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J. Marvin Benson (WSBA No. 9078, admitted 1979), of Vancouver, was ordered to receive a reprimand on January 26, 2006, following a stipulation approved by the Disciplinary Board. This discipline was based on his conduct in 2002 involving failure to ascertain a client’s competence.
In the early 1990s, Mr. Benson was affiliated as a lawyer with a company that sold living trusts through nonlawyer sales agents. In 1994, Mr. Benson was asked by the company to review a revocable living trust agreement purchased from the company by a Vancouver couple in 1992. The couple met with Mr. Benson in 1994 and in 1998 to update their living trust and durable power of attorney (DPA) documents. In the DPA executed in 1998, the wife (“client”) designated one of her sons as her attorney-in-fact. Her 1998 DPA took effect immediately and stated that it would not be affected by disability of the principal.
In 2002, the client’s son asked Mr. Benson to assist him with Medicaid reimbursements for his mother. Mr. Benson met with both the client and her son at his office. By this time, the client had advanced Alzheimer’s disease. In July 2002, the client’s husband died. The client continued to live in the family home with her son. During this time period, the son called Mr. Benson and told him that he had misplaced the client’s original DPA and needed a new one for his records. Mr. Benson told the son he would need to have an original in his records. The son asked Mr. Benson to send to him an unsigned copy of the original DPA, which Mr. Benson did. Mr. Benson did not meet with the client or take any other action to ascertain whether the client was competent to execute a new or replacement DPA prior to sending the blank DPA to her son. The client signed two separate DPAs reappointing her son as her attorney-in-fact. The son subsequently provided Mr. Benson with a copy of one of the DPAs. The date was not filled in and the client’s signature was askew and barely legible.
Without Mr. Benson’s knowledge, the son used the new DPA to transfer $51,000 in life-insurance proceeds from the client’s name to an account on which he was the signatory, purportedly to enable his mother to remain on Medicaid.
In late August 2002, the client was admitted to the hospital. The client’s other son petitioned the court for appointment of a guardian ad litem (GAL) for his mother, for permanent guardianship over her person, and for authority to place her in a nursing home. The court granted the petition and appointed a GAL.
In September 2002, Mr. Benson filed a motion to be appointed as the client’s lawyer in the guardianship proceeding. Mr. Benson did not consult with the client prior to filing the motion. He stated in his motion that the attorney-in-fact son had asked Mr. Benson to represent the client and that he was aware of the client’s “expressed preferences” based on past dealings with her. According to Mr. Benson, he visited the client twice after he was appointed as her counsel and, at one such meeting, the client told him the nursing home was “nice” but not where she wanted to live. Members of the family who were present during one such visit by Mr. Benson asserted that Mr. Benson did not recognize the client and that the client was incapable of communicating anything to him or anybody else. In November 2002, upon motion of the client’s other son, the court removed Mr. Benson as the client’s lawyer, finding that the client had not retained him to represent her.
Mr. Benson’s conduct violated RPC 1.2(f), prohibiting a lawyer from willfully purporting to act as a lawyer for any person without the authority of that person; RPC 1.4, requiring a lawyer to keep a client reasonably informed about the status of a matter, to promptly comply with reasonable requests for information, and to explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation; and RPC 1.13, requiring a lawyer to determine whether a client’s ability to make adequately considered decisions in connection with the representation is impaired because of minority, mental disability, or for some other reason.
Kevin M. Bank represented the Bar Association. Mr. Benson represented himself. |