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Paralegal Ethics Question: What If Your Supervising Attorney Asks You to Draft an Unethical Bequest?

By Lynne DeVenny

My curiosity was piqued when I read this brief summary in TampaBay.com's listing of seven lawyers disciplined by the Florida State Bar in January:

Stephen G. Watts of Clearwater was reprimanded after he allowed [emphasis added] his legal assistant to prepare a trust document for a client who insisted on making bequests to him and his wife.

So I read the Referee's Report to see if I could learn more about the legal assistant's role in what the Florida State Bar ultimately deemed a violation of Rule 4-1.8(c) of the Rules Regulating The Florida Bar, which prohibits a lawyer from preparing a document for a client that makes substantial gifts to the lawyer or his relatives, including his spouse.

What happened here? In a nutshell, Watts was Ms. Mary Alice Worth's attorney for almost 40 years, and had prepared several estate documents for her in the past. Worth considered Watts to be a friend. Worth also considered Watts' wife, who worked in her husband's law office, to be a friend.

They were clearly very good friends, because Worth asked Watts to modify a prior trust agreement, and to name himself and his wife as beneficiaries of bequests totaling $12,000 (perhaps not so much in an estate valued between $850,000 and $1,000,000 - but still a nice tip). Watts advised Worth to seek independent counsel, which she did, ultimately executing the trust agreement making the stated bequests.

At this point, the facts in the Referee's Report aren't quite satisfactory to me as a longtime legal staffer. This is the part that's bugging me:

...Respondent advised Ms. Worth that she must consult with an independent attorney. After Ms. Worth told Respondent that she wanted to make the bequests, his legal assistant prepared the trust document pursuant to Ms. Worth's directions.

I guess this language bothers me because the inference is, "Gee whiz, it's that darned gung-ho legal assistant's fault; she must have prepared that document while her boss's back was [wink-wink] turned."  In real life, when I draft a legal document, my supervising attorney always gets credit for preparing it - and ultimately reviewing and signing off on it, too.

Let's assume this was a small office, and the legal assistant: a) wasn't Watts' wife, and b) knew Watts and his wife were the intended beneficiaries when she drafted the trust amendment. (I guess we could assume the legal assistant was also Watts' wife, but that's just a double-dose of wrong.)

So, you're the legal assistant who needs her paycheck, and your supervising attorney is allowing you to draft a client bequest of a nice chunk of change to him and his lovely wife, who works there, too. You don't want to piss her off like her a lot, but you got an A in ethics class, and you know this is not right. What are you going to do?

Source:  TampaBay.com

Full post as published by Practical Paralegalism on March 01, 2011 (boomark / email).