In re Doyle

684 A.2d 1377, 146 N.J. 629, 1996 N.J. LEXIS 1081
Supreme Court of New Jersey·Decided November 22, 1996·Published·Cited by 2 cases

Opinion

PER CURIAM.

This disciplinary proceeding arises out of a presentment filed by the District I Ethics Committee (DEC) against respondent, John P. Doyle, based on his representation of members of the Osborn family. The DEC found respondent guilty of unethical conduct in the preparation of a power-of-attorney, wills, and an estate plan for Kathryn Osborn and in the purchase of property from John Osborn, Jr. The Disciplinary Review Board (DRB) agreed with that finding. A majority (five members) of the DRB recommended respondent’s suspension from the practice of law for one year; three members recommended a reprimand. We granted respondent’s petition for review.

After independently reviewing the record, we conclude that respondent engaged in unethical conduct. We find, however, that a six-month suspension from the practice of law more appropriately reflects the seriousness of respondent’s conduct.

I

Respondent was admitted to the bar in 1967. Until recently, he was engaged in the general practice of law and, from 1974 to 1992, was a member of the New Jersey Assembly. Respondent’s prac[632] tice is now limited almost exclusively to representation of municipalities. Numerous letters attesting to respondent’s good character and good works have been received. In 1985, respondent was privately reprimanded for a conflict of interest in a real estate transaction.

A

General Relationship with the Osborn Family

The conduct in question stems from respondent’s relationship with members of the Osborn family. Respondent met John W. Osborn, III (Jack) in the late 1950’s when they attended the same high school. By the late 1960’s, respondent began representing Jack in various matters. Later, he represented Jack’s wife, Carol. Eventually, respondent performed legal work for Jack’s father, John Osborn, Jr. (John), and his wife, Loretta.

Respondent’s primary ethical transgressions involve his representation of John’s sister, Kathryn Osborn. John and Kathryn had three other siblings, Marion Osborn Wagner, Stanley Osborn, and Bartlett Osborn. Respondent first represented Kathryn when, on the death of her sister Marion in 1978, she became the executrix of her sister’s estate. John was named alternate executor and Kathryn was the primary beneficiary of that estate. A significant portion of the estate consisted of real property, known as Camp Osborn, in Brick Township that had an approximate value of $1.8 million. Kathryn and Marion owned the real estate jointly, and Kathryn inherited Marion’s share under her will.

On November 24, 1979, Kathryn suffered a severe stroke that rendered her paralyzed on the right side, unable to communicate orally, and confined to a nursing home. After Kathryn suffered the stroke, John retained respondent to help him prepare an application to have Kathryn removed as executrix of Marion’s estate. Respondent obtained an affidavit from one of Kathryn’s physicians, Doctor Bregman, stating that as a result of her stroke, Kathryn was “unable to take care of herself and certainly any business or estate matters.” Dr. Bregman reported that Kathryn [633] no longer had the physical or mental ability to make decisions and that the condition was irreversible.

Kathryn was removed as executrix on the basis of her incompetence to function in such a capacity. There was no adjudication that Kathryn was incompetent to conduct her own affairs.

B

Power-of-Attorney

After Kathryn was removed as executrix, respondent prepared a power-of-attorney for Kathryn’s signature, at John’s request. The power-of-attorney named John as attomey-in-fact and authorized him to “perform any act or execute any document including checks received or to be paid out, to convey, encumber, dispose or effect any real or personal property owned by [Kathryn].” Respondent did not recall discussing the preparation of that document with Kathryn, but did remember John asking him to prepare the document. Respondent, however, claimed that he was representing Kathryn, not John, in the preparation of the power-of-attorney. Although respondent realized there was a problem with Kathryn’s capacity to grant such a power-of-attorney, he proceeded with the preparation of the document for Kathryn’s signature. There is no allegation that John misused the power-of-attorney.

Kathryn signed the power-of-attorney with an “X” and it was notarized by respondent’s secretary. Although the letter transmitting the document to Kathryn for her signature directed her to execute and return the document to respondent’s office for witnessing, respondent assumes that his secretary personally witnessed the signature, as he would have wanted it done that way. Respondent acknowledged the impropriety of notarizing a document signed out of the presence of the notary.

C

The 1980 Will

In 1980, respondent prepared reciprocal wills for Kathryn and her husband, James. The record does not reveal at whose behest [634] respondent prepared those wills. His file did not contain any notes of a meeting with Kathryn or James before the preparation of the wills. Nonetheless, he believes he “must” have met with Kathryn before he prepared the will.

Kathryn’s 1980 will essentially provided for the conveyance of “certain properties” (seventeen lots that were part of Camp Osborn) to John in trust. The income from the properties was to be used for the support and maintenance of Kathryn and her husband. On the death of the survivor of Kathryn or James, the income was to be paid equally to John, Stanley, and Bartlett. When the last brother died, the trust was to be terminated and the corpus to be divided between Jack (John’s son) and Robert (Bartlett’s son). Respondent asserts that Jack’s lots were worth $630,800, and that Robert’s lots were worth only . $265,300. The residue and remainder of Kathryn’s property, was devised to John, Stanley, and Bartlett. John was appointed executor and trustee under the will.

The will, dated December 15, 1980, bore the signature of “Kathryn M. Osborn,” rather than an “X,” and was witnessed by respondent and Dr. Bregman, the same doctor who signed the March 1980 affidavit stating that Kathryn lacked the ability to continue as executrix of Marion’s estate. Marion B. Perrine, an employee of the nursing home, notarized the will. Respondent testified, that Kathryn signed the will with her own hand. Nursing home employees testified that it was common practice to have a social worker assist patients to sign their names to certain documents.

D

The Estate Plan and the 1985 Will

Although respondent had not seen Kathryn in four years, he engaged a tax attorney and accountant to prepare an estate plan [635] for Kathryn that would minimize the tax consequences to the beneficiaries of Kathryn’s estate, primarily John and his family. Respondent did not visit Kathryn at the nursing home to determine whether she wanted to revise her 1980 will and adopt a new estate plan, but relied on information and representations about Kathryn’s wishes provided by John and Jack.

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In re Doyle, 684 A.2d 1377, 146 N.J. 629, 1996 N.J. LEXIS 1081 (N.J. 1996).

684 A.2d 1377 (In re Doyle) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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