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.