People v. Berge
| Decision Date | 24 November 1980 |
| Docket Number | No. 80SA195,80SA195 |
| Citation | 620 P.2d 23 |
| Parties | The PEOPLE of the State of Colorado, Complainant, v. William G. BERGE, Respondent Attorney. |
| Court | Colorado Supreme Court |
Linda Donnelly, Denver, for complainant.
William C. McClearn, Paul G. West, Ira C. Rothgerber, Jr., Denver, for respondent.
The respondent, William G. Berge, was the subject of proceedings before the Grievance Committee of this court based upon a formal complaint which charged that his conduct as an attorney created cause for discipline pursuant to Rule 241, C.R.C.P. Those proceedings resulted in a recommendation by the hearing committee that he receive a public censure. Upon review of that recommendation, the hearing panel revised the recommended discipline to a one- year suspension from the practice of law. After reviewing the record, we conclude that cause for discipline has been established and that a ninety-day suspension from the practice of law is the appropriate discipline.
In the formal complaint the respondent was charged with violating Rule 241 B, C.R.C.P., 1 and the Code of Professional Responsibility, including DR5-101, by reason of the following acts: (1) exerting undue influence upon a client in connection with preparation and execution of his will in which the respondent was named as a beneficiary, (2) failing to adopt appropriate safeguards to avoid undue influence and the appearance of impropriety with respect to the drafting and execution of that will, and (3) failing to deal candidly with heirs and potential beneficiaries while acting as attorney for the personal representative of his deceased client's estate.
We summarize the facts from the findings of fact, conclusions, and recommendations of the hearing committee. These facts were established by clear and convincing evidence in proceedings before that committee.
The respondent was licensed to practice law in Colorado on September 10, 1951. He represented Allen C. Stephenson in various matters from about 1958 until Stephenson's death on May 8, 1976. The services included preparing a will, serving as attorney for Stephenson's mother's estate, and representing Stephenson in various real property and business matters. Prior to 1958 the respondent had assisted one of his law partners in various matters on behalf of Stephenson, including a successful appeal challenging an order of distribution of property incident to Stephenson's divorce. See Stephenson v. Stephenson, 134 Colo. 96, 299 P.2d 1095 (1956).
The respondent prepared a will which Stephenson signed on February 3, 1967. That will contained bequests of $10 each to three aunts and an uncle, left art objects and travel mementos to the Denver Art Museum, and divided the residue two-thirds to the Denver Dumb Friends League (DFL) and one-third to Angel Memorial Animal Hospital. A bank was named as executor. The executor was directed to retain a member of the respondent's law firm to perform all legal services for probate of the estate as a condition to being appointed executor.
In June 1968 Stephenson told the respondent that he wished to make a new will. Stephenson brought a copy of the 1967 will to the respondent's office. On that copy Stephenson had penciled comments relating to the changes which he wished to make. One such change was the inclusion of a bequest of part of the estate residue to the respondent.
The respondent declined to prepare the new will because he was to be a beneficiary. He recommended two prominent Denver attorneys to Stephenson, but these suggestions were rejected. Stephenson asked if there was "somebody here" who could draft the will. The respondent suggested another attorney, Mr. Smith (a fictitious name), whom he described as an independent practitioner, and Stephenson agreed that Smith should prepare the will.
Smith rented office space from the respondent's law firm. All office expenses, including telephone, rent, and secretarial salaries, but excluding stationery, were shared on a proportional basis. The telephone system also was shared, and the access to Smith's office was through the front door of the offices of the respondent's firm. Smith had a close relationship with members of the respondent's firm; they drank coffee together in the office daily.
After Stephenson agreed that Smith should prepare the will, the respondent called Smith over the office intercommunications system. The two met, out of Stephenson's presence, and the respondent told Smith that he had just learned that Stephenson wanted to make the respondent a beneficiary in his new will. The respondent asked Smith to prepare the will and he agreed.
Immediately thereafter, Stephenson met with Smith in the latter's office and, utilizing the marked-up copy of the 1967 will, a new will was drafted substantially in accordance with the marked-up copy. If any changes were made, they were only clarifications. Smith and Stephenson did not discuss Stephenson's family situation, the possible tax consequences of the proposed will, or any of the other factors which could have affected that document materially. Smith gave Stephenson no substantive advice. The conference took only ten to fifteen minutes.
The new will increased the specific bequests to Stephenson's aunts and uncle from $10 each to $100 each. The DFL, which in the 1967 will had been named as recipient of two-thirds of the residuary estate, was to receive a specific bequest of $25,000 under the new will. The Angel Memorial Animal Hospital was to receive nothing. The residuary estate then was divided fifty-three percent to Leon DuCharme and forty-seven percent to the respondent. A requirement similar to that found in the 1967 will with respect to naming the respondent or his firm as attorneys for the estate was included in the 1968 will. In addition, a clause was added specifying that, if any beneficiary should challenge a provision of the will, the legacy to that beneficiary would lapse and fall into the residuary estate. This clause did not appear in the 1967 will but appeared in handwritten or typed form on the marked-up copy used to draft the 1968 will. All changes were based upon the notes appearing on the copy of the 1967 will.
On June 27, 1968, three to five days after the first meeting with respect to the new will, Stephenson returned to execute the will. Smith was unable to find a third witness nearby, so he requested the respondent to act as a witness. In the presence of Stephenson, the respondent, and another witness, Smith read the provisions of the will relating to the respondent, and Stephenson executed the will.
Smith performed the work as a favor to the respondent. Although Smith considered Stephenson to be his client for the purpose of the will, Smith kept no client file on this matter and did not charge Stephenson for his services. The only times Smith saw Stephenson were in the two meetings during which the 1968 will was drafted and executed.
On May 8, 1976, Stephenson died in Hawaii, where he customarily spent the winter months during the later years of his life. On May 11, 1976, a petition for appointment of a special administrator in the Stephenson estate, signed by DuCharme as petitioner and naming the respondent as his attorney, was filed in Denver probate court. An order appointing DuCharme as special administrator and an acceptance of that appointment were signed and filed in probate court that same day.
On May 20, 1976, DuCharme and the respondent went to Hawaii and took possession of the decedent's stock certificates, an inventory of stocks and other personal property, a copy of the 1967 will, 2 and decedent's savings passbook reflecting a balance of approximately $197,000. 3 The respondent noticed this balance. The handwritten inventory contained about 55 entries reflecting significant holdings in such corporations as Texaco, Inc., and Pepsi Cola. The value of such stocks, as later reported in the inventory filed with the probate court, was $280,794.68. Also found among Stephenson's effects was a handwritten note requesting that the respondent and another be notified in case of accident or serious illness. Stapled to the note was the respondent's business card with a handwritten notation,
Upon returning to Denver, DuCharme and the respondent went through Stephenson's home. Although they were unable to find the original 1968 will, they did locate a copy of that will in a file cabinet in the home.
On June 18, 1976, a petition for formal probate of the will and formal appointment of a personal representative was filed in the Denver probate court by the respondent as attorney for the bank which had been named as personal representative in the will. A copy of the 1968 will was attached. As part of the petition for formal probate, a paragraph was attached explaining where and when the copy had been found and stating that a search had been made in an unsuccessful effort to locate the original will.
The respondent sent a notice of hearing on the petition for formal probate to the devisees and heirs. The notice was accompanied by the petition for formal probate and by the respondent's letter dated June 22, 1976, containing the following underlined statement: "It is not necessary for you to be present at that time (the time of presentation of the will for probate) in order to receive the bequest which was left to you under the terms of the Will." The notice was not accompanied by a copy of the will or any information as to the size of the bequests.
A representative of the DFL learned of Stephenson's death and had heard that Stephenson had named the DFL as the recipient of a substantial bequest. The DFL representative met with the respondent on June 24, 1976, to request information about the bequest. When told that it was $25,000, the representative expressed surprise, stating that it was her understanding that the DFL was to receive either...
To continue reading
Request your trial
-
Attorney Grievance v. Saridakis
...been only one reported attorney discipline case in which the sharing of office space was even mentioned in this context—People v. Berge, 620 P.2d 23 (Colo.1980). In Berge, an attorney was charged, among other things, with exerting undue influence on a client in connection with the preparati......
-
Attorney Grievance Commission v. Stein
...with an attorney who is a partner of, shares space with, or is a close associate of the attorney-drafter. See, e.g., People v. Berge, 620 P.2d 23, 27 (Colo.1980); State v. Beaudry, 53 Wis.2d 148, 191 N.W.2d 842, 844-45 Discipline for violation of Rule 1.8(c) is a question of first impressio......
-
Colorado Supreme Court Grievance Committee v. District Court, City and County of Denver, Colo.
...People v. Shipp, 793 P.2d 574, 575 (Colo.1990) (holding that recommendations of Grievance Committee are only advisory); People v. Berge, 620 P.2d 23, 28 (Colo.1980) (same). Moreover, pursuant to C.R.C.P. 241.15(c), the Colorado Supreme Court has explicitly reserved "the authority to review ......
-
Razatos v. Colorado Supreme Court, 82-2516
...sanction or to dismiss the complaint. See Rule 252 B(3) and (6); see also People v. Mattox, 639 P.2d 397, 399 (Colo.1982); People v. Berge, 620 P.2d 23, 28 (Colo.1980); People v. Susman, 196 Colo. 458, 587 P.2d 782, 786 (1978). This includes the power to review independently the findings of......
-
Some Problems Arising in the Representation of a Fiduciary
...are aware of the ethical limitations on disclosure. 101. Colo.RPC 1.16(b)(4). 102. Colo.RPC 1.9(c). 103. See, e.g., People v. Berge, 620 P.2d 23 (Colo. 1980); In re Polevoy, 980 P.2d 985 (Colo. People v. Susman, 587 P.2d 782 (Colo. 1978) (suspension of attorney for neglect and dishonesty in......
-
Ethics and the Estate Planning Lawyer
...Footnotes: 1. Brosterhaus, "Conflicts of Interest in Estate Planning and Administration," Vol. 123, No. 6 Trusts & Estates (June 1984). 2. 620 P.2d 23 (Colo. 1980). 3. See, Mich. Cl-831 and Cl-562, Mass. 82-9, Ore. 468 and Vir. 571. 4. 1970. 5. State v. Horan, 21 Wisc.2d 66, 123 N.W.2d 488 ......