In re Szymkowicz, 14–BG–0884.

• Decision Date: 17 September 2015
• Docket Number: No. 14–BG–0884.,14–BG–0884.
• Citation: 124 A.3d 1078
• Parties: In re John T. SZYMKOWICZ, John P. Szymkowicz, Leslie Silverman, Robert King, Respondents. Members of the Bar of the District of Columbia Court of Appeals (Bar Registration Nos. 946079, 462146, 448188, and 922575).
• Court: D.C. Court of Appeals

124 A.3d 1078

In re John T. SZYMKOWICZ, John P. Szymkowicz, Leslie Silverman, Robert King, Respondents.

Members of the Bar of the District of Columbia Court of Appeals (Bar Registration Nos. 946079, 462146, 448188, and 922575).

No. 14–BG–0884.

District of Columbia Court of Appeals.

Argued June 3, 2015.

Decided Sept. 17, 2015.

Robert N. Levin, Gaithersburg, MD, for respondents John T. Szymkowicz and John P. Szymkowicz.

Melvin G. Bergman, Greenbelt, MD, for respondents Leslie Silverman and Robert King.

Julia L. Porter, Senior Assistant Bar Counsel, with whom Wallace E. Shipp, Jr., Bar Counsel, and Jennifer P. Lyman, Senior Assistant Bar Counsel, were on the brief for Bar Counsel.

Opinion

PER CURIAM:

The Board on Professional Responsibility concluded that respondent John T. Szymkowicz, his son respondent John P. Szymkowicz, and respondent Leslie Silverman did not violate any Rules of Professional Conduct in connection with their representation of Genevieve Ackerman. The Board further found that respondent Robert King violated only Rule of Professional Conduct 1.5(b), by failing to provide Ms. Ackerman with a written retainer agreement. The Board recommends that Mr. King be informally admonished. Mr. King does not contest that finding and recommendation. Bar Counsel challenges the Board's determinations that respondents did not violate Rule 1.7, which relates to conflict of interest, and Rule 8.4, which relates to dishonesty. We accept the Board's determinations with respect to Rule 8.4, but remand for further proceedings with respect to conflict-of-interest issues arising from respondents' representation of Ms. Ackerman.

I.

Except where noted, the following facts are undisputed. In May 2002, Ms. Ackerman, who was then eighty-five years old, executed a trust. The trust was intended to support Ms. Ackerman during her lifetime but also to provide support for her son, Dr. Stephen Ackerman. Trust assets included Ms. Ackerman's home on Plymouth Street, NW in Washington, D.C., an interest in a house on North Carolina Avenue, SE in Washington, D.C., and a condominium in Sea Colony, Delaware. Dr. Ackerman lived in the North Carolina Avenue house. Upon Ms. Ackerman's death, trust assets were to be divided equally between Dr. Ackerman and his sister, Mary Frances Abbott. The trust made monthly payments to Dr. Ackerman, which were to be treated as advances of Dr. Ackerman's share of the trust assets. Frank Abbott, Ms. Abbott's husband, was named trustee, and Ms. Abbott was named successor trustee. Revocation of the trust required approval of the trustee. The trust also contained a no-contest provision, providing that anyone who challenged the trust would lose beneficiary status under the trust.

In the summer of 2002, Dr. Ackerman retained the Szymkowiczes to challenge the trust. Dr. Ackerman contended that Ms. Ackerman wanted him to have the Sea Colony property, which therefore should be excluded from the trust assets. The Szymkowiczes subsequently filed suit (“Ackerman I”) in Superior Court on behalf of Dr. Ackerman to remove Mr. Abbott as the trustee and to reform the trust by excluding the Sea Colony property from the trust assets. In connection with that lawsuit, Mr. J.T. Szymkowicz met with Ms. Ackerman and obtained an affidavit stating that Ms. Ackerman had intended to leave the Sea Colony property to Dr. Ackerman rather than placing the property into the trust, that she wanted to name Dr. Ackerman as a co-trustee, and that she wanted to eliminate the no-contest clause because she had not intended to include such a clause in the trust.

A number of health professionals evaluated Ms. Ackerman's condition in 2004. In January 2004, Dr. Lila McConnell, Ms. Ackerman's doctor, concluded that Ms. Ackerman had significant cognitive impairment and would likely be unable to participate in intense questioning. In June 2004, Dr. William Polk found that Ms. Ackerman suffered from mild dementia

and depression but that her thoughts were “logical and organized” and that she had the “capacity to make health care and personal decisions for herself.” Finally, Dr. Paulo Negro reported in August 2004 that Ms. Ackerman suffered from dementia and cognitive impairment and was “unable to exercise proper judgment.”

In August 2004, Dr. Ackerman obtained a power of attorney (POA) from Ms. Ackerman. Ms. Ackerman had previously granted a POA to Ms. Abbott in 1999. Ms. Ackerman revoked Dr. Ackerman's POA in November 2004. Ms. Ackerman subsequently executed several additional documents granting a POA to Dr. Ackerman.

Ms. Ackerman's greatest desire was to restore peace to her family. In December 2004, Mr. J.T. Szymkowicz told Ms. Ackerman that Dr. Ackerman would drop his lawsuit in Ackerman Iif she would revoke the trust entirely and transfer the trust assets back to herself. In May 2005, the Szymkowiczes began to also represent Ms. Ackerman. The same month, the Szymkowiczes filed a suit in Superior Court, on behalf of Ms. Ackerman, seeking to revoke the trust (“Ackerman II”). Dr. Ackerman did not drop Ackerman Iafter the filing of Ackerman II.

After holding a trial in May 2005, the trial court in Ackerman Iruled in favor of the Abbotts and the trust, finding that there was no basis to reform the trust and that the no-contest provision was valid and enforceable. Ackerman v. Genevieve Ackerman Family Tr.,908 A.2d 1200, 1202 (D.C.2006). This court affirmed the trial court's judgment.Id.at 1201–04.

Ms. Ackerman was also evaluated by doctors in 2006. Dr. Negro concluded in March 2006 that Ms. Ackerman's ability to process complex information was limited, that Ms. Ackerman did not know which papers she had signed with respect to Dr. Ackerman's POA, and that Ms. Ackerman suffered from dementia. Dr. Richard Ratner agreed, based on observations in February and May 2006, that Ms. Ackerman showed some signs of dementia and that her memory was “problematic.” Dr. Ratner concluded, however, that Ms. Ackerman was steady in her desire to grant a POA to Dr. Ackerman and in her belief that the Abbotts had not appropriately consulted Ms. Ackerman about her finances. Ultimately, Dr. Ratner concluded that Ms. Ackerman was competent to revoke the trust and grant a POA to Dr. Ackerman.

In March 2007, Mr. J.T. Szymkowicz withdrew from Ackerman IIbased on a concern that he might be called as a witness by the defense. It is unclear whether Mr. J.T. Szymkowicz withdrew from representing Ms. Ackerman altogether. At Mr. J.T. Szymkowicz's recommendation, Ms. Ackerman hired Ms. Silverman to represent Ms. Ackerman in Ackerman II.Toward the beginning of the representation, Ms. Silverman consulted Ms. Ackerman about the litigation for about an hour and a half. Mr. J.T. Szymkowicz and Dr. Ackerman were present at that meeting. Dr. Ackerman paid for Ms. Silverman's services from Ms. Ackerman's funds. In making decisions with regard to the representation, Ms. Silverman consulted with Dr. Ackerman, who held a POA for Ms. Ackerman. Ms. Silverman enlisted Mr. King to help represent Ms. Ackerman in Ackerman II.

After a trial in July 2007, the trial court in Ackerman IIupheld the trust, concluding that Mr. Abbott, as trustee, had not approved revocation of the trust and that there was no basis for removing Mr. Abbott as trustee or ordering an accounting. At the trial, Ms. Ackerman could not remember that a trust had been executed, who had prepared the trust, that Dr. Ackerman had filed suit in Ackerman I,or that Mr. Abbott was the trustee. The trial court did not decide the disputed question whether Ms. Ackerman had capacity to file the lawsuit.

At various times during 2007, Dr. Ackerman, Mr. J.T. Szymkowicz, and Ms. Silverman worked to prevent Mr. Abbott from selling Ms. Ackerman's interest in the North Carolina Avenue property, where Dr. Ackerman was living. In addition, Mr. J.T. Szymkowicz drafted (1) a document assigning Ms. Ackerman's interest in the North Carolina Avenue property, as well as other interests, to Dr. Ackerman for $1; and (2) a new will pursuant to which Ms. Ackerman made Dr. Ackerman the personal representative of her estate and removed the trust as beneficiary. Mr. J.T. Szymkowicz sent those documents to Ms. Silverman as “draft models from which to work.” Ms. Ackerman subsequently executed those documents.

In September 2007, Mr. Abbott filed suit in Superior Court seeking a declaration that Ms. Ackerman's interest in the North Carolina Avenue property was part of the trust property. The trial court granted the requested relief. Ms. Silverman noted an appeal on behalf of Ms. Ackerman, but that appeal was later dismissed because Ms. Silverman took no further action in the matter. Dr. Ackerman, represented by the Szymkowiczes, also appealed, and this court affirmed the trial court's ruling. Ackerman v. Abbott,978 A.2d 1250 (D.C.2009).

In November 2007, Dr. Ackerman filed a pro se petition with the probate court alleging that Ms. Ackerman was incapacitated, because she was legally blind, and seeking to be named Ms. Ackerman's guardian and conservator. Dr. Ackerman later withdrew that petition. Meanwhile, Ms. Abbott filed a petition in March 2008 seeking to be named Ms. Ackerman's guardian and conservator. Although the probate court appointed an attorney to represent Ms. Ackerman in the matter, Dr. Ackerman also retained Mr. King to act as Ms. Ackerman's attorney in the matter. In June 2008, the probate court ruled that Ms. Ackerman had not been competent after 2004. The probate court further found that the POAs granted to Dr. Ackerman were invalid. The probate court nevertheless declined to appoint Ms. Abbott guardian or conservator, because the 1999 POA, which the court found to be valid, gave Ms. Abbott sufficient authority to manage Ms. Ackerman's affairs.

II.

After Ms. Abbott complained to Bar Counsel about respondents' actions, Bar Counsel brought charges against respondents alleging, in presently pertinent part, violations of Rules 1.5(b) (failure to provide engagement letter) (King), 1.6...