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Matter of Doyle

November 22, 1996

IN THE MATTER OF JOHN P. DOYLE, AN ATTORNEY AT LAW.


Chief Justice Poritz and Justices Handler, Pollock, O'hern, Garibaldi, Stein and Coleman join in this opinion.

(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the interests of brevity, portions of any opinion may not have been summarized).

In the Matter of John P. Doyle, An Attorney at Law (D-15-96)

Argued September 24, 1996 -- Decided November 22, 1996

PER CURIAM

This is an attorney disciplinary case. The Disciplinary Review Board (DRB) concluded that John P. Doyle of Brick should receive a one-year suspension from the practice of law for his misconduct in the course of his representation of several members of the same family in the preparation of various documents. Three members of the DRB voted to impose a reprimand. Doyle has been a member of the bar since 1967 and served as a member of the New Jersey Assembly from 1974 to 1992.

The conduct in question stems from Doyle's relationship with members of the Osborn family, one of whom, Jack, had become a client of Doyle by late 1960. Later, Doyle represented Jack's wife, his father (John), his aunt (Kathryn) and other members of the Osborn family. Doyle's primary ethical transgressions involve his representation of John's sister, Kathryn Osborn.

Doyle first represented Kathryn in 1978, when she became the executrix of her sister's estate, a significant portion of which consisted of real property, known as Camp Osborn in Brick Township. In November 1979, Kathryn suffered a severe stroke that left her unable to communicate orally and confined to a nursing home. After Kathryn suffered the stroke, John, who was the alternate executor under the will, retained Doyle to help him prepare an application to have Kathryn removed as executrix of their sister's estate. Doyle obtained an affidavit from one of Kathryn's physicians stating that, as a result of her stroke, Kathryn was unable to take care of herself or estate business. Kathryn was removed as executrix on the basis of her incompetence to function in such a capacity. There was no adjudication of her as incompetent to conduct her own affairs.

At John's request, after Kathryn was removed as executrix, Doyle prepared a power-of-attorney for Kathryn's signature, which gave John broad authorization with regard to the Disposition of Kathryn's assets. Although Doyle claimed that he was representing Kathryn in the preparation of the power-of-attorney, he did not recall discussing the preparation of the document with her. There was no allegation that John misused the power-of-attorney. Kathryn signed it with an "X" and it was notarized by Doyle's secretary.

Thereafter, in December 1980, Doyle prepared reciprocal wills for Kathryn and her husband, James. Kathryn signed her full name to the will rather than affixing an "X." The will was witnessed by Doyle and the very same doctor who, less than one year earlier, had signed an affidavit attesting to Kathryn's incompetence to continue as executrix of her sister's estate. The will created a trust for her support during her lifetime and further provided that, upon the death of her last brother, the corpus was to be divided between Jack (John's son) and Robert (the son of Bartlett, one of John's brothers). Bartlett would later challenge Kathryn's will.

Doyle then met with Kathryn in November 1984 to discuss a new estate plan that would minimize the tax consequences to the beneficiaries of Kathryn's estate, primarily John and his family. Although Doyle had not seen Kathryn in four years, prior to their meeting, he had engaged a tax attorney and accountant to prepare such an estate plan upon the request of John and Jack, both of whom had advised him that it was Kathryn's desire to revise her 1980 will and adopt a new estate plan. At their November meeting, Kathryn was unable to communicate verbally, but was able to make grunting sounds or utter an occasional word. Doyle claimed that he had discussed the concepts proposed by the tax attorney with Kathryn by asking questions requiring only "yes" or "no" answers. In addition, Doyle determined Kathryn's specific wishes after he wrote names and amount of bequests on sheets of paper, pointed to the name or amount and Kathryn responded with a nod or a grunt. Through this method, Doyle was able to determine that Kathryn wanted to leave her brother, Bartlett, only $5,000. The bulk of her estate was to be left first to her husband, James, then to John and ultimately to Jack.

In February 1985, Kathryn and her husband executed reciprocal wills effectuating the tax plan. Kathryn executed her will with a mark, instead of her signature. Prior to the execution of the will, however, and in accordance with the overall estate plan, Kathryn conveyed outright to John and Jack the totality of her real estate holdings. Doyle prepared each of the deeds involved in the transfers and witnessed Kathryn's mark as her signature on those deeds.

Kathryn, who survived her husband, ultimately died in October 1987. After her will was offered for probate, one of her brothers, Bartlett, filed a petition contesting the will, alleging that the will and the inter vivos gifts were invalid because Kathryn was mentally incompetent and had been subjected to undue influence. Although Doyle's firm was originally retained to oppose Bartlett's claims, John ultimately retained new counsel and entered into a settlement agreement, setting aside the will and inter vivos transfers and giving Bartlett approximately forty percent of the estate's assets. John thereafter filed a malpractice action against Doyle and recovered that amount from his malpractice carrier.

The last transaction in which Doyle was charged with misconduct occurred in 1987, when Doyle purchased property from John, known as the Drum Point property, that had been conveyed by Kathryn to John and his wife earlier that same year. When Kathryn made that conveyance, Doyle did not inform her of the likelihood that he would be purchasing the property. Moreover, John was not represented by independent counsel in the transaction with his attorney. Doyle purchased the property for $25,000. He based that figure on an offer one of his other clients had previously made to Kathryn for the purchase of that same property. Shortly after the purchase, Doyle subdivided the property and sold it for $110,000 to the former client who had previously made the $25,000 offer to Kathryn.

HELD: Doyle's conduct while representing Kathryn in the preparation of her power-of-attorney, her wills and her estate plan constituted a conflict of interest and gross neglect in violation of RPC 1.7, RPC 1.4, RPC 5.4(c) and RPC 1.1(a). In addition, Doyle's conduct in the purchase of the Drum Point property from John constituted both a conflict of interest and a prohibited business transaction with a client in violation of RPC 1.7 and RPC 1.8. Doyle's misconduct warrants a six-month suspension.

1. Doyle engaged in unethical conduct when he prepared Kathryn's power-of-attorney, her will and her estate plan at the request of another client, John, without disclosing to Kathryn his representation of John, without giving her an opportunity to be represented by independent counsel and without obtaining her consent to his representation. (pp. 11-14)

2. Doyle's failure to take reasonable measures to ensure the validity of Kathryn's will and inter vivos transfers constituted gross neglect. (pp. 14-15)

3. Ignorance or gross misunderstanding of the rules does not excuse misconduct. (p. 16)

4. Generally, when an attorney's conflict of interest causes serious economic injury to clients, a term of suspension has been imposed. (pp. 16-17)

5. An attorney should refrain from engaging in a business transaction with a client who has not obtained independent legal advice on the matter. (p. 18)

6. A six-month suspension is the appropriate discipline in this case where the attorney's misconduct spanned a period of eight years and was not limited to a single aberrant act. (p. 19)

7. Doyle has had an exemplary career and is well respected by members of the bar and the public at large. Were it not for his conduct with respect to the Drum Point property, a suspension would not be imposed. (p. 19)

CHIEF JUSTICE PORITZ and JUSTICES HANDLER, POLLOCK, O'HERN, GARIBALDI, STEIN and COLEMAN join in this opinion.

PER CURIAM

This disciplinary proceeding arises out of a presentment filed by the District I Ethics Committee (DEC) against respondent, John P. Doyle, based on his representation of members of the Osborn family. The DEC found respondent guilty of unethical conduct in the preparation of a power-of-attorney, wills, and an estate plan for Kathryn Osborn and in the purchase of property from John Osborn, Jr. The Disciplinary Review Board (DRB) agreed with that finding. A majority (five members) of the DRB recommended respondent's suspension from the practice of law for one year; three members recommended a reprimand. We granted respondent's petition for review.

After independently reviewing the record, we conclude that respondent engaged in unethical conduct. We find, however, that a six-month suspension from the practice of law more appropriately reflects the seriousness of respondent's conduct.

I

Respondent was admitted to the bar in 1967. Until recently, he was engaged in the general practice of law and, from 1974 to 1992, was a member of the New Jersey Assembly. Respondent's practice is now limited almost exclusively to representation of municipalities. Numerous letters attesting to respondent's good character and good works have been received. In 1985, ...


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