Thursday, July 8, 2010
The North Dakota Supreme Court found that an attorney had not engaged in a conflict of interest but had violated Rule 1.14 and imposed a 90-day suspension. The attorney had drafted a will for a person declared incompetent that benefitted his clients, the children of the testator:
The record shows [the attorney] knew Jake Leno had been declared incapacitated and GAPS [protective sevices] had been named his guardian with full authority over his legal matters. [The attorney] was present at the guardianship hearing. He reviewed all the documents indicating Jake Leno suffered from Parkinson's disease and short-term memory loss. He concedes it was his responsibility to communicate with Jake Leno's guardian. He failed to meet this responsibility, however. [The attorney's] understandable desire to give his client attention and respect does not overcome Jake Leno's incapacity to make legal decisions on his own behalf. [The attorney] did not look to Jake Leno's appointed representative, as required by N.D.R. Prof. Conduct 1.14, comment 5. [The attorney] persisted in executing a will that was invalid because of Jake Leno's incapacity. Furthermore, we do not ignore the fact the second will drafted by [the attorney] benefitted Ronald Leno and Randy Leno, [his] clients at the guardianship/conservatorship hearing. Clear and convincing evidence indicates [the attorney] violated N.D.R. Prof. Conduct 1.14.
There are concurring and dissenting opinions that would sustain the conflict of interest charges. (Mike Frisch)