Where There’s A Will: Deceit, Dishonesty And Censure
An Illinois Hearing Board has recommended a censure for this misconduct
In this case, the Administrator requested the sanction of suspension for 30 days. (Tr. 173, 177). Respondent argued that the appropriate discipline is a reprimand. (Tr. 187).
The misconduct committed by the Respondent was serious. He failed to consult and discuss with his 86-year client three estate planning documents prepared for the client. Respondent then knowingly and purposefully signed as a witness to the client’s Will and Declaration of Trust even though he knew it was improper, dishonest and deceitful for him to do so. He also notarized the client’s Deed in Trust and Declaration of Trust when he knew it was improper, dishonest and deceitful for him to do so. Additionally, he involved his long-time secretary in his dishonesty and deceit, by directing her to sign as a witness to the client’s Will and Declaration of Trust, when he knew she had not been a witness to either document. Furthermore, at the time he took the foregoing actions, on March 31, 2014, Respondent knew his client had previously died, and knew that none of the documents could be lawfully completed after the client’s death. Thus, on March 31, 2014, Respondent knew all three documents, the Will, the Deed in Trust and Declaration of Trust, were invalid as a matter of law, yet he proceeded to record the Deed in Trust and Declaration of Trust in the Sangamon County Recorder’s Office.
It is particularly egregious when there is intentional dishonesty in regard to estate documents. In In re Harrod, 90 SH 461, M.R. 6962 (Mar. 30, 1994), the Hearing Board stated that “[e]very lawyer who testified stated that the procurement of a fraudulent attestation clause to a will is an extremely serious professional breach for a lawyer to commit due to the fact that the will is not effective until the death of the testator. There is grave danger that such activity could permit stealing from the dead whose heirs would have no way of contesting the matter. All lawyers who were asked could not think of a more serious professional offense for a lawyer to commit.” (Hearing Bd. at 27-28).
On sanction
There is evidence of significant mitigation in this matter. Respondent has been practicing law since 1983, more than 30 years, and he has not been previously disciplined. Three character witnesses, each of whom have known Respondent for at least 25 years, testified favorably as to Respondent’s truthfulness and integrity. We found Respondent’s testimony to be candid and forthright. He recognizes and understands the seriousness of his wrongdoing, and has accepted full responsibility for his misconduct. Respondent was sincere in expressing his remorse, and in explaining his embarrassment and humiliation for his misconduct. Furthermore, the misconduct was not committed with an evil or self-serving motive, such as for personal financial gain. Rather, Respondent acted out of a misguided effort to assist his client and his client’s family.
On the other hand, we found no convincing evidence of any aggravating factor.
(Mike Frisch)