Saturday, July 16, 2022

Harms

The Vermont Supreme Court increased a three month suspension to five months for a conflict of interest in drafting documents from which the attorney benefitted

The panel explained that violations of the prohibition against preparing an instrument giving a substantial gift to a lawyer were routinely found when a lawyer drafted a will that conferred beneficiary status on the lawyer or a person related to the lawyer. It concluded that the prohibition in Rule 1.8(c) was plainly worded and without exception. It rejected respondent’s assertion that he did not understand the documents to confer a gift to him, concluding that it provided no defense to the rule violation and that other courts had reached similar conclusions. Regardless of his intent, the panel held that respondent placed himself in a position to keep L.Z.’s real property or to claim her property under the will following her death.

The court sustained the Rule 1.7 conflict of interest charge as well as the Rule 1.8(c) violation.

Respondent had a duty to provide L.Z. with independent advice, but he put himself in a position where he was advising
her to convey her property to him, which she did. There was a significant risk that his advice would be colored by his personal interests. It is undisputed that respondent failed to secure L.Z.’s informed written consent to continued representation. We reject any argument that the violation was justified because the client “insisted” on this arrangement. As another court observed under similar circumstances, if the client had “been given the benefit of independent counsel,” her “instructions m[ight] have been much different.”

Sanction

Attorneys and members of the public must know that this type of behavior will not be tolerated. We conclude  that a five-month suspension is appropriate here given the serious harm that resulted from the misconduct, the vulnerability of the victim, the lack of remorse, and the nature of the violations, particularly the violation of a clear prohibition on drafting documents gifting client property to oneself. Not only did respondent’s misconduct harm his client by depriving her of independent advice but it harmed L.Z.’s relatives, who will never know with confidence what L.Z. intended; all of this, in turn, harms the public’s confidence in the legal profession. A lengthy period of suspension is required.

(Mike Frisch)

https://lawprofessors.typepad.com/legal_profession/2022/07/the-vermont-supreme-court-increased-a-proposed-three-month-suspension-to-five-months.html

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