State ex rel. Okla. Bar Ass'n v. Helton

• Decision Date: 18 April 2017
• Docket Number: Case Number: SCBD-6326
• Citation: 394 P.3d 227
• Parties: STATE of Oklahoma EX REL. OKLAHOMA BAR ASSOCIATION, Complainant, v. Scott Robert HELTON, Respondent.
• Court: Oklahoma Supreme Court

394 P.3d 227

STATE of Oklahoma EX REL. OKLAHOMA BAR ASSOCIATION, Complainant,

v.Scott Robert HELTON, Respondent.

Case Number: SCBD-6326

Supreme Court of Oklahoma.

Decided: April 18, 2017

Tommy Humphries, Assistant General Counsel, Oklahoma Bar Association, Oklahoma City, Oklahoma, for Complainant.

Charles F. Alden, III, Oklahoma City, Oklahoma, for Respondent.

ATTORNEY DISCIPLINARY PROCEEDING

KAUGER, J.:

¶ 1 This matter comes before the Court pursuant to Rule 6 of the Rules Governing Disciplinary Proceedings (RGDP), 5 O.S. 2011, Ch. 1, App. 1-A.¹

On November 19, 2015, the Oklahoma Bar Association (Bar) filed its complaint against Respondent, Scott Robert Helton (respondent/attorney/Helton), alleging one count of misconduct in violation of several of the Oklahoma Rules of Professional Conduct (ORPC), 5 O.S. 2011, Ch. 1, App. 3-A, and the RGDP, 5 O.S. 2011, Ch. 1, App. 1-A. This complaint is the result of an investigation begun by the Bar after it received an anonymous letter critical of Helton's, four-year non-genetic, relationship with a 91 year-old client, Lonnie Brooks (Brooks).²

¶ 2 On May 10 and 11, 2016, the Professional Responsibility Tribunal (PRT) held a hearing on the Bar's allegations against Helton. Respondent, with counsel, appeared at the hearing. The PRT took testimony from several witnesses, including Helton and Brooks (by deposition). The PRT also admitted a multitude of exhibits, many subject to a protective order and filed under seal. Other than the anonymous complaint filer, there were no unfavorable witnesses.

¶ 3 The PRT filed its Trial Panel Report with this Court on July 13, 2016. Based on what it considered to be the unusual circumstances of this matter, the PRT recommended respondent receive a public reprimand. The Bar recommends Helton be suspended from the practice of law for a minimum of six months, and be assessed costs in the amount of $4,439.47. After de novo review³ We agree with the PRT, but decline to impose costs.⁴

THE GRIEVANCE AND EVIDENCE

¶ 4 The Bar asserts Helton violated Rules 1.1 [competence],⁵ 1.3 [diligence],⁶ 1.4[keep client informed],⁷ 1.5[fees],⁸ 1.8(a) & (c) [business transactions],⁹ and 1.15[client property], ORPC,¹⁰ 5 O.S. 2011, Ch. 1, App. 3-A, and Rule 1.3 [discredit] RGDP,¹¹ 5 O.S. 2011, Ch. 1, App. 1-A, based on respondent's relationship with Brooks, the gifts she gave him and his family, and his handling of various assets and transactions. On April 7, 2011, Brooks hired the respondent to probate the estate of her sister, Betty Groves. She was referred to Helton by someone she knew, and prior to the start of his representation of her during the probate matter, the two were unacquainted.

¶ 5 Helton and Brooks quickly developed a familial relationship that extended beyond the typical attorney-client relationship. Brooks' husband died in 1987, and she lived alone, rarely leaving her home. With the death of her sister, Brooks lacked any relatives with whom she had close contact. Brooks originally had a will leaving her estate to her sister Betty Groves. After her sister's death, Brooks began discussing changing her will and updating her estate planning with respondent.

¶ 6 Over the course of the next few years, the respondent helped Brooks execute a will, prepare a will naming him as personal representative of the estate, prepare a Durable Power of Attorney and Advance Directive for Health Care, and name him as the beneficiary of an annuity Brooks possessed, in place of her deceased sister. Brooks also gifted Helton with money and other gifts.

¶ 7 Concerned about Brooks' desire to make him the beneficiary of the annuity, Helton contacted Attorney Charles Swartz (Swartz) to meet with Brooks and discuss the matter with her. Helton sought Swartz as independent counsel to review and execute the Beneficiary Change Request Brooks desired to make. Swartz, brought another person with him for the review and he did not find Brooks to be incompetent or under Helton's undue influence. Rather, quite the opposite.

¶ 8 Respondent, and his family, established their relationship with Brooks when they visited her in her home often. In the summer of 2012, Brooks fell while in her home and injured her back. She called respondent, who went to her home and called 911. Helton had her transported to Saint Francis Hospital. After a period in the hospital, Brooks was eventually transferred to a facility called Montereau for rehabilitation. She then returned home with full-time home healthcare arranged by respondent, but due to costs, she moved back into the assisted living wing of Montereau. Brooks was eventually transferred to the nursing home section of Montereau, which she was unhappy with, and with the attorney's help moved to a different facility called the Arbors, where she now lives and apparently loves.

¶ 9 In the process of caring for Brooks, Brooks directed the respondent precisely as to her wishes. On August 2, 2012, Brooks authorized Helton and his wife as joint account holders with rights of survivorship to Brooks' bank account at F&M Bank in order to enable the Heltons to pay Brooks' bills. By August 14, 2012, Helton and his wife had access and joint ownership of all cash assets belonging to Brooks. Sometime before September 8, 2012, Brooks informed Helton that she wanted to change her will to make him the beneficiary of her estate. Respondent again asked Swartz to contact Brooks and discuss the matter with her. Swartz again brought another person with him, and Helton was not involved in the discussion. Brooks executed a new will, prepared by Swartz, leaving her entire estate to Helton. On the same date, Brooks executed a transfer on death deed, also prepared by Swartz, which would transfer the title of her home to Respondent upon her death.

¶ 10 Respondent testified that once it became apparent Brooks was not going to be moving out of the Arbors and back home anytime soon, he discussed with her the possibility of renting her home in order to generate extra income for her. She agreed, and Brooks recommended placing the home into an LLC. for purposes of limiting her potential liability from renting her home. Accordingly, on March 13, 2013, Helton filed documents with the Oklahoma Secretary of State, that he had prepared, creating Lonnie Brooks Enterprises, LLC. and on March 27, 2013, Brooks executed a Warranty Deed prepared by Helton, which transferred the title of Brooks' home to Lonnie Brooks Enterprises, LLC.

¶ 11 On July 26, 2013, Helton filed documents with the Oklahoma Secretary of State that he prepared which created Helton Properties, LLC. As with the Lonnie Brooks Enterprises, LLC., no documents were created indicating who owned and who managed Helton Properties, LLC. According to Helton, he and his wife are the sole owners of Helton Properties, LLC., and he is the manager.

¶ 12 Because rental of Brooks' home was going well, the attorney suggested liquidating the annuity (worth roughly $200,000) of which he was the beneficiary, and buying two additional rental properties. He cashed the annuities owned by Brooks and caused two additional rental properties to be purchased by Helton Properties, LLC. According to Helton, he and Brooks had an agreement that he would manage the properties owned by Helton Properties, LLC. and pay himself one third of the rental payments for doing so, with the remainder being used for the benefit of Brooks. Brooks' deposition reveals she agreed to this arrangement, and was aware of the details. The attorney did not memorialize the agreement in writing, advise Brooks that she should have an independent counsel review the agreement, or obtain written informed consent from Brooks concerning the transaction.

¶ 13 At the May 10, 2016, PRT hearing, counsel for the Bar announced that Lonnie Brooks did not disagree with nor did she disavow the attorney's conduct. The Bar's opening statement summarizes the level of complaint that Brooks had regarding Helton, or rather, the level of complaint she lacked. It provides:

You're not going to hear—you're not going to hear complaints from Lonnie Brooks. As we mentioned before we started, Lonnie Brooks will testify by deposition, but she's not upset with Scott Helton. She doesn't disagree with his actions. She's perfectly happy with everything he's done. I understand that makes my case hard, but it's for all those reasons and as you hear and read her testimony, it's the client like Mrs. Brooks that requires Mr. Helton to follow these rules to a T because he's the one that has to know these rules, protect her, because at some point she just decided to let him decide everything. That's why she's okay. She's okay with the gifts. You're going to hear about management fee reimbursements in their business partnership. She's okay with those, but you're also going to hear that she doesn't know a lot of level of detail about those things because she decided to let Mr. Helton decide everything.

You are not going to hear from me that Mr. Helton did everything wrong. I'm going to ask for your patience because I want to tell the whole story of their relationship, but Mr. Helton followed the rules and sought independent counsel in two circumstances.

In other words, Ms. Brooks wanted Helton to handle everything, and she got exactly what she wanted, but because she was elderly and did not want to be bothered with details, everyone else determined that she should not have been allowed to do what she wanted with her money. Disposing of one's property is a basic right of every citizen.¹²

¶ 14 The most telling evidence comes directly from Ms. Brooks herself. Her deposition testimony was taken on April 28, 2016, and entered into evidence during the PRT proceedings. She explained on direct examination that:

1. She and Helton had become good friends, and that he helped her and talk with her.

2. When she fell in June of 2012, she did not call 911, rather she called Helton for help and he called 911.

3. She loved Helton and his wife and kids and

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