A powerful dissent by one member of an Illinois disciplinary board argues the decision imposes a heavy burden on lawyers to investigate their clients' purposes when drafting wills, powers of attorney, etc. The lawyer, at the request of a client, drafted papers transferring an ailing friend's house to the non-client. The lawyer charged $200. There was overreaching and the house was transferred under duress. In such suspicious circumstances the lawyer was found to have breached his duty to protect a non-client third party.The law decision could drive clients to Legal Zoom observed the dissenter!
Legal Profession Blog
by Michael Frisch
Legal Profession Blog
by Michael Frisch
A recommendation for sanction by an Illinois Review Board is summarized in the headnote below.
The bar matter is unusual in that it raises a novel question of real consequence, namely whether the concept of third party beneficiary liability extends into an enforceable disciplinary obligation.
Respondent was charged in a one-count amended complaint with violating multiple Rules of Professional Conduct. The charged misconduct arose out of Respondent's drafting of a power of attorney and quitclaim deed at the request of a client. The client told Respondent that his friend, who was in the hospital, wanted to give the client his house and property, and asked Respondent to draft a power of attorney to enable the client to handle his friend's affairs. Without speaking to the client's friend or conducting any investigation of the friend's wishes or competency, Respondent drafted the documents requested by the client, who, using the documents, then withdrew all the money from his friend's bank account and took possession of his house.
Based on these events, the Administrator charged Respondent with failing to provide competent representation; failing to consult with a client concerning the objectives of the representation and means by which they are to be accomplished; failing to explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation; engaging in a conflict of interest; and permitting a person who employed and paid the lawyer to render legal services for another to direct or regulate the lawyer's professional judgment in rendering the legal services, in violation of Rules 1.1, 1.2(a), 1.4(a)(2), 1.4(b), 1.7(a), and 5.4(c), respectively, of the 2010 Illinois Rules of Professional Conduct.
After a hearing, a majority of the hearing panel determined that Respondent owed no duties to the friend, and therefore could not be found to have committed the charged misconduct. It recommended that the amended complaint be dismissed. One hearing panel member dissented, finding that the friend was the intended third-party beneficiary of the attorney-client relationship and therefore that Respondent owed a duty to him, and had engaged in misconduct by failing to meet that duty.
The Administrator filed exceptions, challenging the majority's finding of no misconduct and arguing that Respondent should be suspended for 90 days for his misconduct.
A majority of the Review Board panel reversed the Hearing Board's finding of no misconduct. The majority found that the friend was an intended beneficiary of the attorney-client relationship between Respondent and his client, and therefore that Respondent owed a duty to the friend but failed to meet it. For his misconduct, the majority recommended that Respondent be reprimanded and required to complete the ARDC Professionalism seminar.
One member of the review panel dissented...
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