Conduct of Morin, In re
| Decision Date | 27 September 1994 |
| Parties | In re Complaint as to the CONDUCT OF Volney F. MORIN, Jr., Accused. OSB 92-72; SC S40995. |
| Court | Oregon Supreme Court |
The trial panel found that the accused violated all the charged provisions and recommended disbarment. We review de novo. ORS 9.536(3). We find that the accused committed seven of the 10 charged violations and order that he be disbarred.
The facts relating to this case are undisputed. The accused was licensed to practice law in California in 1974 and was admitted to practice law in Oregon in 1984. During the spring of 1988, the accused began conducting "living trust" seminars and selling "living trust packages," which included pour-over wills and directives to physicians.
The accused and two of his employees, who were paralegals, travelled throughout Oregon and northern California, conducting seminars and preparing the living trust packages. If a person at a seminar indicated that he or she was interested in discussing a living trust package, the accused or one of the paralegals would make an appointment and return to meet with the client. The accused or the paralegal would gather information from the client and then prepare the documents for the living trust package in the accused's Medford office.
At trial, Monnett, a paralegal employed by the accused, testified that he usually travelled alone, conducted seminars before groups, collected information from prospective clients, and assisted clients in executing the documents contained in the trust packages. He testified that the questions that he answered at the seminars were general and did not apply to individual clients' problems.
Monnett also testified that, during meetings with individual clients, he read their wills and explained to them the operative parts of the will. He also testified that he inquired into the clients' assets and advised them whether or not they needed a trust. 1 He reviewed the trusts and other legal documents with the clients. Some of the clients never met the accused and dealt only with Monnett throughout the process. Both Monnett and the other paralegal employed by the accused, Pesterfield, testified that the accused instructed them to call him if they had legal questions. Both also testified that they believed that the accused reviewed all the documents that were prepared because he signed all of them and because occasionally he discussed the contents of the documents with Monnett.
Ordinarily, after the documents were prepared, the accused or one of the paralegals scheduled an additional appointment with the client to execute the documents. Two of the documents required the signatures of two witnesses to be valid--the pour-over will 2 and the directive to physicians. 3 On the pour-over will, the language immediately preceding the witnesses' signatures provided:
"The foregoing instrument was, on the date above written, signed and declared by the Testatrix[or] to be her [or his] Last Will and Testament in the presence of us, who at her [or his] request and in her [or his] presence and in the presence of each other, have hereunto subscribed our names as witnesses and we hereby certify that we believe the Testatrix[or] to be of sound mind and memory and under no undue influence."
Just below the signatures of the witnesses, the following jurat appeared:
On the directives to physicians, the language immediately preceding the place for witness signatures on the directive to physicians provided:
The accused testified that clients in the Medford and Ashland area ordinarily executed the documents in the living trust packages in the accused's office, where the accused's office staff members served as witnesses. When the accused or the paralegals executed documents at seminar sites, however, it was difficult for them to have the wills and directives to physicians witnessed.
The accused and the paralegals began a practice of taking the wills and directives to physicians back to the accused's office in Medford after they were signed by the clients at the seminar sites and directing the office staff to sign the documents as witnesses. The signatures of the "witnesses" on the wills were notarized either by the accused or by one of his employees. The signatures on the directives to physicians were not notarized. The accused then mailed the signature pages back to the clients.
In July 1990, the accused received a letter from a lawyer questioning whether the will of one of the accused's clients, Shumway, had been witnessed properly. In response, the accused did not change the practice of "witnessing" outside the presence of the client but changed the form letter that was sent to clients to delete the reference to how his office staff had witnessed the will outside the client's presence. In January 1992, the accused received another letter about the Shumway will from the same lawyer. In response, the accused admitted that he had caused Shumway to sign her will and later to have it witnessed by people who were not present at the time the documents were executed.
The accused sent a copy of the lawyer's letter and a copy of his response to the Oregon State Bar. The Bar wrote to the accused, asking him to respond to the allegations made by the other lawyer. The accused responded, stating, among other things:
The Bar assigned the matter to the Local Professional Responsibility Committee (LPRC) for investigation. Both the accused and his secretary denied to the LPRC investigator that the accused's conduct with regard to the Shumway will was part of a larger pattern. They both stated that the improper witnessing of the Shumway will had been a one-time occurrence. Following the investigation, the State Professional Responsibility Board (SPRB) authorized formal charges regarding the Shumway matter. In his answer, the accused stated that "[t]his mistake was an isolated incident and I have made a full disclosure of all relevant facts to the representatives of the Oregon State Bar Association [sic]."
Just before the originally scheduled disciplinary trial, the accused's secretary, who was no longer employed by the accused, admitted that she had lied to the LPRC investigator and that she had "witnessed" many wills and directives to physicians in the same manner as the Shumway will. The trial was continued, and the Bar filed an Amended Complaint, alleging several new disciplinary violations. In the accused's second amended answer, the accused admitted that he had The accused stated before the trial panel that he knew that a will is invalid unless it is either executed or affirmed by the testator in the presence of two witnesses. He also testified that part of the fee he charged his clients was for a valid will and that he understood that his clients believed that they were receiving valid wills as part of the living trust packages.
caused the wills and directives to physicians of approximately 300 clients to be executed outside the presence of the witnesses, who later signed the wills and directives to physicians.
In December 1993, the trial panel found that the accused had violated all the charges alleged in the Bar's amended formal complaint. We consider each cause of complaint in turn.
In its first and second causes of complaint, 4 the Bar alleges that the accused committed four disciplinary rule violations and a statutory violation.
DR 1-102(A)(3) provides:
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