60 Days For Drafting Will: “Misguided, Not Malevolent”

The Wisconsin Supreme Court ordered a 60-day suspension of an attorney who drafted a will from which she benefitted

Attorney Gray has opted to plead no contest to the sole misconduct count brought against her: a violation of SCR 20:1.8(c) related to her drafting of the will of M.A., who died at age 71 in January 2015. Although Attorney Gray is not related to M.A., she received a significant testamentary gift from her: the balance of her estate after specific bequests to charities were distributed, which resulted in Attorney Gray receiving $298,742.12. Consistent with the parties’ stipulation, the referee recommended that this court suspend Attorney Gray’s Wisconsin law license for 60 days for her professional misconduct. The referee further recommended that Attorney Gray should be assessed the full costs of the proceeding, which are $2,067.67 as of January 17, 2018. The OLR does not seek the payment of restitution in these proceedings, and the referee does not recommend it.

The client

Attorney Gray knew M.A. since the mid-1980s. M.A. never married, had no children, and was estranged from her siblings and other relatives. Attorney Gray and M.A. became close friends and remained so for many years preceding M.A.’s death.

There was no appeal in the bar matter.

The court

 But like the referee, we see no need to order a suspension longer than the parties’ stipulated 60-day suspension. A 60-day suspension is, generally, our minimum suspension length. See In re Disciplinary Proceedings Against Grady, 188 Wis. 2d 98, 108–09, 523 N.W.2d 564 (1994). A minimum suspension length is appropriate here given Attorney Gray’s scant disciplinary history and the absolute absence of evidence in the record that she took advantage of M.A., her longtime friend. By all indications, Attorney Gray’s preparation of M.A.’s will was misguided, not malevolent.

We turn next to the issue of restitution. We agree with the referee’s determination, based on the parties’ stipulation and the testimony received at an evidentiary hearing, that a restitution order would be inappropriate. M.A.’s will has been fully probated and the estate is closed.  Ordering Attorney Gray to make restitution of the amount of her residuary gift here would undo the results of those probate proceedings – something we decline to do, particularly given the facts of this case.

(Mike Frisch)