Attorney Grievance Commission v. Brooke
374 Md. 155, 821 A.2d 414 (2003)
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Rule of Law:
An attorney violates the Rules of Professional Conduct by preparing an instrument, such as a will, for a client that provides a substantial testamentary gift to the attorney, unless the client is related to the attorney or is represented by independent counsel.
Facts:
- John A. Brooke, an attorney, and John C. Sherpinski, Sr. were friends for approximately twenty years.
- Brooke had previously provided legal services for Sherpinski.
- On September 8, 1999, Sherpinski went to Brooke's law office, stated he was being admitted to the hospital the next day, and expressed his wish to execute a will.
- Sherpinski informed Brooke that he wanted to name Brooke as the personal representative and sole legatee of his will.
- Brooke advised Sherpinski on the legal requirements for a valid holographic will under Maryland law.
- After attempting to write the will himself and becoming frustrated, Sherpinski gave his notes to Brooke and asked if Brooke's secretary could prepare the will.
- Brooke instructed his secretary, Catherine Lastner, to prepare a will for Sherpinski, dictating that Brooke was to be the personal representative and sole legatee.
- The prepared will was taken to Sherpinski in the hospital the following day, where he executed it.
Procedural Posture:
- The Attorney Grievance Commission filed a petition for disciplinary action against attorney John A. Brooke in the Court of Appeals of Maryland.
- The Court of Appeals referred the case to a hearing judge in the Circuit Court for Baltimore City to make findings of fact and proposed conclusions of law.
- The hearing judge found that Brooke violated Rules of Professional Conduct 1.8(c) and 8.4 but recommended a sanction of a public reprimand.
- Both the Attorney Grievance Commission and Brooke filed exceptions to the hearing judge's findings and recommendations with the Court of Appeals of Maryland, bringing the matter before it for final determination.
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Issue:
Does an attorney violate the Rules of Professional Conduct by having his non-lawyer assistant prepare a will for a client, based on the attorney's instructions, in which the attorney is named as the sole legatee and personal representative?
Opinions:
Majority - Raker, J.
Yes, the attorney violated the Rules of Professional Conduct. An attorney-client relationship can be implied from the conduct of the parties, and existed here because Sherpinski sought legal advice from Brooke in his professional capacity, the advice pertained to a matter within Brooke's competence (will preparation), and Brooke gave the advice and assistance. Rule 1.8(c) creates an absolute prohibition against an attorney preparing an instrument that gives the attorney a substantial gift from a client, unless the specific exceptions of relation or independent counsel apply, neither of which were present here. The purpose of disciplinary sanctions is not to punish the attorney but to protect the public and its confidence in the legal profession, and a violation of this rule warrants an indefinite suspension to deter such conduct, regardless of the client's intent or the absence of undue influence.
Dissenting - Wilner, J.
Yes, the attorney's conduct violated the rules, but the sanction imposed by the majority is inadequate. The only meaningful sanction that gives effect to Rule 1.8(c) is for the attorney to renounce the bequest he wrongfully received. The majority's sanction of indefinite suspension allows the attorney to retain the financial benefits of his misconduct. Furthermore, the attorney knew of the rule violation long before he finalized a settlement in the probate case that secured him a 55% interest in the estate, which makes his conduct more egregious and reinforces the need for a sanction that requires him to disgorge the improper gift.
Analysis:
This case reaffirms the strict prohibition under Rule 1.8(c) against attorneys drafting instruments, like wills, that provide them with substantial gifts from unrelated clients who lack independent counsel. The court clarifies that a long-standing friendship, the client's clear intent, and a lack of undue influence do not excuse the violation. The decision solidifies the precedent that an attorney's ignorance of the rule is no defense and that protecting public confidence in the legal profession requires a significant sanction, in this case, indefinite suspension. The dissent highlights a crucial unresolved tension: whether a meaningful sanction should require the attorney to renounce the financial gain from the unethical conduct, a step the majority was unwilling to take.
