Attorney Grievance Commission v. Stein

WILNER, Judge, in which HARRELL, Judge, joins. In 1998, respondent prepared a Will for his client, Ms. Lindinger. At his suggestion, she agreed to make him a residuary legatee, and he included such a provision in the Will that he drafted for her. That legacy is apparently worth nearly $117,000.

Ms. Lindinger was not related to respondent, and at no time did respondent advise his client to seek independent legal advice; nor or did she, in fact, have such advice. On these undisputed facts, the Court correctly concludes what respondent has conceded — that he violated Rule 1.8(c) of the Maryland Rules of Professional Conduct. Rule 1.8 deals generally with conflicts of interest and prohibited transactions. Section (c) states: “A lawyer shall not prepare an instrument giving the lawyer or a person related to the lawyer as parent, child, sibling, or spouse any substantial gift from a client, including a testa- ■ mentary gift, except where: (1) the client is related to the donee; or (2) the client is represented by independent counsel in connection with the gift.” ⁵⁴⁷ This is a simple Rule to follow, and the Court seems to recognize that it is an important Rule to follow.

Yet, citing only some Ohio cases, which also carried dissents, in support, the Court eschews the one sanction that, more than any other, will assure that the Rule is followed. It rejects Bar Counsel’s eminently reasonable request that, as a condition to practicing law henceforth, respondent renounce the legacy he wrongfully suggested to his client and included in her Will. With respect, I dissent from that rejection. Consider what the Court holds: (1) respondent’s defense that he was unaware of the Rule “is no defense at all”; (2) respondent acknowledges that the idea to grant him a portion of the residuary estate was his suggestion; (3) respondent stood, and stands, to gain $116,988 from the estate, “a not insubstantial amount”; (4) respondent knew or should have known that drafting a Will in which he was a named beneficiary “created an obvious and facial conflict of interest,” which he “appeared to recognize”; and (5) respondent “acted with conscious awareness of the nature of his conduct.” The simplest response to this conduct — the most effective response to this conduct — is to say to respondent, if you ever wish to continue to practice law in this State, renounce the legacy you wrongfully created for yourself.

We have said many times that the principal purpose of a sanction is to protect the public, not to punish the errant lawyer. What is it we are trying to protect against? When a lawyer prepares a Will or other dispositional document for a client and, in violation of the Rule, includes himself or herself as a beneficiary, the actual circumstances under which the client agreed to that disposition may never be known. As here, the client often will have died before the matter even comes to light, and, because the client is obviously not available to testily, all evidence regarding the client’s