In re Paul Kulig (Office of Disciplinary Counsel, Appellant) ( 2022 )

NOTICE: This opinion is subject to motions for reargument under V.R.A.P. 40 as well as formal
revision before publication in the Vermont Reports. Readers are requested to notify the Reporter
of Decisions by email at: JUD.Reporter@vermont.gov or by mail at: Vermont Supreme Court, 109
State Street, Montpelier, Vermont 05609-0801, of any errors in order that corrections may be made
before this opinion goes to press.
2022 VT 33No. 21-AP-230
In re Paul Kulig Original Jurisdiction
(Office of Disciplinary Counsel, Appellant)
Professional Responsibility Board
March Term, 2022
Hearing Panel No. 8
Jennifer E. McDonald, Esq., Chair
Jonathan T. Rose, Esq., Member
Patrick Burke, Public Member
Samantha V. Lednicky of Catamount Law, PLLC, Burlington, for Appellant.
Timothy L. Taylor, Grand Rapids, Michigan, for Appellee.
PRESENT: Reiber, C.J., Eaton, Carroll and Cohen, JJ., and Waples, Supr. J.,
Specially Assigned
¶ 1. PER CURIAM. In this case, a Professional Responsibility Board (PRB) hearing
panel determined that respondent violated several ethical rules in drafting a will and deed that
conveyed an elderly client’s real property and personal estate to himself. It imposed a three-month
suspension as a sanction. The Court ordered review of this decision on its own motion. We agree
with the panel that respondent violated the rules in question but conclude that a five-month
suspension is appropriate given the nature of the violations and the serious harm caused by
respondent’s conduct.
I. Hearing Panel Decision
A. Findings
¶ 2. The panel made the following findings after a hearing.1 Respondent was admitted
to the Vermont Bar in 1978 and has practiced in Vermont since that time. He provided estate-
planning legal services to client L.Z. for many years until her May 2018 death. Respondent and
L.Z. lived in the same community and attended the same church; respondent considered L.Z. a
family friend.
¶ 3. Respondent drafted a series of wills for L.Z. L.Z. had no children and her husband
predeceased her. Her 2006 will left her assets to a niece, her niece’s two children, and three
children of L.Z.’s nephew. At L.Z.’s request, respondent prepared a new will in February 2011
that left L.Z.’s house and its contents to her nephew and his wife; any remaining bonds to her
nephew’s three children; and the remainder of her estate to her sister.
¶ 4. In 2014, respondent met with L.Z. to discuss estate planning, nursing care, and
Medicaid issues, given her declining health. Because L.Z. wanted to remain in her home,
respondent advised L.Z. to use a so-called “enhanced life estate” (ELE) deed to prevent the value
of her house from being counted as a financial asset with respect to Medicaid coverage. An ELE
deed allows a grantor to convey real estate to a third party while reserving a life-estate interest in
the property along with the right to sell or mortgage the property. Respondent further advised L.Z.
that she could bequeath her real and personal property via a trust agreement.
¶ 5. Under the trust arrangement purportedly discussed by the parties, L.Z. would
convey her real property via an ELE deed to someone who would serve as trustee of the trust and,
upon L.Z.’s death, the trustee would sell the real property and distribute the proceeds to the trust
1
In his brief, respondent’s counsel discusses “findings” that were not made by the panel
and that appear to rest primarily on respondent’s own testimony. These are not findings of fact
and we do not treat them as such.
2
beneficiaries. A new will would also be prepared naming the trustee as the executor and sole
beneficiary of L.Z.’s estate with the understanding that any of her other property that might require
the filing of a probate estate would go to the trustee, who would then distribute the property (or
funds from the sale of the property) to the trust beneficiaries.
¶ 6. Respondent testified that L.Z. accepted his advice with respect to this arrangement.
According to respondent, L.Z. wanted him to receive the ownership interest in her real property
and perform the roles described above. Respondent then drafted an ELE deed and a new will along
these lines. The ELE deed provided for the conveyance of L.Z.’s ownership interest in her home
to respondent and his heirs and assigns and the new will left “all of [her] estate” to respondent and
appointed him as the executor of her estate.
¶ 7. Respondent briefed a partner at his law firm on his discussions with L.Z. and asked
the partner to have L.Z. execute the ELE deed and will. The partner had concerns about the
proposed transfer but ultimately agreed to respondent’s request. L.Z. executed the documents in
2014 and the partner concluded that she was of sound mind and “comfortable” conveying her
property to respondent. At the PRB hearing, the partner had a vague recollection of his meeting
with L.Z. and he relied heavily on cursory notes that contained unexplained discrepancies.
¶ 8. The panel found that respondent’s drafting of these documents created a conflict of
interest on respondent’s part. L.Z. did not sign any document that disclosed this conflict of interest
to her or that described the nature of the risks associated with conveying her home to respondent
and designating respondent as the beneficiary of her estate.
¶ 9. Respondent did not file the ELE deed in the land records or the will in the Probate
Division. Before L.Z.’s death, respondent generated no written record that set forth or otherwise
contemporaneously memorialized the terms of the trust including identifying the corpus of a trust
and its scope, the identity of the trustee and his related powers and duties, the identity of the
beneficiaries of the trust, or a formula for distribution to the beneficiaries.
3
¶ 10. L.Z. eventually moved into a nursing home in New York and executed a durable
power of attorney, drafted by respondent, designating respondent as her agent. During this time,
L.Z.’s assets were used for her care and maintenance. L.Z. died at the nursing home in May 2018.
¶ 11. In the months following L.Z.’s death, respondent did not file her will with the
Probate Division or otherwise seek an appointment as the executor of L.Z.’s estate. He did not
advise any potential beneficiary that a trust was set up by L.Z. and that he was serving as trustee,
or describe to any potential beneficiary his authority or intentions. He did not generate or provide
any inventory of L.Z.’s personal and real property to any beneficiary or heir at law.
¶ 12. Respondent did secure L.Z.’s former residence, including her furniture, and took
her jewelry and photographs into his possession. He had the jewelry appraised (approximately a
$2000 value) but took no steps to sell it or make it available to any beneficiary for viewing. He
donated L.Z.’s clothing to her nursing home. At the time of the PRB hearing, respondent still had
L.Z.’s jewelry and photographs in his possession. With respect to the house, respondent paid for
utilities, property taxes, and homeowner’s insurance, as well as a water system repair, using his
own funds.
¶ 13. At some point in 2018, the widow of L.Z.’s nephew (a beneficiary in an earlier will)
asked respondent about L.Z.’s estate. Respondent replied, “there is no estate.” He did not tell
nephew’s widow that L.Z.’s remaining assets would be distributed pursuant to a trust agreement,
and he provided no further information to her. Nephew’s widow eventually obtained an attorney
to assist her. In October 2019, the attorney contacted respondent, who provided some additional
information but did not send copies of the 2014 will or 2014 ELE deed as requested. The attorney
followed up again with respondent, seeking these items and requesting information regarding
L.Z.’s bank accounts, personal effects, and an accounting with respect to rent based on his
understanding that someone was living in L.Z.’s house.
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¶ 14. Respondent replied in a December 2019 letter and provided copies of the 2014 will
and ELE deed. Respondent said that the assets L.Z. had intended to convey to her sister and “other
relatives” had been spent on L.Z.’s long-term care; the rental payments had been used to cover
expenses associated with the house; and when L.Z.’s house was sold, he would distribute the
proceeds to “those she had intended to benefit before her declining health required her to use her
assets for her end-of-life care.” Respondent did not tell the attorney that a trust had been put in
place, identify any beneficiaries by name, or tell the attorney that nephew’s widow was not an
intended beneficiary. He did not provide the attorney with the requested accounting. The attorney
again followed up with respondent, seeking clarification and additional information, without
success. In January 2020, a PRB complaint was filed against respondent.
¶ 15. Meanwhile, in the summer of 2019, more than one year after L.Z.’s death,
respondent sold L.Z.’s car for $1000 to a friend with whom he also had a business relationship and
who was also a former client. Respondent deposited the funds from the sale of the car in his
personal bank account. Respondent also advised this friend that he planned to sell L.Z.’s house.
The friend was going through a divorce and respondent knew that the friend’s wife was looking
for a house. Respondent neither had the property appraised nor did he retain a real estate agent to
determine an appropriate listing price. He relied on the property’s value in the town’s grand list
and his own opinion to establish a sale price.
¶ 16. In the fall of 2019, respondent entered into a “rent-to-own” agreement with his
friend’s wife. She made a down payment of $10,000, to be applied retroactively to rent if she
opted not to purchase the home. The parties also agreed that the friend’s wife would receive credits
against the purchase price for payments made to vendors to repair and improve the house. While
the house was structurally sound, it needed major repairs to the furnace and septic system. The
wife moved into L.Z.’s former residence in December 2019.
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¶ 17. Respondent placed the $10,000 down payment in his personal bank account.
Respondent testified that he did so to reimburse himself for expenses incurred in maintaining the
house. The panel found that respondent failed to provide a definitive accounting concerning
reimbursement or any other evidence regarding the precise amount of expenses claimed or the
current location of the remaining balancing of the $11,000 (representing the down payment and
the car payment).
¶ 18. The friend’s wife closed on the home in May 2020. Respondent was listed as the
seller on the closing documents with no indication that he was acting as a trustee. The wife
received approximately $43,000 in credits for improvements she made, which included remodeling
the kitchen. As a result of her purchase, the wife lived in the house rent-free for six months.
¶ 19. Respondent received approximately $153,000 from the sale, including the $10,000
deposit. This was significantly lower than the property’s value in the town’s grand list of
$197,000. Respondent argued that the improvements made by the wife were necessary to satisfy
a lender that the property would have sufficient value to support a bank loan for the purchase of
the property. Respondent placed the money he received at closing ($143,000) into his client trust
account. He did not provide notice of the sale to anyone as a beneficiary either before or after the
closing. He did not give anyone as a beneficiary the opportunity to view the contents of the house
before the sale. Respondent concluded that the contents of the house (aside from the jewelry and
photographs) had no value, and he left them in the house at closing. At the time of the panel’s
September 2021 decision, respondent had not provided any heir or beneficiary an accounting of
the various expenditures and receipts related to the sale of the house.
¶ 20. Respondent conceded that the trust arrangement he claimed to have set up was “a
little unusual,” but he considered it legal and appropriate. He stated that he had not previously
structured an estate with conveyances to himself with an oral trust agreement, but he claimed to
have done so because L.Z. insisted that he was the only person she could trust to effectuate her
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wishes. He also claimed to have advised L.Z. to use someone else as trustee and grantee, as well
as to consult with another lawyer, and that she “adamantly declined to do so.” Respondent was
aware of the danger inherent in using an ELE deed for estate planning, and specifically, the risk
that the person granted an ownership interest via an ELE deed would elect not to fulfill the
grantor’s wishes following the grantor’s death.
¶ 21. According to respondent, L.Z. wanted her property to be distributed as if she died
intestate. Respondent acknowledged that L.Z.’s car was subject to the terms of her will but
maintained that, had he opened a probate estate, creditors’ claims would have been far greater than
the car’s value. Respondent testified that he did not distribute any property because of the pending
PRB proceedings; he was contacted by Bar Counsel in January 2020 prior to the May 2020 closing
on the sale of L.Z.’s home. Respondent stated that, at some unspecified point in time, he intended
to provide notice by statute of a proposed distribution of the funds from the sale of L.Z.’s home,
along with an accounting of expenses and receipts. He had not prepared any comprehensive
accounting by the date of the PRB hearing.
B. Conclusions
¶ 22. Based on these and other findings, the panel concluded that respondent violated
Vermont Rules of Professional Conduct 1.7 and 1.8. Rule 1.7 allows an attorney to represent a
client notwithstanding the existence of a concurrent conflict of interest under certain specified
circumstances, including that “each affected client gives informed consent, confirmed in writing.”
V.R.Pr.C. 1.7(b)(4); see also V.R.Pr.C. 1.0(b), (e) (defining “confirmed in writing” and “informed
consent”). “A concurrent conflict of interest exists if: . . . there is significant risk that the
representation of one or more clients will be materially limited by . . . a personal interest of the
lawyer.” V.R.Pr.C. 1.7(a)(2); see also V.R.Pr.C. 1.7 cmt. [10] (“The lawyer’s own interests should
not be permitted to have an adverse effect on representation of a client.”).
7
¶ 23. The panel found that respondent’s representation of L.Z. gave rise to a concurrent
conflict of interest on his part because he drafted documents that advanced his personal interests.
He had a duty to provide L.Z. with completely independent advice but instead placed himself in a
position where he was advising her to convey her property to him and make him the sole
beneficiary of her estate under a will. The panel found a significant risk under these circumstances
that respondent’s advice would be colored by his personal interests. It also found a significant risk
in using an ELE deed for estate-planning purposes. Even assuming that respondent did not intend
to keep the money for himself, he placed himself in a position where he could do so.
¶ 24. The panel emphasized that, to fulfill his ethical duties, respondent needed to advise
L.Z. to obtain legal representation from a disinterested attorney and inform her that he could not
represent her in making those decisions or in drafting documents that conveyed property to him
and made him the sole beneficiary of her estate. The panel rejected respondent’s attempt to blame
L.Z. for his violation of the rules and noted that, because L.Z. had died, there was no meaningful
way to verify respondent’s version of events.
¶ 25. The panel then turned to Rule 1.8(c), which provides that “A lawyer shall not solicit
any substantial gift from a client, including a testamentary gift, or prepare on behalf of a client an
instrument giving the lawyer or a person related to the lawyer any substantial gift unless the lawyer
or other recipient of the gift is related to the client.” V.R.Pr.C. 1.8(c) (emphasis added). This
prohibition is based on “concerns about overreaching and imposition on clients,” and a client
cannot provide informed consent to such a transaction. V.R.Pr.C. 1.8, cmt. [6]. Even if a lawyer
does not “solicit” a gift, moreover, “such a gift may be voidable by the client under the doctrine
of undue influence, which treats client gifts as presumptively fraudulent.” Id.
¶ 26. Given the conflicting evidence, the panel could not conclude by the required
standard of proof that respondent violated Rule 1.8(c) by “soliciting” a substantial gift from L.Z.
when he recommended that she bequeath and devise her personal and real property to him. It did
8
conclude, however, that respondent violated Rule 1.8(c) by “prepar[ing] on behalf of a client an
instrument”—here, the 2014 ELE deed and will—“giving the lawyer . . . [a] substantial gift.”
¶ 27. The panel explained that violations of the prohibition against preparing an
instrument giving a substantial gift to a lawyer were routinely found when a lawyer drafted a will
that conferred beneficiary status on the lawyer or a person related to the lawyer. It concluded that
the prohibition in Rule 1.8(c) was plainly worded and without exception. It rejected respondent’s
assertion that he did not understand the documents to confer a gift to him, concluding that it
provided no defense to the rule violation and that other courts had reached similar conclusions.
Regardless of his intent, the panel held that respondent placed himself in a position to keep L.Z.’s
real property or to claim her property under the will following her death.
¶ 28. The panel then considered the appropriate sanction, looking to the American Bar
Association’s Standards for Imposing Lawyer Sanctions. See In re Wysolmerski, 2020 VT 54,
¶ 27, 212 Vt. 394, 237 A.3d 706 (“Where a violation of the Rules of Professional Conduct has
occurred, the American Bar Association’s Standards for Imposing Lawyer Sanctions guide our
sanctions determinations.”); ABA Ctr. for Pro. Resp., Standards for Imposing Lawyer Sanctions
(1986) (amended 1992) [hereinafter ABA Standards]. It found that respondent violated a duty of
loyalty to his client; he acted knowingly, i.e., “[w]ith conscious awareness of the nature or
attendant circumstances of his . . . conduct both without the conscious objective or purpose to
accomplish a particular result,” ABA Standards, Part II, Theoretical Framework, and his conduct
caused serious actual harm to L.Z., her potential beneficiaries, and the legal profession. The panel
found its assessment of harm somewhat tempered by the fact that respondent secured the client’s
house, paid expenses necessary to maintain the house, sold the house, did not dissipate the funds
from the sale of the home or car (apparently because he used the funds to reimburse himself for
home maintenance costs and placed the remaining funds from the home sale into his client trust
account), and eventually disclaimed any interest in the client’s property through the will and deed.
9
¶ 29. The presumptive sanction was a suspension, and the panel determined that the
aggravating and mitigating factors, discussed below, did not warrant a departure from this
presumptive sanction. The panel looked to In re Bowen, 2021 VT 7, __ Vt. __, 252 A.3d 300, in
determining the appropriate length of the suspension. The Bowen Court upheld a three-month
suspension for several conflict-of-interest violations. While the cases involved different
aggravating factors, the panel concluded that the Bowen sanction analysis was comparable and
determined that a three-month sanction was appropriate here. That sanction was imposed during
the pendency of this appeal.
II. Supreme Court Review
¶ 30. On appeal, we will uphold the hearing panel’s factual findings unless they are
clearly erroneous, meaning that “there is no credible evidence to support” them. Id. ¶ 22. The
Supreme Court exercises “disciplinary authority concerning all judicial officers and attorneys at
law in the State,” Vt. Const. ch. II, § 30, and thus we “review the panel’s legal conclusions—which
include its violations determinations and sanction recommendations—de novo.” Bowen, 2021 VT
7, ¶ 22 (citation omitted). While “we carefully consider the Board’s recommendation on the issue
of sanctions, we treat it as just that—a recommendation.” Id. (citation omitted). “Because we bear
ultimate responsibility for the discipline of Vermont attorneys, . . . we impose without deference
the sanction we find most appropriate.” Id. (citations omitted).
¶ 31. The panel’s findings are supported by the record, and they support its conclusions
that respondent violated Rules 1.7 and Rule 1.8(c). We impose a five-month suspension given the
serious actual and potential harm that resulted from the misconduct and the nature of the violations,
particularly the violation of a clear prohibition on attorneys drafting documents that convey client
property to themselves.
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A. Rule Violations
¶ 32. We begin with the rule violations. As set forth above, Rule 1.7 provides that a
“lawyer shall not represent a client if the representation involves a concurrent conflict of interest”
unless, among other things, “each affected client gives informed consent, confirmed in writing.”
The panel concluded that respondent violated this rule “by providing legal advice to L.Z. that
included the drafting and presentation of legal documents that gave him interests in his client’s
real property and her estate.”
¶ 33. This conclusion is supported by the findings and the record. Respondent had a duty
to provide L.Z. with independent advice, but he put himself in a position where he was advising
her to convey her property to him, which she did. There was a significant risk that his advice
would be colored by his personal interests. It is undisputed that respondent failed to secure L.Z.’s
informed written consent to continued representation. We reject any argument that the violation
was justified because the client “insisted” on this arrangement. As another court observed under
similar circumstances, if the client had “been given the benefit of independent counsel,” her
“instructions m[ight] have been much different.” In re Gillingham, 896 P.2d 656, 664 (Wash.
1995).
¶ 34. Respondent contends, as he did below, that there was no conflict of interest because
he had no personal interest at stake in the transaction and received the client’s assets only in a
trustee capacity. The panel made no such finding; in fact, it rejected this argument. As set forth
above, it found that respondent drafted documents that conveyed L.Z.’s property to him personally,
creating a risk that he could act in his own self-interest and treat this property as his own rather
than carrying out the client’s wishes. While respondent disagrees with the panel’s finding, he fails
to show that it is clearly erroneous. In re Wysolmerski, 2020 VT 54, ¶ 23 (recognizing that
“[r]econciling conflicting testimony is the province of the factfinder” and that party’s disagreement
with finding does not render it clearly erroneous).
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¶ 35. The panel’s conclusion that respondent violated the plain terms of Rule 1.8(c) by
“prepar[ing] on behalf of a client an instrument giving the lawyer . . . any substantial gift” is
equally supported by its findings.2 See generally G. Hazard, Jr. et al., The Law of Lawyering,
§ 13.01 (4th ed.) (recognizing that Model Rule 1.8 “provides a series of specific application
of . . . basic conflict of interest principles” and the requirements of Rules 1.7 and 1.8 “should be
read as cumulative rather than as in the alternative”). As to this violation, respondent again argues
on appeal, as he did below, that he was acting as a trustee of L.Z.’s property and that he intended
to distribute that property to others. He sets forth Vermont law on the creation of oral trusts and
argues that the requirements for an oral trust were satisfied here.
¶ 36. The hearing panel found it unnecessary to decide if in fact an oral trust was created,
emphasizing its role as an administrative body of limited jurisdiction and not a court of law. The
panel explained that its role was limited to deciding if respondent violated the Rules of Professional
Conduct, and it did not need to determine if an oral trust was created to resolve that question. The
panel also noted that there were others who might have standing to litigate whether a trust was in
fact created, assert related claims, and present and challenge evidence on this point, and those
individuals were not parties to the PRB proceeding. The panel further found that respondent
identified the supposed beneficiaries of the alleged oral trust for the first time at the PRB hearing,
and he testified that he had not notified any of these individuals of their status as beneficiaries;
none of the supposed beneficiaries testified in the PRB proceeding.
¶ 37. We agree that it is neither necessary nor appropriate, for the reasons identified by
the panel, to decide based on this record whether in fact an oral trust was created. Respondent’s
claimed intent to convey the property to others once he received it (pursuant to documents that
2
We do not disturb the panel’s weighing of the evidence and consequent assessment that
the record lacked clear and convincing evidence that respondent “solicited” a substantial gift from
L.Z. in violation of Rule 1.8(c).
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conveyed it to him unequivocally) does not excuse his violation of the plain prohibition imposed
by this rule. He prepared a document that gave L.Z.’s property to himself without restriction.
¶ 38. As the rules make clear, “[a] lawyer who drafts a will in which he or she is named
a beneficiary is involved in a facial and obvious conflict of interest.” Gillingham, 896 P.2d at 663.
The rules “eliminate the conflict of interest inherent in a lawyer’s drafting a will from which he or
she substantially benefits by banning the practice.” Id. The practice is banned because it “is
inherently permeated with the dangers of self-dealing and undue influence.” Id.; see also Comm.
on Pro. Ethics & Conduct of the Iowa State Bar Ass’n v. Behnke, 276 N.W.2d 838, 844 (Iowa
1979) (recognizing “appearance of impropriety inherent in these situations”).
¶ 39. Respondent is responsible for the “necessary legal effect” of the documents he
drafted even assuming arguendo that he did “not appear consciously to have considered the
transaction a gift.” In re Gildea, 936 P.2d 975, 981 (Or. 1997). Even without “ill intent,” these
types of transactions “cause the public to lose confidence in the integrity of the legal profession,”
which is why they are categorically prohibited. State v. Gulbankian, 196 N.W.2d 730, 731-32
(Wis. 1972); see also Att’y Grievance Comm’n of Md. v. Saridakis, 936 A.2d 886, 896 (Md. 2007)
(finding that “appearance of impropriety is enough to constitute a violation” of rule prohibiting
lawyer from drafting documents that convey client property to themselves); Att’y Grievance
Comm’n of Md. v. Kent, 653 A.2d 909, 919 (Md. 1995) (“In order to maintain public confidence
in the legal system, lawyers must avoid not only actual acts of misconduct but even the type of
behavior that can suggest misconduct.”); see also In re Adamski, 2020 VT 7, ¶ 53, 211 Vt. 423,
228 A.3d 72 (recognizing that “[t]he public as well as [the attorney’s] clients and the courts have
an interest in [the attorney’s] integrity and are entitled to require that [the attorney] shun even the
appearance of any fraudulent design or purpose” (quotation omitted)). Any argument that L.Z.
“insisted” on the arrangement is unavailing under the plain language of the rule. See also
Gulbankian, 196 N.W.2d at 732 (explaining that “[i]t is no defense that the will represents the
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wishes of the testatrix” and recognizing that “longstanding friendship and confidential relationship
between a client and an attorney” can raise specter of undue influence in public’s eye and “[a]n
attorney must be as careful to avoid the appearance of evil as he is to avoid evil itself.”). Simply
put, “[p]reparation of a will [or deed] in which the lawyer will be a beneficiary is conduct for
which a lawyer will be disciplined.” In re Polevoy, 980 P.2d 985, 987 (Colo. 1999) (en banc); see
also Att’y Grievance Comm’n of Md. v. Stein, 819 A.2d 372, 379 (Md. 2003) (suspending attorney
who drafted instrument in which he was named as beneficiary, finding such conduct “undermines
the public confidence in the legal profession in a particularly egregious manner” and citing cases
where other courts have imposed suspensions for similar violations). The record supports the
panel’s conclusions that respondent violated Rules 1.7 and 1.8(c).
B. Appropriate Sanction
¶ 40. We thus turn to the appropriate sanction and in doing so, “we consider: (a) the duty
violated; (b) the lawyer’s mental state; and (c) the actual or potential injury caused by the lawyer’s
misconduct; and (d) the existence of aggravating or mitigating factors.” Wysolmerski, 2020 VT
54, ¶ 27 (quotation omitted). In conducting our analysis, we are mindful that “the purpose of
sanctions is not to punish attorneys, but rather to protect the public from harm and to maintain
confidence in our legal institutions by deterring future misconduct.” Id. (quotation omitted).
¶ 41. As indicated above, the panel found that respondent violated a duty of loyalty to
L.Z.; he acted knowingly; and his conduct caused serious actual and potential harm, somewhat
tempered by respondent’s treatment of L.Z.’s home.
¶ 42. The record supports a conclusion that respondent violated a duty of loyalty to his
client and that he acted knowingly, that is, “[w]ith conscious awareness of the nature or attendant
circumstances of his or her conduct both without the conscious objective or purpose to accomplish
a particular result.” ABA Standards, Part II, Theoretical Framework, at 6; cf. id. (defining most
culpable mental state, “intent,” as “when the lawyer acts with the conscious objective or purpose
14
to accomplish a particular result”). As the panel found, respondent drafted the documents in
question, and he sent another attorney to deliver the documents and witness their execution;
respondent testified that he advised L.Z. to designate someone else under the will and deed and to
consult with another lawyer but that she rejected that advice. The panel did not find that respondent
acted with the intent to benefit himself and thus rejected disbarment as a presumptive sanction.
See ABA Standard § 4.31(a). “Because the line between mental states is difficult to discern and
involves factual determinations, we give deference to the panel’s assessment of an attorney’s
mental state.” Bowen, 2021 VT 7, ¶ 33 (quotation omitted); see also In re Stepovich, 386 P.3d
1205, 1209-10 (Alaska 2016) (concluding under similar circumstances that attorney acted
knowingly).
¶ 43. The panel rejected respondent’s assertion that he acted negligently, and we find no
basis to disturb that conclusion. As the panel explained, moreover, there was a substantial amount
of evidence presented to suggest that respondent was in fact soliciting a gift from L.Z., even though
it did not rise to the level of clear and convincing evidence. There was no written trust agreement,
informed consent, or memorialization of an oral trust, which cast additional doubt on respondent’s
assertion that he believed he was acting pursuant to a trust agreement rather than receiving gifts
from L.Z. through the legal instruments he drafted. Respondent’s challenge to the panel’s
evaluation of the weight of the evidence is unavailing.
¶ 44. Turning to injury, the panel found that respondent’s conduct caused actual harm to
L.Z. because she was deprived of independent advice, “which in turn raises questions of undue
influence” and the validity of the legal documents in question. Stepovich, 386 P.3d at 1210. Citing
Stepovich, the panel cited a number of problematic consequences that typically flow from such
misconduct, including “the attorney’s incompetency to testify, . . . the attorney’s ability to
influence the testator, . . . jeopardy to probate of the entire will if its admission is
contested, . . . harm to other beneficiaries, and the undermining of the public trust and confidence
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in the legal profession.” Id. at 1210-11 (quotation omitted). “Once deceased, of course, the client
will have no opportunity to protect himself from the attorney’s negligent or infamous conduct.”
Id. at 1211 (quotation omitted).
¶ 45. The panel found actual harm and potential harm along these lines. It explained that
the documents that respondent drafted could conceivably be challenged by one or more heirs. L.Z.
could no longer take issue with respondent’s claim of a trust agreement or contest the distribution
respondent proposed to make. L.Z.’s heirs have no way to determine with confidence that L.Z.
was not the subject of undue influence, and they have no way of knowing if respondent’s
identification of intended beneficiaries and proposed formula of distribution, which deviated
significantly from L.Z.’s 2011 will, reflected L.Z.’s actual intent. Finally, in the absence of any
written memorialization of the trust agreement, the intended beneficiaries (whoever they might be)
might have been deprived of their inheritance if respondent died before the various inquiries caused
him to declare that he was administering a trust. In sum, the panel found that respondent’s conduct
caused serious harm to L.Z., L.Z.’s potential beneficiaries, and the legal profession. As noted, the
panel found this harm somewhat tempered by respondent’s treatment of respondent’s home and
the fact that he eventually disclaimed any interest in L.Z.’s property.
¶ 46. The record supports the finding that respondent’s behavior caused serious harm to
L.Z. and to others as outlined above. His behavior regarding L.Z.’s home can be equally viewed
as serving his own self-interest rather than as mitigating harm, although he has since disclaimed
any interest in retaining the funds from the sale of the home. Respondent offers no persuasive
argument to the contrary regarding the harm caused by his misconduct. He attempts to blame L.Z.
for his actions and argues that oral trusts are inherently uncertain even if one had been created by
independent counsel. Again, respondent simply relies on his own version of the evidence and
ignores the findings and conclusions made by the panel.
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¶ 47. We agree with the panel that ABA Standard § 4.3, which governs “Failure to Avoid
Conflicts of Interest,” applies. ABA Standard § 4.32 provides that “[s]uspension is generally
appropriate when a lawyer knows of a conflict of interest and does not fully disclose to a client the
possible effect of that conflict, and causes injury or potential injury to a client.” A suspension is
the appropriate presumptive standard here given the finding that respondent acted knowingly.
¶ 48. “After misconduct has been established, aggravating and mitigating circumstances
may be considered in deciding what sanction to impose.” Id. § 9.1. The panel cited as aggravating
factors: respondent’s refusal to acknowledge the wrongful nature of his conduct; the victim’s
vulnerability; and respondent’s substantial experience in the practice of law. As mitigating factors,
it cited the absence of a prior disciplinary record and respondent’s cooperative attitude during the
investigative process and disciplinary proceeding. It concluded that the aggravating factors
slightly outnumbered the mitigating factors and merited considerable weight. It also gave
significant mitigating weight to the absence of a prior disciplinary record and respondent’s
longstanding volunteer work in his community. On balance, the panel concluded that the factors
did not warrant modification of the presumptive sanction.
¶ 49. We agree with the panel’s identification of these factors but recognize, as an
additional aggravating factor, multiple offenses. On balance, we agree that the factors do not
justify a modification of the presumptive sanction, even with the additional aggravating factor,
given that respondent acted knowingly rather than with intent. Disbarment is the presumptive
sanction when an attorney acts with intent to benefit himself, and the panel did not find such intent
here. Respondent’s assertion that he was not blaming the victim, that the victim was not
vulnerable, and that he lacked a “dishonest or selfish motive,” all challenge the panel’s assessment
of the weight of the evidence; these arguments are unavailing here.
¶ 50. The ABA Standards state that suspensions should generally “be for a period of time
equal to or greater than six months,” Id. § 2.3, although that statement is not binding on the panel
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or this Court. See In re McCarty, 164 Vt. 604, 605, 665 A.2d 885, 887 (1995) (mem.) (recognizing
that “periods of suspension of less than six months are appropriate in some circumstances”). “The
rationale is that short-term suspensions with automatic reinstatement are not an effective means of
protecting the public because rehabilitation cannot be shown in less than six months and a six-
month duration is needed to protect client interests.” In re Blais, 174 Vt. 628, 631, 817 A.2d 1266,
1270 (2002) (mem.) (quotation omitted.). A lawyer who is suspended for six months or more must
apply for reinstatement and make the specific showing outlined in the rule to be readmitted. See
A.O. 9, Rule 26(B), (D). While we consider respondent’s misconduct serious and worthy of
censure, we conclude that, under all of the circumstances, a five-month suspension is appropriate
here. We conclude that the public will be adequately protected without requiring respondent to
reapply for admission as would be necessary with a suspension of six months.
¶ 51. Like Bowen, the violations here involved a lawyer’s “most important ethical duties,
[which] are those obligations which a lawyer owes to clients.” Bowen, 2021 VT 7, ¶ 30 (quotation
omitted). An attorney has a duty “to represent the client with undivided loyalty,” which forms part
of “the foundation of the attorney-client relationship.” 2 R. Mallen, Legal Malpractice § 15:1
(2022 ed.). As in Bowen, the violations here go to the heart of the attorney-client relationship and
“[i]n straying from these fundamental obligations, an attorney risks eroding public trust in the
profession as a whole—a trust without which our legal system cannot function.” Bowen, 2021 VT
7, ¶ 30; see also 2 Mallen, supra, § 15:1 (explaining that “[w]hen the public perceives that the legal
profession fulfills its fiduciary obligations, future clients are more likely to commit their trust and
confidences to a lawyer” and “[a] fundamental predicate to that public perception is for lawyers to
avoid even the appearance of impropriety”).
¶ 52. In Bowen, the respondent violated two conflict-of-interest rules: Rule 1.8(b)
(providing that, with limited exception, lawyer cannot use information relating to representation
of a client to the client’s disadvantage) and Rule 1.9(c)(2) (providing that lawyer cannot, with
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narrow exceptions, reveal information relating to representation of former client). Essentially, the
respondent threatened to interfere with his current client’s imminent real-estate closing in pursuit
of his own self-interest in obtaining payment from one of the parties (a former client) for an unpaid
bill. At the eleventh hour, the former client agreed to pay one-half of the asserted bill, and the
real-estate transaction closed.
¶ 53. We upheld the rule violations and agreed that the respondent acted knowingly,
caused actual harm to his former client and his client in the real estate transaction, and placed the
current client at risk of an even greater potential injury in the form of the collapse of the real estate
sale. We applied ABA Standard § 4.3 and found it significant that the matter involved duties owed
to clients as these are considered a lawyer’s “most important ethical duties.” Bowen, 2021 VT 7,
¶ 30 (quotation omitted). The respondent there acted with “dishonest or selfish motive,” he had
substantial experience in the practice of law, he refused to acknowledge the wrongful nature of his
conduct, and he had multiple offenses. Id. ¶ 43 (quotation omitted). As mitigation, he had no prior
disciplinary history, and he was cooperative during the disciplinary proceedings. We concluded,
under these circumstances, that a three-month suspension was necessary “to maintain public
confidence in our legal institutions.” Id. ¶ 50.
¶ 54. The rule violations here are more egregious, and the harm is more significant, to
the client, to the prospective beneficiaries, and to “the public trust in the profession as a whole.”
Id.; see also In re Mattson, 2002 S.D. 112, ¶ 40 (recognizing that “preservation of trust in the legal
profession is essential”). As recited above, the will and ELE deed could conceivably be
challenged; L.Z. can longer contest respondent’s version of events; the heirs have no way to know
if the documents were the product of undue influence or if they accurately reflect L.Z.’s wishes;
and given the absence of any memorialization of the alleged agreement, there was a risk that, if
respondent died, the intended beneficiaries would have been deprived of an inheritance as L.Z.’s
assets would have passed to respondent’s heirs. See Stepovich, 386 P.3d at 1210-11 (identifying
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dangers in these types of transactions); see also Polevoy, 980 P.2d at 987 (similarly recognizing
that there are many reasons for prohibiting attorneys from preparing instruments that benefit the
attorney, including “conflict of interests, the incompetency of an attorney-beneficiary to
testify . . . , the possible jeopardy of the will . . . , the possible harm done to other beneficiaries and
the undermining of the public trust and confidence in the integrity of the legal profession”). These
harms are more numerous and more serious than those at issue in Bowen.
¶ 55. As referenced above, “[t]rust and confidence form the foundation of the attorney-
client relationship,” In re Bowen, 2021 VT 7, ¶ 50, and “[s]eldom is the client’s dependence upon,
and trust in, his attorney greater than when, contemplating his own mortality, he seeks the
attorney’s advice, guidance, and drafting skill in the preparation of a will to dispose of his estate
after death,” Stein, 819 A.2d at 376. The Stein court explains,
These consultations are often among the most private to take place
between an attorney and his client. The client is dealing with his
innermost thoughts and feelings, which he may not wish to share
with his spouse, children and other next of kin.
Because the decisions that go into the preparation of a will are so
inherently private, and because, by definition, the testator will not
be available after his death, when the will is offered for probate, to
correct any errors that the attorney may have made, whether they are
negligent errors or of a more sinister kind, a client is unusually
dependent upon his attorney’s professional advice and skill when he
consults the attorney to have a will drawn. The client will have no
opportunity to protect himself from the attorney’s negligent or
infamous misconduct.
819 A.2d at 376 (quotation omitted) (also recognizing that “client’s dependence upon, and trust
in, his attorney’s skill, disinterested advice, and ethical conduct exceeds the trust and confidence
found in most fiduciary relationships”); see also Mattson, 2002 S.D. 112, ¶ 44 (recognizing that
attorney-client relationship is “highly fiduciary” and “requires the highest degree of fidelity and
good faith”). That was particularly true here as the client was elderly and in declining health and
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needed to move into a nursing home; she trusted and relied on respondent to give her truly
independent advice.
¶ 56. The rules expressly prohibit the conduct here in recognition of these harms, and
violations of this rule are considered “most serious.” Stein, 819 A.2d at 376. Respondent’s “failure
to have the [will and deed] drafted by uninvolved counsel not only deprived [L.Z.] of an
independent point of view but also exposed her to the inherent conflict of interest the rule is
designed to eliminate.” Gillingham, 896 P.2d at 663. A client can never consent to such a
transaction because it “is inherently permeated with the dangers of self-dealing and undue
influence.” Id.; see id. at 663-64 (recognizing that “[u]nlike the other rules governing conflicts of
interest, the prohibition on testamentary gifts which are drafted by the lawyer-beneficiary does not
include an exception when the client gives informed consent”).
¶ 57. Unlike the instant case, the lawyer in Gillingham acknowledged the wrongful
nature of his conduct. The Gillingham court viewed the lawyer’s actions “with extreme censure,”
explaining that the practice “casts a pall of potential self-dealing and undue influence.” Id. at 665.
Based on different aggravating and mitigating circumstances than those present here, it ultimately
deemed a sixty-day suspension appropriate “[g]iven the seriousness of the misconduct, the clarity
and force with which this court and the [Rules of Professional Conduct] proscribe it, and [the
lawyer’s] prior disciplinary history of one admonition.” Id. We are struck by the fact that in the
instant case, respondent continues to believe that he did nothing wrong.
¶ 58. “[T]he purpose of sanctions is not to punish attorneys, but rather to protect the
public from harm and to maintain confidence in our legal institutions by deterring future
misconduct.” Wysolmerski, 2020 VT 54, ¶ 27 (quotation omitted); see also Stein, 819 A.2d at 375
(similarly recognizing that discipline is imposed “not to punish the lawyer but rather to protect the
public and the public’s confidence in the legal profession,” and it is also “aimed at deterring other
lawyers from engaging in similar conduct”). “[T]he public is protected when sanctions are
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imposed that are commensurate with the nature and gravity of the violations and the intent with
which they were committed.” Stein, 819 A.2d at 375. “The appropriate sanction must be weighty
enough to counter [the] serious risk[s]” presented by such conduct. Bowen, 2021 VT 7, ¶ 50.
¶ 59. Like the Gillingham court, we recognize the serious harms posed by these types of
violations and we view the conduct here “with extreme censure.” 896 P.2d at 665. Attorneys and
members of the public must know that this type of behavior will not be tolerated. We conclude
that a five-month suspension is appropriate here given the serious harm that resulted from the
misconduct, the vulnerability of the victim, the lack of remorse, and the nature of the violations,
particularly the violation of a clear prohibition on drafting documents gifting client property to
oneself. Not only did respondent’s misconduct harm his client by depriving her of independent
advice but it harmed L.Z.’s relatives, who will never know with confidence what L.Z. intended;
all of this, in turn, harms the public’s confidence in the legal profession. A lengthy period of
suspension is required.
Respondent is suspended from the practice of law for five months. He completed a three-
month suspension during the pendency of this appeal; the remaining two-month suspension will
begin fourteen days after the mandate issues in this case. Respondent is directed to comply with
the requirements of A.O. 9, Rule 27.
BY THE COURT:
_______________________________________
Paul L. Reiber, Chief Justice
_______________________________________
Harold E. Eaton, Jr., Associate Justice
_______________________________________
Karen R. Carroll, Associate Justice
_______________________________________
William D. Cohen, Associate Justice
_______________________________________
Nancy J. Waples, Superior Judge,
Specially Assigned
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