Attorney Who Facilitated Thefts From Elderly Client Should Be Suspended

An Illinois Hearing Board proposes a one-year suspension and until further court order of an attorney who facilitated thefts from an elderly and vulnerable client

Respondent was admitted to practice law in Illinois in 1976 and is 81 years old. (Stip. at par. 1).

In April 2008, Carmelita Pasamba (“Pasamba”), a certified nursing assistant, contacted Respondent and requested that he prepare a power of attorney for Marshall F. Davies (“Davies”), then age 89. At that time, Pasamba and her family members were serving as Davies’ full-time live-in caretakers, a position they had held since Davies was discharged from the hospital in January 2008. Respondent agreed to Pasamba’s request, and, on April 24, 2008, Pasamba brought Davies to Respondent’s office. (Stip. at par. 2).

As of April 2008, Davies, who was never married and had no children, suffered from dementia and cognitive deficits and lacked the capacity to make his own personal and financial decisions. A geriatric psychiatrist who evaluated Davies and reviewed medical records dating back to 2008 concluded that Davies suffered from dementia as far back as 2008. Davies’ dementia and cognitive deficits would have been, upon reasonable inquiry, apparent to Respondent. At that time, the value of Davies’ bank accounts and other assets totaled approximately $900,000. (Stip. at par. 3).

During their April 24, 2008 meeting, Pasamba told Respondent that Davies wanted Respondent to draft a power of attorney on Davies’ behalf, naming Pasamba as Davies’ agent, and granting Pasamba power to conduct financial transactions on Davies’ behalf. Pasamba provided Respondent with a description of each of Davies’ bank accounts. Based on the information he received from Pasamba, Respondent drafted a power of attorney in accordance with Pasamba’s request, and Davies signed the power of attorney and Respondent notarized it. Respondent received $250 from Pasamba, from a check she drew on one of Davies’ bank accounts, as his fee for drafting the power of attorney. (Stip. at par. 4).

At no time during the April 24, 2008 meeting did anyone other than Pasamba describe Davies’ purported wishes to Respondent. Respondent never consulted with Davies outside the presence of Pasamba to ascertain if the power of attorney accurately reflected Davies’ desires. (Stip. at par. 5).

Then

Shortly after the April 24, 2008 meeting at Respondent’s office, Pasamba contacted Respondent and told him that Davies wanted to change his estate plans, including creating a new trust and will to replace a trust and will that Davies had previously executed in 1995. Respondent agreed to draft a new trust and will for Davies, and, on April 27, 2008, Pasamba brought Davies back to Respondent’s office. (Stip. at par. 6).

Out with the Salvation Army; in with Pasamba.

To the rescue

In October 2010, Catholic Charities, in its capacity as a provider agency with the Illinois Department on Aging Elder Abuse Program, received information that Pasamba was using Davies’ assets to benefit people other than Davies. At that time, Catholic Charities initiated an investigation into possible financial exploitation of Davies by Pasamba and sent her a letter requesting that she provide an accounting of her actions as agent under the power of attorney for Davies, and provide documents to them. Pasamba asked Respondent to respond on her behalf to the Catholic Charities inquiry, and Respondent agreed to do so. Respondent then sent Catholic Charities a letter on behalf of Pasamba in which he stated that Pasamba would not turn over documents or respond to their inquiries unless ordered by a court to do so. Pasamba paid Respondent $250 for his services from a check drawn on one of Davies’ bank accounts and signed by Pasamba. (Stip. at par. 11).

But in the end

Between April 2008 and July 2011, Pasamba used the power of attorney and trust documents Respondent drafted to misappropriate more than $536,000 from Davies’ accounts by withdrawing cash and issuing checks to herself and her family members. (Stip. at par. 10).

In April 2013, a Cook County grand jury returned an indictment against Pasamba, charging her with financial exploitation of an elderly person and forgery. On December 22, 2014, Pasamba pled guilty and was sentenced to six years in the Illinois Department of Corrections. At the time this matter was presented to the Hearing Board, a petition to recover assets remains pending against Respondent in the Davies guardianship proceeding. (Stip. at par. 15).

In mitigation, Respondent has not been previously disciplined, has accepted responsibility for his conduct, has expressed remorse for it, and has cooperated with the Administrator in the presentation of this case to the Hearing Board. In addition, Respondent has been involved in the Filipino community in Chicago for decades, and regularly provides free legal services at his office at the Jose Rizal Heritage Center, a Filipino-American community center in Chicago. In aggravation. Respondent’s actions caused harm to Davies, in that Pasamba presented the documents Respondent prepared to help her gain access to Davies’ property and funds and misappropriate more than $536,000 of Davies’ money. (Stip. at par. 17).

We take administrative notice that Respondent’s current registration status is “Retired-not authorized to practice law or provide pro bono services.”

The clear conflict of multiple client interests

We further find Respondent’s stipulation that he changed the terms of Davies’ will and trust to benefit the Pasamba, her family members, and several charities with which Respondent was affiliated constitutes clear and convincing evidence of a conflict of interest. A lawyer shall not represent a client if the representation of that client may be materially limited by the lawyer’s responsibilities to another client or to a third person, or by the lawyer’s own interests, unless certain conditions, which were admittedly not met here, are satisfied. See Ill. R. Prof’l Conduct R. 1.7(b) (1990). Here, Respondent’s ability to represent Davies was materially limited by both his own interest in making bequests of Davies’ assets to charities of Respondent’s choice as well as by Pasamba’s interest in orchestrating bequests to herself and her family members. Respondent placed the interests of himself and Pasamba over Davies’ interests, thereby violating Rule 1.7(b).

Bottom line

Respondent’s misconduct was egregious and exhibited an appalling disregard for the interests of a vulnerable client. The parties’ recommendation of a one-year suspension is within the range of sanctions for similar misconduct. Additionally, we recommend that Respondent, like Kubiatowski, be suspended until further order of the court. A suspension until further order of the court is not something we recommend lightly, but Respondent and his counsel agree this is an appropriate sanction. In addition, given Respondent’s retired status, we believe the public will best be protected by requiring Respondent to demonstrate his fitness should he seek to return to practice.

(Mike Frisch)