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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. File under the Sociology of Hoosier Discipline ... “We will be answering the complaint in due course and defending against the commission’s allegations,” said Indianapolis attorney Don Lundberg, who’s representing Hudson in her disciplinary case. FOR THOSE WHO DO NOT KNOW ... Lundberg ran the statist attorney disciplinary machinery in Indy for decades, and is now the "go to guy" for those who can afford him .... the ultimate insider for the well-to-do and/or connected who find themselves in the crosshairs. It would appear that this former prosecutor knows how the game is played in Circle City ... and is sacrificing accordingly. See more on that here ... http://www.theindianalawyer.com/supreme-court-reprimands-attorney-for-falsifying-hours-worked/PARAMS/article/43757 Legal sociologists could have a field day here ... I wonder why such things are never studied? Is a sacrifice to the well connected former regulators a de facto bribe? Such questions, if probed, could bring about a more just world, a more equal playing field, less Stalinist governance. All of the things that our preambles tell us to value could be advanced if only sunshine reached into such dark worlds. As a great jurist once wrote: "Publicity is justly commended as a remedy for social and industrial diseases. Sunlight is said to be the best of disinfectants; electric light the most efficient policeman." Other People's Money—and How Bankers Use It (1914). Ah, but I am certifiable, according to the Indiana authorities, according to the ISC it can be read, for believing such trite things and for advancing such unwanted thoughts. As a great albeit fictional and broken resistance leaders once wrote: "I am the dead." Winston Smith Let us all be dead to the idea of maintaining a patently unjust legal order.

  2. The Department of Education still has over $100 million of ITT Education Services money in the form of $100+ million Letters of Credit. That money was supposed to be used by The DOE to help students. The DOE did nothing to help students. The DOE essentially stole the money from ITT Tech and still has the money. The trustee should be going after the DOE to get the money back for people who are owed that money, including shareholders.

  3. Do you know who the sponsor of the last-minute amendment was?

  4. Law firms of over 50 don't deliver good value, thats what this survey really tells you. Anybody that has seen what they bill for compared to what they deliver knows that already, however.

  5. As one of the many consumers affected by this breach, I found my bank data had been lifted and used to buy over $200 of various merchandise in New York. I did a pretty good job of tracing the purchases to stores around a college campus just from the info on my bank statement. Hm. Mr. Hill, I would like my $200 back! It doesn't belong to the state, in my opinion. Give it back to the consumers affected. I had to freeze my credit and take out data protection, order a new debit card and wait until it arrived. I deserve something for my trouble!

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