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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. CCHP's real accomplishment is the 2015 law signed by Gov Pence that basically outlaws any annexation that is forced where a 65% majority of landowners in the affected area disagree. Regardless of whether HP wins or loses, the citizens of Indiana will not have another fiasco like this. The law Gov Pence signed is a direct result of this malgovernance.

  2. I gave tempparry guardship to a friend of my granddaughter in 2012. I went to prison. I had custody. My daughter went to prison to. We are out. My daughter gave me custody but can get her back. She was not order to give me custody . but now we want granddaughter back from friend. She's 14 now. What rights do we have

  3. This sure is not what most who value good governance consider the Rule of Law to entail: "In a letter dated March 2, which Brizzi forwarded to IBJ, the commission dismissed the grievance “on grounds that there is not reasonable cause to believe that you are guilty of misconduct.”" Yet two month later reasonable cause does exist? (Or is the commission forging ahead, the need for reasonable belief be damned? -- A seeming violation of the Rules of Profession Ethics on the part of the commission) Could the rule of law theory cause one to believe that an explanation is in order? Could it be that Hoosier attorneys live under Imperial Law (which is also a t-word that rhymes with infamy) in which the Platonic guardians can do no wrong and never owe the plebeian class any explanation for their powerful actions. (Might makes it right?) Could this be a case of politics directing the commission, as celebrated IU Mauer Professor (the late) Patrick Baude warned was happening 20 years ago in his controversial (whisteblowing) ethics lecture on a quite similar topic: http://www.repository.law.indiana.edu/cgi/viewcontent.cgi?article=1498&context=ilj

  4. I have a case presently pending cert review before the SCOTUS that reveals just how Indiana regulates the bar. I have been denied licensure for life for holding the wrong views and questioning the grand inquisitors as to their duties as to state and federal constitutional due process. True story: https://www.scribd.com/doc/299040839/2016Petitionforcert-to-SCOTUS Shorter, Amici brief serving to frame issue as misuse of govt licensure: https://www.scribd.com/doc/312841269/Thomas-More-Society-Amicus-Brown-v-Ind-Bd-of-Law-Examiners

  5. Here's an idea...how about we MORE heavily regulate the law schools to reduce the surplus of graduates, driving starting salaries up for those new grads, so that we can all pay our insane amount of student loans off in a reasonable amount of time and then be able to afford to do pro bono & low-fee work? I've got friends in other industries, radiology for example, and their schools accept a very limited number of students so there will never be a glut of new grads and everyone's pay stays high. For example, my radiologist friend's school accepted just six new students per year.

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