In re Cook

• Decision Date: 06 January 2009
• Docket Number: No. 08-3026.,08-3026.
• Citation: 551 F.3d 542
• Parties: In re Linda S. COOK.
• Court: U.S. Court of Appeals — Sixth Circuit

551 F.3d 542

In re Linda S. COOK.

No. 08-3026.

United States Court of Appeals, Sixth Circuit.

Argued October 30, 2008.

Decided and Filed January 6, 2009.

ARGUED: Robert H. Golden, Golden and Kunz, P.C., Lathrup Village, Michigan, for Appellant. ON BRIEF: Robert H. Golden, Golden and Kunz, P.C., Lathrup Village, Michigan, for Appellant.

Before CLAY, GILMAN, and ROGERS, Circuit Judges.

CLAY, J., delivered the opinion of the court in which, GILMAN, J., joined. ROGERS, J. (p. 555), delivered a separate concurring opinion.

OPINION

CLAY, Circuit Judge.

Linda S. Cook appeals from an order of disbarment entered against her by the United States District Court for the Northern District of Ohio. Cook's disbarment by the district court follows on the heels of her Ohio state disbarment. On appeal, Cook raises two fundamental claims: (1) that the Ohio courts denied her due process during her state disbarment proceedings; and (2) that these due process violations in her state disbarment proceedings tainted the district court's proceedings.

As to Cook's first claim, this Court lacks jurisdiction to consider directly whether Cook's state disbarment proceedings violated her due process rights. Moreover, even if we could consider the issue, Cook's claim fails on the merits. As to the second issue, we find nothing in the record to support Cook's claim. Therefore, we affirm the district court's order permanently disbarring Cook from the practice of law before the United States District Court for the Northern District of Ohio.

I.

The Supreme Court of Ohio disbarred Cook on July 11, 2007. On December 10, 2007, the district court followed suit. The Supreme Court of Ohio and the district court disbarred Cook based on the same set of facts.

Prior to her disbarment, Cook was an attorney engaged primarily in estate and Medicaid planning in Ohio and Michigan. Sometime in 2000, Cook was engaged to prepare several estate documents for an elderly client, Esther Benfer, including: (1) a revocable living trust agreement; (2) a last will and testament; (3) a comprehensive durable power of attorney; (4) a durable special power of attorney; (5) an assignment of tangible personal property; and (6) a quit-claim deed for a parcel of property owned by Ms. Benfer (the "Benfer Farm"). The documents prepared by Cook contained the following features: (1) the revocable living trust agreement named Cook as co-trustee along with Ms. Benfer; (2) the last will and testament named Cook as the personal representative of the will; (3) the comprehensive durable power of attorney named Cook as the responsible agent; (4) the durable special power of attorney named Cook as attorney-in-fact; and (5) the assignment of tangible personal property assigned Ms. Benfer's property to the Esther J. Benfer Living Trust and named Cook as the trustee. Despite these features, Cook did not advise Ms. Benfer that she should secure independent and disinterested advice from other counsel before signing any of these documents. Other than the quit-claim deed, all of these documents were dated June 8, 2001.

As to the quit-claim deed, the story is more complicated. Although the quit-claim deed prepared by Cook was dated May 20, 1998, it was recorded in the Fulton County Recorder's Office on July 12, 2001. The deed transferred the Benfer Farm to Cook as "Trustee." Shortly after the deed was recorded, Cook altered the deed by crossing out the word "Trustee" and inserting the word "Married." The altered deed was recorded on September 10, 2001. Around this time, Cook also prepared another quit-claim deed transferring Cook's personal title to the Benfer Farm to the Metamora United Methodist Church. Although this third deed was dated December 25, 2000, it was not recorded until December 13, 2001.

Cook acknowledges that the May 20, 1998 date on the original deed was inaccurate, but argues that the backdating was unintentional. According to Cook, she directed someone on her staff to prepare the deed and other documents. Once the documents were prepared, Cook claims that she reviewed them for errors and made notations regarding necessary revisions for her staff to make. Cook then scheduled an appointment to have Ms. Benfer come into Cook's office to review and sign the documents. Before the scheduled appointment, however, Cook claims that Ms. Benfer telephoned Cook to ask if Ms. Benfer could come into Cook's office on an earlier date to sign the deed. Although Cook was not going to be in the office that day, she informed Ms. Benfer that someone on her staff would present the necessary documents for signing. Cook "surmise[s]" that, when Ms. Benfer came into the office, Cook's staff must have been unable to locate the deed, and, in an attempt to cover up the mistake, someone on her staff used a deed previously prepared for another client as a template to create a new deed for Ms. Benfer. According to Cook, her staff must have overlooked the 1998 date, and also mistakenly listed Cook as a trustee.

Cook claims that she corrected the allegedly clerical error listing her as a trustee as soon as she became aware of it, but insists that she did not notice at that time that the date on the deed also was mistaken. In fact, Cook asserts that she first learned of the dating error when she received notice of the Toledo Bar Association's disciplinary complaint against her in April of 2005.

The record casts serious doubt on Cook's story. Most notably, the significance of backdating the deed to May 20, 1998 raises serious questions regarding the credibility of Cook's assertion that the error resulted from a simple and unintentional clerical oversight by her staff. When Ms. Benfer first engaged Cook's services, Ms. Benfer expressed her desire to leave her farm as a gift to the United Methodist Church. Cook was concerned, however, that transferring the property to the Church would jeopardize Ms. Benfer's eligibility for Medicaid benefits because the value of the property would be included in Ms. Benfer's Medicaid eligibility determination should she need to move to an assisted living facility. See 42 U.S.C. § 1396p(c)(1) (providing that the transfer of non-exempt "assets," such as an applicant's home, for less than fair market value within the required "look-back" period renders the applicant ineligible for assistance). Medicaid eligibility determinations require a five-year "look-back" period for assets transferred to a trust, but only a three-year "look-back" period for assets transferred to an individual. Id. at § 1396p(c)(1)(B)(i). Consequently, because the Benfer Trust was established on June 8, 2001, any assets not divested to an individual before at least June 8, 1998 potentially would count against Ms. Benfer's Medicaid eligibility. In this context, if the backdating was an honest mistake, it seems a remarkable coincidence that the May 20, 1998 date, when taken together with the fact that the altered deed transferred the Benfer Farm to Cook as an individual rather than a trustee, effectively removed the value of the property from Ms. Benfer's Medicaid eligibility determination.

Furthermore, because Cook ultimately transferred her personal title to the Benfer Farm to the United Methodist Church, Cook became eligible for significant income tax deductions based on her donation of the property to a qualified charitable organization.¹ See 26 U.S.C. § 170(b)(1)(A)(i). Taking full advantage of that benefit, Cook took a $56,804 deduction on her 2000 income tax return.² Indeed, all told, Cook took nearly $225,000 in income tax deductions from 2000 to 2004, all based ostensibly on her donation of the Benfer Farm to the Church.³

The record also reveals several other inconsistencies with Cook's account. First, at least one person on Cook's staff testified at Cook's August 2006 state disbarment hearing that she remembered Cook's discussing the dating "error" with the staff at a meeting in 2001. Second, Cook's 2000 income tax return stated that she received title to the Benfer Farm in 1997. Third, in an attempt to protect her decision to avail herself of the available tax deduction, Cook prepared a typewritten note signed by Ms. Benfer and dated August 30, 2001 that states: "I, Esther Benfer, give Linda S. Cook permission to write off on her income tax return the gift of real property that I gave her in 1998 and she gave to the Metamora United Methodist Church on December 25, 2000." Fourth, in a sworn letter responding to the initial disciplinary inquiry letter from the Toledo Bar Association, Cook maintained that the 1998 date on the original deed was correct. Taken together, these inconsistencies cast grave doubt on the credibility of Cook's story.

Cook's subsequent actions also played a role in her disbarment. Nearly three years after Cook transferred title to the Benfer Farm to the Church, Attorney Jeffrey L. Robinson wrote a letter to Cook advising her that he now represented Ms. Benfer. The letter directed Cook to refrain from communicating with Ms. Benfer, and included a letter signed by Ms. Benfer revoking Cook's power of attorney. The letter also inquired as to the status of Ms. Benfer's tangible personal property, alleging that Cook improperly had taken Ms. Benfer's belongings, and notifying Cook that Ms. Benfer wanted her personal property returned. The letter was hand delivered to Cook on April 20, 2004.

Disregarding the letter from Mr. Robinson, Cook drafted that same day a "Petition for Appointment of Guardian of Incapacitated Individual." The petition requested that Cook be appointed Ms. Benfer's guardian, and stated that Cook was acting as Ms. Benfer's "Attorney and Power of Attorney." In support of her request, Cook stated in the petition that Ms. Benfer "lack[ed] sufficient understanding or capacity to make or communicate informed decisions due to ... physical illness or disability."⁴

Apparently unconcerned by the fact that she had just filed a petition stating that Ms....