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Commonwealth of Massachusetts

Public Reprimand No. 2007-28



GEORGE WARSHAW

Order (public reprimand) entered by the Board January 3, 2008.

SUMMARY1


In the Spring of 2000, William and Nancy (brother and sister) retained the respondent to prepare a deed to be signed by their mother, Mary, transferring Mary’s main asset, her two-family house, to Nancy. The respondent was also asked to prepare a will leaving Mary’s estate to Nancy. William told the respondent that Mary wanted Nancy to have the house because Nancy had lived in the house for years taking care of Mary. Mary had four other adult children.

Mary was a seventy-six year old widow who experienced chronic respiratory problems and decreasing pulmonary function. In December of 1999, she had been admitted to a hospital for treatment of acute respiratory failure and pneumonia. In early 2000, Mary was transferred to a rehabilitation center, where she remained until she died in March of 2002.

The respondent first prepared a deed for the property transferring it to Nancy “in full consideration of less than $100 and all my love and gratitude for caring for me all these years.” On the second page of the deed, in addition to Mary’s signature line, the respondent placed lines for the signatures of four witnesses. He then drove his office manager to the rehabilitation center to obtain and notarize Mary’s signature on the deed. While the respondent waited in his car, his office manager met with Mary. Also present in Mary’s room were William, Nancy and at least six other people. Mary signed the deed and the office manager notarized the signature. Six people including William signed the deed as witnesses to Mary’s signature. The respondent then caused the deed to be recorded with the Suffolk County Registry of Deeds.

A month later, the respondent prepared a will for Mary as requested by William and Nancy and nominating Nancy as executrix. The respondent went to the rehabilitation center to obtain Mary’s signature on the will. He met with Mary, William, Nancy and four other people. At the respondent’s request, Mary signed the will, two of the other people signed the will as witnesses and the respondent signed the will as notary.

The deed and will prepared by the respondent were significant donative documents affecting the substantial legal rights of Mary. In preparing the deed and will and assisting Mary in executing them, the respondent was providing legal services to Mary. Nancy and William had differing interests from Mary in connection with the documents.

In preparing the deed and will and assisting Mary in executing them, the respondent took inadequate steps to assure that Mary understood the import of the documents, agreed to their terms, was competent to sign the documents and was not subject to any undue influence. The respondent took no steps to assure that Mary had the advice of independent counsel in connection with the deed or the will.

Mary died in March of 2002. One of Mary’s other children filed with the Suffolk Probate Court a petition for administration of Mary’s estate. Nancy filed a petition for probate of Mary’s will. Three of Mary’s other children filed an affidavit of objections to Mary’s will on the grounds that Mary lacked testamentary capacity and had signed it under the undue influence of Nancy and William. They also filed an equity action against Nancy and William seeking rescission of the deed on the grounds that Mary was incompetent and signed it under the undue influence of Nancy and William. The actions contesting the deed and will were still pending at the time this disciplinary matter concluded.

In preparing the deed and will for Mary’s signature at the request of Nancy and William and assisting in their execution, the respondent violated Mass. R. Prof. C. 1.7(a) and 1.7(b).

In preparing the deed and will for Mary’s signature and assisting in their execution without taking adequate steps to assure that Mary understood the import of the documents, agreed to their terms, was competent to sign the documents and was not subject to any undue influence, the respondent violated Mass. R. Prof. C. 1.1, 1.2(a), 1.3 and 1.4(b).

In mitigation, the respondent had no personal interest in the representation other than a fee of $1,500, which was paid by Nancy. In further mitigation, the respondent took some steps, although inadequate, to determine that Mary was competent and wanted her daughter Nancy to have the house. When his office manager met with Mary to have her sign the deed, the respondent arranged to have a number of witnesses present and provided the office manager with specific written questions designed to elicit Mary’s intent concerning the house. When the respondent met with Mary to have her sign the will a month later, Mary verified to him that she had deeded the property to Nancy and intended to leave everything to Nancy in the will. Both the office manager and the respondent believed that Mary understood that she was giving everything to Nancy and was competent when she signed the deed and will, respectively. While the respondent’s efforts were in good faith, they were inadequate to fulfill his obligations to provide Mary with independent representation and to assure that Mary was competent and not subject to undue influence because he did not confer with Mary alone and advise his office manager to do so; he did not assure that Mary signed the documents out of the presence of Nancy and William; and he did not refer Mary to independent counsel.

This matter came before the Board of Bar Overseers on a stipulation of facts and rules violations and a joint recommendation that a sanction of public reprimand be imposed. On December 10, 2007, the Board voted to accept the stipulation of the parties and to administer a public reprimand to the respondent.


1 Compiled by the Board of Bar Overseers based on the record of proceedings before the Board.



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