Conservator”s Clash With Ward’s Spouse Leads To Suspension

The Oregon Supreme Court imposed an 18-month suspension of an attorney for ethics violations as a court-appointed conservator. 

We find the following facts by clear and convincing evidence. Carol and Michael Saslow had been married for over 50 years and had no children. Carol Saslow was a retired psychology professor at Oregon State University, specializing in large animal and horse behavior. Michael Saslow is also a retired psychologist. They lived on a small ranch with 18 horses; the ranch was in Carol Saslow’s name.

In 2010, Carol Saslow suffered a massive stroke that left her paralyzed and unable to communicate. Michael Saslow was appointed as his wife’s conservator and guardian soon thereafter. He placed her in a care facility, while he remained on the ranch and cared for the horses. He bought a van to transport Carol Saslow to medical appointments and outings.

By the time of the first accounting for the conservatorship, it was apparent that Michael Saslow was having trouble managing the finances. The conservatorship owed the care facility over $30,000, and he had failed to maintain car or home insurance, file income taxes, pay the mortgage, or keep up with payments on the van. A lawyer who had helped the family set up the conservatorship, Daley, recommended hiring a professional conservator to relieve Saslow. He agreed.

In June 2011, Daley posted a notice at the circuit court, and the accused responded to the notice. The accused proposed a fee schedule of $250 per hour for in-office legal work, $300 per hour for legal work performed in court, and $150 per hour for work performed in his capacity as fiduciary. The court appointed the accused as Carol Saslow’s conservator.

He had clashed with the ward’s spouse to a degree that led to the lapses. The misconduct involved charging excessive fees, harassing conduct against Michael and conduct prejudicial to the administration of justice.

As to excessive fees

On review, the accused asserts that RPC 1.5(a) does not apply to cases in which a lawyer must have permission from a court before any charge can be billed or collected by an estate. In this case, he argues, his fee requests were submitted to court for approval pursuant to ORS 125.095, which requires prior court approval before the payment of fees from the funds of a person subject to a protective proceeding. According to the accused, when a statute requires an attorney fee request to be submitted to a court for approval, the circuit court—and not the Bar—is the final arbiter of whether the charges are reasonable or excessive. If the court has determined that given charges are reasonable, he argues, it cannot be said that the lawyer who submitted them “charged” or “collected” an excessive fee.

We disagree…

Turning to the specific allegations against the accused, we agree with the trial panel that he charged a clearly excessive fee within the meaning of RPC 1.5(a) when he charged fees for work as an attorney for what he does not deny was fiduciary work. As the accused recognized when he agreed to charge less for fiduciary work than for attorney work, the labor involved in performing fiduciary work did not support charging attorney fees for that work.

The court overturned a finding that the attorney instituted frivolous litigation in the matter.

Rule 4.4(a)

 RPC 4.4(a) provides:

“In representing a client or the lawyer’s own interests, a lawyer shall not use means that have no substantial purpose other than to embarrass, delay, harass or burden a third person, or knowingly use methods of obtaining evidence that violate the legal rights of such a person.”

This court has not analyzed the wording and meaning of that rule. But a look at the cases decided under the predecessor  rule, former DR 7-102(A)(1), is instructive…

The accused identifies no other legitimate reason to disparage Michael Saslow and his lawyer to the creditors, family, and friends of the Saslows, or to deprive Saslow of payment for his expenses as guardian, or to attempt to ensure that he did not inherit from his wife’s estate. In fact, the letters’ explicit attempts to rally the creditors against Michael Saslow made the administration of his wife’s estate more difficult. We conclude that the letters—in particular the second and third letters that the accused sent to creditors and others—served no substantial purpose other than to “embarrass, delay, harass or burden” Michael Saslow. For that reason, we agree with the trial panel that the accused violated RPC 4.4(a).

Sanction 

The accused caused potential financial harm to Michael Saslow by charging excessive fees. He caused actual financial and emotional harm to Saslow by sending letters to family, friends, and creditors of the Saslows that harassed and otherwise burdened Saslow. And the accused caused actual harm to the administration of justice by causing court resources to be consumed in dealing with the accused’s aggressive tactics. In the absence of aggravating or mitigating circumstances, the appropriate sanction for the accused’s misconduct is a suspension.

(Mike Frisch)