Tuesday, August 23, 2011

Self-Dealing With Elderly Clients Draws Proposed Suspension

An Illinois Hearing Board has proposed a suspension of eighteen months for an attorney's self-dealing with two elderly clients. The clients were brothers.

The board concluded that the attorney's friendship with the clients did not diminish his obligations as a fiduciary.

The attorney prepared a series of documents that gave him and his wife increasing shares of the estates of the two clients:

Adam and Anton were elderly, reclusive and estranged from their family. They had a very small social circle, consisting of Respondent, Respondent’s brother Dale and their neighbor, Gembala. By September 2005, Dale had died and Gembala had moved out of the neighborhood. From that time on, the only people with whom Adam and Anton had regular contact were Respondent and Johnson [a caregiver]. These circumstances rendered Adam and Anton vulnerable to exploitation. Anton was especially vulnerable, given his long-standing cognitive and memory problems, which Anton’s doctor testified affected his ability to make financial decisions and rendered him susceptible to suggestions from others.

After Adam died, Anton was in an even more weakened state, both physically and psychologically. Respondent’s conduct at that time is especially troubling. Within a few weeks after Adam died, despite Anton’s condition, Respondent arranged for Anton to execute a series of documents under which Respondent and his wife would receive almost all of Anton’s property when Anton died. These documents also eliminated almost all of the remaining rights of third parties to Anton’s estate. Specifically, Anton added Respondent as a joint tenant on Anton’s bank account. Anton executed a Transfer on Death Agreement for his UBS account, which removed Gembala and named Respondent and his wife as the only beneficiaries upon Anton’s death. Respondent had Poirier notarize the signature on this document, even though Anton was not present, and Poirier did not see him sign the document. Respondent also prepared and had Anton sign a document, which amended the terms of the land trust to add Respondent and his wife as joint tenants with Anton.

Adam or Anton did not have any independent advice concerning any of the documents Respondent prepared or presented to them for signature, which left their property or the right to direct its disposition to Respondent. Respondent did not advise Adam or Anton to obtain independent legal advice, explain the conflict of interest inherent in his preparation of documents under which he would benefit or inform them of the risks his preparation of such documents would entail. As to at least some of the documents, no one other than Respondent was involved at all. Respondent’s wife and son witnessed some of the documents, including Adam’s 2004 Durable Power of Attorney, Adam’s 2006 will and Anton’s 2005 will. Although it was improper for him to do so, 5 ILCS 312/6-104, Respondent notarized certain documents, such as Adam’s 2004 Durable Power of Attorney and 2006 will. Respondent improperly had Poirier notarize Anton’s 2006 UBS Transfer on Death Agreement, even though she could not verify the identity of the signer.

The prioposed sanct ion would also require the attorney to take a professionalism course. (MIke Frisch)

http://lawprofessors.typepad.com/legal_profession/2011/08/an-illinois-hearing-board-has-proposed-a-suspension-of-eighteen-months-for-an-attorneys-self-dealing-with-two-elderly-clients.html

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