imposing a one-year suspension with six months stayed on an attorney who drafted an inter vivos trust for an unrelated client that named the attorney’s wife, children, and grandchildren as beneficiaries
How later courts described this case
- imposing a one-year suspension with six months stayed on an attorney who drafted an inter vivos trust for an unrelated client that named the attorney’s wife, children, and grandchildren as beneficiaries
Written by the judges who cited it.
The opinion
Pfeifer, J.,
dissenting.
{¶ 11} In reaching its decision, the majority relies heavily on Toledo Bar Assn. v. Cook, 97 Ohio St.3d 225 , 2002-Ohio-5787 , 778 N.E.2d 40 . Until Cook was decided, this court had looked to whether an “attorney exercised undue influence or otherwise acted improperly” to determine whether an actual suspension should be imposed. Id. at ¶ 10. Vincent Kelleher did not have the benefit of that opinion when he drafted Marian Kelly Sullivan’s will in 1999, even though we must presume that he was aware of the 1996 amendments to the Code of Professional Responsibility, 75 Ohio St.3d XCVI, on which the Cook opinion relied.
{¶ 12} The circumstances of this case are vastly different from Cook. Here, Kelleher and his family had a 40-year relationship with Sullivan; in Cook, there was no personal relationship between attorney and client. Here, Kelleher and his family treated Sullivan as if she were family and she treated them as if they were *109 family; not so in Cook. Here, Sullivan had little or no relationship with her surviving blood relations; again, not so in Cook.
Jonathan E. Coughlan, Disciplinary Counsel, and Claudia S. Herrington, Assistant Disciplinary- Counsel, for relator.
Mary L. Cibella, for respondent.
{¶ 13} In Cook, citing DR 5-101(A)(2), this court stated that “there are no circumstances under which an attorney may prepare a will or trust in which the attorney, the attorney’s family, or the attorney’s affiliates are named beneficiaries, unless the beneficiary is related to the client.” (Emphasis sic.) Id. at ¶ 11. An advantage of bright-line rules is that they are easy to apply; a disadvantage is that there are no exceptions, even when, as here, the circumstances indicate that there was no undue influence or other improprieties. Nevertheless, DR 5-101(A)(2) was violated, as stipulated by the parties, and Kelleher should be punished. I would issue a one-year suspension and stay the entire year on condition that Kelleher provide a specified amount of pro bono services. I dissent.
Lundberg Stratton, J., concurs in the foregoing dissenting opinion.