In re the Disciplinary Proceeding Against Hall

329 P.3d 870, 180 Wash. 2d 821
CourtWashington Supreme Court
DecidedJuly 10, 2014
DocketNo. 201,255-8
StatusPublished
Cited by1 cases

This text of 329 P.3d 870 (In re the Disciplinary Proceeding Against Hall) is published on Counsel Stack Legal Research, covering Washington Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re the Disciplinary Proceeding Against Hall, 329 P.3d 870, 180 Wash. 2d 821 (Wash. 2014).

Opinion

C. Johnson, J.

¶1 Alan F. Hall appeals the unanimous recommendation of the Washington State Bar Association Disciplinary Board (Board) that he be suspended from the practice of law for two years. This disciplinary action concerns Hall’s creation and management of an elderly woman’s estate. The hearing officer held that Hall violated Rules of Professional Conduct (RPC) 1.4(b) (communication), RPC 1.7(a)(2) (concurrent conflict of interest), RPC 1.8(a) (improper business transaction with a client), RPC 1.5 (unreasonable fees), RPC 8.4(c) (dishonest conduct), RPC 1.15A(f) (return of client property), RPC 1.16(d) (termination of representation), and RPC 8.4(d) (conduct prejudicial to the administration of justice). We hold that the [824]*824hearing officer’s conclusions of law are supported by the unchallenged findings of fact. We accept the Board’s unanimous recommendation and suspend Hall from the practice of law for two years.

Facts and Procedural History

¶2 In July 2008, Stephen Keen and his mother, Margaret Keen, hired Hall to prepare Margaret’s estate planning documents. Both Stephen and Margaret were mentally competent but physically disabled. Stephen was 65 years old. Margaret was 91 years old, had poor eyesight and difficulty reading, and was generally in poor health. Hall had no prior relationship with the Keens. Stephen held power of attorney over Margaret, with Margaret’s other son as an alternate attorney in fact. Margaret intended for Stephen to be the sole beneficiary of her estate. Hall drafted an estate plan for Margaret that included a special needs trust (Trust), a will, a new power of attorney, and a living will, and he charged the Keens a flat fee of $3,000, which was paid in two installments by September 11, 2008.

¶3 The Trust was the beneficiary of Margaret’s estate, and Stephen was the sole beneficiary of the Trust. The Trust was created to protect Stephen’s government benefits in the event that, upon Margaret’s death, he received Margaret’s entire estate, valued at approximately $400,000. Margaret was named trustee of the Trust, and Hall was named as successor trustee in the event that Margaret could not continue as trustee. Further, the Trust provided that as trustee, Hall would be compensated at $8,000 per year or two percent of the corpus of the Trust, whichever was greater, and would be able to hire himself as an attorney for the Trust, billing the Trust at his hourly rate in addition to his trustee’s fees.

¶4 Margaret’s will appointed Stephen as the executor but named Hall as successor executor in the event Stephen could not serve as executor. Like the Trust, the will also [825]*825provided that as executor, Hall could hire himself as an attorney for the estate and bill at his hourly rate. Margaret’s living will appointed Stephen as Margaret’s health care representative and Hall as an alternate health care representative if Stephen were unable or unavailable. In that role, Hall had the power to disclose Margaret’s medical records, arrange for her admission to a hospital or other medical facility, arrange for prescription drugs and procedures, and consent to a “Do Not Resuscitate” order. Finally, the durable power of attorney appointed Stephen as Margaret’s agent and Hall as alternate agent.

¶5 Hall compiled the estate planning documents into a packet that was provided to the Keens on September 3, 2008. Also included in this packet was an engagement letter prepared by Hall. The letter included a provision entitled “Informed Consent” whereby Margaret purportedly consented to the conflict of interest created in Hall becoming successor trustee and successor executor of Margaret’s estate and being able to hire himself for legal work. Resp’t’s Ex. R-101, at 1073. On October 28, 2008, Margaret executed the estate documents. Knowing that Margaret had poor eyesight and difficulty reading, Hall explained some of the provisions in the estate plan and some concepts behind those provisions, but he did not read the documents to Margaret word for word. Margaret initialed every page of these documents and duly executed the Trust, will, living will, and durable power of attorney. The will and the Trust also each contained a provision whereby Margaret purportedly consented to the conflict of interest created in Hall being able to hire himself for legal work and bill the Trust and the estate for legal fees.

¶6 On December 28,2008, Hall wrote a “Memorandum to Trustee Explaining Special Needs Trust.” Resp’t’s Ex. R-110, at 1560. This memo was addressed from himself and to himself. It stated, “You have been appointed as the Trustee of the Special Needs Trust established by Settlor for the benefit of Stephen Keen,” and it set out the duties of [826]*826the trustee as well as the trustee’s compensation of $2,000 per quarter. Resp’t’s Ex. R-110, at 1560; see Clerk’s Papers at 408. Hall billed $185 for preparing this memorandum and another $185 for reviewing it the next day. On December 29, 2008, Stephen paid Hall $2,050, and Hall used $49 of the $2,050 to fund the Trust. At no time did the trust corpus exceed $49.1 Hall kept the $2,000 as the quarterly fee for acting as trustee of the Trust. Margaret, however, was still the legal trustee of the Trust.

¶7 On January 7, 2009, only two months after the Trust was created, Margaret executed a “declination to serve as trustee of the Stephen Keen special needs trust,” which appointed Hall as trustee and gave him absolute discretion to manage the Trust. Ass’n’s Ex. 1. By Hall’s own admission, Margaret was not competent to act as trustee.

¶8 In March 2009, Stephen was looking to move to an assisted living facility and met with an elder care consultant, Victoria DeVine. DeVine reviewed the Keens’ estate planning documents and pointed out the many roles Hall had in managing Margaret’s estate and affairs. DeVine referred Stephen to attorney Jamie Clausen. Clausen confirmed all of Hall’s roles in Margaret’s estate, a fact that surprised and upset the Keens. Upon their request, Clausen drafted new estate planning documents and read them aloud to Margaret. Margaret then signed and executed the documents, revoking the prior documents drafted by Hall.

¶9 Clausen then sent Hall a certified letter informing him that (1) the Keens had hired her to execute new estate planning documents for them, (2) the documents he had drafted had therefore been revoked, and (3) the Keens requested that Hall return the original documents and the fee he had been paid. Hall refused to return the documents or fee, or acknowledge that his services as the Keens’ lawyer had been terminated.

[827]*827¶10 Stephen filed a grievance with the Washington State Bar Association (Association) on November 6, 2009. In late February 2010, Hall sent a letter to the Association demanding that the Keens pay $4,273.25 owed to him “under the trust agreement” and stating that he was entitled to “$2,000 per month since the creation of the trust.”2 Ass’n’s Ex. 29, at 1. After multiple requests, Hall also finally forwarded his original file to the Association but requested that the file be returned because he intended to sue Stephen and Clausen for statements made to the Association.

¶11 On May 25, 2010, Hall made an unannounced evening visit to Clausen’s residence — which also served as her place of business — where Clausen was with her husband and infant daughter.

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329 P.3d 870, 180 Wash. 2d 821, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-the-disciplinary-proceeding-against-hall-wash-2014.