Elder Law

State and Federal Courts Disbar Attorney for Backdating Deed for Medicaid Planning Purposes

By dvanar

In January 2009, the U.S. Court of Appeals for the Sixth Circuit disbarred an attorney who backdated a deed for Medicaid planning purposes and engaged in self-dealing. in-re-cook (U.S. Ct. App., 6th Cir., No. 08-3026, Jan. 6, 2008).

In 2001, Ohio attorney Linda S. Cook assisted an elderly woman with estate and Medicaid planning. The woman wanted to donate her farm to her church but still be able to afford any residential care she might need. Ms. Cook executed a deed giving herself title of the farm and reserving a life estate for her client. The deed had an attestation and signature date of May 20, 1998. Ms. Cook then donated the farm to the church. Over the next five years, Ms. Cook took federal income tax deductions for donating the client’s farm.

The Toledo Bar Association found that Ms. Cook violated professional rules of conduct by committing acts of dishonesty and deceit and engaging in self-dealing. The disciplinary committee recommended disbarment. Ms. Cook argued the date on the deed was a mistake and that the client did not have sufficient income to take the deductions for the charitable contribution of her farm, so her actions did no harm.

The Supreme Court of Ohio then held that Ms. Cook violated the rules of professional conduct, finding she acted dishonestly, did not exercise her professional judgment independently of her own interests, and did not obtain informed consent for her self-dealing. According to the court, disbarment is appropriate because she deliberately falsified official documents and attempted to conceal self-dealing.

Thereafter, the federal district court moved to disbar Ms. Cook from federal court as well. Based on the record established in the state court proceeding, the federal district court ordered that Ms. Cook be disbarred. Ms. Cook appealed, arguing that the backdated deed was a mistake and that the federal court should not have relied on the state court proceeding because the state proceeding deprived her of due process.

The U.S. Court of Appeals for the Sixth Circuit affirmed the disbarment, finding no due process violations in the state court proceeding. The court noted that, even without testimony from anyone other than Ms. Cook, the original deed alone was enough to support an inference that Ms. Cook intentionally backdated the deed.

Full post as published by Law Office of Donald D. Vanarelli Blog on March 15, 2009 (boomark / email).