Monday, December 10, 2007
The Maryland Court of Appeals decided an interesting case interpreting Rule 1.8 (c), which prohibits an attorney from drafting a will that contains any substantial bequest or gift from the client to the lawyer without representation of the client by independent counsel. The client and lawyer had a close and longstanding relationship. The bequest was over $400,000. The lawyer prepared the will on the client's instructions. An attorney with whom the lawyer shared office space then explained the will to the client. The lawyer introduced the office mate as the client's "attorney for the day to discuss and, if necessary, modify the will." The client signed and is now deceased.
The court rejected the conclusion of the trial court (based on expert testimony) that the office mate was a truly independent counsel. "While that choice [of counsel] may have been blessed with the virtues of convenience and competence...it lacked consideration of the nuance of how the perception of closeness might be viewed as undermining the independence requirement of the Rule." The court majority concluded that the appearance of impropriety was sufficient to establish the ethical violation, while acknowledging that there was no evidence of collusion between the two lawyers: "A reasonable member of the public could look askance at such an arrangement and suspect that collusion could take place." The accused attorney was generally aware of the rule and "made a good faith effort to comply." The court remanded the matter to its Attorney Grievance Commission "for it to dismiss the petition, but with a warning to [the lawyer]."
A dissent would find no misconduct: "The Court, at least tacitly, recognizes the gross unfairness of [the determination of misconduct] by sending the case back to Bar Counsel so that he can dismiss it. That...is a classic 'cop-out' and wholly inappropriate.The Court pronounces publicly that [the attorney]has been guilty of serious violations of the Rules of Professional Responsibility, which will tar him for the rest of his career, and yet directs Bar Counsel quietly to dismiss the case."
The dissent further notes that, at the time of the alleged misconduct (1994), no court had held that a lawyer who shares office space cannot, as a matter of law, serve as an independent attorney: "Such a notion-that the law is always there, even if never articulated by any court or legislature- is, at best, an unwarranted extension of natural law theory, and, while it may have influenced the intellectual meanderings of the Eighteenth Century judicial establishment, it has long, and for good reason, been replaced by a more realistic precept of legal positivism. As applied by the Court in this case, it would presume a clairvoyance that, for ordinary mortals, is wholly unreasonable and that I suspect even the current (and retired) members of this Court do not possess."
This a definitely a case to ponder. (Mike Frisch)