The newsletter of the ISBA’s Section on Real Estate Law
Real estate ethics corner
Two recent disciplinary cases share a number of interesting features, though one arose in the Chicago area and one downstate in Lincoln. In both cases, a Review Board Report was filed on September 2, 2011 and the Illinois Supreme Court entered its final order on November 22, 2011. One member of the Review Board was common to both cases. Both Review Boards recommended censure as the appropriate discipline and both Supreme Court orders imposed the recommended discipline.
The two cases involved lawyers who prepared last wills and testaments for clients involving gifts to the lawyer or to the lawyer’s wife. In each case, the lawyer was charged with a violation of Rule 1.8(c) and Rule 1.7(b) of the Rules of Professional Conduct and other violations. In re: Leonard Mason, M.R. 24927 (November 22, 2011), Commission No. 09 CH 115. In re: Andrew Warren Peters, M.R. 24928 (November 22, 2011), Commission No. 09-SH 43.1
In each case, the lawyer had known the client and the client’s family for a number of decades. In each case, the relationship between members of the two families was quite close. In both cases, the original gifts contained in the wills prepared by the two lawyers were nominal, but increased in size over the years as later versions of the wills were prepared. In both cases, the Review Board Report was careful to point out that the lawyer did not overreach the attorney-client relationship.
It is also interesting to note the reaction of the two lawyers. Mr. Mason, who received a bequest in a specific dollar amount, reduced his gift when it became clear medical and other expenses had reduced the size of the estate of the client, jeopardizing other bequests. In the case of Mr. Peters, the bequest was to his wife, who renounced any interest in the estate when the professional misconduct issues first arose. These responses can be contrasted dramatically with those of many lawyers who, even after have been found to have violated ethical rules by a Hearing Board and a Review Board continue to deny any ethical lapses whatsoever.
Each case, however, also provides an individual lesson for practicing attorneys. The Mason case compares the former version of Rule 1.8(c) with the new Rule effective as of January 1, 2010. The former Rule 1.8(c) 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.” The former Rule was applicable at the time Mr. Mason prepared a will which gave Mr. Mason a specific amount of money.
The Review Board Report points out that Rule 1.8(c) was amended and the current version now provides: “A lawyer shall not solicit any substantial gift from a client, including a testamentary gift, or prepare on behalf of a client an instrument giving the lawyer or a person related to the lawyer any substantial gift unless the lawyer or other recipient of the gift is related to the client. For purposes of this paragraph, related persons include a spouse, child, grandchild, parent, grandparent or other relative or individual with whom the lawyer or the client maintains a close, familial relationship.” The Review Board cited cases from Pennsylvania and South Carolina, and an Advisory Opinion of the Indiana Commission of Judicial Qualifications for the proposition that a close, familial relationship is not necessarily a biological one.2
The Review Board Report in the Peters matter also points out that it is not always necessarily true that a violation of Rule 1.8(c) involves a violation of former Rule 1.7(b). The Administrator had argued that a lawyer could not violate Rule 1.8(c) without also violating Rule 1.7(b), but the Review Board pointed out a case where the Administrator charged a violation of Rule 1.8(c) but not a violation of Rule 1.7(b). The Review Board also pointed out that Mr. Peters testified to counseling the client about the conflict of interest, pointing out that other beneficiaries might raise the issue later, and found that the client had consented and that the lawyer had properly concluded the representation would not be adversely affected.
The Review Board Report did not discuss the provisions of the new Rule 1.7, but it would seem the changes to Rule 1.7 do not require a different result.3 Although the new Rule 1.7 is reorganized and reworded, it seems to permit the same result as was reached in Peters.
Both cases, however, are cautionary tales for practitioners involved in preparing wills or other instruments providing for “substantial” gifts to themselves or to family members. Yes, some clients will insist, even after the lawyer provides admonishment and counseling, encouraging the client to seek independent legal advice. If so, the careful practitioner might want to read carefully the entire Review Board Report in Peters and have a couple of well-respected judges interview the client—just in case. ■