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Justices: Attorneys must consult with clients

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The Indiana Supreme Court has suspended for three months a longtime attorney who prepared wills for clients without ever personally consulting with them.

Issuing an order In the Matter of Paul J. Watts, No. 60S00-0809-DI-510, the justices ruled 4-1 that Spencer-based attorney Paul J. Watts, who's been practicing since 1974, should be suspended for 120 days starting Jan. 29, 2010. The order was posted online today and is dated Dec. 22.

The case stems from a previous disciplinary action involving Bloomington attorney David J. Colman, whom the justices suspended in May 2008 for three years after finding he'd engaged in attorney misconduct on multiple estate planning tasks through the years. Three justices opted for the suspension, while Chief Justice Randall T. Shepard and Justice Brent Dickson wanted disbarment because this was his fourth disciplinary proceeding since being admitted in 1970. That decision came with the order, Matter of Colman, 885 N.E.2d 1238 (Ind. 2008).

In Watts' case, Colman had consulted with G.A. - a 95-year-old man who lived alone and was hospitalized with a broken hip - in 2004 about his need for a will, and Colman contacted Watts to prepare the will. G.A. was concerned about the state ending up with his assets upon his death, and he agreed to name Colman as his sole primary beneficiary with Colman's son as a contingent beneficiary.

Colman met and discussed the issues with G.A. privately and Watts never met with G.A. or discussed the will with him, though one of Watts' paralegals did contact the man's physician and caseworker and communicated with Colman. The paralegal also went over the final will with G.A.

A week after the will's execution, Colman filed a petition that he be named as guardian over G.A.'s estate because of what he said was the man's mental incapacitation. He obtained that guardianship role, though the elderly man eventually obtained new counsel and challenged the guardianship and ultimately drafted a new will that left $650,000 to Indiana University's Hilltop Garden and Nature Center, where G.A. had worked as a yardman.

In this disciplinary case, Watts maintained throughout the proceedings that he'd done nothing wrong in failing to communicate with G.A. about the will, instead trusting Colman to communicate on his behalf and delegating to a paralegal any duty to explore G.A.'s competence or wishes about the will. Watts said until this disciplinary issue arose, it was his standard practice to draft wills for elderly, bedfast clients without consulting them and relying instead on information provided by family members in order to minimize legal fees for the clients.

The Disciplinary Commission filed the action against Watts in September 2008, and former Vigo Superior Judge Barbara Brugnaux was named as the hearing officer in this case. Earlier this year, she determined that Watts committed misconduct and recommended that he be suspended. The justices agreed, finding that he violated three Indiana Professional Conduct Rules: 1.4(b) on failure to explain matter to the extent reasonably necessary to permit a client to make informed decisions; 1.7 that involves attorneys representing clients when the representation would be materially limited by attorney's responsibilities to a third person or by a personal interest of the lawyer; and 8.4(a) that prohibits knowingly assisting another to violate the lawyer disciplinary rules, particularly the one prohibiting the preparation of an instrument for a non-relative giving the lawyer or person related to the lawyer a substantial gift.

"Respondent's unwavering argument that he can ethically represent a client without communicating with the client displays a troubling lack of insight into his duty of undivided loyalty to the client," the court wrote. "If fees are a concern, the lawyer's options are to reduce the fees or decline the employment, not conduct it in breach of duty. Irreparable harm may well result if the client dies with a will that does not reflect his or her wishes. The need for independent advice is particularly acute if the client is vulnerable due to age or disability. A desire to minimize a client's legal fees cannot take precedence over the obligation to provide the independent legal counsel for which the fees are paid."

Justices pointed out that despite Watts' "lack of insight" into his misconduct, he no longer uses the no-contact practice with clients that put this case into motion. For that reason, a majority decided that the 120-day suspension is sufficient to give Watts "the opportunity to reflect on his misconduct, reassess his duties to his clients, and take any further corrective action" before being automatically reinstated to practice law.

Justice Frank Sullivan dissented on the discipline, believing it to be insufficient.

Responding to news about the court's disciplinary decision, Watts told Indiana Lawyer today that he regretted that this had happened but wanted to avoid saying much about the ruling itself. He said this is the first disciplinary action against him in 36 years of practicing.

"If there's a lesson to be learned here for the benefit of the bar, it's that you must talk directly to the person for whom you're drafting the will... you can't take it from anyone else," he said. "I thought I'd covered it. Obviously, I was wrong. I'm sorry that I was wrong and I certainly didn't mean to discredit the profession. What else do you say?"
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  1. The $320,000 is the amount the school spent in litigating two lawsuits: One to release the report involving John Trimble (as noted in the story above) and one defending the discrimination lawsuit. The story above does not mention the amount spent to defend the discrimination suit, that's why the numbers don't match. Thanks for reading.

  2. $160k? Yesterday the figure was $320k. Which is it Indiana Lawyer. And even more interesting, which well connected law firm got the (I am guessing) $320k, six time was the fired chancellor received. LOL. (From yesterday's story, which I guess we were expected to forget overnight ... "According to records obtained by the Journal & Courier, Purdue spent $161,812, beginning in July 2012, in a state open records lawsuit and $168,312, beginning in April 2013, for defense in a federal lawsuit. Much of those fees were spent battling court orders to release an independent investigation by attorney John Trimble that found Purdue could have handled the forced retirement better")

  3. The numbers are harsh; 66 - 24 in the House, 40 - 10 in the Senate. And it is an idea pushed by the Democrats. Dead end? Ummm not necessarily. Just need to go big rather than go home. Nuclear option. Give it to the federal courts, the federal courts will ram this down our throats. Like that other invented right of the modern age, feticide. Rights too precious to be held up by 2000 years of civilization hang in the balance. Onward!

  4. I'm currently seeing someone who has a charge of child pornography possession, he didn't know he had it because it was attached to a music video file he downloaded when he was 19/20 yrs old and fought it for years until he couldn't handle it and plead guilty of possession. He's been convicted in Illinois and now lives in Indiana. Wouldn't it be better to give them a chance to prove to the community and their families that they pose no threat? He's so young and now because he was being a kid and downloaded music at a younger age, he has to pay for it the rest of his life? It's unfair, he can't live a normal life, and has to live in fear of what people can say and do to him because of something that happened 10 years ago? No one deserves that, and no one deserves to be labeled for one mistake, he got labeled even though there was no intent to obtain and use the said content. It makes me so sad to see someone I love go through this and it makes me holds me back a lot because I don't know how people around me will accept him...second chances should be given to those under the age of 21 at least so they can be given a chance to live a normal life as a productive member of society.

  5. It's just an ill considered remark. The Sup Ct is inherently political, as it is a core part of government, and Marbury V Madison guaranteed that it would become ever more so Supremely thus. So her remark is meaningless and she just should have not made it.... what she could have said is that Congress is a bunch of lazys and cowards who wont do their jobs so the hard work of making laws clear, oftentimes stops with the Sups sorting things out that could have been resolved by more competent legislation. That would have been a more worthwhile remark and maybe would have had some relevance to what voters do, since voters cant affect who gets appointed to the supremely un-democratic art III courts.

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