Filed September 2, 2011

In re Andrew Warren Peters
Respondent-Appellee

Commission No. 09 SH 43

Synopsis of Review Board Report and Recommendation
(September 2011)

The Hearing Board concluded that Respondent violated Rule 1.8(c) of the Illinois Rules of Professional Conduct by drafting wills for a client that included bequests of a small percentage of the client's residual estate to Respondent's wife. The Hearing Board declined to find that Respondent violated Rule 1.7(b) and recommended that Respondent be censured.

On review, the Administrator challenged the conclusion that Respondent did not violate Rule 1.7(b) and asked for a recommendation of a suspension for ninety days. The Respondent did not dispute that he engaged in the misconduct as found by the Hearing Board and did not dispute the recommendation of a censure.

The Review Board also concluded that Respondent did not violate Rule 1.7(b) as Respondent obtained consent from the client after disclosure. The Review Board noted that there was no allegation that Respondent engaged in overreaching or exerted undue influence. The Review Board concluded that in light of the extensive evidence in mitigation, a recommendation of a censure was warranted.

BEFORE THE REVIEW BOARD
OF THE
ILLINOIS ATTORNEY REGISTRATION
AND
DISCIPLINARY COMMISSION

In the Matter of:

ANDREW WARREN PETERS,

Respondent-Appellee,

No. 2181886.

Commission No. 09 SH 43

REPORT AND RECOMMENDATION OF THE REVIEW BOARD

This matter arises from a one-count complaint filed by the Administrator-Appellant against Respondent-Appellee, Andrew Warren Peters, alleging that he engaged in misconduct as a result of his actions in drafting wills for a client, Charles Brown, in which Respondent's wife, Jean Peters, was named as a beneficiary. This matter was previously the subject of a petition for discipline on consent, with both parties recommending that Respondent be censured. The petition was denied by the Supreme Court and the matter was remanded for a hearing.

At the hearing, the following facts were presented to the Hearing Board, by way of the testimony of numerous witnesses, including the Respondent. At the time of the hearing, Respondent was 81 years old. Respondent has been practicing for over fifty years in Lincoln, Illinois. He served in the United States Army from 1954 to 1956 and was then in the Army reserve for six years. He is married to Jean Peters and has six daughters. He maintains a general practice in Lincoln. At times, he has also been employed as an Assistant States Attorney and as a city attorney for the town of Lincoln. He was elected and served as Logan County State's Attorney from 1964 to 1968.

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Respondent first met Charles Ellsworth Brown when Respondent was in grade school. Most people in Logan County referred to Mr. Brown as "Brownie". Mr. Brown was older than Respondent but they shared a common interest in sports. Mr. Brown went on to become a Major League baseball scout and later a state meat inspector. Respondent has lived and practiced in Lincoln; Mr. Brown lived in Beeson, Illinois, about 13 miles from Lincoln. It is a small community and they would often meet throughout the years at political and social events. Mr. Brown was married but had no children; he would often stop by Respondent's office or home to visit. Respondent attended Mr. Brown's 50th wedding anniversary party and his 90th birthday party; Respondent remembered that Mr. Brown had attended respondent's surprise 60th birthday party. Mr. Brown knew Respondent's wife and daughters through Respondent.

Respondent performed some legal services for Mr. Brown's mother. He also handled Mr. Brown's tax returns for a number of years. In 1986, Mr. Brown asked Respondent to draft wills for him and his wife. Mr. Brown did not have any brothers or sisters and Mrs. Brown had only one niece who was not particularly close to Mr. Brown. Mr. Brown's will left his estate to his wife, but included a bequest which read, "I give and bequeath the round antique occasional table with four legs and all my woodworking and shop tools to Jean Peters." Jean Peters, Respondent's wife, is not related to Mr. Brown. Respondent engaged in woodworking at the time. Respondent testified he did not solicit the gift. Respondent knew there might be an ethical issue with a bequest by a client to Respondent, but he did not then research the issue of a client giving a gift to his wife.

In 1992, Mr. Brown came to Respondent to make changes to his will. The 1992 will provided for the same bequest to Respondent's wife as the 1986 will. Respondent was unaware that by 1992, the Illinois Supreme Court had adopted the Rules for Professional Conduct. He did not, therefore, look at the Rules. He did, however, consult "Judge Hunter's

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treatise" which led him to the Barrick case. (See, In re Barrick, 87 Ill.2d 233, 429 N.E.2d 842 (1981) (No discipline was imposed for an attorney who received a bequest from a client who insisted that the attorney prepare the will despite the requests by the attorney that seek other counsel. The client signed the will in the presence of third parties who were aware of the attorney's requests to seek outside counsel. The case was decided prior to the adoption of Rule 1.8 (c).)). He interpreted the case as providing that a gift to a lawyer in a will was appropriate if the testator was competent and there was no undue influence by the attorney.

After the death of Mr. Brown's wife in 1998, Mr. Brown again came to Respondent to draft a new will. The will made the same bequest to Respondent's wife. In 1999, Mr. Brown wanted to again amend his will. At this time, along with other changes, Mr. Brown added a bequest to Jean Peters of five percent of the residuary of his estate. Mr. Brown insisted on the bequest, telling Respondent that they were friends and that Respondent's wife had been good to him. Respondent testified he told Mr. Brown that it could be a conflict of interest, that one of the other beneficiaries might raise that question, and that he could consult with another attorney. Mr. Brown replied that he did not trust other attorneys. Respondent testified he thought Mr. Brown's estate at the time was modest, although he knew Mr. Brown owned a two-thirds interest in a $300,000 family farm, received pension and social security benefits, and owned some certificates of deposit.

In 2005, Respondent prepared another will for Respondent; this time Mr. Brown made a bequest to Respondent's wife of 15% of the remaining estate. Respondent again suggested the client seek other counsel and went through the phone book with Mr. Brown to see if he would agree to see another attorney. Mr. Brown did not want to do so, according to Respondent. In 2007, Mr. Brown again came in to see Respondent with changes to his will. He was walking with a walker. He kept the bequest to Respondent's wife the same as in the 2005

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will. Respondent again suggested that the bequest be changed, but Mr. Brown refused stating that he did not know anybody who had treated him any better than Respondent and his wife. Mr. Brown made other changes to the will, and included a few other bequests to friends. Respondent found two witnesses to come into the office to witness the will. Mr. Brown suggested his insurance agent as a witness to the will and they called the local coffee shop where they knew he would be. He brought another friend of Mr. Brown's with him to witness the will. Respondent charged a flat fee of $50 or $60 for preparation of the will.

Mr. Brown died of an aneurysm on January 21, 2009 at the age of 94. Respondent and several other witnesses, including Judge Michael McCuskey, a close friend of Mr. Brown, testified Mr. Brown was mentally competent until his death. Judge McCuskey also testified that Mr. Brown talked about Respondent favorably, but he did not talk about his relatives. Although Judge McCuskey was not aware of the specific bequests in Mr. Brown's will, he testified he was not surprised that Mr. Brown had favored Respondent's wife with a bequest, nor was he surprised that Mr. Brown had not solely favored his relatives. He knew that Mr. Brown did not plan to leave much to his distant relatives. Because Judge McCuskey was concerned that one of Mr. Brown's relatives might try to contend that Mr. Brown was not mentally competent, he asked another judge, Judge John McCullough of the Illinois Appellate Court, to visit Mr. Brown shortly before his death to confirm Mr. Brown's mental state.

After Mr. Brown's death, one of the other legatees in the will, Marjorie Devore, filed a charge against Respondent with the Attorney Registration and Disciplinary Commission. She did not, however, ever file a will contest. After Respondent learned of the ARDC investigation, Jean Peters disclaimed any interest in Mr. Brown's estate. Respondent withdrew as attorney from the estate but remained as executor. The estate was worth approximately $1.6 million dollars, which surprised Respondent. The table bequeathed to Respondent's wife was

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worth about $100 and the tools sold for less than $30. At the time of the hearing, the estate had not yet been closed.

At hearing, Respondent did not dispute that he engaged in misconduct and offered substantial evidence in mitigation. He testified as to the substantial pro bono legal work that he does on behalf of various organizations and churches in the area. He has also served on the boards of Salvation Army, the Red Cross, The American Heart Association, and a foster grandparents association. He has served as a deacon and elder in his church. He testified that he has had health problems, including heart problems leading to bypass surgery in 1993, cancer in 2000, and, more recently, an infection in his foot which has required that he be in a wheelchair at times. Numerous character witnesses testified on behalf of Respondent, including retired Judge David Coogan and former Logan County treasurer Margaret Ackerson.

The Hearing Board considered this evidence and concluded that the bequests of the table and tools to Respondent's wife did not violate the rules because they were not substantial gifts. However, the Hearing Board found that in 1999, 2005 and 2007, Respondent drafted wills for his client, Charles E. Brown, that included a bequest of a percentage of the client's residual estate ranging from 5-15% to Respondent's wife. The Hearing Board concluded, and Respondent does not dispute, that Respondent violated Rule 1.8(c) of the Illinois Rules of Professional Conduct (1990). Rule 1.8(c) provides, "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."

Notwithstanding the finding that Respondent violated Rule 1.8(c), the Hearing Board determined that Respondent did not engage in a violation of Rule 1.7(b). Rule 1.7 (b) provides, "A lawyer shall not represent a client if the representation of that client may be

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materially limited by the lawyer's responsibilities to another client or to a third person, or by the lawyer's own interests, unless: (1) the lawyer reasonably believes the representation will not be adversely affected, and (2) the client consents after disclosure." The Administrator asks this Board to reverse the Hearing Board's conclusion that Respondent did not violate Rule 1.7(b). The Administrator contends that the finding is wrong as a matter of law. Accordingly, this Board can review the Hearing Board's finding de novo. In re Hoffman, 08 SH 65 (Review Board, June 23, 2010) recommendation adopted, No. M.R. 24030 (Sept. 22, 2010).

We recognize that this discussion is, as a practical matter, academic as it will have no effect on the recommended sanction. The Administrator argues that a violation of Rule 1.8(c) must always encompass a violation of Rule 1.7(b). We disagree and note that in at least one similar case the Administrator elected to charge an attorney with a violation of Rule 1.8(c), but not Rule 1.7(b). See, In re Fennerty, 09 CH 26, petition to impose discipline on consent allowed, No. M.R. 23666 (March 16, 2010). Moreover, the cases cited by the Administrator in support of this argument, In re Burns, 06 SH 91 (Hearing Bd., July 14, 2009), affirmed in part, (Review Bd., July 26, 2010), Administrator's petition for leave to file exceptions as to sanction allowed, No. M.R. 24093 (Nov. 12, 2010) and In re Mason, 09 CH 15, (Hearing Bd., April 29, 2010) involved less substantial disclosures to the client and included findings that the respondents had also breached their fiduciary duties to their clients. The Burns case, in particular, can easily be distinguished from this matter. As noted by the Hearing Board in their report, in Burns the attorney accepted substantial gifts from an elderly woman with memory deficits at a time when the attorney was experiencing financial difficulties.

We conclude that it is possible, given the language of the former Rule 1.7(b), to find that an attorney has not violated that rule but has violated Rule 1.8(c). Indeed, this matter presents one of the rare cases in which to so conclude. Respondent reasonably believed that his

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representation of Mr. Brown would not be adversely affected by the bequest to Respondent's wife. Respondent was not aware at the time of the drafting of the wills of the size of the bequest and it was his understanding that the bequest was quite modest. Respondent repeatedly suggested that the client seek independent legal advice. Furthermore, as soon as a charge was filed with the ARDC, Respondent's wife disclaimed any interest in the estate. Moreover, we find that Mr. Brown did consent after disclosure. Respondent told Mr. Brown that one of the other beneficiaries could raise the issue of the bequest and repeatedly asked the client to seek other counsel. Mr. Brown was, therefore, aware of the conflict issue about the Respondent's interest. Given the community in which the deceased client resided, it is not difficult to understand why the client refused to consider taking his legal business to another lawyer. Mr. Brown, a strong-willed person himself, trusted Respondent, who had been his counsel for many, many years. Accordingly, we find that Respondent did not violate Rule 1.7(b).

Respondent did, however, violate Rule 1.8(c), and so we must now turn to the issue of an appropriate sanction. Respondent concedes that he violated Rule 1.8(c) and contends that his misconduct warrants a censure. The Administrator, having previously agreed to a censure, now argues that a 90 day suspension from the practice of law is appropriate. Like the Hearing Board in this matter, we reach a recommendation for a sanction without speculation into the reason for the Court's prior denial of the petition for discipline on consent and instead base our recommendation on the record before us. While doing so, we are mindful of that the purpose of discipline is not to punish the attorney, but to protect the public, maintain the integrity of the legal profession and protect the administration of justice from reproach. In re Timpone, 157 Ill.2d 178, 197, 623 N.E.2d 300 (1993).

At the outset, it is important to note that the Administrator does not contend, nor does the evidence support, that Respondent engaged in overreaching or undue influence in

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including the bequest to his wife in Mr. Brown's will. Independent witnesses, including Judge McCusky, who is not a friend of Respondent's, testified that Mr. Brown always spoke fondly of Respondent and his wife and that it was not surprising that he wished to leave them something when he died. All of the witnesses testified that Mr. Brown was strong-willed and mentally competent up until his death. Mr. Brown also left other bequests to other friends. Accordingly, this case can be distinguished from those cases in which the attorney took advantage of a frail, elderly or incompetent client. See, e.g., In re Hirschtick, 05 CH 32 (Report and Recommendation of the Hearing Bd., April 13, 2007), approved and confirmed, No. M.R. 21668 (Sept. 18, 2007) (attorney disbarred for taking advantage of an elderly client for his own personal gain by obtaining large loans and gifts of cash from the client.); In re Winthrop, 219 Ill.2d 526,848 N.E.2d 961 (2006) (two year suspension imposed for an attorney who made a false statement to an attorney in an attempt to cover up for misconduct by the attorney's friend who had taken money from an elderly client).

Likewise, this case can be distinguished from a number of cases cited by the Administrator in support of a recommendation of a short suspension. In In re Jones, 07 SH 18 (Hearing Bd., Nov. 25, 2008), affirmed in part, (Review Bd., March 17, 2010), Administrator's petition for leave to file exceptions as to sanction allowed, No. M.R. 23856 (Sept. 20, 2010), the Court initially rejected a recommendation of a ninety day suspension for a lawyer who engaged in a conflict of interest by structuring a real estate deal on behalf of elderly and infirm clients that allowed the respondent's life partner to buy the clients' farms below fair market value. Following a hearing, the Hearing Board concluded that the attorney had breached her fiduciary duties and recommended a suspension of six months. This Board recommended a suspension of nine months, and the Court imposed a suspension of one year. Unlike in the present case, there

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was evidence of harm to the clients in the Jones matter and the Hearing Board found that the respondent's testimony at the hearing was not fully candid.

In In re Beaupre, 03 SH 32 (Review Bd., April 15, 2005), Administrator's petition for leave to file exceptions as to sanction allowed, No. M.R. 20233 (Sept. 26, 2005), the Court imposed a ninety day suspension for an attorney who engaged in overreaching and a violation of Rules 1.8(c) and 1.7(b) by preparing a series of wills for a couple with whom he was friends that left gifts to respondent and his wife. The final will prepared by the respondent left the residual estate to respondent and his wife. After the death of the clients, a will contest was filed and the lawyer engaged in an additional conflict of interest by representing himself and other defendants in the will contest while he was attorney for the estate. In the present matter, there is no allegation that Respondent engaged in overreaching or engaged in an additional conflict of interest while handling Mr. Brown's probate estate.

The Court has imposed a censure for attorneys who have engaged in similar, or even arguably more aggravated, conduct. In re Schuyler, 91 Ill. 2d 6, 434 N.E.2d 1137 (1982) (censure for taking a gift of four checks totaling $10,000 from an elderly client); In re Narmont, 94 SH 41, petition to impose discipline on consent allowed, No. M.R. 9785 (March 30, 1994) (censure for preparation of will and codicils for a client and business partner providing the attorney with substantial gifts, leading to a will contest); In re Demas, 98 SH 46, petition to impose discipline on consent allowed, No. M.R. 17511 (Feb. 1, 1999) (attorney, who was also a caretaker for a client, engaged in overreaching by taking a gift of $23,000 and was censured); In re Fennerty, 09 CH 26, petition to impose discipline on consent allowed, No. M.R. 23666 (March 16, 2010) (respondent censured for preparing a will on behalf of a client that provided for the respondent and the respondent's spouse as sole beneficiaries to the client's estate.).

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After considering the above cases and the other cases cited by both the Respondent and the Administrator, we recommend censure as the appropriate sanction in this case given the purpose of a disciplinary sanction, and in light of the extensive evidence in mitigation. Counsel for the Administrator agreed at oral argument that Respondent is a credit to his profession. He has engaged in the practice of law in Lincoln for more than fifty years. He has never before been the subject of a disciplinary complaint. He has been actively involved in charitable and civic organizations in Lincoln for decades. He has served as both an Elder and Deacon of his church. He has provided pro bono legal services for a variety of individuals and organizations. He is 81 years old and has begun to wind down his practice, handling only a couple of pro bono cases. He is not a future threat to clients.

Accordingly, we approve and confirm the Report and Recommendation of the Hearing Board in this matter and recommend that Respondent, Andrew Warren Peters, be censured.

Date Entered: 2 September 2011

Respectfully Submitted,

Claire A. Manning
Gordon B. Nash, Jr.
Thomas A. Zimmerman, Jr.