Blameworthy Ignorance

The Alaska Supreme Court has imposed a one-year suspension of an attorney for misconduct that took place shortly after his reinstatement from an earlier suspension.

A few months after reinstatement to the Alaska Bar from a two-year suspension, an attorney violated Alaska Rule of Professional Conduct 1.8(c) by drafting a friend’s will that named him as the contingent beneficiary. The friend died leaving a considerable estate, but the attorney inherited nothing.

The Bar brought a disciplinary action against the attorney and stipulated that his violation of Rule 1.8(c) was negligent, punishable by public censure. The Bar’s Disciplinary Board, however, found that sanction too lenient in light of the attorney’s prior disciplinary record. The Board recommended that we impose a six-month suspension from practice; it also noted that the misconduct at issue occurred during a year of stayed suspension that had been imposed as part of the earlier discipline.

We conclude that the attorney acted not negligently but knowingly, and after considering relevant aggravating and mitigating factors we impose a 12-month suspension. But because the violation is not the same as or similar to the misconduct for which the attorney was suspended before, we do not also impose the stayed year.

The will that the attorney drafted for his longtime friend named himself as contingent beneficiary

The client died about six weeks after signing his will. Because his wife survived, the contingent beneficiary, Stepovich, received nothing. Probate proceedings were nonetheless contentious, as the client’s mother contested the will. Eventually she and the client’s wife successfully petitioned to remove Stepovich as the personal representative of the estate. The court enforced a settlement agreement in 2012, ending the probate proceedings.

As to intent

Ultimately,there is no question that Stepovich knew that the will he drafted, in his capacity as a lawyer, identified himself as the contingent beneficiary. And we agree with the Committee that the conflict created by this knowing conduct was “obvious.” Stepovich’s counsel argued before the Committee that Rule 1.8(c) “should have been a rule that he was conscious of, aware of, and avoided, but he actually was not, and that is negligence.” In determining the appropriate state of mind the Committee apparently accepted this construct and focused — mistakenly — on whether Stepovich was aware of Rule 1.8(c) or had learned its substance in law school or continuing legal education courses. But the question under the ABA Standards is not whether Stepovich knew of a particular ethics rule, but whether he knew the nature of his conduct. Ignorance of the rules is no excuse and in fact is itself blameworthy.

We conclude that these facts establish at least knowledge: Stepovich knew that the will he drafted identified himself as the contingent beneficiary and created an obvious conflict of interest, the potential consequences of which he paused to contemplate. We conclude that Stepovich acted knowingly.

The court analysed at length the mitigating and aggravating factors influencing its choice of sanction.

When we consider the “prior offenses” aggravator in this case, remoteness does not lessen the weight we give it. While the earliest offenses date back decades, Stepovich wrote the will at issue six months after reinstatement following the serious trust fund violation, while a stayed year of suspension was still pending. The trust fund violation cannot be characterized as remote or distant. And while the instances of Stepovich’s misconduct are not all similar, a lawyer with a history of professional discipline should be familiar with the Rules of Professional Responsibility and particularly apt to tread carefully in circumstances that are ethically uncertain…

Though his client was vulnerable, Stepovich did not take advantage of that vulnerability. There is no dispute about his motive; the parties agree it was not dishonest or selfish. Stepovich did not expect to inherit, and he testified that he agreed to be named as contingent beneficiary only because the client, his long-time friend, insisted on it. The lack of a dishonest motive is a weighty mitigator; we have treated it as such in the past…

We conclude that Stepovich’s violation of Rule 1.8(c) is not the same as or similar to the misconduct for which he was suspended from practice in 2006, and we therefore do not impose the stayed year of suspension from the 2006 disciplinary matter.

He must also take and pass the MPRE. (Mike Frisch)