Friend or Foe? Office of Disciplinary Counsel Uses Double Standard When Determining Which Lawyers to Charge
The Office of Disciplinary Counsel uses a double standard when bringing ethical charges against lawyers. Attorney Stuart L. Stein is currently being prosecuted for ethics violations by Deputy Disciplinary Counsel Joel L. Widman in the Clinesmith matter.
Back in 2004, Stein was in the midst of another disciplinary case, similar to the Clinesmith case, involving a client named Peter Bogarosh. (See Post of July 8, 2007.) Attorney Lawrence W. Kay was a witness in the Bogarosh case against Stein.
Barbara Boga-Rosh, the unstable daughter of Peter, was appointed as her father’s Permanent Guardian and Conservator. During the Bogarosh discipline case it was learned that at the request and direction of Barbara, Larry Kay prepared and had Mr. Bogarosh sign two amendments to his Living Trust. Stein’s lawyer asked Kay in a deposition if he ever suggested to anyone that the amendment be approved by the Court, since Peter was the ward in a full guardianship and conservatorship. Kay answered, “No.” (See, Bogarosh Disciplinary Hearing Transcript, 1-20-04, pg. 24.)
Kay Doesn’t Get Charged
No ethical charges were ever brought against Kay for failing to seek permission from the Court that had appointed Barbara as Peter’s full, permanent guardian and conservator to prepare and sign the amendments.
Likewise, no ethical charges were ever brought against Kay for preparing trust amendments that were not effective in getting the results the client wanted. See, below.
The Bogarosh case was prosecuted by Chief Deputy Disciplinary Counsel Sally Scott-Mullins and Deputy Disciplinary Counsel Sarah Karni. They were both present at Mr. Kay’s deposition and heard his testimony.
Stein Gets Different Treatment By
Different Disciplinary Counsel
In the Specification of Charges and Hearing on the Merits in the Clinesmith disciplinary case, Stuart Stein was accused of violations of the Code of Professional Conduct for preparing a restatement of two Trusts where Bruce Clinesmith was the initial Trustor without giving notice to Judge Linda M. Vanzi. At the time of the signing, a temporary guardian and conservator had already been appointed for Bruce.
Stein had been retained by Mr. and Mrs. Clinesmith to change the trustees and beneficiary designations of the Living Trusts shortly after they were served process in the guardianship and conservatorship case brought by Bruce’s daughter, Cathe Temmerman. The thrust of the court action was to have Decades, LLC named as the sole guardian and conservator of Bruce, effectively taking him away from his wife of over 35 years.
The restated Trusts were signed by Bruce and Ruth Clinesmith while the court case seeking to declare Bruce permamently incapacitated was pending, but after a temporary guardian and conservator, Decades, LLC, was appointed by Judge Vanzi.
Kay twice did changes to the testamentary instruments of a ward without giving notice to the judge in the Bogarosh guardianship and conservatorship case and was not charged with a violation of the Rules of Professional Conduct. Stein does the same thing and gets charged.
New Mexico Law Allows Incapacitated Persons to
Create and Change Testamentary Documents
Initially, the law is crystal clear. In New Mexico, one suffering with dementia or under a guardianship or conservatorship can execute effective testamentary documents. See, Lucero v. Lucero, 118 N.M. 636, 884 P.2d 527 (Ct. App. 1994). This is the majority position across the country.
A major mantra in the charging document against Stein and during the hearing in the Clinesmith discipline case was the accusation that Stein prepared and signed testamentary documents that changed the Living Trust estate plan of Bruce Clinesmith without giving prior notification to Vanzi, the Judge presiding over the guardianship and conservatorship case.
There is not one word in the Lucero case that it was a lawyer’s duty to first give notice to the judge in the Lucero conservatorship before drafting and signing the new Last Will. If there was a duty that existed, the Court of Appeals would have discussed the issue.
No legal duty to notify the Court of such changes was ever articulated or proved by Disciplinary Counsel Widman in the disciplinary case against Stein. No rule, statute nor case law on the point was ever cited. He made it up.
Kay Does Two Amendments
After Peter Bogarosh was declared incapacitated by the court, his daughter wanted to change his then existing trust to make herself co-trustee with her brother, Christopher. The two siblings had been at odds with each other since they were children. She went to Lawrence W. Kay, Esq. to accomplish this end. Kay visited Peter and signed a hand-written amendment. This first amendment named Barbara as the sole trustee; replacing her brother in that position.
A short time later, Kay created a typewritten amendment that made Barbara and Christopher joint trustees. This second, superseding amendment was presented for the signature of Peter by a legal assistant without Kay present. Kay had no recollection as to the reason for the differences.
Kay’s Amendments Don’t Work
The signed amendment was not accepted as effective by Merrill Lynch, the brokerage house where the bulk of Peter’s assets were deposited in the name of his original Living Trust created years before with his late wife. This account was controlled by his son, Christopher, as his subsequent Trustee on that Trust.
Merrill Lynch wouldn’t accept the amendments because they had concerns that Peter had a court appointed guardian and conservator, Barbara Boga-Rosh. Or maybe they, too, after some contact with Barbara Boga-Rosh, saw what her parents did: an unstable woman. In any event, neither amendments accomplished the goals the daughter wanted for her father.
Stein was found guilty in the Bogarosh case for preparing a new trust for Peter Bogarosh that was not effective. The Hearing Committee further found that Stein should have done a less expensive amendment and, since Peter never funded the trust and it didn’t work, Stein didn’t achieve the client’s goals and therefore overcharged him. Stein was ordered to return the fee he earned to prepare the trust. Yet, Kay prepares documents that also don’t work for the client and no charges are filed and he keeps the fee.
Disciplinary Counsel’s Duty
When violations of the Rules of Professional Conduct are made known to disciplinary counsel “. . . upon complaint or otherwise . . . ” they are to investigate. Rule 17-307.A. Scott-Mullins and Karni had actual knowledge that Kay never gave notice to the court prior to preparing an amendment to a trust for a ward under a full guardianship and conservatorship and the amendment didn’t work. Actual knowledge by Disciplinary Counsel is the “otherwise” in the rule.
Kay and Stein: What’s The Difference?
Attorney Kay was never charged and publicly sanctioned for not notifying the court before he drafted and signed the two amendments that didn’t work for Peter Bogarosh. Kay was never charged and publicly sanctioned for drafting, preparing and signing an amendment to a trust that was not effective and ordered to return the fee. Yet these are two matters for which Stein has been charged by the Office of Disciplinary Counsel in Bogarosh and the pending Clinesmith cases.
What’s the difference? Only Disciplinary Counsel has the real answer.
Bench and Bar Reform can only speculate. Is it because there were different Disciplinary Counsel involved? Perhaps Scott-Mullins and Karni just forgot to tell Joel L. Widman, Stein’s prosecutor in the Clinesmith case, that there’s no duty to inform the judge on the guardian and conservator case when there is a change to the testamentary instruments of the ward and, therefore, there’s no violation of the Code of Professional Conduct?
Widman should have known this or done the research on it before filing charges against Stein. Or did Kay have a get-out-of-trouble-free card because he testified against Stein in support of Disciplinary Counsel’s case?
Kay is a lawyer who shakes in his boots before Disciplinary Counsel and can’t wait to do their bidding. Perhaps through the jaundiced eyes of Disciplinary Counsel, Kay committed no violation. Why? He’s quick to voluntarily testify against other lawyers who compete in the marketplace for estate planning retainers and more than willing to help Disciplinary Counsel do their dirty work.
Stein, on the other hand, stands up for the rights of his clients and challenges the New Mexico Disciplinary System when they don’t follow the law. With the same jaundiced eyes, Stein commits violations of the Code of Professional Conduct no matter what he does, even if Disciplinary Counsel have to make up duties that don’t exist to charge him with ethical wrongdoing.
Conclusion
The lesson here is very disturbing. If the determination of Disciplinary Counsel Scott-Mullins and Karni was that Kay didn’t violate any Rule of Professional Conduct when he failed to notify the judge before he did the amendments, why was this the core of the Clinesmith case brought by their office against Stein?
If these same Disciplinary Counsel determined that Kay didn’t violate the Rules of Professional Conduct by keeping his fee on an amendment that didn’t work or achieve the goals of the client, why did they continue to prosecute Stein in the Bogarosh case for the identical action?
If you don’t want trouble from the Office of Disciplinary Counsel, ignore the directions of your clients, play it safe and don’t make waves (even if failure to do so is against the best interests of your clients), genuflect at the alter of Disciplinary Counsel and you’ll never be charged with a violation of the Code of Professional Conduct.
The rational answer is that the Office of Disciplinary Counsel is out of control; it is staffed by lawyers who fail to meet any criteria of competency, consistency and accomplishment.
So, beware. If you practice law by following the instructions of your client to accomplish legal results in an ethical manner for their benefit, watch out for Disciplinary Counsel. They have you in their cross-hairs. They’re sneaking up behind you with charges of violations of the Code of Professional Conduct. They’ll make up charges that sound good, but have no support in law and don’t exist.
The Hearing Committees, made up of persons who are vetted by Chief Disciplinary Counsel and Prosecutor Virginia L. Ferrara, believe every word Disciplinary Counsel utters without adequate proof. Any accused lawyer is basically screwed no matter how good his defense is or how ridiculous the charges are.
Stupid people with power are truly the most dangerous people on the planet. The Office of Disciplinary Counsel is infested with them. Look out!