Friday, April 30, 2010

"Do I Get A Bonus?" No, You Get a Censure

An Arizona Hearing Officer has recommended a censure of an attorney for conduct in representing a 100 year old client in estate planning. According to the attorney, he jokingly asked the client something to the effect  "Do I get a bonus?" during their consultations. The comment was made in front of a couple who were looking after the client.

The client responded by offering to leave the attorney $50,000 in his will. The attorney initially declined. He then told the client he did not think he could draft a will from which he would benefit, but that he could accept a gift. The attorney drove the client to his bank, where he transferred the 50K into a new account in the attorney's name. When new counsel demanded that the "gift" be returned, the attorney complied.

Hearing Officer Coker (who always writes clear and thoughtful reports, in my view) noted:

Upon first review, this case is very unsettling. The image of an attorney charged with the responsibility of having the best interests of his client at heart at first making a joke about receiving a "bonus," and then thereafter assisting his elderly client in the transfer of $50,000.00 to his own enefit, is fraught with all kinds of negative implications and questions.

The attorney may have felt that the client wanted to give him the money. However, the attorney failed to advise the client to get independent counsel prior to the transfer of funds. The return of the money was a mitigating factor. (Mike Frisch)

Bar Discipline & Process | Permalink

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No question as to the ethical aspects of this case.

But the question that the opinion fails to address is why the client changed his mind and demanded the money back. The case makes clear that he was wealthy and obviously close to the end of his life. So did the $50,000 suddenly become important to him? Did he come to the conclusion that he had been wrongly influenced by the attorney? Or was there actually someone else that was able to exert influence on the client as he drew closer to death? It doesn't make a difference to the case but I am nonetheless curious.

Also, having fully complied with demands for the return of the money, why and how did this become a bar discipline case? I'm curious about that also.

It just seems like there are pieces missing from this jigsaw puzzle.


Posted by: FixedWing | May 2, 2010 9:55:43 PM

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