IN RE DISCIPLINARY PROCEEDING MILLER

• Decision Date: 24 April 2003
• Docket Number: No. 06234-0.,06234-0.
• Citation: 149 Wash.2d 262,66 P.3d 1069
• Parties: In the Matter of the DISCIPLINARY PROCEEDING AGAINST Steven C. MILLER, Attorney at Law.
• Court: Washington Supreme Court

66 P.3d 1069

149 Wash.2d 262

In the Matter of the DISCIPLINARY PROCEEDING AGAINST Steven C. MILLER, Attorney at Law.

No. 06234-0.

Supreme Court of Washington, En Banc.

Argued January 23, 2003.

Decided April 24, 2003.

Gordon Murray Tilden, Jeffery Tilden, Franklin Cordell, Linda Eide, Seattle, for petitioner.

Henderson & Grow, Clinton Henderson, Clarkston, for respondent.

BRIDGE, J.

The Washington State Bar Association (WSBA) appeals the majority¹ recommendation of the Washington State Bar Association Disciplinary Board (Board) that Steven C. Miller be suspended from the practice of law for 18 months. This recommendation stems from Miller's violations of Rules of Professional Conduct (RPC) 1.8(a), 1.8(c) and 8.4(c). Although the hearing officer for this case recommended disbarment, the Board found that mitigating factors and proportionality review made suspension the more appropriate sanction. We are in agreement with the hearing officer and conclude that Miller should be disbarred.

I Statement of the Facts

Miller was admitted to the WSBA in 1975, and has no prior record of discipline. The charges against Miller arose from his dealings and interactions with his client, Mamie Rose Ottomeier.

Ottomeier was born on May 6, 1908 in Cheney, Washington, and lived there all of her life. She had one sister and four brothers, all of whom predeceased her. She was never married and had no children. When Ottomeier died in 1994, her estate was valued at in excess of $750,000.²

In 1989, Ottomeier began needing assistance with her day-to-day activities because she suffered from diabetes and was losing her sight. Diane Smith, Ottomeier's great niece, moved in with Ottomeier to assist her. When Ottomeier's health further deteriorated, she voluntarily entered the Cheney Care Center in March of 1990. During her stay at this nursing home, Smith visited her at least twice a week. However, Ottomeier became very depressed and started to believe that Smith was the one responsible for placing her in the nursing home. Ottomeier returned to her home in March of 1991, and shortly thereafter accused Smith of stealing various items. These accusations eventually led to Ottomeier and Smith having no further contact with one another.

Miller began doing occasional legal work for Ottomeier beginning in 1982. Prior to 1990, Miller regarded Ottomeier as a friend and occasional client, but he did not have a close personal relationship with her. The legal work Miller did for Ottomeier during this time period included drafting at least two unexecuted wills (February 1990 and March 1991). Miller also prepared a durable power of attorney at Ottomeier's request in February 1990. This document designated him as the attorney-in-fact for Ottomeier in the event of her disability. When Ottomeier wanted to leave the nursing home, Miller was the one who helped her return home. By the summer of 1991, Miller was frequently stopping by Ottomeier's home after work. He brought her food to eat, filled her insulin syringes, and provided companionship. At a time when her need for physical and medical assistance had increased, Miller became extensively involved in Ottomeier's personal affairs, while her contact with family and friends decreased. Miller was aware that Ottomeier was becoming dependent on him. During this time, he continued performing legal work for her.

In September of 1991, Ottomeier informed Miller that she wanted to make changes to her will, including naming Miller a beneficiary under her will. This new will made Miller the residual beneficiary of Ottomeier's estate. Specifically, in the event that Ottomeier's brother, Mills, predeceased her, the residue of Ottomeier's estate would immediately pass to Miller upon her death. Miller and his secretary prepared the will.

After the September 1991 will was drafted, Miller arranged for Ottomeier to meet with Spokane attorneys Edward Goss and Linwood Sampson to review and witness the execution of the will. Goss and Sampson tape-recorded their meeting with Ottomeier, at which Ottomeier acknowledged that Miller should receive some money, but she was not certain as to how much. She expressed uncertainty about her residuary estate and stated that she had not given much thought as to how much Miller should receive.³ At the conclusion of their meeting with Ottomeier, Goss and Sampson witnessed Ottomeier's execution of the September 1991 will finding that she had testamentary capacity, that she had considered her family in making her testamentary decision, and that she had some understanding of her assets being disposed of by the will. After the execution of this will, Miller continued to perform legal work for Ottomeier.

In May of 1992, Ottomeier requested that Miller draft a codicil to her will, which eliminated a specific property bequest to a friend and bequeathed a car to another friend. Attorney Sampson witnessed the execution of this codicil in Ottomeier's home after concluding that she understood the codicil and it expressed her desires.⁴ Miller drafted yet another will for Ottomeier in February of 1993. This will eliminated many of the specific bequests that existed in the September 1991 will. The only remaining gifts were a trust for Ottomeier's brother, and the residuary estate to Miller. Once again, Sampson witnessed the execution of this will at Ottomeier's home.⁵

In March of 1993, Miller arranged for Ottomeier to add his name to her certificate of deposit (CD), which was valued at approximately $192,000. In the spring of 1993, Miller sought to build a home. To do so, he attempted to obtain a personal loan from Farmers and Merchants Bank using Ottomeier's CD as collateral. The bank refused Miller's request to use the CD as collateral because he was not allowed to do so without Ottomeier's consent. Miller then obtained Ottomeier's signature on an authorization form that allowed him to use the CD as collateral for the personal loan. Miller also prepared a 30-year note and accompanying mortgage promising to repay Ottomeier the principal amount of $192,810.42 at a below-market interest rate of five percent.⁶ Miller never provided Ottomeier with written disclosure of the terms or possible consequences of the loan, nor did he give Ottomeier an opportunity to seek the advice of independent counsel before having his name added to the CD and using the CD to secure a line of credit. Miller also had Ottomeier execute a satisfaction of mortgage; however, there is no evidence that Miller advised Ottomeier of the legal consequences of signing the satisfaction. The mortgage Miller prepared covered a piece of property (Ridgeview property) owned by Miller. This mortgage was never recorded and there is no evidence that Ottomeier received any written disclosure of the potential consequences of failing to record the mortgage. Miller did not suggest or give Ottomeier time to seek advice from independent counsel regarding this transaction.

Ottomeier's CD matured on July 25, 1993, at which point Miller cashed it out, paid off his credit line, and placed the remaining proceeds in his personal savings account. Miller used the proceeds to construct a home on the Ridgeview property, which was the subject of Ottomeier's unrecorded mortgage. Miller claims that he advised Ottomeier to seek the advice of Sampson before Miller cashed out the CD, but that she refused to do so. There is no evidence in the record to support this contention.

Miller finished the construction of his home in March of 1994, and then applied for a $60,000 loan from Cheney Federal Credit Union. The loan application required him to disclose all liabilities and pledged assets as well as all real estate owned, the amount of any mortgages and liens on such real estate, and the amount of any mortgages made. Miller did not list the mortgage owed to Ottomeier on this loan application. Although he properly listed the Ridgeview property as an asset, he falsely indicated that the amount of the mortgage on the property was zero dollars. The $60,000 loan was approved and closed in 1994. At the time, Miller signed a deed of trust covering the Ridgeview property to First American Title Insurance Company, trustee for Cheney Federal Credit Union. This deed was properly recorded on May 2, 1994. Since Ottomeier's mortgage was never recorded, Cheney Federal Credit Union was put into a superior position as against Ottomeier. Miller never disclosed to Ottomeier his intent to give Cheney Federal Credit Union a superior position, and there is no evidence that Miller gave Ottomeier reasonable opportunity to seek advice from independent counsel regarding this matter.

Miller claims that shortly after the closing of the Cheney Federal Credit Union loan, Ottomeier forgave the loan she made to him. Miller testified that he had made 13 payments of $1,035.05 each to Ottomeier, after which she agreed to make a substantial gift by foregoing the remaining $189,477.65 owing on the loan.⁷ The only evidence Miller has offered for support of this gift is the repayment schedule on which the word "forgiven" is written—in Miller's handwriting. There is no indication in the record that Miller memorialized the claimed forgiveness of the loan or that Miller gave Ottomeier an opportunity to seek the advice of independent counsel before she allegedly forgave the loan.

Ottomeier's health continued to decline and in the spring of 1994, Miller found her in an unresponsive state. She was hospitalized due to complications relating to her diabetes. After Ottomeier's discharge from the hospital, Miller sought a certificate of incapacity from Dr. Roger Garvin for purposes of invoking the durable power of attorney. Dr. Garvin wrote to Miller on June 8, 1994, declining to certify Ottomeier's incapacity.⁸ However, due to Miller's persistence, Dr. Garvin signed a physician's statement on June 13, 1994, certifying Ottomeier's disability without ever having examined her.⁹ Miller never had...