Tuesday, April 27, 2010

Not Fast Enough To Defeat Death

An Arizona Hearing Officer has recommended a suspension for one year followed by one year of probation in a case involving findings of a pattern of serious dishonesty. The attorney was admitted in California in 1979 and became a member of the  Arizona Bar in 1999. He has no prior bar discipline.

The attorney began representing a terminally ill client relating to his estate. At the time, the client was near death, in hospice care and unable to speak. The attorney attended a meeting of family members and the client's three adult children (but not their stepmother) signed an engagement letter. The next day, the attorney directed his paralegal and secretary to promptly draft a power of attorney and a trust document for the client's signature. He further instructed his secretary to travel to the client's home as soon as the drafting was completed to secure the client's notarized signature on the documents.

The client died at 4 am that morning. The attorney knew the client had died and told the secretary she need not come with him to the client's home. The attorney brought the documents to the client's home. There, the documents were falsely signed by the client's son and witnessed by the attorney. He brought the signed documents back to his office and told his secretary that the signature on the power of attorney was authentic. At his direction, she notarized it. The fraudulent power of attorney was then used to affect estate property and the attorney thereafter represented the estate.

The stepmother initiated litigation and alleged, among other things, doubts that the power of attorney was authentic or that the deceased client was competent to execute the document. The attorney met with other attorneys in his firm about the matter but knowingly failed to disclose the false signature and his role in the matter. When the firm later learned of the forgery, it withdrew from the representation due to the conflict.

The Hearing Officer noted that the "reprehensible" lies that the attorney told his law firm prolonged the litigation and caused the firm to investigate his false denials. The children sued the firm and a confidential settlement was reached. The Hearing Officer found that the attorney lacked remorse and had only admitted the misconduct only after the law firm filed a bar complaint. Nonetheless, the Hearing Officer rejected the State Bar's call for disbarment in light of the attorney's many years of practice without prior discipline.

Watch for an appeal on the sanction by the State Bar. (Mike Frisch)

http://lawprofessors.typepad.com/legal_profession/2010/04/an-arizona-hearing-officer-has-recommended-a-suspension-for-one-year-followed-by-one-year-of-probation-in-a-case-involving-fi.html

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