In The Matter Of Steven T. Potts

158 P.3d 418 (2007)

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Nature of the Case

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Facts

Ernestine executed a will disinheriting Evon and bequeathing most of her estate to Charlene. Ernestine's mental health deteriorated, and she was involuntarily committed. The district court appointed Evon as conservator. Evon reported Ernestine's net worth at $1,254,795. The initial inventory included several accounts with a total worth of approximately $270,000, that Evon held in joint tenancy ownership with Ernestine or in which Evon was named as a beneficiary to the accounts (joint tenancy accounts). Ernestine established these joint tenancy accounts with Evon in 1967 and 1991. Evon petitioned the court to distribute gift money totaling $160,000 from Ernestine's estate to family members. The district court denied the petition. The court authorized Ernestine's attorneys to investigate Evon's conduct as conservator. Ernestine's attorneys alleged that Evon had misappropriated $ 10,000 of Ernestine's money and engaged in other mismanagement of Ernestine's funds while Ernestine was incapacitated. Evon moved Ernestine to an assisted living facility, and Ernestine purportedly executed a second will. The second will appointed Evon as personal representative and bequeathed the bulk of the estate to Evon and Evon's family. Ernestine died on March 8, 2001. A will contest ensued. Ernestine's attorneys filed a petition to probate Ernestine's 1998 will. Evon filed a competing petition to probate Ernestine's second will. Evon also filed a second inventory (second inventory) with her petition to probate Ernestine's second will. This second inventory reported $1,253,000 as the gross value of Ernestine's estate. Evon's report of the estate's total value in the second inventory comported with the total estate value in the initial inventory that she had filed in the conservatorship proceeding. It also matched the total estate value that she reported in the final inventory (final inventory). All three inventories filed by Evon listed all of Ernestine's assets and included the joint tenancy accounts. None of the three inventories distinguished between probate assets and nonprobate assets, such as the joint tenancy accounts. Evon retained D to represent her and the six grandchildren. The parties agreed to mediate all disputes. D attended the settlement conference and that that time Evon already had claimed a fraction of the joint tenancy accounts and was working to obtain the rest of the $270,000. Evon never disclosed this fact at the mediation. D also remained silent as to whether the settlement included the joint tenancy accounts based on instructions from his clients. The parties reached an agreement. Those involved suspected that Evon was attempting to secure the joint tenancy accounts. Tremper wrote a letter to D asking D to confirm that the parties had reached the settlement in the mediation that included all accounts. D not to respond and Tremper construed D's silence as confirmation that the parties had based the settlement on the $ 1.2 million total estate value that Evon had reported to the courts in the initial, second, and final inventories. D drafted and circulated a stipulation. But soon a fight erupted over the meaning and effect of the stipulation and the distribution of the joint tenancy accounts. The district court determined that the parties intended the $1.2 million total estate value, including the joint tenancy accounts. P brought charges against D. P alleges that D engaged in or assisted in client fraud, a violation of Rule 1.2(d), M.R.P.C., by following his client's instructions not to disclose material information to opposing counsel. The second count charges that Potts breached the duty of candor to the tribunal, a violation of Rule 3.3(a)(2), M.R.P.C., by failing to disclose material information to the district court presiding over the contested will action. P found that D's clients, Evon and Tyson, had informed him well in advance of the mediation that Evon had intended to take the joint tenancy accounts outside of any settlement agreement. P found that D had failed to inform the district court and the other parties that the value of the settlement remained at issue. P found that D knew that his clients were using his services to perpetrate fraud in violation of Rules 1.2(d) and 3.3(a)(2), M.R.P.C. P recommended that d be censured publicly, be suspended from the practice of law for a period of thirty days, and be required to pay the costs of the disciplinary proceedings. D objects.