ability to continue practicing law was not affected, and his daughter was not required to give up her claim to Ms. Straw’s estate.

Four of the seven judges agreed that Mr. Lanocha should be let off lightly. They believed his insistence that he had never heard of the rule prohibiting lawyers from writing themselves or family members into wills—though two other Maryland lawyers had been suspended from the practice of law indefinitely for naming themselves as beneficiaries as recently as 2003. Besides, reasoned the court majority, Mr. Lanocha had told Ms. Straw that she needed independent legal advice before leaving anything to his family, and she had insisted that he prepare the will anyway.

Judge Alan Wilner, one of the seven judges deciding Mr. Lanocha’s fate, would have gone further. He noted that no one had asked Ms. Lanocha-Sisson if she would be willing to disavow any inheritance; he suggested that without that sanction Mr. Lanocha should be indefinitely suspended. Judges Dale Cathell and Lynne Battaglia would have suspended Mr. Lanocha from the practice of law regardless of whether his daughter declined the inheritance.

Mr. Lanocha had a prior record of sorts, having been reprimanded for other violations in 2001. He had also been challenged by the Federal Trade Commission for violation of Fair Debt Collection Practices Act provisions in 1996, and ordered to pay $50,000 in penalties.

Two Lawyers Suspended For Including Themselves in Wills

APRIL 21, 2003 VOLUME 10, NUMBER 42

In recent weeks two Maryland lawyers have lost their licenses to practice law for the same offense. Both wrote themselves into wills they prepared for their clients. Even though each lawyer had a longstanding personal relationship with the client, and there was no evidence of coercion or influence, each violated a basic principle of legal ethics.

Charles F. Stein, III, had literally grown up with Xaver and Eleanor Lindinger. The Lindingers had been family friends of his parents, and his father (Charles F. Stein, Jr.) had been the Lindingers’ lawyer since at least the 1950s. After both Xaver Lindinger and Charles Stein, Jr., died it was only natural for Mrs. Lindinger to turn to Charles Stein, III, to represent her.

At her request, the younger Mr. Stein prepared two wills for Mrs. Lindinger over the years. Then in 1998 Mrs. Lindinger met with Mr. Stein to update her will, and the result was a document that left one-third of the residue of her estate to Mr. Stein.

Although Mr. Stein mentioned to her that she probably ought to discuss the matter with another lawyer in his office, he took no steps to make sure that she secured independent legal advice. Mrs. Lindinger died in 2001.

Mr. Stein apparently understood that there was something not quite right about including himself in the will, since he at least suggested that Mrs. Lindinger should seek separate legal counsel. In the disciplinary process, however, he claimed not to be aware of any prohibition against preparing a will naming himself as a beneficiary.

Like Mr. Stein, John A. Brooke had known his client for years. They had been friends for two decades, and Mr. Brooke had represented John C. Sherpinski on a number of occasions. When Mr. Sherpinski was about to be admitted to the hospital he asked lawyer Brooke for help with writing a will. Mr. Brooke explained that he could write the will out in his own handwriting, but Mr. Sherpinski expressed frustration with the process and asked if Mr. Brooke could have his secretary prepare the document.

Mr. Brooke gave Mr. Sherpinski’s handwritten notes to his secretary, along with instructions on how to complete the will. She prepared the document and Mr. Brooke then had it delivered to Mr. Sherpinski for signing. The will, as Mr. Sherpinski had instructed, left the bulk of his estate to Mr. Brooke.

In his defense, Mr. Brooke argued that he hadn’t “prepared” a will for Mr. Sherpinski–he had merely asked his secretary to type up the notes in will format. That argument did not impress the disciplinary commission, which recommended sanctions for Mr. Brooke’s conduct.

Each of these lawyers violated a clear prohibition in Maryland’s ethical rules governing lawyers. The real question faced by Maryland’s high court was to determine the proper sanction.

The court found that both lawyers were unaware of the prohibition against including themselves in wills they drafted. Neither lawyer was found to have influenced his client in any way. Still, both lawyers were indefinitely suspended from the practice of law. Either or both may apply for readmission, but not until they have formally waived any claim they might have to any share of the estates of their respective clients. Attorney Grievance Commission of Maryland v. Stein (March 18, 2003) and Attorney Grievance Commission of Maryland v. Brooke (April 11, 2003).

Arizona’s prohibition on a lawyer including himself or herself in a will is essentially identical to the Maryland provision. Both provide exceptions for wills prepared for the lawyer’s relatives. Both leave the question of sanctions up to the disciplinary process to determine the severity of the lawyer’s transgression in individual circumstances.

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