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State v. Gulbankian

Wisconsin Supreme Court
196 N.W.2d 733, 57 A.L.R. 3d 696, 54 Wis. 2d 605 (1972)
ELI5:

Rule of Law:

An attorney may not solicit their own employment to probate a will they are drafting, but a high percentage of wills containing such a designation is not, by itself, sufficient circumstantial evidence to prove solicitation has occurred.


Facts:

  • Gulbank K. Gulbankian and his sister, Vartak Gulbankian, practiced law together as partners in Racine, Wisconsin.
  • Many of their clients were of Armenian descent, with whom the Gulbankians shared a common ethnic background and language, leading to a closer than average attorney-client relationship.
  • Between 1955 and 1971, the Gulbankians drafted 135 wills that were filed for probate.
  • Of these 135 wills, 71 contained a provision directing the executor to employ one of the Gulbankians to probate the estate.
  • After 1957, approximately 94% of the wills drafted by the firm contained a clause instructing the executor to retain one of the Gulbankians as attorney for the estate.
  • In 41 of the wills, the attorneys' sister, Akabe Gulbankian, was named executrix or co-executrix.
  • The Gulbankians asserted that these provisions were included at the unsolicited and spontaneous request of their clients.
  • Several clients testified that they had voluntarily directed the Gulbankians to include the provision appointing them to handle the probate of their estates.

Procedural Posture:

  • A complaint was filed against attorneys Gulbank K. Gulbankian and Vartak Gulbankian, alleging unprofessional conduct by soliciting the probate of estates.
  • The disciplinary matter was referred to a reserve judge, acting as a referee, who conducted a hearing.
  • The referee found no evidence of actual solicitation but concluded that the circumstances could lead lay people to infer solicitation had occurred.
  • The matter came before the Wisconsin Supreme Court, the highest court in the state, for a final ruling on the complaint.

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Issue:

Does the consistent inclusion of a provision naming the drafting attorney as executor or as attorney for the estate in a high percentage of wills drafted by that attorney, without more evidence, constitute proof of unprofessional solicitation?


Opinions:

Majority - Per Curiam

No. While an attorney is prohibited from soliciting professional employment when drafting a will, the statistical recurrence of clauses naming the drafting attorney to probate the estate is insufficient, on its own, to sustain a finding of solicitation. The court reasoned that direct solicitation could not be inferred merely from the high percentage of such clauses, especially given the evidence of the unique, trust-based relationship the Gulbankians had with their clients in the Armenian community. The court gave weight to the testimony of clients who stated the request was their own unprompted idea. However, the court expressed concern that such a high percentage creates an appearance of impropriety that damages public confidence in the legal profession. It established future guidelines for attorneys, stating they must avoid even subtle suggestions of their own employment, should not use pre-printed will forms designating an attorney, and should return original wills to clients for safekeeping.



Analysis:

This decision establishes that proving attorney solicitation based on circumstantial evidence alone carries a high burden. While the court refused to discipline the attorneys based on a statistical pattern, it used the case as a platform to proactively regulate professional conduct by setting forth clear prospective guidelines to prevent the appearance of impropriety. The ruling highlights the delicate balance an attorney must maintain between advising a client on executors and estate administration and the ethical prohibition against self-promotion. This case serves as a warning to the bar that while such conduct may not be sufficient for discipline in this instance, the judiciary is highly concerned with how the public perceives attorney ethics in will drafting.

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