A Smart Woman

An attorney’s  dealings with an elderly client were not justified by the rule regarding representation of a client with diminished capacity, according to a decision of a justice of the Massachusetts Supreme Judicial Court.

The client, N.Z.,  a retired professional in her seventies, was an in-patient resident of an assisted living facility. Her stay at the facility was precipitated by a fall she suffered in her home six months prior. N.Z. had no close friends or family and exhibited symptoms associated with the first stage of dementia, exacerbated in part by alcohol-induced delirium. Having grown frustrated at the facility, N.Z. contacted the respondent for assistance in returning to her home. On September 10, 2019, the two met for the first time at the facility. There, N.Z. voiced several complaints about life at the facility, chief among them that she was subject to “elder abuse” and had been “kidnapped and [] imprisoned” by staff, claims that the respondent neither credited nor investigated. The respondent understood that the sole objective of his representation was moving N.Z. out of the facility and back into her home.

Two days later, N.Z. and the respondent met again at the facility. The respondent agreed to represent N.Z. He made clear, however, that his representation was conditioned on her execution of three documents: a durable power of attorney over her assets, income, and financial affairs; a real estate trust for her home (with the respondent as co-trustee); and a deed transferring the title of her home into said trust. N.Z. agreed to the conditions and executed the documents that same day.

He was successful in getting the client back in her home.

Between September 2019 and September 2020, the respondent charged N.Z. a total of $22,831.25 in legal fees for 61.15 hours of work, plus $9,071.20 in expenses. Although he did provide some legal services, such as establishing a real estate trust and drafting the durable power of attorney for N.Z., he did not bill for those services. Rather, the 61.15 billed hours encompassed a variety of tasks that required neither a law degree nor a license to practice law.

In total, the respondent charged N.Z. $31,902.45 and collected $29,890.14. He paid himself out of her assets but did not inform her that he was doing so.

Sale of stock

To liquidate the stock, the respondent used the services of his daughter, Lindsay Dupuy, a licensed stockbroker. He did not investigate alternative methods for selling the PSE&G stock, such as using a discount broker, nor discuss with his client the potential conflict of interest of using a family member to effectuate the transaction. Lindsay Dupuy offered no investment advice; rather, she simply opened a brokerage account for N.Z., transferred the stock to her father under the power of attorney, and sold the shares. According to Lindsay Dupuy, the services she provided would have taken an average person “two to three hours.” For her services, Lindsay Dupuy (or her firm) received $927.06 in brokerage fees, paid for by a portion of the stock sale proceeds.

On learning of the sale of the PSE&G stock in January 2020, N.Z. immediately rescinded the respondent’s power of attorney and revoked his authority to receive her mail.

The Board of Bar Overseers affirmed findings of violations and proposed a three-month suspension.

The court affirmed the rejection of a Rule 1.14 “defense”

The record supports the committee’s conclusion that the respondent’s misconduct was not justified as appropriate adherence to rule 1.14. As part of “maintain[ing] a normal client-lawyer relationship” as far as “reasonably possible,” rule 1.14 required the respondent to consult and inform N.Z. regarding important decisions about her financial and personal well-being when possible. Cf. Mass. R. Prof. C. 1.14 comment [1], as amended 471 Mass. 1305 (2015) (“[A] client with diminished capacity often has the ability to understand, deliberate upon, and reach conclusions about matters affecting the[ir] own well-being”). The record supports the committee’s findings that, while the respondent did have a number of conversations with N.Z., the respondent fell short of his obligation to maintain a normal lawyer-client relationship as much as reasonably possible, including failing to keep N.Z. informed or consult with her regarding the sale of her stock to pay the respondent’s own fees. As the committee noted, the neuropsychologist’s report describing a degree of diminished capacity on N.Z.’s part and advising the respondent to “just make decisions on [N.Z.’s] behalf” did not provide the respondent with a basis for abdicating his professional obligations to his client. And the record supports the committee’s finding, based in part on letters in the record written by N.Z., that N.Z. retained considerable ability to consult on and be informed of matters. Indeed, the respondent himself described her as a “smart woman,” who “continued to get better” from the time he began representing her.

Sanction

the board’s recommended sanction of a three-month suspension from the practice of law in the Commonwealth is appropriate.

(Mike Frisch)