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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. Your article is a good intro the recent amendments to Fed.R.Civ.P. For a much longer - though not necessarily better -- summary, counsel might want to read THE CHIEF UMPIRE IS CHANGING THE STRIKE ZONE, which I co-authored and which was just published in the January issue of THE VERDICT (the monthly publication of the Indiana Trial Lawyers Association).

  2. Thank you, John Smith, for pointing out a needed correction. The article has been revised.

  3. The "National institute for Justice" is an agency for the Dept of Justice. That is not the law firm you are talking about in this article. The "institute for justice" is a public interest law firm. http://ij.org/ thanks for interesting article however

  4. I would like to try to find a lawyer as soon possible I've had my money stolen off of my bank card driver pressed charges and I try to get the information they need it and a Social Security board is just give me a hold up a run around for no reason and now it think it might be too late cuz its been over a year I believe and I can't get the right information they need because they keep giving me the runaroundwhat should I do about that

  5. It is wonderful that Indiana DOC is making some truly admirable and positive changes. People with serious mental illness, intellectual disability or developmental disability will benefit from these changes. It will be much better if people can get some help and resources that promote their health and growth than if they suffer alone. If people experience positive growth or healing of their health issues, they may be less likely to do the things that caused them to come to prison in the first place. This will be of benefit for everyone. I am also so happy that Indiana DOC added correctional personnel and mental health staffing. These are tough issues to work with. There should be adequate staffing in prisons so correctional officers and other staff are able to do the kind of work they really want to do-helping people grow and change-rather than just trying to manage chaos. Correctional officers and other staff deserve this. It would be great to see increased mental health services and services for people with intellectual or developmental disabilities in the community so that fewer people will have to receive help and support in prisons. Community services would like be less expensive, inherently less demeaning and just a whole lot better for everyone.

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