Opinion
Docket No. DRB 14-233
01-28-2016
Disciplinary Review Board
District Docket No. XIV-2011-0599E Dissent
The majority has recommended that respondent be censured for his misconduct in this matter. We dissent from that determination for the reasons that follow. We strongly believe that at least a three-month suspension is warranted for respondent's improper business transaction with his client, Marcella DeLeeuw.
Respondent borrowed $89,000 from DeLeeuw, a longtime client who was eighty-six years of age. Respondent initially sought to borrow $100,000 from her. Entrusted with DeLeeuw's durable power of attorney and full knowledge of her finances at the time, respondent was well aware that $89,000 represented seventy-five percent of her total assets.
Although respondent claims to have orally told DeLeeuw of the advisability of consulting independent counsel, he did not obtain her written consent to waive the inherent conflict of interest that arose from his actions. DeLeeuw's grievance claimed that respondent did not suggest that she seek the advice of another attorney. Unfortunately, she passed away before she could be questioned further about the events in the case. Nevertheless, we believe that, had DeLeeuw been represented by independent counsel, she would have been dissuaded from entering into this lopsided, risky, and unfair transaction. We find it telling that respondent did not provide DeLeeuw with security for the loan by encumbering any of his own assets — something that any right-minded attorney would have insisted upon.
Furthermore, the note was to be repaid in August 2008, just two months after the loan was taken. We are convinced that respondent knew, all along, that he could not repay such a loan. Already swimming in debt, respondent had pressing obligations that included mortgages on his primary residence and vacation home, as well as college tuition payments.
Foreseeably, respondent did not pay off the note when due. DeLeeuw was so upset about the overdue nature of the note that she could not even discuss it with Paul A. Dykstra, the attorney whom she retained a few months later, in October 2008, to revise her will.
We also consider respondent's lack of remorse for his actions, as observed by the District Ethics Committee. We are dismayed that respondent could cause such strife in the life of an elderly, vulnerable, and trusting client's waning days, with little care for the harm that it caused her.
To our minds, respondent's actions border on elder abuse and warrant more severe discipline than the censure that the majority recommended. We would impose a three-month suspension.
Disciplinary Review Board
Bonnie F. Frost, Chair
Robert C. Zmirich
By: /s/_________
Ellen A. Brodsky
Chief Counsel