Filed January 11, 2011
BEFORE THE HEARING BOARD
ILLINOIS ATTORNEY REGISTRATION
|In the Matter of:
ANDREW WARREN PETERS,
Commission No. 09 SH 43
REPORT AND RECOMMENDATION OF THE HEARING BOARD
The hearing in this matter was held on October 27, 2010, at the offices of the Attorney Registration and Disciplinary Commission, Springfield, Illinois, before a Panel of the Hearing Board consisting of Richard W. Zuckerman, Chair, Janaki H. Nair, and Pamela Hammond-McDavid. The Administrator was represented by Deborah Barnes. The Respondent was represented by William F. Moran, III.
The Administrator filed a one-count Complaint against the Respondent on July 7, 2009. The Complaint alleged that the Respondent drafted five wills for Charles E. Brown from 1992 to 2007, and in each of the wills the Respondent's wife, Jean Peters, received a bequest. In the 1992 and 1998 wills, Mrs. Peters was to receive "the round antique occasional table with four legs and all of [Brown's] woodworking and shop tools." In the 1999 will, Mrs. Peters was to receive the table, tools, and 5% of the residual estate. In the 2005 and 2007 wills, Mrs. Peters was to receive the table, tools, and 15% of the residual estate. Mr. Brown died on January 21, 2009. The Respondent, as executor of Mr. Brown's will, filed a probate case in February 2009, and listed the value of estate as being approximately $1.4 million.
Based upon the above, the Administrator alleged that the Respondent committed the following misconduct: (a) prepared an instrument giving the lawyer or a person related to the lawyer as spouse a substantial gift from a client, in violation of Rule 1.8(c) of the Illinois Rules of Professional Conduct; (b) represented a client when the representation of that client may be materially limited by the lawyer's own interests, in violation of Rule 1.7(b); (c) engaged in conduct that is prejudicial to the administration of justice, in violation of Rule 8.4(a)(5); and engaged in conduct which tends to defeat the administration of justice or to bring the courts or legal profession into disrepute, in violation of Supreme Court Rule 771 (now 770).
The Respondent filed an Amended Answer on October 12, 2010. In his Amended Answer, the Respondent admitted the factual allegations in the Complaint and provided some explanations. He also admitted that he engaged in attorney misconduct, but neither admitted nor denied the specific charges of misconduct in the Complaint.
The Administrator called the Respondent as an adverse witness, and the Administrator's Exhibit 1 was received into evidence. (Tr. 5). The Respondent testified in his own behalf, presented the testimony of five other witnesses, and the deposition testimony of one witness. The Respondent's Exhibits 1 through 10 were received into evidence. (Tr. 5).
The Respondent testified that he was born on August 10, 1929, and is 81 years of age. He lived in Lincoln, Illinois in the early 1940s. He then moved away, but returned in 1957 and has lived there ever since. He earned his law degree from the University of Illinois in February 1954, passed the bar examination, and was admitted to the practice of law in Illinois in May 1954. He then served on active duty with the United States Army for two years. (Tr. 13, 21-29).
He was employed as an assistant state's attorney in Logan County in 1956. In 1957, he opened his own law office in Lincoln. He has always been a sole practitioner. (Tr. 30-31). The Respondent and his wife, Jean, were married in 1961, and they have six daughters. (Tr. 33-34). In 1964, he was elected State's Attorney of Logan County. This was a part-time position, and he maintained his private practice during his four-year term. About a year after he lost his bid for re-election as state's attorney, the Respondent became the part-time city attorney for Lincoln, and held that position for 13 years. He still has an active law practice in the same office he has had since 1972. He has, however, stopped handling contested matters. He has no staff, but utilizes a typist on a contractual basis. (Tr. 22, 30-32, 35-37, 42).
The Respondent testified that he has handled about 2 to 3 pro bono cases each year. He also noted that he has represented four churches, the Salvation Army, the Logan County Civil War Statue Committee, and the Lincoln Women's Club in various matters on a pro bono basis. Over the years, he has also accepted reduced fees from clients who could not afford to pay his normal fees. He has been active in the Logan County Bar Association, and has served as its president. He has performed volunteer activities for the American Red Cross, the Heart Association, and the Rotary Club. Further, he was active with the Foster Grandparents Board for 10 years, and served as its president for 3 or 4 years. (Tr. 36-38, 62-66).
The Respondent first met Charles Ellsworth Brown in the early 1940s, when the Respondent was in grade school. Brown, who most people refer to as "Brownie," is 13 years older than the Respondent, and lived in Beeson, a town about 12 miles from Lincoln. Brownie was a good baseball player, and started to pursue a professional baseball career. Brownie ultimately became a baseball scout for the Chicago White Sox and then for the Minnesota Twins. Brownie received two World Series rings from the Twins. Brownie also worked for the State of
Illinois for 8 to 10 years in the 1960s. (Tr. 42-45). Brownie was active in politics, but never held any elected office other than precinct committeeman. The Respondent was also active in politics, and frequently was at meetings, lunches, and dinners with Brownie. (Tr. 14-15, 47). Brownie referred some clients to the Respondent. (Tr. 49). The Respondent described Brownie as a "social acquaintance." (Tr. 15).
In the early 1980s, the Respondent did legal work for Brownie's mother. About the time Brownie's mother died, in 1986, the Respondent started doing legal work for Brownie. For example, the Respondent did tax work for Brownie throughout the remainder of Brownie's life. (Tr. 52-53, 76-77).
In 1986, Brownie came to the Respondent with a sheet of paper containing various bequests he wanted to make, and asked the Respondent to prepare wills for Brownie and his wife Mabel. (Tr. 53-54). The Respondent did so. Brownie and Mabel did not have any children, but Brownie had some other relatives. (Tr. 46, 54). In the wills the Respondent prepared for both Brownie and Mabel there was a bequest to Jean Peters, the Respondent's wife. Specifically, Mrs. Peters was to receive "the round antique occasional table with four legs and all my woodworking and shop tools." (Tr. 55-57; Resp. Ex. 2 at 2). The Respondent acknowledged that his wife was not related to Mr. or Mrs. Brown, and that he (Respondent) did the woodworking, with his wife assisting him. (Tr. 18, 50). He said that the foregoing bequest was made to his wife because that was what Mabel Brown wanted, and because the Respondent did not want to receive a bequest in a will he prepared. Specifically, he said he "didn't want anybody saying that I unduly influenced [Brownie] or took advantage of him in any way." He also said that he did not research, or consult with anyone about, the ethical issue regarding the bequest to his wife when he prepared the 1986 wills. (Tr. 57-58). After preparing the 1986 wills, the Respondent sent the
wills to the Browns with a letter advising them to make any corrections or additions they wanted. (Resp. Ex. 1). The Browns then came to his office and executed the wills. (Tr. 54-55).
In 1992, Brownie came to the Respondent's office and stated that he wanted to change the wills. Brownie gave instructions as to what he wanted to do, and the Respondent wrote the changes on the previous wills. (Resp. Ex. 2). The Respondent made the changes that Brownie requested, and the Browns executed the 1992 wills. The bequest to the Respondent's wife in the 1992 wills was the same as in the earlier wills. (Resp. Exs. 3 and 4). The Respondent said that at the time he prepared the 1992 wills he researched the issue of his wife receiving a bequest in a will he prepared by reviewing Judge Hunter's treatise on Illinois civil law [Hunter, Trial Handbook for Illinois Lawyers (Civil), Lawyer's Co-Operative Publishing Co]. In doing so, he found and read the Barrick case [In re Barrick, 87 Ill. 2d 233 (1981)], in which the Supreme Court held that "basically unless there was some type of undue influence or incompetence that a gift to an attorney or an attorney's relative was proper." (Tr. 61) He did not look at the ethical rules themselves, and he did not realize that new Rules of Professional Conduct were adopted in 1990, which was after the decision in Barrick. (Tr. 20-21).
Mabel Brown died in January 1998. (Tr. 67). After Mabel's death, Brownie brought his 1992 will, with handwritten changes, to the Respondent's office. (Resp. Ex. 68). The Respondent then prepared the 1998 will for Brownie. This will contained the same bequest to the Respondent's wife that had been in the earlier wills. (Tr. 68-70; Resp. Ex. 5 at 2).
In 1999, Brownie again went to the Respondent's office with handwritten changes on his current will. (Resp. Ex. 5). The Respondent said that, in addition to other changes, Brownie wanted to give the Respondent's wife 5% of his residual estate, and this addition was written on Brownie's current will by the Respondent. (Tr. 71-72: Resp. Ex. 5, at 2, par. 13). The
Respondent also said he discussed the new bequest to his wife with Brownie, mentioned to Brownie that there could be a conflict of interest, and told Brownie that he (Respondent) preferred the bequest not be made. The Respondent also suggested that Brownie consult another attorney. However, Brownie "insisted" on the bequest, and refused to go to another attorney. (Tr. 19-20, 70-72). The 1999 will also included the bequest of the table, woodworking, and shop tools to the Respondent's wife that had been in the earlier wills. At the time, he drafted the 1999 will for Brownie (Resp. Ex. 6), the Respondent again looked at the decision in Barrick, and believed it was still good law. The Respondent said the 5% bequest to his wife "would be a very modest figure." He was aware that Brownie owned a two-thirds interest in a farm worth about $300,000, had some certificates of deposit, was receiving Social Security benefits, and had a pension from the State of Illinois. (Tr. 73-74).
In 2005, Brownie brought his 1999 will, with handwritten changes, to the Respondent and asked the Respondent to prepare a new will. (Tr. 78). One of the changes Brownie wrote on the will was an increase in the percentage of the residual estate given to the Respondent's wife, from 5% to 15%. (Resp. Ex. 6, at 3; Tr. 78, 80-81). The Respondent said he told Brownie that "he should see another attorney to [increase the percentage to the Respondent's wife] if that's what he wanted to do." (Tr. 81). The Respondent took out a telephone book and reviewed the names of local attorneys with Brownie. However, Brownie insisted that the Respondent make the change in the will, and refused to go to another attorney. (Tr. 81-82). The Respondent sent the draft 2005 will to Brownie (Resp. Exs. 7 and 8), and Brownie later executed it. (Tr. 82-83). The Respondent said he again looked at the Barrick case and did not find any cases that had modified its holding. However, he did not look at the ethical rules themselves. (Tr. 83).
The final will the Respondent prepared for Brownie was in 2007. Brownie again came to the Respondent's office with handwritten changes on his previous will. (Resp. Ex. 8; Tr. 83-84). The 2007 will contained the same bequests to the Respondent's wife as in the 2005 will. Specifically, the Respondent's wife was to receive the table, woodworking, shop tools, and 15% of the residual estate. (Adm. Ex. 1 at 7, 8). The Respondent said he suggested to Brownie that he change the gifts to Respondent's wife, but Brownie refused to do so and said "he didn't know anybody that had treated him better than myself and my wife." (Tr. 85). The Respondent also told Brownie that he should go to another attorney, but Brownie refused. The Respondent then prepared the 2007 will, and Brownie executed it. (Tr. 87). At the time he prepared the 2007 will, the Respondent believed that Brownie's estate was worth "around" $500,000 and that 15% of the estate would be an amount over $75,000. (Tr. 104-05).
The Respondent further testified that during the period of time he prepared the wills for Brownie, Brownie would often stop by the Respondent's home and his office to visit. (Tr. 89). During the last year or so of his life, Brownie obtained the services of a caregiver, who took care of his home and drove him places. (Tr. 89-90, 108-10). Brownie died on January 21, 2009, and the Respondent said he was "competent right up to the day he died." (Tr. 90).
Probate proceedings for Brownie's estate were initiated on February 4, 2009. (Adm. Ex. 1). The Respondent was, initially, both the executor and the attorney for the estate. The value of the estate was about 1.6 million dollars. The Respondent said he had no idea that the value of the estate would be so large. There had been no will contest filed. (Tr. 92-94, 97). The Respondent said that an auctioneer in Logan County offered to purchase the "round table with four chairs" for $100, and the tools left on Brownie's premises at the time of his death sold for less than $30. (Tr. 66-67).
A cousin of Brownie filed a charge against the Respondent with the ARDC. Thereafter, on May 6, 2009, the Respondent's wife filed a disclaimer of every bequest to her in Brownie's will. (Tr. 94; Resp. Ex. 9).
The Respondent is still the executor for Brownie's estate. However, he was allowed to withdraw and another attorney now represents the estate. (Resp. Ex. 10). The Respondent said he withdrew as the attorney for the estate because he might need to be a witness against a creditor of the estate. (Tr. 95-96).
Finally, the Respondent admitted he violated ethical rules. However, he said he did not intend to violate any rule. He made a mistake by relying on a 1981 court opinion without reviewing the rules that became effective in 1990. (Tr. 20, 21 83, 99-101).
Judge David Coogan
Judge Coogan testified that he was born and raised in Lincoln, was appointed Associate Judge in 1985, and was elected Circuit Court Judge in 1998. He retired in 2009. (Tr. 11-13).
Judge Coogan has known the Respondent since the late 1950s and the Respondent has been a "good friend over the years." The Respondent appeared before Judge Coogan on "all kinds of matters." (Tr. 113-14, 116).
Judge Coogan said that within the legal community of Lincoln the Respondent has a reputation for being "an honest man." (Tr. 114).
Mr. Moriearty testified that he is 88 years of age, and has lived in Lincoln his entire life, and ran an insurance agency for 60 years. He has known the Respondent since the late 1940s. The Respondent represented him in some legal matters, and Mr. Moriearty was totally satisfied with the Respondent's services. (Tr. 119-20).
In regard to community activities, Mr. Moriearty said that the Respondent was active with the Red Cross, Salvation Army, many churches, and helped get an ambulance service to come to Lincoln. Additionally, the Respondent has performed pro bono legal services. (Tr. 120-21).
Mr. Behrends testified that he is 89 years of age and has lived in Lincoln his entire life. He is a professional engineer, and worked at the Illinois Department of Public Works and Buildings for 32 years. (Tr. 125-26).
He met the Respondent many years ago, and said that the Respondent has a "top notch reputation for being a fair and honest person." (Tr. 126-29).
Mr. Behrends was also a friend of Brownie for 40 years. He said that Brownie remained competent until the day he died. (Tr. 129-30).
Ms. Ackerson testified that she is 78 years of age and has lived in Lincoln her entire life. She discussed her background, including that she served a 4-year term as Logan County Treasurer in the 1960s and worked at the Secretary of State's office for 17 years. (Tr. 132-34).
She has known the Respondent since the late 1950s. He served a term as state's attorney for Logan County, and was the city attorney for Lincoln and Hartsburg. Ms. Ackerson also said that the people in the community trust the Respondent. (Tr. 136-37).
Mr. Awe testified that he is 77 years of age and worked at the State Bank of Lincoln and its successors for 40 years. He started as a teller and then worked in the loan department. He met the Respondent through his work at the bank. (Tr. 142-44)
Mr. Awe said that the people in the community have the highest regard for the Respondent's honesty, integrity, and thoroughness. (Tr. 145).
Ms. Duncan testified that she is the Post Master in Beeson, and has lived there since 2000. For about 9 years, she saw Brownie every day, except on weekends. Brownie would come to the Post Office to pick up his mail from his Post Office Box. On some occasions, Brownie would remain in his car, honk, and Ms. Duncan would take his mail out to him. (Tr. 17-48)
Ms. Duncan also testified that she and Brownie became personal friends, and that his mental state remained sharp until the time of his death. (Tr. 148-51).
Judge Michael McCuskey
Judge McCuskey testified by evidence deposition that he has been a United States District Court Judge for the Central District of Illinois since 1998, and usually sits in Urbana. (Ev.Dep. at 6-7).
Judge McCuskey first met Brownie, sometime between 1967 and 1970, when Judge McCuskey was on the baseball team at Illinois State University. One of his duties at that time was to make sure the baseball scouts had all the information they needed about the players. Brownie was a baseball scout and attended many of the Illinois State University baseball games. Judge McCuskey and Brownie struck up a friendship that went on for over 40 years. They saw each other several times a year. Since Judge McCuskey has been a judge in Urbana, he and Brownie attended University of Illinois and Parkland College baseball games together. (Id. at 7-8, 12).
Judge McCuskey described Brownie as being strong-willed and a person who would have set forth in his will what he wanted to do. Judge McCuskey had seen Brownie about six weeks before Brownie's death, and said there was nothing wrong with Brownie's mind. (Id. 10, 15, 16).
Finally, Judge McCuskey said that Brownie often talked about the Respondent and had "reposed good faith" in the Respondent. (Id. at 13).
FINDINGS OF FACT AND CONCLUSIONS OF LAW
In attorney disciplinary proceedings, the Administrator has the burden of proving the charges of misconduct by clear and convincing evidence. In re Winthrop, 219 Ill. 2d 526, 542, 848 N.E.2d 961, 972 (2006). This standard requires a high level of certainty, greater than a preponderance of the evidence but less than proof beyond a reasonable doubt. In re Verett, 07 SH 105, M.R. 22567 (Sept. 17, 2008) (Hearing Bd. at 24).
In determining whether the burden of proof has been satisfied, the Hearing Panel has the responsibility of assessing the credibility and believability of the witnesses, weighing conflicting testimony, drawing reasonable inferences from the evidence, and making factual findings based upon all the evidence. In re Howard, 188 Ill. 2d 423, 435, 721 N.E.2d 1126, 1133 (1999); In re Ring, 141 Ill. 2d 128, 138-39, 565 Ne.2d 983, 987 (1991).
Additionally, an admission in a pleading is a formal judicial admission that is binding on the party making it, may not be contradicted, has the effect of withdrawing the fact admitted from issue, and dispenses with the need for any proof of that fact. Thus, when a respondent in a disciplinary matter admits in his or her answer some or all of the facts alleged in a complaint, it is unnecessary for the Administrator to present evidence to prove the facts so admitted. In re
Carlson, 98 CH 880, M.R. 17398 (June 20, 2001) (Hearing Bd. at 11); In re Stark, 09 SH 19, M.R. 23732 (May 18, 2010) (Hearing Bd. at 10).
With the above principles in mind, and after considering the testimony, the exhibits, and the admissions by the Respondent in his Answer, we find that the following facts were proved by clear and convincing evidence.
In 1992, the Respondent drafted a will for Charles E. Brown, and Brown executed the will. In the 1992 will, the Respondent's wife, Jean Peters, was a legatee. Mrs. Peters received a bequest of "a round antique occasional table with four legs and all my woodworking and shop tools." Neither the Respondent nor his wife was related to Brown.
In 1998, Brown asked the Respondent to re-draft the will for Brown, and the Respondent did so. Brown executed the re-drafted will. In the 1998 will, the Respondent's wife, Jean Peters received the same bequest as she received under the 1992 will.
In 1999, Brown again asked the Respondent to re-draft the will for Brown, and the Respondent did so. Brown executed the re-drafted will. In the 1999 will, the Respondent's wife, Jean Peters, received the same bequest as she did in the earlier wills, that is "a round antique occasional table with four legs and all my woodworking and shop tools." Additionally, in
Brown's 1999 will Jean Peters also received five per cent (5%) of the balance of the estate, after the specific bequests.
In 2005, Brown again asked the Respondent to re-draft the will for Brown, and the Respondent did so. Brown executed the re-drafted will. In the 2005 will, the Respondent's wife, Jean Peters, received the same bequest as she did in the earlier wills, that is "a round antique occasional table with four legs and all my woodworking and shop tools." Additionally, in Brown's 1999 will Jean Peters also received fifteen percent (15%) of the balance of the estate, after the specific bequests.
In 2007, the Respondent drafted a final will for Brown. In the 2007 will, the Respondent's wife, Jean Peters, received the same bequests as she did in the 2005 will.
Brown died on January 21, 2009. On February 4, 2009, the Respondent filed a probate case as executor of Brown's estate. The Respondent was also the attorney for the estate. The case was docketed as In the Matter of the Estate of C. Ellsworth Brown, Logan County, No. 09 P 13. The Respondent listed the value of Brown's estate as approximately $1.4 million.
Effective on and after August 1, 1990, Rule 1.8(c) of the Rules of Professional Conduct provided:
A lawyer shall not prepare an instrument giving the lawyer or a person related to the lawyer as parent, child, sibling or spouse any substantial gift from a client, including a testamentary gift, except where the client is related to the donee.
It is clear that the Respondent violated the above Rule. There is no doubt that the bequests of 5% and then 15% of the residual of Brown's estate involved a substantial amount of money in light of the value of Brown's estate and the specific bequests in his wills. However, the only evidence regarding the value of the other bequests to the Respondent's wife, that is the "round antique occasional table with four legs and all my woodworking and shop tools", came form the Respondent. The Respondent testified that he was offered $100 for the table and chairs and that the tools remaining after Brown's death sold for less than $30. We are not convinced that it was established by clear and convincing evidence that the table, chairs, and tools constituted a "substantial gift" to the Respondent's wife.
The Respondent contended that he was not aware of the provisions of Rule 1.8(c) that prohibited him from preparing the wills in which his wife was a beneficiary. However, the Supreme Court has stated that "ignorance of the Code is no excuse" and that attorneys have a
"paramount obligation . . . to study the Code of Professional Responsibility [now Rules of Professional Conduct] and abide by its terms and principles." In re Gerard, 132 Ill. 2d 507, 538, 548 N.E.2d 1051, 1063 (1989); In re Cheronis, 114 Ill. 2d 527, 535, 502 N.E.2d 722, 726 (1986).
Furthermore, an attorney who prepares a will in which his or her spouse receives a substantial bequest, in violation of an express ethical rule, tends to diminish confidence in the integrity of the legal profession. See In re Vogel, 92 Ill. 2d 55, 63, 440 N.E.2d 885, 889 (1982).
Based upon the above, we find it clearly and convincingly established that the Respondent committed the following misconduct charged in the Complaint: (a) prepared an instrument giving the lawyer or a person related to the lawyer as parent, child, sibling or spouse a substantial gift from a client, in violation of Rule 1.8(c) of the Illinois Rules of Professional Conduct; and (b) engaged in conduct which tends to defeat the administration of justice or to bring the courts or the legal profession into disrepute, in violation of Supreme Court Rules 770 and 771 (Rule 771 was renumbered as Rule 770, effective April 1, 2004).
We do not find that the other charges of misconduct were proved by clear and convincing evidence. Specifically, we find no conflict of interest in the Respondent's representation of Brown, other than that which is inherent in the per se violation of Rule 1.8, because there is no evidence that they had conflicting views or positions. There was no evidence that the Respondent unduly influenced Brown in regard to the bequests to the Respondent wife. In fact, the Respondent was not charged with a breach of fiduciary duty or overreaching in regard to the will. In regard to charge that the Respondent's conduct was prejudicial to the administration of justice, there was no evidence showing that any judicial proceeding was adversely affected. There was no will contest filed against Brown's estate, the Respondent's wife filed a disclaimer for any bequest from Mr. Brown's will, and the Respondent withdrew as attorney for the estate
because he might have been a witness against a creditor of the estate, not because of any misconduct.
The purpose of the attorney disciplinary system is not to punish the attorney for his or her misconduct, but "to protect the public, maintain the integrity of the legal profession, and protect the administration of justice from reproach." In re Winthrop, 219 Ill. 2d 526, 559, 848 N.E.2d 961, 981 (2006). In determining the appropriate sanction, we must consider the nature and seriousness of the misconduct charged and proved, and any aggravating and mitigating circumstances shown by the evidence. In re Gorecki, 208 Ill. 2d 350, 360-61, 802 N.E.2d 1194, 1200 (2003). In addition, we may consider the deterrent value of the sanction, the "need to impress upon others the seriousness of the misconduct at issue," and whether the sanction will "help preserve public confidence in the legal profession." In re Twohey, 191 Ill. 2d 75, 85, 727 N.E.2d 1028, 1034 (2000); Gorecki, 208 Ill. 2d at 361.
Although each disciplinary case "is unique and must be resolved in light of its own facts and circumstances," the sanction imposed should be "consistent with those imposed in other cases involving comparable misconduct." In re Howard, 188 Ill. 2d 423, 440, 721 N.E.2d 1126, 1135 (1999); In re Chandler, 161 Ill. 2d 459, 472, 641 N.E.2d 473, 479 (1994).
In this case, the Administrator requested a sanction of suspension for at least ninety days. (Tr. 156). The Respondent argued that a censure or reprimand would be appropriate.
The Respondent, an experienced practitioner, engaged in misconduct by violating an unambiguous ethical rule that prohibited him from preparing a will in which his wife received a substantial bequest. The Respondent prepared such wills for his client Charles E. Brown on
three occasions, from 1999 to 2007. Any attorney acting with reasonable diligence should have known that the preparation of such wills constituted misconduct.
The Administrator suggested that the Respondent's testimony, indicating he was not aware of the prohibition in Rule 1.8(c) when he prepared the wills, should be viewed with "some skepticism." However, after considering the totality of the evidence, including the testimony and demeanor of the Respondent, we do not find that the Respondent knowingly or intentionally violated Rule 1.8(c).
There is significant mitigation in this case. First, there was no allegation by the Administrator, and no evidence, that the Respondent overreached in his attorney-client relationship with Mr. Brown, exercised undue influence on Mr. Brown, breached his fiduciary duty to Mr. Brown; or engaged in dishonesty or deceit. Additionally, there was no allegation, and no evidence, that Mr. Brown was not competent at the time the wills were prepared. Rather, the evidence showed that Mr. Brown fully understood and intended the bequests that were in his wills prepared by the Respondent. We also note that the Respondent's wife filed a disclaimer for any bequest from Mr. Brown's will on May 6, 2009, and will receive no financial benefit from the will.
Also in mitigation, the Respondent has been practicing law since 1954 and has no previous discipline. Character witnesses, consisting of long-term members of the community in Lincoln, Illinois, testified about the Respondent's favorable reputation for honesty and integrity, and his numerous volunteer activities for community and charitable organizations. There was also evidence of the Respondent's considerable pro bono legal work.
The Administrator's counsel argued that the Supreme Court has rejected the sanction of censure, and indicated that a period of suspension should be imposed, in this matter by denying
the previously filed Petition for Discipline on Consent in which a censure was requested. (M.R. 23710, May 11, 2010). We disagree. It is not for us to try and read the mind of the Court. We will not presume to interpret the denial as anything more than a denial. Based upon the record before the hearing panel, after all the evidence has been presented, we reach a decision on our recommendation de novo and without consideration of the prior action.
The Administrator cited the cases of In re Saladino, 71 Ill. 2d 263, 375 N.E.2d 102 (1978) and In re Beaupre, 03 SH 32, M.R. 20233 (Sep. 26, 2005). In Saladino, the respondent's misconduct arose out of two matters. First, the respondent, while representing his client and friend, Mrs. Van Hoveln, in a real estate purchase, prepared a deed that placed title to the property in his and his wife's name, rather than in the name of Mrs. Van Hoveln. When Mrs. Van Hoveln discovered this, she "demanded the property be placed in her name." The respondent explained that he was trying to protect Mrs. Van Hoveln's interests, in that she had been "hospitalized several times" and he might have been required to sell her property "at a time when she was incapable of participating in the sale." The Supreme Court stated that the respondent's "actions establish a prima facie case of abuse of a fiduciary relationship. Saladino 71 Ill. at 269-70.
Additionally in Saladino, the respondent prepared several wills and codicils for Mrs. Van Hoveln in which the respondent "was to receive all the residue, after specific bequests, including a diamond ring to Mrs. Saladino." The Supreme Court stated that "the evidence is not clear and convincing that respondent was actually carrying out [Mrs. Van Hoveln's] wishes" and "we do not see that the execution of this will ‘was the result of free deliberation'." The Court also noted that Mrs. Van Hoveln testified at the disciplinary hearing and "was seemingly confused or uncertain about other matters in her testimony, did not recall previous wills respondent prepared
for her, and denied respondent was to be a beneficiary." Id. at 271-72. The respondent was suspended for three months.
In Beaupre, the respondent prepared several wills, over a 10-year period, for his clients and close friends, Mr. and Mrs. Graves. All of the wills contained provisions bequeathing personal property and money, of at least $25,000, to the respondent and his wife. The final will respondent prepared for Mrs. Graves, two years after her husband's death, left the residual estate to the respondent and his wife. Beaupre, 03 SH 32 (Hearing Bd. at 18). The respondent was found to have violated Rule 1.8(c); engaged in overreaching the attorney-client relationship; and had a conflict of interest by representing beneficiaries of Mrs. Graves estate in a will contest while he was attorney for the estate and had a substantial financial interest in having the will upheld. (Hearing Bd. at 26-27; Review Bd. at 2-3). The Supreme Court imposed a suspension of ninety days.
Unlike in Saladino, the Respondent in the case before us did not breach his fiduciary duty to his client and there was no indication that the Respondent's client, Mr. Brown, had any mental lapses. There was no allegation or evidence in this case that Mr. Brown lacked competency or that his wills did not contain exactly what he wanted and insisted upon. Unlike in Beaupre, there was no allegation or evidence in this case that the Respondent overreached his attorney-client relationship with Mr. Brown or engaged in any conflict of interest while handling Mr. Brown's probate estate. Thus, we believe that the misconduct in Saladino and Beaupre was more egregious than that in this case, and that a sanction equal to that imposed in those cases is not warranted in this case.
In In re Schuyler, 91 Ill. 2d 6, 434 N.E.2d 1137 (1982), cited by the Respondent, the attorney transferred to himself about $10,000 by way of four checks from a 77-year old client,
who resided in a nursing home. The transfers were disclosed after the client's death. The attorney claimed the funds were gifts from the client and produced a "memorandum of gift" signed by the client. The Court pointed out that "[a]lthough [the client] apparently signed a memorandum of gift, there was no evidence concerning the circumstances surrounding the execution of that document, and, as noted earlier, it was not witnessed by a third party and does not cover all the gifts made to the respondent." The Court found that the respondent did not overcome the presumption of undue influence. The attorney was censured. Schuyler, 91 Ill. 2d at 9, 17-18. In the case before us, unlike in Schuyler, the wills of Mr. Brown were signed by him in front of witnesses, and there was undisputed evidence hat Mr. Brown was fully competent and strong-willed in regard to what he wanted to do.
In In re Narmont, 94 SH 41, M.R. 9785 (Mar. 30, 1994), also cited by the Respondent, the respondent prepared wills and codicils for his client, Dr. Eastham, in which there were bequests to the respondent. The respondent and Dr. Eastham were friends and "for several years participated in business ventures together." The Respondent asserted that the bequests to him were at the request of Dr. Eastham. However, the respondent acknowledged that he did not inform Dr. Eastham of any conflict of interest or of "the possibility that respondent's involvement in the preparation of the documents could jeopardize the testamentary instruments." In fact, there was a will contest by Dr. Eastham's sons who contended that the respondent had exerted undue influence over Dr. Eastham. As a result, the respondent agreed to be removed as executor of Dr. Eastham's estate. The will contest was ultimately settled about two years later. The respondent had practiced law for 26 years without any prior discipline, he performed numerous hours of pro bono services, he was actively involved in charitable functions, and character witness were available to testify that his reputation for truthfulness and honesty was
excellent. The Supreme Court allowed the Petition to Impose Discipline on Consent, and the respondent was censured.
The Respondent also cited the Review Board decision in In re Burns, 06 SH 91, in which the sanction of censure was recommended. However, subsequent to the hearing in this case, the Supreme Court allowed the Administrator's petition to file exceptions to the Review Board Report, and imposed the sanction of suspension for three months and ordered the respondent to complete the professionalism seminar within one year. See, In re Burns, M.R. 24093 (Nov. 12, 2010). In Burns, the respondent became licensed to practice law in 1995, and then worked in her mother's law firm. In 1997, the respondent's mother prepared a will and trust agreement for Ms. Vermillion, a retired professor of psychology, who was not married and had no children. The respondent then began doing legal work for Vermillion, and they became friends. The respondent was aware that Vermillion had an estate of about $1.5 million. In 1997 and 1998, the respondent had financial problems and filed bankruptcy. In 1999, the respondent left her mother's firm and, at the request of Vermillion, took Vermillion's file and continued to represent her. Also in 1999, Vermillion gave gifts of $30,000 to the respondent by way of checks prepared by the respondent. In 2000, Vermillion signed a check, prepared by the respondent, in the amount of $40,000 made out to the Department of Education to pay off the respondent's student loan. There was testimony from Vermillion's physician that in late 1999 Ms. Vermillion "suffered from some memory deficits." Following Ms. Vermillion's death, the respondent was executor of her estate and the respondent's mother was the attorney for the estate. Based upon advice from her mother, the respondent resigned as executor and repaid the amount of the gifts she had received, by obtaining a loan from her mother. (Review Bd. at 5-6). The respondent was found to have violated Rule 1.8(c) and engaged in conduct that tends to bring the legal
profession into disrepute. (Review Bd. at 9-10). The Review Board noted that "there are troubling aspects to this matter, such as [Ms. Vermillion's] occasional moments of confusion, her deteriorating health, and respondent's financial difficulties," but determined such aspects were insufficient to conclude that the respondent overreached. (Review Bd. at 9).
There are several distinctions between the case before us and Burns. The Respondent in this case and his client, Mr. Brown, did not become friends shortly before the wills were drafted or after Mr. Brown was elderly. Rather, the Respondent and Mr. Brown were long-time friends, since the late 1950s. There was no evidence in this case that Mr. Brown lacked mental competency or suffered from any confusion at any time. In fact, there was no allegation in this matter that the Respondent overreached, exercised undue influence, or breached a fiduciary duty. Also, as mentioned above, each will was witnessed by third parties. Additionally, there was no evidence that the Respondent had any financial difficulties. Finally, the misconduct in this case was not committed shortly after the Respondent began practicing law, as in Burns. The Respondent has practiced law for more than 50 years, has had a distinguished career without prior discipline, has a reputation for being honest, and has provided significant volunteer services to his community.
We also note the following case, which we find instructive.
In In re Allen, 97 CH 71, M.R. 17511 (June 28, 2001), the respondent was found to have had a conflict of interest and to have engaged in conduct which tends to bring the legal profession into disrepute by receiving substantial gifts from a client, who was also a close friend, without advising the client to seek independent counsel. (Hearing Bd. at 28-33). A censure was imposed.
In In re Demus, 98 CH 46, M.R. 15376 (Feb. 1, 1999), the respondent had a twenty-three year friendship with a client, Ms. Hebel. He then became her primary caretaker when she was elderly. The respondent opened a joint tenancy checking account in his and his client's name, which contained only his client's funds. He paid himself fees without "any billing statement or written accounting." After Ms. Hebel's death, the respondent claimed about $23,000 remaining in the checking account as a gift from Ms. Hebel. After a dispute arose, the respondent recused himself as the attorney for Ms. Hebel's estate, and ultimately entered into a settlement agreement with her beneficiaries. The misconduct included overreaching and breaching fiduciary duties. The respondent had no prior discipline, provided pro bono services, engaged in community activities, and character witnesses were prepared to testify that he had a good reputation for honesty and integrity. The Supreme Court allowed the Petition to Impose Discipline on Consent, and the respondent was censured.
In In re Merlie, 00 SH 55 (Apr. 19, 2001), the respondent was reprimanded by the Hearing Board. The respondent drafted a will for a client that included a $20,000 bequest to the respondent. The respondent violated Rule 1.8(c) and engaged in conduct which tends to bring the legal profession into disrepute. The respondent was 77 years of age, and had practiced law for 48 years without previous discipline. He renounced the bequest after the disciplinary complaint was filed. Witnesses were available to testify that the client was "competent and alert." Also, character witnesses were prepared to testify that the respondent had a good reputation for truth and veracity.
After considering the nature and circumstances of the Respondent's misconduct, his age and background, the cases discussed above, and the purpose of a disciplinary sanction, we believe a censure is appropriate in this case.
Therefore, we recommend that the Respondent, Andrew Warren Peters, be censured.
Date Entered: January 11, 2011
|Richard W. Zuckerman, Chair, Janaki H. Nair and Pamela Hammond-McDavid, Hearing Panel members.|