People v. Laden, 95SA96

• Citation: 893 P.2d 771
• Decision Date: 17 April 1995
• Docket Number: No. 95SA96,95SA96
• Parties: The PEOPLE of the State of Colorado, Complainant, v. Michael M. LADEN, Attorney-Respondent.
• Court: Supreme Court of Colorado

Page 771

893 P.2d 771

The PEOPLE of the State of Colorado, Complainant, v. Michael M. LADEN, Attorney-Respondent.

No. 95SA96.

Supreme Court of Colorado,

En Banc.

April 17, 1995.

Linda Donnelly, Disciplinary Counsel, James S. Sudler, Asst. Disciplinary Counsel, Denver, for complainant.

Cooper & Clough, P.C., Paul D. Cooper, Denver, for attorney-respondent.

PER CURIAM.

The respondent ¹ in this lawyer discipline case was charged with aiding nonlawyers in the practice of law by assisting the nonlawyers in selling "living trust" document packages to customers in Colorado. The respondent and the assistant disciplinary counsel entered into a stipulation, agreement, and conditional admission of misconduct, C.R.C.P. 241.18, which recommended the imposition of a public censure. An inquiry panel of the Supreme Court Grievance Committee approved the conditional admission, including the recommendation of a public censure. We accept the conditional admission and the inquiry panel's recommendation.

I

The conditional admission states that in August 1992, a couple complained to the Attorney General's Office that a nonlawyer had sold them a living trust. The form of the trust was prepared by an out-of-state lawyer on behalf of National Family Trust, which was headquartered in California. According to the conditional admission, National Family Trust was basically operated by nonlawyers who prepared the couple's trust for $1,595. The nonlawyer who sold the trust told the couple that it would cost their sons $65,000 to settle their estate through probate and the courts.

The nonlawyer told the couple that the respondent, for a fee of $125, would review the living trust and be available for a thirty-minute consultation to discuss the concept of the living trust, including whether their arrangement with National Family Trust was to their advantage. The nonlawyer also advised the couple they were not obligated to use the respondent's services. The couple mailed a check for $125 to the respondent, who sent them a three-and-a-half page letter based on a form supplied by National Family Trust. The respondent reviewed the form for accuracy and truth when he agreed to accept referrals from National Family Trust.

The letter the respondent sent to the couple was essentially identical to letters that he sent to other persons referred to him by National Family Trust. In 1992 and 1993, the respondent reviewed trust documents for twenty to twenty-five National Family Trust customers, and each customer paid him $125 for the review. Four or five purchasers called the respondent with questions. The letters to the trust purchasers each stated, "[W]e have specifically not reviewed or discussed with you any alternative estate planning techniques."

When the respondent learned that National Family Trust was giving excessively high estimates for the cost of probate, he told one of National Family Trust's representatives that probate costs in Colorado were not that high, and that he advised his clients, such as the couple referred to above, that probate costs were not as much as the National Family Trust estimates.

The respondent has stipulated that his conduct outlined above violated DR 3-101(A) (a lawyer shall not aid a nonlawyer in the unauthorized practice of law).

II

"The counseling and sale of living trusts by nonlawyers constitutes the unauthorized practice of law." People v. Volk, 805 P.2d 1116, 1118 (Colo.1991). People v. Cassidy, 884 P.2d 309, 311 (Colo.1994). See also Florida Bar Re Advisory Opinion--Nonlawyer Preparation of Living Trusts, 613 So.2d 426, 427-28 (Fla.1992) (assembly, drafting, execution, and funding of living trust is the practice of law, as is the determination of the need for a living trust and appropriate type of such trust); Committee on Professional Ethics and Conduct of the Iowa Bar Ass'n v. Baker, 492 N.W.2d 695, 703 (Iowa 1992) ("[W]hether a living trust is appropriate in a given case calls for the exercise of independent professional judgment by a lawyer.").

By agreeing to accept referrals from a nonlawyer engaged in the unauthorized practice of law under the circumstances here, the respondent aided that nonlawyer in the unauthorized practice of law, contrary to DR 3-101(A). Cassidy, 884 P.2d at 311; People v. Macy, 789 P.2d 188, 189 (Colo.1990); People v. Boyls, 197 Colo. 242, 243, 591 P.2d 1315, 1316 (1979).

III

The inquiry panel approved the conditional admission, and recommended that the respondent receive a public censure. Under the American Bar Association's Standards for Imposing Lawyer...