Tuesday, February 14, 2012

A Matter Of Timing

The Illinois Review Board has recommended a censure of an attorney for violating the will drafting rule.

The board's summary of the matter:

This matter arises from a one-count complaint alleging that Respondent engaged in misconduct as a result of his actions in drafting wills and a trust agreement for clients John and Stephania Anderson, in which Respondent and/or Respondent’s wife were named as beneficiaries. The Hearing Board found that the Administrator failed to meet his burden of proof that Respondent engaged in misconduct and recommended that the complaint against Respondent be dismissed. In so concluding, the Hearing Board applied the 2010 version of Rule 1.8(c) of the Illinois Rules of Professional Conduct to Respondent’s conduct and found that because Respondent had a close, familial relationship with the clients and had detached advice from another lawyer, there was no violation of the rules. In addition, the Hearing Board found that Respondent acted in the best interest of his client.

On review, the Administrator asked this Board to find that the Hearing Board erred in its conclusions finding no misconduct. Specifically, the Administrator contended that Respondent breached his fiduciary duty and violated Rules 1.8(c), 1.7(b) and 8.4(a)(5) of the 1990 Illinois Rules of Professional Conduct, the rules in effect at the time of the Respondent’s representation of the Andersons. The Administrator asked the Review Board to recommend that Respondent be censured. The Respondent asked the Review Board to approve the Hearing Board findings and recommendation of dismissal.

The Review Board found that the Hearing Board should have applied the 1990 Rules and that the Respondent clearly violated Rule 1.8(c) with respect to the drafting of one trust agreement in 2006 in which the Respondent’s wife was named a beneficiary. With respect to the other alleged violations, the Review Board concluded that the Hearing Board’s findings were not against the manifest weight of the evidence. In light of the substantial evidence in mitigation, including the evidence that Respondent had a close relationship with the client and was abiding by the client’s wishes, the Review Board recommended that Respondent be censured.

The board found mitigating factors:

Respondent had a close relationship with Mrs. Anderson and he acted to insure that her wishes were met with respect to her bequests. Respondent has otherwise engaged in the practice of law without incident. He also offered evidence that he had attended an all day seminar on the Rules prior to the hearing and has stated his intent to comply with the Rules in the future. Respondent testified that he now carries with him a copy of the new rules. Most importantly, Respondent was forthcoming with his clients, with the Hearing Board and at oral argument. He took responsibility for his actions which were unfortunately occasioned by his ignorance of a rule he should have known.

The clients had moved in next door to the attorney's family when he was seven years old. His father had also been their attorney. (Mike Frisch)


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