Disbarment Not Appropriate

A decision of the Maryland Court of Appeals suggests a departure from the court’s dishonesty equals disbarment precedent

Respondent fraudulently submitted the will to further her client’s final testamentary wishes, not for personal enrichment. Respondent received life insurance proceeds from her client, but these proceeds passed outside of the probate. Respondent safeguarded these assets in a trust account and spent the balance in furtherance of her client’s final testamentary wishes. Respondent had no legal obligation to allocate these funds towards her client’s estate. These good faith efforts, combined with a distinguished career, an absence of prior discipline, and a showing of high moral character, reduced the severity of discipline from disbarment to indefinite suspension with a right to reapply in six months.

The attorney was admitted in 1985.

The matter involved a series of wills she drafted for her longtime client, who was unusually proactive in changing the disposition of his estate.

After the client died

In March of 2018, the Respondent submitted the 2018 will, with her signature affixed as a witness, for probate to the Register of Wills. The Respondent admitted that she knowingly and falsely stated in her filing that she had been a witness to the signing of the will.

She acted as the estate personal representative and self-reported the misconduct.

As a result of the fraudulent submission of the will to probate, the Respondent appointed by the court as The Personal Representative.

The hearing judge found significant mitigation

The hearing judge identified no prior disciplinary history in Respondent’s thirty-five years of practice. The hearing judge found no personal benefit from signing as a false witness. The hearing judge also found no selfish or dishonest motive because Respondent pursued this course of action to further Mr. Wilson’s final wishes and stored the insurance proceeds in an attorney trust account instead of a personal account.

Respondent also took immediate steps to correct her misdeeds.

The court rejected a host of exceptions of Bar Counsel, in particular with respect to alleged trust account violations.

As to the alleged misconduct in the client making the attorney a beneficiary, the court granted the attorney’s exception

Respondent excepts to the hearing judge’s conclusion of law that Respondent violated Md. Rule 19-301.8(c) because according to Petitioner’s own admission, Respondent never requested, encouraged, or solicited Mr. Wilson to become the beneficiary of his life insurance policy. On the contrary, Mr. Wilson named Respondent without her knowledge, and when Respondent learned about it eighteen months later, Mr. Wilson refused to change the designation. Respondent attempted to mitigate any conflicts by drafting language in the will directing her use of funds that otherwise might have passed without restriction.

The attorney contended that she fit into the “close familial relationship” exception

 Respondent sought to memorialize her friend’s final wishes in a will that reduced the amount she would have otherwise received. We sustain Respondent’s exception. Respondent received the life insurance proceeds by operation of Mr. Wilson’s life insurance contract, not through the will. Maryland Rule 19-301.8(c) imposes a non-waivable obligation on attorneys to avoid drafting testamentary instruments that bestow a substantial gift to themselves. Respondent drafted testamentary language that allocated the life insurance proceeds towards Mr. Wilson’s estate, but she was under no legal obligation to do so.

The self-report and cooperation mitigated sanction along with “sterling” character testimony.

Bar Counsel had sought disbarment but failed to persuade the court that such a draconian sanction was appropriate

Respondent seriously breached her professional obligations by submitting a will with a knowingly false witness attestation. This misconduct occurred because of Respondent’s misguided intent to further the last wishes of her client. She acted without selfish motive and took action to try and mitigate the potential conflict of interest and protect the interests of Mr. Wilson’s estate and legatees. Her conduct comes after a long respected career in the legal profession and the circumstances suggest an unlikely repetition of the misconduct. Respondent’s conduct warrants an indefinite suspension, with the right to apply for reinstatement no sooner than six months after entry of this judgment.

Judge Watts concurred

I concur with the sanction imposed by the Majority, namely, an indefinite suspension with the right to apply for reinstatement no sooner than six months, and I join the majority opinion insofar as to the sanction imposed. From my perspective, this case does not involve the type of intentional dishonesty that this Court’s holding in Attorney Grievance Comm’n v. Vanderlinde, 364 Md. 376, 418-19, 773 A.2d 463, 488
(2001), was intended to prevent. I am convinced that in signing the will as a witness after Keith Wilson’s death, Mary Theresa Keating, Respondent, intended to give effect to what she believed were her client’s last wishes and was not intentionally seeking personal benefit of any sort. For this reason, in my view, although certainly better judgment should have prevailed, the type of intentional dishonesty addressed by Vanderlinde is not implicated and a departure from the sanction normally required for such dishonesty, i.e., disbarment, is warranted

Oral argument linked here. (Mike Frisch)