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Commonwealth of Massachusetts

SJC-BD-2003-048

IN THE MATTER OF TWO ATTORNEYS

S.J.C. Order (Admonition) entered by Justice Cowin on March 1, 2005.1

MEMORANDUM OF DECISION

This matter came before me on an information and record of the proceedings and a vote and memorandum of the Board of Bar Overseers (board). Bar counsel initiated the matter by a petition for discipline alleging that the respondents, two attorneys, violated numerous disciplinary rules by their conduct arising from their services in drafting a will. The respondents are a father (whom I shall call by the pseudonym David) and son (whom I shall call Kyle) practicing law in the same firm. In their joint, 176-page answer, the respondents, in essence, denied the allegations. As is detailed below, a hearing committee rejected the most serious allegations and recommended a public reprimand for David and an admonition for Kyle. The board modified the hearing committee's decision and ordered admonitions for both respondents. The board concluded that David had violated S.J.C. Rule 3:07, Canon 5, DR 5-105, as amended, 397 Mass. 1216 (1986),1 and David and Kyle had violated Canon 5, DR 5-101(A), as appearing in 382 Mass. 779 (1981).2 For the reasons discussed below, I adopt the board's decision and order admonitions for both respondents.

1. Facts. Owing to the hearing committee's rejection (based on factual determinations) of the most serious charges, the operative facts that remain relevant can be stated succinctly. The testatrix (whom I shall call Smith) was referred to the respondents by one Walker (another pseudonym) in March, 1989, following the suicide of the testatrix's husband. Walker was a past and present client of the respondents' firm on unrelated matters and was a friend of Smith's late husband and of David. David assisted in the probate of Smith's husband's estate. Shortly thereafter, Smith, age 78, asked David to prepare a will for her. Smith stated that she wished to leave her entire estate to Walker and wished Walker to be the executor of the will. Two issues now relevant arose from this. First, David inquired of Smith whether Walker was pressuring her or exerting undue influence; the response was that nothing of that sort was occurring, a response that satisfied David. Second, David and Kyle discussed whether there existed any conflict, and decided that no such conflict existed and that Smith's testamentary intent was to be kept confidential and not revealed to Walker. At this time, David also knew the following: Smith had just revoked a durable power of attorney that she had recently given to another friend; Sherborn police had assigned a crisis intervention officer to check into Smith's situation on the day of her husband's suicide;3 Walker had asked the police to stop visiting the home; Walker was assisting Smith in various matters, including matters involving finances; and Walker had moved into Smith's residence.

On April 26, 1989, Smith executed her will. Walker drove Smith (who did not drive) to the office but was not present during the consultation. David and Kyle had determined beforehand that they would evaluate Smith for competency and determine whether any undue influence existed. After examining her, the respondents concluded that she was competent and under no undue influence. The will was then executed; David acted as notary and Kyle as witness. The hearing committee found that the respondents actually, reasonably, and in good faith, believed that Smith was competent when she executed the will and was not subject to undue influence. The committee also found that David and Kyle were right: Smith was competent and suffered from no undue influence.

Smith died approximately one year later. On July 23, 1990, the Probate Court allowed the will and appointed Walker the executor. Four years later, the Attorney General petitioned the Probate Court to revoke the allowance of the will. The petition alleged that Smith was not competent to execute the will and that Walker had exercised undue influence over her. Realizing that they would likely be witnesses, the respondents discussed whether they could represent Walker. They concluded that the action was time-barred and that their withdrawal would work a hardship on Walker. Consequently, they agreed to represent Walker in connection with the petition. The hearing committee found that the respondents, reasonably and in good faith, believed that the case would be dismissed and that they would not, in fact, become witnesses. In addition, the committee found that because of the respondents' familiarity with the matter and the financial inability of Walker to retain other counsel, their refusal to represent Walker in fact would have worked a substantial hardship on him.

The Probate Court denied the motion to dismiss in 1994, and the Attorney General sought to compel the respondents' withdrawal. The respondents opposed this, but were ordered to withdraw. David testified at trial, which took place in 1998. After ten days of trial, the parties reached a settlement: a decree entered disallowing Smith's will due to undue influence and Walker received $60,000.

Bar counsel filed this petition for discipline in 1999, alleging that the respondents knew Smith was incompetent when she signed the will, were aware that Walker may have been exerting undue influence over Smith, participated in fraud, intentionally made false statements under oath, engaged in conflicts of interest, presented false evidence in court, and failed to take adequate steps to document Smith's competence and freedom from undue influence. As noted above, the hearing committee, after eleven days of hearing, rejected the most serious charges. The committee found, in addition to the findings summarized above, that neither David nor Kyle made false statements under oath. Smith's and Walker's interests, under the particular terms and conditions of Smith's contemplated will, were not adverse. David's representation of Walker (and his personal, friendly relationship with him) did not impair his professional judgment or adversely affect his representation of Smith. The hearing committee, however, did fault the respondents for the following: David failed to take reasonably adequate steps to document that Smith was not suffering undue influence and that Smith was competent to execute a will; such steps would have included taking notes or preparing a contemporaneous file memorandum. This, the committee said, violated Canon 6, DR 6-101(A) (2), as appearing in 382 Mass. 783 (1981),4 and Canon 7, DR 7-101(A) (1), (2), and (3), as appearing in 382 Mass. 784 (1981).5 Also, because the respondents prepared Smith's will and were present at its execution (witnessing and notarizing the will), they had a personal interest in connection with the Attorney General's petition; this interest was likely to have affected their professional judgment and they failed to obtain Walker's informed consent to their representation of him in the action brought by the Attorney General. This was in violation of Canon 5, DR 5-101(A).

The hearing committee concluded that, because there had been no fraud, harm, exploitation, self-dealing, overreaching, or improper motive by the respondents, who acted in good faith throughout, the proper discipline was an admonition for Kyle (who was an inexperienced attorney at the time) and a public reprimand for David (who was very experienced and whose actions involved two counts of misconduct).

Bar counsel and the respondents appealed to the full board. Bar counsel sought amendment of the hearing committee's report to add a finding of a further conflict as to David by his representation of both Smith and Walker when the will was executed and to increase David's discipline to a six-month suspension. After oral argument, the board ruled that there was a conflict of interest in David's simultaneous representation of both Smith and Walker: David could not determine whether Smith was free of undue influence by Walker because, if there were a reasonable basis for concern, David could not investigate that basis without violating his duty of loyalty to Walker. The board concluded that such basis for concern was evidenced by David's suspicions and by other facts: Walker was helping Smith with her finances, Smith had just revoked a power of attorney given to another friend, Walker moved into Smith's residence, the Sherborn police had filed an elder abuse report regarding Walker and were monitoring Smith's living situation, and Walker had asked the police to stop visiting the house. Having decided that there existed need to investigate possible undue influence, David could not, consistent with his duty to Walker, investigate "with untrammeled vigor" into any suggestion of undue influence on Smith. In sum, he did not have "undivided loyalty," Board Decision at 4, quoting Logotheti v. Gordon, 414 Mass. 308, 312 (1993), to Smith. This was a conflict of interest in violation of Canon 5, DR 5-105.

The board rejected the respondents' challenges to the hearing committee's conclusion that there existed conflict of interest in their representation of Walker in the Attorney General's suit. The respondents had argued (1) that disciplining them for violating Canon 5, DR 5-101(A) would offend due process because of divergence of the "personal interest" alleged in the petition for discipline from that found by the hearing committee and (2) that there was no conflict because their and Walker's interests were identical (establishing Smith's competence and freedom from undue influence).

Finally, the board struck the committee's conclusion regarding the failure to take notes or prepare a contemporary file memorandum as to Smith's competence. This was based on the board's doubts that this was required as well as bar counsel's concession that there was no precedent for discipline for such failure.

The board was persuaded by the hearing committee's findings of good faith and lack of improper motive, but rejected the committee's conclusion that David's culpability was aggravated by its "cumulative" nature. The board concluded that admonition was appropriate for both respondents.

Both sides have appealed. Bar counsel does not contest the admonition ordered by the board for Kyle, but objects to that ordered for David. Bar counsel requests a six month suspension for David based on the two different conflicts in which he engaged, his experience in the practice of law, and the harm caused by his misconduct. The respondents seek dismissal of all claims in the petition.

2. Discussion. a. Simultaneous representation. The board concluded that the simultaneous representation of Smith and Walker violated Canon 5, DR 5-105. Disciplinary Rule 5-105(B) states: "A lawyer shall not continue multiple employment . . . if it would be likely to involve him in representing differing interests" absent full disclosure to each involved client. In this case, the interests of Smith and Walker were at odds. The board concluded correctly that the respondents were aware of the possibility that Walker might have unduly influenced Smith at the time the will was drafted. Thus, despite the fact that both the hearing committee and the board, acting with the benefits of hindsight, concluded that Smith's will was valid, at the time they were retained, the respondents had a duty to Smith "to make reasonable inquiry and a reasonable determination" that no undue influence existed. Logotheti v. Gordon, 414 Mass. 308, 311 (1993). "In making the required determination, the attorney must have undivided loyalty to the client." See id. at 311-312. The respondents' loyalties, however, were in conflict: any inquiry into undue influence had the potential to harm Walker, who, as the sole beneficiary of Smith's new will, would have been injured significantly had such influence been unearthed. Given the respondents' failure to disclose to either client, the board correctly concluded that the respondents' simultaneous representation of Walker and Smith violated DR 5-105.

The respondents also argue that the finding of fact by the hearing committee that Smith was competent and not subject to undue influence, which was not appealed by bar counsel, forecloses as a matter of law the conclusion that the respondents violated Canon 5, DR 5-105. This argument misunderstands the duty elucidated in the Logotheti case: an attorney owes a duty to the client to determine whether the client is competent and free of undue influence, and the attorney must have "undivided loyalty" to the client in making that determination. Id. at 311-312. A finding that the client was competent and free of undue influence is irrelevant to the question of whether an attorney had divided loyalties in assessing competency and undue influence, and the respondents clearly did have divided loyalties.

b. Representation of Walker in the Attorney General's suit. The second conflict of interest found arose from the fact that the respondents were responsible for preparing and witnessing a contested will. They consequently had a personal interest in having that will declared valid and their professional conduct vindicated. In agreeing to represent Walker, however, the respondents took on a client whose interests were best served, judging by the final settlement, by an agreement that invalidated the will in exchange for a monetary settlement. Contrary to the argument of the respondents, their interests in the suit were not identical to those of their client: the respondents' interest was in having the will declared valid regardless of the financial impact on Walker, while Walker's interest was in maximizing his own monetary gain, regardless of whether the will was declared valid. The board again correctly concluded that, absent disclosure, representing Walker in these circumstances amounted to a violation of DR 5-101.

The board also correctly rejected the respondents' due process argument. The respondents maintain that the petition for discipline described their personal interests as lying about Smith's competency and concealing her incompetency, while the hearing committee found that their conflict in representing Walker was based on their interest in establishing the propriety of their conduct. The respondents argue that the finding of a conflict based on an interest which was not described in the petition or argued before the hearing committee violated due process. Although attorney disciplinary proceedings are "quasi-criminal" in nature, see In re Ruffalo, 390 U.S. 544, 551 (1968), attorneys are not afforded the same level of constitutional protections available in a criminal context. See Matter of Abbott, 437 Mass. 384, 391 (2002). The respondents were placed on notice that their representation of Walker was alleged to be in violation of DR 5-101. Due process requires nothing more. See id. at 392. In such circumstances there is no constitutional requirement that a disciplinary committee base its conclusions on an ethical theory advanced by prosecuting counsel. See Zauderer v. Office of Disciplinary Counsel, 471 U.S. 626, 654 (1985); Matter of Saab, 406 Mass. 315, 324 (1989).

c. Inadequate representation. The board struck the hearing committee's conclusions regarding this alleged violation, i.e., failure to document adequately Smith's competence and the absence of any undue influence. This was the correct determination. Given the internal debate within the board concerning the advisability of maintaining the types of records that the hearing committee found necessary, it appears that the most that can be said about the respondents' documentation is that reasonable minds may differ as to its adequacy. In addition, it is difficult to discern from the general language of Canon 6, DR 6-101(A) (2) and Canon 7, DR 7-101(A) (1), (2), and (3), an obligation to document an investigation into a client's competency. It would be inappropriate to impose discipline in these circumstances.

3. Appropriate sanction. Each bar discipline case must be decided on its own merits, and each offending attorney must receive the disposition that is most appropriate in the circumstances. Matter of Foley, 439 Mass. 324, 333 (2003). In determining the "appropriate" sanction, the discipline recommendation of the board is entitled to "substantial deference." Id. But the penalty must be determined by the nature of the offense and all the surrounding circumstances. I recognize as well that the sanction imposed must not be "markedly disparate" from the sanction imposed in similar cases, id., and that the discipline imposed must be that "necessary to protect the public and deter other attorneys from the same behavior." Id., quoting Matter of Concemi, 422 Mass. 326, 329 (1996).

I cannot discern either an intent on the part of the respondents to engage in unethical behavior or any concrete injury stemming from the violations noted above. In agreeing to prepare Smith's will and in agreeing to defend that will on Walker's behalf, the respondents simply failed to "select the correct course to avoid violations of disciplinary rules." Matter of the Discipline of Two Attorneys, 421 Mass. 619, 630 (1996). A private admonition is therefore appropriate. See id.

A judgment shall enter admonishing the respondents.

By the Court
___________________
Judith A. Cowin
Associate Justice

Entered: March 1, 2005

FOOTNOTES

1 At the time of the events involved, the Canons of Ethics and Disciplinary Rules regulated the practice of law in Massachusetts. S.J.C. Rule 3:07, as appearing in 382 Mass. 768 (1981). DR 5-105, as appearing in 382 Mass. 781 (1981), provided:

"(A) A lawyer shall decline proffered employment if the exercise of his independent professional judgment in behalf of a client will be or is likely to be adversely affected by the acceptance of the proffered employment, or if it would be likely to involve him in representing differing interests, except to the extent permitted under DR 5-105(C).

"(B) A lawyer shall not continue multiple employment if the exercise of his independent professional judgment in behalf of a client will be or is likely to be adversely affected by his representation of another client, or if it would be likely to involve him in representing differing interests, except to the extent permitted under DR 5-105(C).

"(C) In the situations covered by DR 5-105(A) and (B), a lawyer may represent multiple clients if it is obvious that he can adequately represent the interest of each and if each consents to the representation after full disclosure of the possible effect of such representation on the exercise of his independent professional judgment on behalf of each. . . ."

2 "Except with the consent of his client after full disclosure, a lawyer shall not accept employment if the exercise of his professional judgment on behalf of his client will be or reasonably may be affected by his own financial, business, property, or personal interests." DR 1-101(A), as appearing in 382 Mass. 779 (1981).

3 The hearing committee found that another friend of Smith (whose testimony the committee generally rejected as not credible due to bias and interest in certain money) instigated a separate police investigation regarding Walker's relationship with Smith. The police investigation terminated without substantiating the allegations, and the hearing committee rejected the friend's asserted basis for her complaint to police as not credible.

4 "A lawyer shall not[] [h]andle a legal matter without preparation adequate in the circumstances." DR 6-101(A) (2).

5 "A lawyer shall not intentionally[] [f]ail to seek the lawful objectives of his client through reasonably available means permitted by law and the Disciplinary Rules . . . [;] [f]ail to carry out a contract of employment entered into with a client for professional services . . . [;] [p]rejudice or damage his client during the course of the professional relationship . . . ." DR 7-101(A) (1), (2), and (3).



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