124 A.3d 1078
D.C.2015Background
- In 2002 Genevieve Ackerman executed a trust providing lifetime support and eventual equal division of assets to her children, Dr. Stephen Ackerman and Mary Frances Abbott; the trust included a no-contest clause and named Frank Abbott trustee.
- Dr. Ackerman retained J.T. and J.P. Szymkowicz in 2002 to challenge the trust (Ackerman I); J.T. Szymkowicz later obtained an affidavit from Mrs. Ackerman alleging she intended different dispositions.
- In 2005 the Szymkowiczes also began representing Mrs. Ackerman and filed suit to revoke the trust (Ackerman II); J.T. later withdrew (March 2007) and recommended Leslie Silverman; Robert King assisted later. Dr. Ackerman paid Silverman and King and held POAs from Mrs. Ackerman at various times.
- Medical evidence over 2004–2006 showed cognitive impairment and dementia of varying degrees; some doctors found Mrs. Ackerman capable of certain decisions, others found diminished capacity.
- Bar Counsel charged the lawyers with multiple ethical violations (conflicts under Rule 1.7, dishonesty under Rule 8.4, failure to withdraw under Rule 1.16, and King’s failure to provide a written retainer under Rule 1.5(b)).
- The Hearing Committee and Board largely dismissed most charges (finding respondents reasonably believed Mrs. Ackerman had capacity and that joint interests existed), except they found King violated Rule 1.5(b). The Court of Appeals affirmed the Rule 1.5(b) finding, accepted dismissal of Rule 8.4 charges, but remanded conflict-of-interest issues for further Board consideration.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether respondents violated Rule 8.4 (dishonesty / interference with justice) by using documents executed by an allegedly incompetent client | Bar Counsel: respondents knew Mrs. Ackerman lacked capacity; using those documents was dishonest and interfered with justice | Respondents: there was substantial evidence Mrs. Ackerman had capacity or respondents reasonably believed she did | Court: Affirmed Board — Bar Counsel failed to prove 8.4 violations by clear and convincing evidence |
| Whether joint representation of Mrs. Ackerman and Dr. Ackerman required informed consent under Rule 1.7 | Bar Counsel: substantial risks of divergent interests existed; informed consent was required and was not shown | Respondents: interests generally coincided; informed consent not required or was obtained | Court: De novo review — informed consent was required; remanded to Board to determine whether valid informed consent (and related burdens) existed |
| Whether Silverman and King’s reliance on POA holder (Dr. Ackerman) and acceptance of his payment created conflicts under Rule 1.7 / obligations under Rule 1.14 | Bar Counsel: reliance on POA plus defendant payment and self-dealing raised substantial conflict risks and required disclosure/informed consent | Respondents: reliance on apparently valid POAs and coincident interests justified conduct | Court: Found substantial risk of conflict given diminished capacity, self-dealing, and poor communication; remanded for Board to assess informed-consent and Rule 1.14 issues |
| Whether King violated Rule 1.5(b) by failing to provide a written retainer agreement | Bar Counsel: King failed to give written fee agreement | King: did not contest the finding | Court: Accepted Board finding that King violated Rule 1.5(b) and that an informal admonition is appropriate |
Key Cases Cited
- In re Allen, 27 A.3d 1178 (D.C. 2011) (disciplinary burden is on Bar Counsel and findings must be clear and convincing)
- Ackerman v. Genevieve Ackerman Family Tr., 908 A.2d 1200 (D.C. 2006) (underlying civil trust litigation affirmed)
- Ackerman v. Abbott, 978 A.2d 1250 (D.C. 2009) (appeal concerning inclusion of property in trust affirmed)
- Butler v. Harrison, 578 A.2d 1098 (D.C. 1990) (capacity to contract reviewed for clear error; capacity may be decision-specific)
- In re Nace, 98 A.3d 967 (D.C. 2014) (deference to agency findings where supported by substantial evidence)
- In re Hopkins, 677 A.2d 55 (D.C. 1996) (remand to Board appropriate for unresolved factual/legal questions in ethics matters)
- In re McMillan, 940 A.2d 1027 (D.C. 2008) (family-representation conflicts in benefit of one family member may create representation conflicts)
- In re Brown, 112 A.3d 913 (D.C. 2015) (deference to Board factual findings when supported by substantial evidence)
- In re Martin, 67 A.3d 1032 (D.C. 2013) (de novo review applies to legal questions and ultimate facts in disciplinary appeals)