Preview:

FOR IMMEDIATE NEWS RELEASE

NEWS RELEASE # 15

FROM: CLERK OF SUPREME COURT OF LOUISIANA

The Opinions handed down on the 25th day of February, 2003 , are as follows:

PER CURIAM:

2002-B- 2721

IN RE: LEE C. GREVEMBERG (Disciplinary Proceedings) Upon review of the findings and recommendation of the hearing committee and disciplinary board, and considering the record, briefs, and oral argument, it is ordered that Lee C. Grevemberg be suspended fro the practice of law in Louisiana for a period of one year. Respondent shall complete the ethics school program offered through the Louisiana State Bar Association. All costs and expenses in the matter are assessed against respondent in accordance with Supreme Court Rule XIX, Section 10.1, with legal interest to commence thirty days from the date of the finality of this court's judgment until paid.

SUPREME COURT OF LOUISIANA NO. 02-B-2721 IN RE: LEE C. GREVEMBERG

ATTORNEY DISCIPLINARY PROCEEDINGS

PER CURIAM
This disciplinary proceeding arises from one count of formal charges filed by the Office of Disciplinary Counsel ("ODC") against respondent, Lee C. Grevemberg, an attorney licensed to practice law in Louisiana.

UNDERLYING FACTS In August, 1996, Hilda Parham, a widow in her sixties, executed a statutory will which had been prepared and notarized by respondent. With the exception of a small monetary bequest to a friend, Mrs. Parham bequeathed the bulk of her estate to Philip and John Parham, nephews of her late husband, who resided in Oklahoma. In the months following the execution of the will, Mrs. Parham's health began to decline and she no longer wanted to see or speak to anyone, except for respondent. In April, 1997, at her direction, he became her agent through a power of attorney. Shortly thereafter, Mrs. Parham requested that respondent draft a new will for her naming himself as the executor and residual legatee. According to respondent, he was unaware of the existence of Rule 1.8(c) of the Rules of Professional Conduct which bars an attorney and his immediate family from receiving a testamentary gift in a will drafted by the attorney.1 Respondent conducted some research and discussed

Rule 1.8(c) provides "a lawyer shall not prepare an instrument giving the lawyer or person related to the lawyer as parent, child, sibling, or spouse any substantial gift from a client, including (continued...)

1

the matter with another attorney to determine whether he was prohibited from accepting a testamentary gift in a will prepared and notarized by him. Upon concluding the transaction was not prohibited, respondent prepared the will in accordance with his client's instructions. In June, 1997, Mrs. Parham executed the will prepared by respondent, and respondent notarized it. The new will revoked all prior wills and, in addition to making two modest bequests to friends, named respondent as executor and residual legatee. It also contained a clause indicating that respondent's wife would become the residual legatee in the event the bequests made to respondent were prohibited, or there was a conflict of interest or legal ethics due to the fact that he was the notary public before whom the will was executed, or should he predecease Mrs. Parham. Respondent's wife was also named as the successor executrix. Following the execution of the new will, at respondent's direction, Mrs. Parham scratched a line through her signature on the original will executed in 1996, and respondent then wrote "VOID" across it. Rather than destroying the 1996 will, respondent kept the document in his office. On July 24, 1997, Mrs. Parham died. Within days, respondent had instituted succession proceedings. According to the sworn detailed descriptive list prepared by respondent, the net value of his interest in the estate was $163,973. Mrs. Parham's nephews were not informed of her death until after the funeral had taken place. Days later, they traveled from Oklahoma to Louisiana. Respondent was not present at his office when they arrived to see him. While leaving a message on respondent's desk and/or retrieving certain items that had belonged to their aunt, the Parhams discovered the original 1996 will. They removed it from respondent's

(...continued) a testamentary gift, except where the client is related to the donee." 2

1

office and brought it to their attorney. With the assistance of counsel, the Parham nephews filed a rule to show cause in the succession proceeding seeking to annul the 1997 will. Following a lengthy hearing, the trial court determined Mrs. Parham was mentally competent at the time the 1997 will was executed and that respondent had not exercised any undue influence on her. However, the trial court invalidated all bequests to respondent and his wife and their respective appointments as executor and successor executrix, as well as invalidated the clause revoking the 1996 will. The court also invalidated the 1996 will, with the exception of the bequest of the remainder of Mrs. Parham's estate to her nephews. Respondent and his wife appealed the judgment of the trial court. On appeal, respondent argued that although he may have violated Rule 1.8(c) by engaging in a conflict when preparing the will, the disciplinary violation should not defeat his client's wishes and his property interests in her estate. The court of appeal affirmed the trial court's ruling. Succession of Parham, 98-1660 (La. App. 1st Cir. 9/24/99), 755 So. 2d 265. Respondent filed an application for writs in this court, which was denied. Succession of Parham, 99-3016 (La. 12/17/99), 755 So. 2d 240.

DISCIPLINARY PROCEEDINGS Formal Charges Following investigation, the ODC filed one count of formal charges against respondent alleging violations of Rules 1.1 (incompetence), 1.2 (scope of representation infringes on professional responsibilities), 1.8(c) (conflict of interest -preparing an instrument for a client giving the attorney and/or a member of his immediate family a testamentary gift), 3.1 (asserting a non-meritorious claim), 3.4(c) (knowingly disobey rules of a tribunal), 8.4(a) (violating the Rules of Professional
3

Conduct) and 8.4(d) (engaging in conduct prejudicial to the administration of justice) of the Rules of Professional Conduct. Respondent filed an answer to the formal charges admitting that he engaged in a conflict of interest, but alleged his conduct was unintentional and a "technical violation." Further, he contended his appellate pursuit of his interest in his client's estate was in good faith. Respondent reasoned the trial court's application of Rule 1.8(c), a professional rule, to deny him his property rights in a civil proceeding was improper. Recommendation of the Hearing Committee After a formal hearing, the hearing committee concluded the ODC proved by clear and convincing evidence a violation of Rule 1.8(c) relative to his conflict of interest in drafting the will. However, it determined respondent's conduct was unknowing and unintentional since respondent was merely carrying out his client's wishes. In mitigation, the committee recognized respondent's well-respected

reputation and good character in the community, cooperative attitude toward the proceedings and unblemished record in the practice of law for over 56 years,2 as well as the remoteness that another violation would re-occur. Based on its findings, the committee recommended that a private admonition be imposed. One committee member dissented as to the recommendation, citing respondent's appeal of the trial court judgment to be inappropriate in light of his admission of engaging in professional misconduct.

Respondent's prior disciplinary history involves a formal private reprimand imposed in 1976 by the Committee on Professional Responsibility stemming from allegations that respondent neglected to communicate with a client. See, COPR File No. 3877, 6/18/76. 4

2

Recommendation of the Disciplinary Board Based on its review of the record, the board determined respondent did not provide incompetent representation in violation of Rules 1.1 and 1.2, noting that respondent was experienced in preparing wills, conducted research prior to preparing the will and provided a substitution clause in the event of a conflict or ethical problem. Additionally, relying on the formal hearing testimony of the trial judge in the succession proceedings, the board found respondent did not violate Rule 3.1 by asserting frivolous or sanctionable legal arguments in the civil proceedings. Likewise, the board found no factual support for a conclusion that respondent knowingly disobeyed the rules of a tribunal in violation of Rule 3.4(c) or engaging in conduct prejudicial to the administration of justice in violation of Rule 8.4(d). Based on respondent's own admission, the board concluded respondent engaged in a conflict of interest in violation of Rule 1.8(c) when he drafted the will with a prohibited bequest. In addressing the issue of sanctions, the board found respondent breached his duties owed as a professional, and that his conduct "vacillates between knowing and negligence." While it recognized respondent claimed he did not know he was participating in a prohibited transaction, the board pointed out he also inserted a contingent substitution clause in the will in the event of a legal conflict or conflict of interest. The board relied on the ABA's Standards for Imposing Lawyer Sanctions to conclude the appropriate baseline sanction for respondent's misconduct ranges from public reprimand to suspension.3 In aggravation, the board cited respondent's

Standard 4.32 provides suspension 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. Standard 4.33 provides reprimand is generally appropriate when a lawyer is negligent in determining whether the representation of a client may be materially affected by the lawyer's own interest, or whether the representation will adversely affect another client, and causes injury or potential injury to a client. Standard 7.2 provides suspension is generally (continued...) 5

3

substantial experience in the practice of law. In addition to the mitigating factors cited by the committee, the board also recognized respondent's full and free disclosure with the disciplinary process and remorse. Considering these factors, the board recommended that respondent be suspended from the practice of law for a period of sixty days, fully deferred, subject to a six month probation and completion of Louisiana State Bar Association's Ethics School. One board member objected to the leniency of the proposed sanction given the nature of the prohibited transaction and the injury invoked on Mrs. Parham's heirs. Both parties filed an objection to the board's findings and recommendation. Based on such, the matter was docketed for briefing and argument in accordance with Supreme Court Rule XIX,

Download 2002-B-2721 IN RE: LEE C. GREVEMBERG.pdf

Louisiana Law