Office of Lawyer Regulation v. Gray (In Re Disciplinary Proceedings Against Linda L. Gray) ( 2018 )

2018 WI 39SUPREME COURT OF WISCONSIN
CASE NO.: 2017AP1273-D
COMPLETE TITLE: In the Matter of Disciplinary Proceedings
Against Linda L. Gray, Attorney at Law:
Office of Lawyer Regulation,
Complainant,
v.
Linda L. Gray,
Respondent.
DISCIPLINARY PROCEEDINGS AGAINST GRAY
OPINION FILED: April 18, 2018
SUBMITTED ON BRIEFS:
ORAL ARGUMENT:
SOURCE OF APPEAL:
COURT:
COUNTY:
JUDGE:
JUSTICES:
CONCURRED:
DISSENTED:
NOT PARTICIPATING:
ATTORNEYS:
2018 WI 39NOTICE
This opinion is subject to further
editing and modification. The final
version will appear in the bound
volume of the official reports.
No. 2017AP1273-D
STATE OF WISCONSIN : IN SUPREME COURT
In the Matter of Disciplinary Proceedings
Against Linda L. Gray, Attorney at Law:
Office of Lawyer Regulation, FILED
Complainant,
APR 18, 2018
v.
Sheila T. Reiff
Clerk of Supreme Court
Linda L. Gray,
Respondent.
ATTORNEY disciplinary proceeding. Attorney's license
suspended.
¶1 PER CURIAM. Pending before the court is the report
of referee Jonathan V. Goodman, following a hearing and the
receipt of a stipulation and supplemental stipulation between
the Office of Lawyer Regulation (OLR) and the respondent,
Attorney Linda L. Gray. Attorney Gray has opted to plead no
contest to the sole misconduct count brought against her: a
violation of SCR 20:1.8(c)1 related to her drafting of the will
1
SCR 20:1.8(c) provides:
(continued)
No. 2017AP1273-D
of M.A., who died at age 71 in January 2015. Although Attorney
Gray is not related to M.A., she received a significant
testamentary gift from her: the balance of her estate after
specific bequests to charities were distributed, which resulted
in Attorney Gray receiving $298,742.12. Consistent with the
parties' stipulation, the referee recommended that this court
suspend Attorney Gray's Wisconsin law license for 60 days for
her professional misconduct. The referee further recommended
that Attorney Gray should be assessed the full costs of the
proceeding, which are $2,067.67 as of January 17, 2018. The OLR
does not seek the payment of restitution in these proceedings,
and the referee does not recommend it.
¶2 No appeal has been filed so we review this matter
pursuant to SCR 22.17(2).2 We approve and adopt the referee's
A lawyer shall not solicit any substantial gift
from a client, including a testamentary gift, nor
prepare an instrument giving the lawyer or a person
related to the lawyer any substantial gift from a
client, including a testamentary gift, except where
(1) the client is related to the donee, (2) the donee
is a natural object of the bounty of the client, (3)
there is no reasonable ground to anticipate a contest,
or a claim of undue influence or for the public to
lose confidence in the integrity of the bar, and (4)
the amount of the gift or bequest is reasonable and
natural under the circumstances. For purposes of this
paragraph, related persons include a spouse, child,
grandchild, parent, grandparent or other relative or
individual with whom the lawyer or the client
maintains a close, familial relationship.
2
SCR 22.17(2) provides:
If no appeal is filed timely, the supreme court
shall review the referee's report; adopt, reject or
(continued)
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No. 2017AP1273-D
findings and conclusions and we agree that a 60-day suspension
is sufficient discipline for Attorney Gray's misconduct. We
further order that Attorney Gray pay the full costs of this
disciplinary proceeding. We decline to order restitution.
¶3 Attorney Gray was admitted to the practice of law in
Wisconsin in 1982. She practiced law in East Troy, Wisconsin at
the time of the filing of the complaint. Her disciplinary
history consists of one private reprimand imposed some time ago,
in the 1980s.
¶4 Attorney Gray knew M.A. since the mid-1980s. M.A.
never married, had no children, and was estranged from her
siblings and other relatives. Attorney Gray and M.A. became
close friends and remained so for many years preceding M.A.'s
death.
¶5 M.A. died in January 2015 at age 71 after a battle
with cancer. During M.A.'s illness, Attorney Gray spent a great
deal of time attending to M.A.'s needs, rendering what the
referee described as "outstanding care and attention" that went
"above and beyond the norm in her devotion to [M.A.] and her
assistance and care in [M.A.'s] final years, months, and days."
The care rendered by Attorney Gray included, but was not limited
modify the referee's findings and conclusions or
remand the matter to the referee for additional
findings; and determine and impose appropriate
discipline. The court, on its own motion, may order
the parties to file briefs in the matter.
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No. 2017AP1273-D
to, spending considerable time taking M.A. to and from her
required medical treatments.
¶6 In 2013, M.A. asked Attorney Gray to draft a will to
replace one that Attorney Gray had drafted for her many years
earlier, in 2000. Attorney Gray did so, and M.A signed the will
before witnesses in September 2013. M.A.'s drafting
instructions for the will were clear: no bequests were to be
made to any of her relatives; specific bequests were to be made
to certain charities; and the balance of her estate was to be
distributed to Attorney Gray. Attorney Gray drafted the will in
accordance with these instructions, and M.A. signed the will in
the presence of witnesses. There is no dispute that M.A. had
testamentary capacity at the time she signed her will.
¶7 After M.A.'s death, the will went through probate
without contest. Attorney Gray served as the personal
representative.
¶8 As explained above, under the terms of the will,
Attorney Gray received over $290,000 from M.A.'s estate. Her
receipt of this money triggered a complaint to the OLR by a
relative of M.A. who had little in the way of a relationship
with M.A. during her lifetime.
¶9 The parties stipulated and the referee concluded that
Attorney Gray had violated SCR 20:1.8(c) by drafting M.A.'s
will, given that Attorney Gray was not related to M.A. and
received a significant residuary gift from the will. On the
basis of this professional misconduct, the parties stipulated to
a 60-day suspension of Attorney Gray's license. The referee
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No. 2017AP1273-D
adopted that stipulation as his recommendation to the court. He
wrote that, although one could "easily conclude" that a public
reprimand would be appropriate here, a 60-day suspension is
appropriate given the gravity of the offense and the need to
deter other attorneys from engaging in similar conduct.
¶10 The referee held an evidentiary hearing to evaluate
whether this court should order Attorney Gray to reimburse
M.A.'s estate for the nearly $300,000 residuary gift she
received. After hearing testimony from Attorney Gray and two of
M.A.'s long-time friends, the referee recommended against a
restitution order, citing Attorney Gray's age (70 years old),
the loss of business and income she incurred as a result of
adverse publicity generated by these proceedings, and "the lack
of evidence of any undue influence" by Attorney Gray on M.A.
¶11 After careful review of the matter, we conclude that
the record supports the referee's findings of fact.
Accordingly, we adopt them.
¶12 We further agree with the referee's conclusion of law
that Attorney Gray violated SCR 20:1.8(c). As an admitted non-
relative of M.A., Attorney Gray had a duty to refuse to draft a
will in which she would receive a testamentary gift. See State
v. Collentine, 39 Wis. 2d 325, 332–33, 159 N.W.2d 50 (1968).
She was obliged to advise M.A. to consult another attorney if
M.A. insisted on making such a bequest. Id. Attorney Gray
violated this duty when she drafted M.A.'s will and included
herself as a beneficiary.
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No. 2017AP1273-D
¶13 We further agree that a 60-day suspension is
appropriate. Our case law dictates that a suspension, rather
than a reprimand, is required. In State v. Beaudry, 53
Wis. 2d 148, 191 N.W.2d 842 (1971), we concluded that a
reprimand was appropriate for an attorney-beneficiary who
selected another attorney to act as a mere scrivener, not as an
independent legal advisor, in drafting a client's will in which
the selecting attorney was named the primary beneficiary. We
warned that "we consider the seriousness of this reprimand to be
but a notch or a hairline from suspension." Id. at 156. Here,
no daylight separates Attorney Gray's actions from what we have
demarked as unethical behavior, both by rule and by precedent.
¶14 But like the referee, we see no need to order a
suspension longer than the parties' stipulated 60-day
suspension. A 60-day suspension is, generally, our minimum
suspension length. See In re Disciplinary Proceedings Against
Grady, 188 Wis. 2d 98, 108–09, 523 N.W.2d 564 (1994). A minimum
suspension length is appropriate here given Attorney Gray's
scant disciplinary history and the absolute absence of evidence
in the record that she took advantage of M.A., her longtime
friend. By all indications, Attorney Gray's preparation of
M.A.'s will was misguided, not malevolent.
¶15 We turn next to the issue of restitution. We agree
with the referee's determination, based on the parties'
stipulation and the testimony received at an evidentiary
hearing, that a restitution order would be inappropriate.
M.A.'s will has been fully probated and the estate is closed.
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No. 2017AP1273-D
Ordering Attorney Gray to make restitution of the amount of her
residuary gift here would undo the results of those probate
proceedings——something we decline to do, particularly given the
facts of this case.
¶16 Finally, we turn to the issue of costs. The referee
has recommended that Attorney Gray pay the full costs of this
proceeding, which total $2,067.67 as of January 17, 2018.
Attorney Gray has not objected to this recommendation. In the
absence of any objection, and consistent with our general
practice, we impose full costs. See SCR 22.24(1m).
¶17 IT IS ORDERED that the license of Linda L. Gray to
practice law in Wisconsin is suspended for a period of 60 days,
effective May 30, 2018.
¶18 IT IS FURTHER ORDERED that Linda L. Gray shall comply
with the provisions of SCR 22.26 concerning the duties of a
person whose license to practice law in Wisconsin has been
suspended.
¶19 IT IS FURTHER ORDERED that within 60 days of the date
of this order, Linda L. Gray shall pay to the Office of Lawyer
Regulation the costs of this proceeding, which are $2,067.67 as
of January 17, 2018.
¶20 IT IS FURTHER ORDERED that compliance with all
conditions of this order is required for reinstatement. See SCR
22.29(4)(c).
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