Thursday, June 11, 2009
In a case that evaluates the difficulties in representing an elderly client with potentially diminishing capacity, a 5-4 majority of the Washington State Supreme Court imposed an 18 month suspension of an attorney for initiating a guardianship proceeding against a former client. The misconduct was based on findings that the lawyer had acted without any investigation of the client's alleged incapacity and contrary to her lawful objectives.
The court underlined its concerns about the impact of its decision on lawyers who face such circumstances:
While not condoning [the lawyer's] actions in any way, we are concerned
that this matter might send the wrong message to lawyers who represent the
elderly -- whether they specialize in elder law or are general practitioners who
have represented a family or a client for many years. Issues of a client's
competency arise in many forms. However, one scenario which is regrettably
not uncommon is for a person of advanced years to fall under the influence of
a friend, neighbor, or distant family member. It may come to the attention of
a lawyer that an impaired client has fallen under such influence. Often, the
friend or distant family member has taken the client to his or her own lawyer
who has prepared a new will cutting out other family members and frustrating
careful estate planning. Under such circumstances, if the lawyer reasonably
believes that her client is suffering diminished capacity and is under undue
influence, the lawyer may take protective action under RPC 1.14 without fear
of provoking charges of ethical misconduct by the WSBA seeking disbarment. A lawyer's decision to have her client declared incompetent is a
serious act that should be taken only after an appropriate investigation and
careful, thoughtful deliberation.
We emphasize that [the lawyer's] actions are distinguishable. First, [he]
failed to make any reasonable inquiry into [the client's] competency. Second,
he knew or had information available to him to suggest [she] had a
"sanity" or mental status exam and was determined to be competent within
six months of filing the guardianship petition. Third, it seems uncontroverted
that [he] believed [she] was competent just months before he filed
the guardianship petition, when she signed the estate planning documents
[he] prepared for her. Finally, [he] fails to explain why his epiphany
that his client was incompetent seems to have occurred on the very day he
discovered that she had retained new counsel and wanted to discharge him.
Lawyers who act reasonably under RPC 1.14 are not subject to discipline.
[He] did not.
There is a dissent that accuses the majority of "selectively [using] the facts to arrive at the conclusion it desires" and would impose disbarment.:
The majority describes this case as one of an attorney who has "practiced law for 34 years without a disciplinary history, and his misconduct is isolated to a single client and a single legal action lasting over approximately two months, and does not fall within the type of conduct for which disbarment is usually imposed for a first offense." Majority at 31. In so doing, the majority selectively uses the facts to arrive at the conclusion it desires: a suspension.
The majority's analysis ignores that Stephen K. Eugster failed to abide by Mrs. Marion Stead's objectives and filed a guardianship petition that he knew lacked any factual or legal basis against Mrs. Stead, a vulnerable victim. If successful, the guardianship petition would have financially benefited Eugster through attorney fees, but instead, it ended up costing Mrs. Stead $13,500 and her relationship with her son. The majority's reasoning discards our well-settled attorney discipline sanction analysis in favor of a confusing, contradictory scheme that lacks any standards. I cannot join in the majority's incomplete and flawed reasoning. The only conclusion that can be drawn from our well-settled sanction analysis and precedent is Eugster should be disbarred.