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Law firm files class-action lawsuit for estate planning UPL

January 25, 2011

A Logansport law firm has filed a class-action lawsuit against an Indianapolis company that the state’s highest court last year determined engaged in the Unauthorized Practice of Law, suing on behalf of thousands of residents for what attorneys estimate could be $10 million to $20 million in damages.

Filed Monday in Fulton Circuit Court, the lawsuit by Starr Austen & Miller alleges constructive fraud, contractual claim violations, conversion, and disgorgement of fees due to UPL. The suit currently names Donald A. Bonnell of Kewanna as the sole plaintiff, but it contends a larger class of 2,000 or more people could have valid claims against United Financial Systems Corporation.

The company is the subject of a UPL case brought by the Indiana State Bar Association in late 2008 and ruled on by the state justices in April 2010. The court decided the company was illegally practicing law in what has been described as a trust mill for preparing and selling estate planning documents and services to people.

In State of Indiana, Ex. Rel. Indiana State Bar Association v. United Financial Systems Corp., No. 84S00-0810-MS-551, the Indiana Supreme Court determined that UFSC should have known what it was doing was UPL and ordered that disgorgement of fees the company received from its UPL should be returned. All of the Indiana estate plan customers going back to 1995 were to be notified of the decision, but the company refused to pay those refunds immediately and the justices in December ordered UFSC to notify those customers and return the fees as previously ordered.

An exact figure of refunds or claims isn’t outlined in the order or in court filings. However, the court’s ruling provided context for the potential amount: from October 2006 through May 2009, the company’s Indiana business included 1,306 estate plans grossing more than $2.7 million. Nationally, 18.8 percent of UFSC’s total income was reported to have come from estate planning services in this state.

The new lawsuit picks up where that UPL action left off, though Bonnell was not a party to the ISBA action and, as of now, none of the potential plaintiffs were involved in that suit, according to attorney Mario Massillamany.

The attorneys estimated that damages could be as high as $10 million to $20 million, though that number depends on the ultimate number of plaintiffs. Bonnell’s damages alone encompass about $2,495 for the estate planning services.

Specifically, the suit targets how UFSC’s non-attorney agents delivered the estate plan documents and supervised their execution without a lawyer being present. Bonnell contacted the company in 2002 for estate planning services after seeing an advertisement from an AARP publication, and a non-attorney arranged a meeting with him where they went over marketing materials and signed an agreement. Among the terms of that agreement were that UFSC “would not interfere with the attorney’s independent professional judgment,” but at the meeting the non-attorney agent made the legal determination and recommendation as to what estate plan Bonnell needed. While a “panel attorney” later reviewed the documents, Bonnell alleges that a lawyer never appeared at the meetings.

“With utter disregard and recklessness, UFSC concealed the fact that it could not make the determination as to what estate plan is proper for the Plaintiff nor prepare the estate planning documents for Plaintiff, from that UFSC’s knowledge of the concealment can be inferred,” the suit says. “UFSC concealed its inability to create and implement an estate plan with the intent to mislead Plaintiff into reliance upon UFSC’s omission. As a result of the foregoing, Plaintiff has suffered or will suffer damages by having to incur legal fees for an analysis, revision, or replacement of the UFSC estate plan documents by an Indiana licensed attorney.”

The first and only time Bonnell has received notice about the UPL decision was on Jan. 17, 2011, according to the lawsuit, and he has still not recovered the fees ordered for refund from the Indiana Supreme Court. The suit says that a notice the company sent includes the language, “the purpose of this notice is to provide each customer with the opportunity to make an informed decision regarding their estate planning needs and take any other action that may be appropriate.”

Naming the company, the other defendants in the case are Richard and Jane Follett, Richard L. Follett II, Beau R. Follett, Jody Waugh, Raymond C. Phillips, Linda Dishong, L. Kay Larsen, John Joyce, Gary Lovelady, Sharon Dorsey, Sherry Jordan, Douglas J. Lalama, Andrew Mark Eads, Katie Jackel, and James Boyles.

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