Sally Jumper is dead, but a dispute arising out of the handling of her assets lives on. We must decide whether the trial court abused its discretion by sanctioning Allen Anderson, a friend of Ms. Jumper’s, and William Rogers, Mr. Anderson’s attorney, for the manner in which the pair conducted litigation over Ms. Jumper’s assets. We affirm in part and vacate and remand in part the order awarding sanctions.
I. Facts and Procedural History
A. Background: Sally Jumper, Allen Anderson, and Jan Verfurth.
Sally Jumper led an interesting life. Born in Detroit, Michigan, in the early 1920s, Ms. Jumper, an only child who never married, was educated at the Connecticut College for Women. As a young woman, Ms. Jumper worked as an interior designer, traveled in Europe, and went on to become an accomplished painter, sculptor, and musician. Although Ms. Jumper was stricken with blindness as an adult,
Allen Anderson, one of the appellants in this case, was a long-time friend of Ms. Jumper’s. At the sanctions hearing, Mr. Anderson described how he first saw Ms. Jumper decades before the proceedings began, when he was riding the bus to work. As Mr. Anderson recalled, he “saw this blind lady walking” with her seeing-eye dog and “wonder[ed]” whether “she would need boоks and articles and papers read to her.” Mr. Anderson approached Ms. Jumper the next day, and they struck up a 30-odd year relationship that, according to Mr. Anderson, left people thinking that the two were husband and wife.
Ms. Jumper also had a long-standing, albeit less personal, relationship with Colonel Jan Verfurth. Col. Verfurth (who, as we shall learn, turned out to be a nemesis of Mr. Anderson’s) testified that he first met Ms. Jumper in 1984 or 1985 when he was introduced to Ms. Jumper to serve as her stockbroker and financial adviser. According to Col. Verfurth, by 1995 Ms. Jumper’s “portfolio had grown nicely,” so Col. Verfurth recommended that Ms. Jumper “consider some trust planning documents.” Ms. Jumper agreed with the suggestion, and Col. Verfurth set up a meeting for Ms. Jumper with I. Mark Cohen, an attorney specializing in estate planning. Mr. Anderson drove Ms. Jumper to the meeting where Ms. Jumper signed her estate-planning documents, but did not take part in that meeting himself. According to Col. Verfurth, Mr. Cohen advised Mr. Anderson, “sir, you will not be able to attend the signing because you are mentioned in the will and it would be inappropriate for you to be there.”
B. The 1995 and 2001 estate-planning documents.
On October 6, 1995, as a result of her meetings with Mr. Cohen, Ms. Jumper executed several estate-planning documents, and Mr. Anderson figured prominently in each. For purposes of this case, the most important document that Ms. Jumper executed was the Sally A. Jumper Trust (“the 1995 Trust”). The 1995 Trust designated Ms. Jumper to serve as the initial Trustee, and provided that Mr. Cohen would assume the duties of Trustee if Ms. Jumper “cease[d] to serve as Trustee.” The 1995 Trust provided that upon Ms. Jumper’s death, 40% of her residual Trust Fund was to be distributed to Mr. Anderson. 3
Fast forward to January 2001,
4
when Ms. Jumper executed another set of es
Although the 2001 Trust was similar for the most part to the 1995 Trust, the two trusts differed dramatically in their treatment of Mr. Anderson. As stated above, the 1995 Trust required the Trustee to distribute forty percent of Ms. Jumper’s residual estate to Mr. Anderson. The 2001 Trust, by contrast, provided that upon Ms. Jumper’s death and while Mr. Anderson was still alive, the Trustee was to “pay and distribute to or for Allen’s benefit as much of the net income and as much of the principal of the Trust Fund as [the] Trustee, exercising sole discretion, may determine necessary or proper to provide for his health, education, support and maintenance.” (Emphasis added.) The 2001 Trust directed that after Mr. Anderson’s death, the Trustee was to distribute the balance of the Trust Fund among several charitable causes, including Ms. Jumper’s alma mater, by then known as Connecticut College. See http://aspen. conncoll.edu/camelweb/index.cfm?fuse action= offices & circuit=ehb & function=sec & action=l (last visited Dec. 8, 2009).
In addition, the 2001 Trust, while retaining Ms. Jumper as the initial Trustee, provided that Col. Verfurth, not Mr. Cohen (as under the 1995 Trust), was to be the alternate Trustee. Regarding this change, Col. Verfurth testified that Ms. Jumper had asked him to serve as the successor trustee in 1995, but that Col. Verfurth’s employer instructed him to decline that invitation because Col. Verfurth at the time was Ms. Jumper’s financial adviser, which raised a potential conflict of interest. By 2001, Col. Verfurth was retired and thus free to serve as the Trustee.
C. 2001: Things turn sour.
About six weeks after the 2001 Trust fundamentally altered Mr. Anderson’s stake in Ms. Jumper’s estate, Mr. Anderson began documenting his concern for Ms. Jumper’s mental state.
5
For instance, in a March 3, 2001 “Memo for the Record,” Mr. Anderson wrote of how “deeply Sal [had] sunk into a mild dementia.” Mr. Anderson wrote that when he visited her, “Sally was not completely dressed but was eating her breakfast.” In addition, Mr. Anderson wrote that Sally had asked him, supposedly “in a tone that is used when one is not sure who they are talking to ... ‘Where do
you
live?’ ” Finally, Mr. Anderson had brought soft toilet paper and paper towels for Ms. Jumper’s use, but reported that Ms. Jumper told him that “she [was] not used to having people deliver things to her, and that she [was] not used to [Mr. Anderson] delivering such things!!” Mr. Anderson found this statement suspicious because he in fact had “been delivering stuff [though not necessarily toilet paper] to her for many, many years (actually, decades).” In sum, Mr. Anderson’s March 3, 2001 visit to Ms. Jumper caused him to “worr[y] ... greatly” about “how easy it would be for any unscrupulous persons to take advantage of [Ms. Jumper], such as having her re-do
A letter that Mr. Anderson wrote on February 26, 2001, to a doctor of Ms. Jumper’s sounded a similar note. Mr. Anderson wrote that Ms. Jumper apparently had asked him about her car, even though, according to Mr. Anderson, Ms. Jumper had not had a car in at least fifty years. Mr. Anderson was relieved that “[a]t least this time Sally did not ask me to set out a bowl of water for her (long dead) Seeing Eye dog, Trini.” Mr. Anderson’s observations led him to believe that “Sally [was] progressively descending into senile dementia.” In light of Ms. Jumper’s purported decline, Mr. Anderson found it “questionable whether she [was] capable of making any kind of decision that required sustained rational thought.”
Mr. Anderson also wrote to Mr. Cohen, the successor trustee under the 1995 Trust. Whereas Mr. Anderson’s Memo for the Record and letter to Ms. Jumper’s doctor made oblique references to Ms. Jumper’s ability to make important decisions, the letter to Mr. Cohen, an attorney, tied Mr. Anderson’s concern over Ms. Jumper’s mental state to her estate-planning documents. In that letter, Mr. Anderson wrote: “Sally Jumper’s personal physician ... recently stated that Sally is ‘not mentally competent’ (sic) to make decisions about her medical care and needs.” (“sic” in original). In view of that alleged statement by Ms. Jumper’s physician and Mr. Anderson’s personal experiences with Ms. Jumper, Mr. Anderson “question[ed] [Ms. Jumper’s] mental competence to have had all her documents re-written.” Furthermore, Mr. Andеrson wrote that he “no longer [had] any trust in or confidence in the Verfurths.” “I find it interesting,” Mr. Anderson wrote to Mr. Cohen, “that you too were not aware she had re-done her papers.especially since you are the back-up trustee .... or were. I have been her friend for 30 years.” (Ellipses in original.) A few weeks after Mr. Anderson’s letter to him, Mr. Cohen wrote to Col. Verfurth that he had learned that Ms. Jumper had “executed revised documents in which [he was] no longer her back-up Trustee.”
Several months later, in August 2001, Mitchell J. Shapiro — Mr. Anderson’s lawyer at the time — wrote to Col. Verfurth to express Mr. Anderson’s concern about Ms. Jumper’s finances. Noting that Mr. Anderson held a power of attorney for Ms. Jumper,
6
Mr. Shapiro wrote that Mr.
October 2001 marked another important moment in the saga. One day that month, Mr. Anderson allegedly learned that Ms. Jumper’s legs and buttocks were covered with reddish-black bruises and that she had become incontinent during the night. Mr. Anderson blamed the incident on Col. Verfurth and his family because, as Mr. Anderson explained, “they were the ones who were disbursing, releasing money from Sally’s funds, and in my opinion they should have been more diligent in seeing that her needs were taken care of.” Mr. Anderson acknowledged that “by that time [he] was not on the best of terms” with Col. Verfurth. That was an understatement.
On October 18, 2001, Mr. Anderson wrote a colorful letter to Col. Verfurth, viciously attacking him for his treatment of Ms. Jumper. After recounting the bruises and the incontinence incident, Mr. Anderson accused Col. Verfurth of embezzling money from Ms. Jumper. “I understand that the other day,” Mr. Anderson wrote, “your buddy Linda Thompson [the person in charge of paying Ms. Jumper’s bills and handling her monthly expenses] presented Sal with a check made out to you.” Mr. Anderson continued: “I hope it [ie., the check] will help finance your next vacation, Mr. Verfurth.” After pointing out that he did “not charge Sally Jumper ANYTHING” for the countless things that he brought her, Mr. Anderson concluded: “I am fully aware that you really do not give a s..t about any of these things, but while you are burning in Hell, I would like you to reflect on why you are there.” (editing in original).
D. Mr. Anderson files a guardianship petition.
So things stood until May 2002, when Mr. Anderson — still with no еvidence of any wrongdoing on Col. Verfurth’s part— hired attorney William Rogers. Mr. Rogers testified that he asked Mr. Anderson for all documents that Mr. Anderson had concerning Sally Jumper, but that the only document that Mr. Anderson showed him
Mr. Rogers testified that prior to proceeding further, he spoke with Nancy Lu-dewig (a friend of Ms. Jumper’s), Mamie Boyd (later, the court-appointed visitor for Ms. Jumper), and twice with Ms. Jumper’s doctor, Marta Schneider. According to Mr. Rogers, Dr. Schneider told him that Ms. Jumper was “lucid part of the time but not consistently lucid.” Mr. Rogers did not speak with Ms. Jumper tо determine whether she wanted a guardian appointed for her, and made no independent effort to determine whether she had counsel.
Feeling that Col. Verfurth was “stonewalling” Mr. Anderson and that another letter demanding an accounting would be a waste of Mr. Rogers’ time and Mr. Anderson’s money, Mr. Rogers suggested that Mr. Anderson consider having himself appointed as guardian for Ms. Jumper. Mr. Anderson agreed. Accordingly, on June 18, 2002, Mr. Rogers filed in the Probate Division of the Superior Court a verified Petition in which Mr. Anderson sought to have himself appointed as Ms. Jumper’s guardian and conservator.
The Petition alleged that Mr. Anderson was entitled to serve as Ms. Jumper’s guardian and conservator because he was “her closest and oldest friend.” Mr. Anderson also alleged that he was filing the Petition because of Ms. Jumper’s “lack of consistent lucidity and comprehension of her situation,” and added that Ms. Jumper was “totally blind.” In a blank in the Petition that asks about “[a]ny counsel to the subject known to petitioner,” Mr. Rogers wrote “unknown (but almost certainly NONE).” As the concrete reasons for why a conservator should be appointed, Mr. Rogers checked the following two boxes: (1) “the subject of the proceeding has property that will be wasted or dissipated unless property management is provided”; and (2) “money is needed for the support, care and welfare of the subject.” After receiving the Petition, the trial court appointed Fiona Druy as Examiner, see D.C.Code §§ 21-2041(d) and 21-2054(a) (2001); Mamie Boyd as Visitor, see D.C.Code § 21-20S3(e); and Sheryl Ellison as Counsel for Ms. Jumper, see D.C.Code § 21-2033(b).
Ms. Ellison’s Response to the Petition painted a markedly different portrait of Ms. Jumper than the Petition. Asked about Mr. Anderson’s attempt to become her guardian, Ms. Ellison quoted Ms. Jumper as saying: “he (Allen) has a nerve to apply for this petition.” According to Ms. Ellison, “Ms. Jumper stated that Allen Anderson is
not
her oldest and closest friend; that Jean Howard is.” (Emphasis added.) Accordingly, Ms. Jumper indicated that if someone had to be “responsible for her in the event she was not ... able to do so herself, she stated that she would like for Jean Howard to handle her affairs.” Ms. Jumper “was very clear that
Ms. Ellison believed Ms. Jumper “to be well taken care [of] and secure in her surroundings,” and reported that during their meeting, Ms. Jumper “was alert, and appeared to comprehend the nature of the proceedings.” Although she had “no specific knowlеdge of her portfolio,” Ms. Jumper referred to Col. Verfurth as her “broker.” But according to Ms. Ellison, Ms. Jumper’s caretakers at the nursing home where she was staying said that Ms. Jumper had various medical conditions and that she required care and oversight. Consequently, Ms. Ellison concluded that “[a]n appointment of a permanent general guardian and a general conservator ... to provide continuing care and supervision would be in the best interest of Ms. Jumper.”
Fiona Druy, the court-appointed examiner, also concluded, similarly to Ms. Ellison, that it “appear[ed] that Miss Jumper require[d] the appointment of a guardian and conservator to ensure that all her daily needs may be continued to be met in the most appropriate living environment for her overall safety and well being.” Like Ms. Ellison, Ms. Druy found Ms. Jumper to be “neat and clean,” as well as “alert” and generally pleasant. But mentally, according to Ms. Druy, Ms. Jumper was not in great shape, being “oriented to self and place only.”
On August 1, 2002, the trial court held a hearing on the Petition. Mr. Rogers has conceded that by the day of this hearing he knew about, and indeed had talked to, Ms. Kincaid, who was Ms. Jumper’s estate-planning attorney in 2001. Mr. Rogers also has acknowledged that on the day before the hearing, he received from Ms. Ellison (Ms. Jumper’s court-appointed counsel) a report that included a letter from Ms. Kincaid. Ms. Kincaid’s letter advised thаt she had represented Ms. Jumper since 1995, and that she had prepared for Ms. Jumper a slew of documents, including a will, a trust, a revocable trust agreement, a durable limited power of attorney, a durable medical power of attorney, and an advance directive. Ms. Kincaid also wrote that over the years Ms. Jumper had modified the initial estate-planning documents. Crucially, Ms. Kin-caid wrote: “At this time, all of the planning arrangements continue in effect. In the event that Miss Jumper is no longer able to handle her financial affairs or make her own medical decisions, appropriate arrangements have already been made, and individuals appointed, to address these matters on Miss Jumper’s behalf.” Mr. Rogers testified that he was “pretty sure” that he read Ms. Kincaid’s letter prior to the hearing, but nonetheless he did not bring to the court’s attention any of the documents referred to in that letter. Mr. Rogers claims that he thought that it was for Ms. Kincaid, who was present at the hearing, to present those documents to the court.
After a brief hearing, the trial court appointed Mr. Anderson as Ms. Jumper’s guardian. The court ruled, however, that Mr. Anderson could not serve as Ms. Jumper’s conservator because he was not a member of the bar. Therefore, the court appointed appellee Andrea Sloan (an attor
E. Ms. Sloan seeks to vacate the con-servatorship order.
On September 10, 2002, a little over a month after the court appointed Mr. Anderson to serve as Ms. Jumper’s guardian, Ms. Sloan filed an emergency petition to vacate the order appointing her as conservator. In that emergency filing, Ms. Sloan complained that when she wrote to Col. Verfurth in her capacity as conservator, Col. Verfurth told her that “the ‘compliance officer’ for Morgan Stanley [Col. Verfurth’s former employer] did not recognize the validity of the Letters of Con-servatorship, or the authority of the Conservator.” Ms. Sloan added that Col. Verfurth, “at the direction of the compliance officer, refused to provide any documentation whatsoever regarding the Sally A. Jumper Trust” and that Col. Verfurth “declined to release any funds to [Ms. Sloan] from the Morgan Stanley holdings of the Sally A. Jumper Trust, which contains nearly 100 per cent of her assets.” Ms. Sloan wrote that she needed $18,000 from the trust by September 18, 2002, to pay Ms. Jumper’s nursing home fees, and stated that without those funds, she would “not have sufficient funds to pay for this reasonable, customary and absolutely necessary care for Sally Jumper.” In the emergency motion, Ms. Sloan also advised the court that after the hearing she learned for the first time that Ms. Jumper had executed over the years certain estate-planning documents, including the 1995 and 2001 documents described above.
Ms. Sloan’s emergency motion sought four areas of relief. First, Ms. Sloan asked that the court appoint a psychiatrist as an Examiner to meet with and evaluate Ms. Jumper. Second, Ms. Sloan sought “a determination from [the trial court] as to the validity of either the Sally A. Jumper Trust dated January 12, 2001 or the Sally A. Jumper Trust dated October 6, 1995 and a determination of which, if any, of the Powers of Attorney are valid.” Third, Ms. Sloan wrote that in the event that the trial court found that “the Sally A. Jumper Trust, together with the Powers of Attorney executed by Sally Jumper on any given date are valid and the need for a Conservator is obviated, then [Ms. Sloan] respectfully requests that this Court vacate the appointment of a Conservator ... and determine the proper person to be a Successor Trustee for Sally Jumper.” Fourth, Ms. Sloan wrote that, if the court determined that a conservator was needed after all, then she asked for a “specific order appointing her as Successor Trustee of the Sally A. Jumper Trust ... so that she may access the urgently needed funds for the care, and maintenance and support of Sally A. Jumper.”
F. Mr. Anderson’s reaction to Ms. Sloan’s motion.
After Ms. Sloan filed the emergency motion, Mr. Anderson wrote a series of emails to various persons including Ms. Sloan and Mr. Rogers in which he complained that Col. Verfurth had taken advantage of Ms. Jumper and in which Mr. Anderson expressed a desire to nullify Ms. Jumper’s 2001 estate-planning documents:
• In a September 14, 2002 e-mail, with the subject line of “Enough Already!”, Mr. Anderson wrote to Mr. Rogers that hе had become tempted to ask Mr. Rogers “about the wisdom (and possibility) of ... petitioning the Court to permit [Mr. Anderson] to withdraw as Guardian for Sally Jumper and to name Andrea Sloan as both Conservator and Guardian.” Mr. Anderson complained that he was “afraid” that Ms. Jumper had been taken advantage of “starting in 1995,at least” and that he was frustrated by the “sorry tale [of] duplicity, deceit, greed and behind the scenes machinations.” Mr. Anderson wrote that he had “already told one person [Col. Verfurth] that while he is burning in Hell, [Mr. Anderson] wantfed] him to know he is there -for eternity.” (Ellipsis in original.) Apparently feeling that the afterlife was not enough, Mr. Anderson wrote: “But he should also start to pay HERE, in this life,” before signing off, enigmatically, “Shalom.”
• On September 15, 2002, Mr. Anderson wrote that “[e]ven on the surface,” the 2001 documents “smell.” Mr. Anderson felt that Col. Verfurth and his family (whom Mr. Anderson blamed because they had witnessed some of Ms. Jumper’s 2001 documents) had “railroad[ed] Sally Jumper” and that Col. Verfurth was “the SOB” who had the 2001 Trust altered against Mr. Anderson’s interests.
• On September 16, 2002, Mr. Anderson wrote that he was suspicious of the 2001 documents and that those documents had to be “challenged, in court, and overturned.” The e-mail went on: “But more than anything else, Ver-furth simply HAS to be dealt with .... he is a son of a bitch ... for what he and his family did to Sally” (ellipses in original); indeed, Mr. Anderson felt that Col. Verfurth’s conduct “border[ed]” on “the criminal.” The solution, Mr. Anderson felt, was “to pick up some rocks and see what kind of Verfurth vermin has been crawling under them.” Mr. Anderson concluded his e-mail: “Now, do you believe what I have been saying about him? ?”
• On September 21, 2002, Mr. Anderson wrote: “My little pea-sized brain thinks that THE way to go is to have the 2001 documents declared void. .... Sally’s dementia started at least in 1999 and maybe far before.” (Ellipsis in original.) Feeling that he had been “had” by Col. Verfurth, Mr. Anderson concluded: “If Sally Jumper’s being manipulated and ‘used’ by all four (4) of the Verfurths is not blatant enough fraud, then tell me what is ... don’t you lawyers have a favorite phrase -‘res ipsa loqui-tur.’ ” (Ellipses in original.)
• On September 22, 2002, Mr. Anderson wondered whether there was “any real possibility that what Verfurth has so expertly done can be undone?” Mr. Anderson assured Mr. Rogers that he was “NOT motivated by [Col. Ver-furth’s] having effectively cut [Mr. Anderson] out of the provisions Sally had made” for Mr. Anderson. That said, Mr. Anderson wrote (to Mr. Rogers, with Ms. Sloan copied) that he could not stand being “bested” by Col. Verfurth — “he who deserves the worst.” “The pussilanimous efforts of the THREE of us,” Mr. Anderson wrote with an air of resignation, “have in no way been able to counter his malevolent ... but successful ... moves. Maybe the smartest thing we can do is fold our tents and slowly fade away ... a la Douglas MacArthur.” (Ellipses in original.)
G. The court’s appointment of a doctor to examine Ms. Jumper, and Mr. Anderson’s response.
On September 24, 2002, taking up Ms. Sloan’s suggestion, the trial court appointed an Examiner, Dr. Lawrence Sack, to evaluate Ms. Jumper. The cоurt wrote that an Examiner was necessary “for two reasons.” “First,” the court wrote that it had to know for purposes of the guardianship proceeding whether “in her present condition” Ms. Jumper had “the capacity
After the trial court appointed Dr. Sack, Mr. Anderson wrote additional impassioned e-mails (again, to Mr. Rogers, Ms. Sloan, and others) expressing his concern that Col. Verfurth caused Mr. Anderson to lose out on his share of Ms. Jumper’s estate:
• On October 4, 2002, Mr. Anderson wrote that although he did not care whether the 2001 Trust or the 1995 Trust were deemed operative, he did “not relish kissing goodbye to the 40% of her estate that Sal originally had for me in her earlier undoctored trust, before Verfurth cut me out.” “Would either of you,” Mr. Anderson asked Mr. Rogers and Ms. Sloan, “sit quietly by and let such a benefit to YOU vanish? ?” Mr. Anderson lamented further: “I could use that as part of the entrance fee to Riderwood Village retirement home.” Given his intеrest in Ms. Jumper’s money, and “[i]rre-spective of the outcome of the present mess,” Mr. Anderson wrote that he “want[ed] to challenge in some court, if not Judge Lopez [the judge presiding over the guardianship proceedings],” then the aspect of the 2001 Trust that placed Mr. Anderson’s share of Ms. Jumper’s estate under the discretion of Col. Verfurth. Indeed, Mr. Anderson felt that he “would be a simpleton if [he] were to let the 2001 papers go unchallenged.”
• On October 7, 2002, Mr. Anderson wrote: “I would rather deal with Lucifer than Verfurth.” Col. Verfurth, according to Mr. Anderson, was “arrogant, conceited, opinionated and devious to the nth degree.” Again disclaiming his desire to be guardian, Mr. Anderson wrote that he wished Ms. Sloan to assume that task.
• In an October 8, 2002, e-mail, Mr. Anderson fumed, “[t]his is really dealing with the devil and his female handmaidens.” Mr. Anderson was frustrated that Ms. Sloan had asked him to make available Ms. Jumper’s estate-planning documents to Ms. Ellison, Ms. Jumper’s court-appointed attorney in the guardianship proceeding, and Ms. Kincaid, the attorney who represented Ms. Jumper in connection with the 2001 documents. Because Mr. Anderson felt that he had done all the hard work in tracking down those documents, he wrote that “[t]elling [him] now to share the papers with Kincaid is like telling a police investigator to share his findings with the criminal he is pursuing.”
• On October 18, 2002, concerned about what sort of report the “waffling” Dr. Sack would produce, Mr. Anderson suggested that he аnd Mr. Rogers submit a competing report. Specifically, Mr. Anderson contemplated a document from Ms. Jumper’s physician that would attest that Ms. Jumper had dementia as early as December 1998, which would give grounds for overturning the 2001 Trust. Mr. Anderson urged Mr. Rogers, “I think we would be missing out on a golden opportunity if we do not take this initiative.we stand to lose a lot.” (Ellipsis in original.)
On October 24, 2002, the court held a hearing to consider Dr. Sack’s findings, which turned out to be favorable with regard to Ms. Jumper’s ability to conduct her affairs. Dr. Sack testified that when he met with Ms. Jumper, she was “oriented as to time, place and person” and that she “was able to answer [Dr. Sack’s] questions rather logically.” Dr. Sack talked with Ms. Jumper “at length” about the guardianship proceeding, and Ms. Jumper told Dr. Sack “about the people who were involved in her care and dealing with her monetary affairs.” Based on his examination, Dr. Sack concluded that Ms. Jumper “was competent to make wise decisions with the help of other people. She was very good at enrolling other people to aid her and help her and she spoke highly of their aid.” Dr. Sack reported that Ms. Jumper’s “main irritation or complaint,” about which Ms. Jumper had “strong feelings,” was that Ms. Jumper “felt that she was being quote, controlled, unquote” by Mr. Anderson. 7
Given Dr. Sack’s positive findings аbout Ms. Jumper, and observing that “[n]o evidence controverting Dr. Sack’s testimony was presented regarding Ms. Jumper’s competency,” on October 28, 2002, the court vacated Mr. Anderson’s appointment as Guardian and Ms. Sloan’s appointment as Conservator. The court found that “Sally Jumper ha[d] the present competency to make decisions regarding her medical affairs and financial affairs including the ability to appoint persons to assist her with these matters; and that Sally Jumper has created the Sally A. Jumper Trust encompassing the whole of her present and future estate.”
Then things got really interesting. Ms. Kincaid, the attorney who advised Ms. Jumper in connection with the 2001 Trust, testified that several days after the court affirmed that Ms. Jumper was competent, Ms. Jumper sought completely to disinherit Mr. Anderson. According to Ms. Kin-caid, Ms. Jumper “was very angry with Allen and that he had caused this big mess and she was very upset about all that had happened because of it and all the people that [were] suddenly involved in her life.” Ms. Jumper was frustrated by “new people coming in and out and asking her questions, and was angry about the whole situation and she said that she just didn’t want ... Allen to have anything.” So, per Ms. Jumper’s wishes, Ms. Kincaid prepared additional documents, the “primary purpose” of which was to “essentially eliminate a provision in favor of Allen Anderson,” as well as to “put Colonel Verfurth on as a joint trustee with her at that time.” Ms. Kincaid testified that Col. Verfurth had “no involvement in the preparation of [those] documents.”
In the meantime, although they were unaware of the latest documents that Ms. Jumper had executed, Mr. Rogers and Mr. Anderson were not standing by quietly. Mr. Rogers felt that Dr. Sack’s investigation of Ms. Jumper was, to put it mildly, deficient. Mr. Rogers testified about Dr.
Instead, Mr. Rogers and Mr. Anderson decided to undo the 2001 documents by going to Ms. Jumper directly, recording each of the meetings on audio tape. Thus, a few weeks after the trial court vacated Mr. Anderson’s guardianship, with the case still open only for the trial court to consider fee petitions from the various persons appointed in connection with the matter, Mr. Anderson met with Ms. Jumper. According to Mr. Anderson, Ms. Jumper told him that she was not represented by Ms. Kincaid’s firm. Professing that he sought to be “satisfied that [Ms. Jumper’s] wishes were being followed,” Mr. Anderson phoned Mr. Rogers. Mr. Rogers prepared a legal document that Mr. Anderson and Mr. Rogers took to a meeting with Ms. Jumper. It appears that the document that Mr. Rogers brought to that meeting was a “Statement of SALLY JUMPER”; the Statement purported to reinstate the 1995 Trust (complete with the 40% distribution of her estate to Mr. Anderson). On February 1, 2003, and February 7 (or 8), 2003, Mr. Anderson and Mr. Rogers met with Ms. Jumper again. At those meetings, Messrs. Anderson and Rogers presented for Ms. Jumper’s signature additional legal documents that Mr. Rogers prepared and that altered the designation of the trustee for Ms. Jumper.
On February 14, 2003 — approximately three and one-half months after the guardianship was vacated — Mr. Rogers, following a suggestion that Mr. Anderson gave in his email of February 3, noticed a deposition of Dr. Schneider, Ms. Jumper’s physician. Col. Verfurth’s attorney wrote to Dr. Schneider that she could not be deposed because Ms. Jumper had not waived the confidentiality of her medical records. Dr. Schneider in turn wrote to Mr. Rogers that she would not participate in a deposition unless a subpoena were issued forcing her to do so.
I. The sanctions proceedings.
On June 13, 2003, frustrated by the attempts of Messrs. Anderson and Rogers to undo the 2001 Trust, Ms. Sloan filed a motion seeking sanctions under Super. Ct. Civ. R. 11 against Mr. Anderson and Mr. Rogers. Ms. Sloan argued that sanctions were appropriate because (1) Messrs. Anderson and Rogers filed the guardianship petition without coming clean to the court about the existence of documents providing for Ms. Jumper’s care; and (2) after the filing, and particularly after the guardianship was vacated, Messrs. Anderson and Rogers acted inappropriately by, among other things, inducing Ms. Jumper to sign documents intended to undo the 2001 Trust.
After three days of hearings, the trial court granted monetary sanctions (more on the precise amount later) against Mr. Anderson and Mr. Rogers. Messrs. Anderson and Rogers appealed, and this court reversed the award, holding that sanctions under Rule 11 were unavailable “due to non-compliance with the Rule’s ‘safe harbor’ provision.”
In re Jumper,
On remand, in an order dated July 1, 2008, the trial court, this time acting under its inherent authority, reinstated the sanctions award. The trial court found that “Anderson was impelled by animus and/or
As sanctions for appellants’ conduct, the trial court awarded Ms. Sloan $19,350.04, for which sum, the court held, appellants were jointly and severally liable. The amount of sanctions represents Ms. Sloan’s attorneys’ fees incurred after February 15, 2003 — fees that the trial court found were incurred “as a result of the efforts by [appellants] going beyond the order of the Court to attempt the execution of a new estate plan.”
On July 8, 2008, the trial court issued an Amended Order stating that in addition to being liable to Ms. Sloan, appellants also were jointly and sevеrally liable to Mr. Gazzola, Col. Verfurth’s lawyer, in the amount of $25,745.58. (In its various writings on this matter, the trial court interchangeably stated that the award would go to Mr. Gazzola or his law firm, Quinn, Racusin & Gazzola, Chartered. For clarity’s sake, we shall refer to Mr. Gazzola as the recipient of this award.) The July 8 Order does not itself explain how the trial court arrived at the $25,745.58 figure, but it is clear that the amount derives from a fee petition that Mr. Gazzola filed in March 2004. According to that fee petition, Mr. Gazzola incurred $25,745.58 in fees and expenses beginning in 2003 in fighting Ms. Ellison’s fee petition and in litigating the sanctions issue.
Messrs. Anderson and Rogers then appealed to this court, which appeals we consolidated for purposes of argument and decision. After they filed their opening briefs, Mr. Gazzola filed a “Motion for Leave to Withdraw as Party,” claiming that he was “not a necessary party for the adjudication” of the appeals and that Col. Verfurth had “elected not to participate” in the appeals. We granted Mr. Gazzola’s motion. Mr. Gazzola’s “withdrawal” motion, however, does not make clear whether he is repudiating the award of sanctions in his favor, nor, as we shall explain below, are we able to tell from the trial court’s July 8 Order the basis for the trial court’s award to him. Accordingly, our opinion will discuss that aspect of the order notwithstanding Mr. Gazzola’s “withdrawal” motion.
A. Standard of review.
“We recognize that when determining whether sanctions are warranted, the trial court is better situated than the court of appeals to marshal the pertinent facts and apply the fact-dependent legal standard. Our appellate review is correspondingly limited: the predicate finding of bad faith
vel non
is a factual one which we review under the clearly erroneous standard, and the decision to award fees will be reversed only for abuse of discretion. Our review of the trial court’s ultimate decision to [award] attorneys’ fees is therefore confined to a determination of whether the trial court failed to consider a relevant factor, whether it relied upon an improper factor, and whether the reasons given reasonably support the conclusion.”
Jung v. Jung,
B. Legal principles.
“The District of Columbia applies the general principles of the ‘American rule’ on attorneys’ fees,” which provides that “a prevailing litigant ordinarily may not recover attorneys’ fees from the defeated party when a ease is concluded.”
Jung,
Although it has its advantages, the “American Rule has come under repeated criticism over the years” because there is “some force to the argument that a party who must bear the costs of his attorneys’ fees out of his recovery is not made whole.”
F.D. Rich Co.,
“To relieve the American rule of its potential rigor, courts and legislatures have fashioned certain exceptions in which the prevailing party is allowed to recoup reasonable attorneys’ fees from the loser.”
Synanon Found., Inc.,
“Bad faith may be found either in the initiation of a frivolous claim or in the manner in which a properly filed claim is subsequently litigated. To ascertain whether a litigant has initiated an action in bad faith the court examines whether the claim is entirely without color
and
has been asserted wantonly, for purposes of harassment or delay, or for other improper reasons.... A party’s bad faith in the maintenance of a colorable action, on the other hand, may manifest itself through procedural maneuvers lacking justification or for an improper purpose, such as hаrassment or delay.”
Jung,
C. Analysis.
As described above, the trial court awarded sanctions to Ms. Sloan and Mr. Gazzola, Col. Verfurth’s counsel. We affirm the portion of the order awarding fees to Ms. Sloan, but vacate and remand the portion of the order awarding fees to Mr. Gazzola.
1. Ms. Sloan’s award.
As for the award to Ms. Sloan, we affirm the award of sanctions against both appellants. To give a brief preview, we are troubled by appellants’ decision to institute the guardianship proceedings, but we do not decide whether the filing of the Petition was sanctionable in and of itself. We are satisfied, however, that appellants’ post-filing conduct justifies the sanctions award to Ms. Sloan. And because Ms. Sloan incurred the fees that serve as the basis for the award long after the appellants engaged in sanctionable conduct, we affirm.
See Breezevale Ltd. v. Dickinson,
a. Mr. Rogers.
Mr. Rogers does not argue that the trial court erred by vacating the guardianship. He contends nonetheless that his pre-filing conduct was not sanctionable because before filing the petition, he spoke with Mr. Anderson and several others who knew Ms. Jumper, all of whom allegedly agreed that she needed someone to loоk after her affairs. “How can the proceeding I initiated be branded as ‘meritless,’ ” Mr. Rogers asks, when people close to Ms. Jumper, and even Ms. Ellison, the court-appointed counsel for Ms. Jumper, agreed that a guardianship for her was proper?
As the trial court observed, however, the problem was not simply the filing of the Petition, but some of the representations made therein. Particularly problematic was Mr. Rogers’ checking off a box alleging that Ms. Jumper had “property that [would] be wasted or dissipated unless property management [was] provided.” Mr. Rogers argued that he checked this box merely to convey his concern for the
Also problematic was Mr. Rogers’ failure to advise the court at the first hearing on the Petition that Ms. Jumper had counsel (Ms. Kincaid), and that Ms. Jumpеr, with Ms. Kincaid’s assistance, had executed a number of estate-planning documents. As described above, Mr. Rogers conceded that on the day before the hearing he received Ms. Kincaid’s letter in which Ms. Kincaid wrote that she was Ms. Jumper’s attorney. Further, the letter, which Mr. Rogers was “pretty sure” he read before the hearing, explicitly stated that “all of [Ms. Jumper’s] planning arrangements [were] in effect,” and that “[i]n the event that Miss Jumper is no longer able to handle her financial affairs or make her own medical decisions, appropriate arrangements have already been made, and individuals appointed, to address these matters on Miss Jumper’s behalf.” D.C. Rule of Professional Conduct 3.3(a)(1) states that “[a] lawyer shall not knowingly ... fail to correct a false statement of material fact or law previously made to the tribunal by the lawyer.” When he filed the Petition, Mr. Rogers indicated that Ms. Jumper “almost certainly” was not represented by counsel. Rule 3.3(a)(1) required Mr. Rogers to correct that surely material misstatement, but he did not. Although this omission technically speaking came after Mr. Rogers filed the Petition, because it occurred before the first hearing on the Petition, one might plausibly argue that this conduct should be considered in determining whether Mr. Rogers “initiated [the] action in bad faith.”
Jung,
We need not decide, however, whether Mr. Rogers initiated the Petition in bad faith so as to justify sanctions bеcause the trial court plainly did not abuse its discretion in holding that Mr. Rogers’ post-filing conduct was sanctionable. It is elementary that “[d]uring the course of representing a client, a lawyer shall not communicate or cause another to communicate about the subject of the representation with a person known to be represented by another lawyer in the matter, unless the lawyer has the prior consent of the lawyer representing such other person or is authorized by law or a court order to do so.” D.C. Rule of Professional Conduct 4.2(a).
Mr. Rogers readily admits preparing the documents and meeting with Ms. Jumper. Mr. Rogers claims, however, that there was nothing wrong with his doing so because at the meetings he identified himself as Mr. Anderson’s attorney, and Ms. Jumper allegedly denied having an attorney. Assuming for the sake of argument that Ms. Jumper was unrepresented, 9 that does not help Mr. Rogers. D.C. Rule of Professional Conduct 4.3(a)(1) states that “[i]n dealing on behalf of a client with a person who is not represented by counsel, a lawyer shall not ... [g]ive advice to the unrepresented person other than the advice to secure counsel, if the interests of such person are or have a reasonable possibility of being in conflict with the interests of the lawyer’s client.” The rationale for the rule is that “[a]n unrepresented person, particularly one not experienced in dealing with legal matters, might assume that a lawyer will provide disinterested advice concerning the law even when the lawyer represents a client.” Id., cmt. [1], Accordingly, “[i]n dealing personally with any unrepresented third party on behalf of the lawyer’s client, a lawyer must take great care not to exploit these assumptions.” Id. The rule and its rationale are tailor-made for this case.
Ms. Jumper was on record as being frustrated by Mr. Anderson’s involvement in the Petition. What is more, the documents that Mr. Rogers prepared for Ms. Jumper’s signature were intended to benefit Mr. Anderson by giving to him Ms. Jumper’s assets. As a result, it is clear as day that when Mr. Rogers met with Ms. Jumper and discussed the proceedings, there was аt least a “reasonable possibility” that Ms. Jumper’s interests would conflict with Mr. Anderson’s interests. Whether Mr. Rogers should be disciplined under the Rules of Professional Conduct is a decision for the Office of Bar Counsel to consider in the first instance. For the purposes of this case, however, especially because Ms. Jumper by Mr. Rogers’ own assertion was in such a frail state that she needed a guardian and conservator, the trial court was well within its discretion in holding that Mr. Rogers’ actions warranted sanctions. 10
b. Mr. Anderson.
“Oh what a tangled web we weave, when first we practice to deceive,” Mr. Anderson, quoting Sir Walter Scott, 12 wrote of Col. Verfurth on September 9, 2002-that is, one day before Ms. Sloan moved to vacate the guardianship. Unfortunately for Mr. Anderson, the trial court found that he, not Col. Verfurth, was the one who was “impelled” by ulterior mo-fives. On appeal, Mr. Anderson argues that the sanctions award was erroneous because (1) throughout the litigation Mr. Anderson merely followed the advice of his counsel; and (2) Mr. Anderson was motivated by his concern for Ms. Jumper, not because of animus toward Col. Verfurth or anyone else. We find neither argument persuasive.
As with Mr. Rogers, although we ultimately rest our holding on Mr. Anderson’s post-filing conduct, we begin by noting that Mr. Anderson’s decision to file the Petition itself tests the boundaries of what is sanctionable. Athough Mr. Anderson claimed that Ms. Jumper was taken “advantage” of beginning in 1995 and had begun to develop dementia in 1998 or 1999, he points to nothing that he did at those times to protect Ms. Jumper. Yet a mere six weeks after the 2001 Trust gave Col. Verfurth discretion over how to disburse Ms. Jumper’s assets to Mr. Anderson, Mr. Anderson suddenly became alarmed, and started to document Ms. Jumper’s supposed deterioration and his corresponding anger toward Col. Verfurth. Mr. Anderson’s anger escalated, without any objective support,
13
until he filed the
Again, however, although we are troubled by Mr. Anderson’s decision to file the Petition, we rest our affirmance on his post-filing conduct. As we have explained above, Mr. Rogers’ and Mr. Anderson’s attempts to undo the 2001 Trust were improper. Mr. Anderson contends that he is a lay person who was merely following his lawyer’s advice, and that the sins of his lawyer should not be visited upon him. But the fact that Mr. Anderson is a lay person does not insulate him from sanctions.
See, e.g., Breezevale Ltd.,
Even without reference to Mr. Rogers’ conduct, Mr. Anderson’s own words and deeds support the trial court’s finding that he was acting in bad faith. Giving Mr. Anderson the benefit of the doubt, one can assume for the sake of argument that when he filed the Petition, Mr. Anderson
Mr. Anderson’s reaction to these developments is striking for how much he focused on his own interests, and how little on Ms. Jumper’s. For instance, Mr. Anderson did not view the trial court’s appointment of Dr. Sack to determine whether Ms. Jumper had the mental capacity to execute the 2001 documents as a sensible measure that would help to determine Ms. Jumper’s wishes. Instead, Dr. Sack’s involvement troubled Mr. Anderson, not because he thought that Ms. Jumper’s well-being was at risk, but because Mr. Anderson did “not relish kissing goodbye to the 40% of her estate that Sal originally had for [him] in her earlier undoctored trust.” (Mr. Anderson, as will be recalled, thought that he could have used the forty percent share that he thought was coming his way after Ms. Jumper died to finance his entry to a retirement home of his own.) Indeed, even before Dr. Sack returned his report finding that Ms. Jumper was competent to execute the 2001 documents, Mr. Anderson was already contemplating a challenge to the provision in the 2001 Trust giving Col. Verfurth discretion of the funds set aside for Mr. Anderson — Mr. Anderson thought that “he would be a simpleton if [he] were to let the 2001 papers go unchallenged.” Then, in the days leading up to the hearing, Mr. Anderson wrote that he feared that Dr. Sack was “waffling,” and that his findings would not be favorable to him. In response to this perceived threat, Mr. Anderson proposed that he and Mr. Rogers submit a competing report that would attest that Ms. Jumper had dementia as early as 1998, which would provide grounds for overturning the 2001 Trust. Mr. Anderson explained: “I think we would be missing out on a golden opportunity if we do not take this initiative.we stand to lose a lot.” (Ellipsis in original.)
Eventually, Mr. Anderson’s fears materialized. On October 24, 2002, after finding that the existing documents adequately provided for Ms. Jumper’s care, the trial court vacated the guardianship and conser-vatorship. Given that Mr. Anderson continued to claim that he was not interested in Ms. Jumper’s money, and the fact that he has never argued that the trial court erred by vacating the guardianship, one might have expected at that point that the matter would come to a close. It did not.
Instead, his disclaimer of an interest in Ms. Jumper’s assets notwithstanding, Mr. Anderson attempted almost immediately to reinstate Ms. Jumper’s 1995 Trust. He did so even though restoring the 1995 Trust would have no tangible benefit for Ms. Jumper (though it would reward him handsomely). Mr. Anderson did not invite Col. Verfurth (whom he had accused, without any basis, of embezzling money from Ms. Jumper, and had called, among other things, “vermin”) or Ms. Kincaid (whom he had compared to a “criminal”) to the meetings he had with Ms. Jumper. This shows that Mr. Anderson acted in bad faith because after the trial court affirmed the validity of the 2001 documents, it became established as a matter of law that Col.
Mr. Anderson concedes that he “clearly had animus for Col. Verfurth,” but argues that he acted at all times not because of that animus, but out of his concern for Ms. Jumper. As we have said, “[t]he truth is that litigation often is brought for a host of reasons, and with varying degrees of animus and vehemence.”
Jung,
2. Mr. Gazzola’s award.
Unfortunately, because we cannot discеrn from the record the trial court’s rationale for awarding sanctions to Mr. Gazzola, we must vacate that portion of the order and remand the case to the trial court for further proceedings. In so doing, we note that in 2004, when the sanctions litigation was still proceeding under the Rule 11 framework, the trial court at first held open the possibility that Mr. Gazzola’s fees would come from Ms. Jumper’s estate — on the condition, that is, that Mr. Gazzola could show that he provided a benefit to Ms. Jumper’s estate. After reviewing Mr. Gazzola’s fee petition, however, the trial court found that Mr. Gazzola had not provided any services benefitting Ms. Jumper. The trial court also found, somewhat paradoxically, that Mr. Gazzola’s services “were reasonable and necessary in order to reach[ ] the final results,” though the court did not explain which “results” it had in mind. Ultimately, the court ruled that Mr. Gazzola’s fees would have to come from Messrs. Anderson and Rogers, not Ms. Jumper’s estate.
After remand, the trial court reinstated the sanctions award, but it did not explain why it was awarding sanctions to Mr. Gaz-zola. Indeed, in its July 1, 2008, Order, the trial court ruled that Mr. Gazzola was not entitled to sanctions at all. Without elaboration, however, the July 8, 2008, Or
Because the trial court’s silence as to these issues precludes us from being able to conduct a meaningful review of that portion of the July 8, 2008 Order awarding fees to Mr. Gazzola, we must vacate that portion of that Order and remand for further proceedings.
See Johnson v. United States,
III. Conclusion
The portion of the July 8, 2008, Order of the trial court awarding sanctions to Ms. Sloan is affirmed. The portion of the July 8, 2008, Order awarding sanctions to Mr. Gazzola is vacated and remanded for further proceedings consistent with this opinion. Finally, we direct the Clerk of this court to forward a copy of this opinion to the District of Columbia Office of Bar Counsel.
See Synanon Found., Inc.,
So ordered.
Notes
. Our account of Ms. Jumper's life is drawn from the report of a court-appointed nurse practitioner who examined Ms. Jumper in 2002, and who, in turn, obtained some of her information from Mr. Anderson. We are mindful that Mr. Anderson may not have been entirely objective regarding Ms. Jumper, but we see no harm in citing the nurse practitioner’s report for the purposes of background.
. Ms. Jumper also executed a Durable Medical Power of Attorney, in which she provided that if a "licensed physician ... determined that [Ms. Jumper was] incapable of making an informed decision about" her medical treatment, Mr. Anderson was appointed as Ms. Jumper’s attorney-in-fact to "do whatever he ... believe[d was] required with respect to [Ms. Jumper's] medical care and treatment.” And in a Durable Limited Power of Attorney that was effective "immediately,” Ms. Jumper appointed Mr. Anderson as her attorney-in-fact (with Mr. Cohen as the alternate) to perform a number of tasks related to Ms. Jumper’s finances.
.In between, on June 12, 1996, Ms. Jumper executed another Durable Medical Power of
. Mr. Anderson gave conflicting testimony about his knowledge of the 2001 documents. Initially, Mr. Anderson agreed that in "early 2001” Col. Verfurth had told him that Ms. Jumper's estate-planning documents had been "redone.” At the third day of the hearing on the sanctions, however, Mr. Anderson denied becoming "aware” of either the 1995 estate-planning documents or the 2001 estate-planning documents until September 2002.
. It is not clear upon which of the plethora of powers of attorney Mr. Shapiro and Mr. Anderson were relying in the August 17, 2001, letter. The letter itself notes that “a copy of the document appointing Mr. Anderson” was enclosed in the letter, but in the record no enclosure follows the letter. According to William Rogers, Mr. Anderson’s attorney in 2002, the power of attorney that Mr. Anderson believed gave him the right to an accounting was a "general power of attorney with a durable provision” from April 1995. The only document in the record matching that description, however, is a medical power of attorney that does not purport to authorize Mr. Anderson to have access to Ms. Jumper's financial affairs.
When Mr. Shapiro wrote to Col. Verfurth there also was in effect a Durable Limited Power of Attorney from October 6, 1995. Although that document did grant Mr. Anderson certain authority over Ms. Jumper's finances, it is unclear whether it included the power to obtain an accounting of Ms. Jumper’s assets under the 1995 Trust. In any event, that power of attorney was a problematic source of authority for Mr. Anderson because it provided that "[i]n the event that there is a conflict between my attorney-in-fact hereunder and my trustee(s) under the Sally A. Jumper Trust, dated the sixth day of October, 1995, the decision(s) of my trustee under said trust shall control.”
. At the hearing, Ms. Sloan also cоmplained that Mr. Anderson wrongfully had sold "a number” of Ms. Jumper's assets. Neither Mr. Anderson nor Mr. Rogers contested this accusation, and the trial court eventually required, as part of the order vacating the guardianship, Mr. Anderson to provide a written accounting to Ms. Sloan of several items belonging to Ms. Jumper that Mr. Anderson controlled. The order also directed Mr. Anderson to "immediately return to Sally Jumper any property belonging to her or to her Trust in his possession including, but not limited to, clothing, papers and other personal property.”
. Mr. Rogers also claims, citing no authority, that sanctions for pre-filing conduct are the province of Rule 11 alone. Our earlier decision in this case — by reversing the award of sanctions under Rule 11 but remanding for a determination of whether sanctions were justified under the court's inherent authority— rejected that argument.
See In re Jumper,
. It is far from clear that the assumption is warranted because Ms. Kincaid testified that she remained Ms. Jumper’s attorney as of the dates of the meetings between Ms. Jumper and Mr. Rogers.
. Mr. Rogers also argues — again, without citing any authority — that "activities of an attorney outside the courtroom and unconnected to litigation cannot be the subject of sanctions.” This contention is demonstrably false. To begin with, when he met with Ms. Jumper, the guardianship case was still open, and the very raison d’étre of the meetings was to reverse the order vacating the guardianship — that is why Mr. Rogers provided a copy of the tape recordings of those meetings to the court. Thus, even though Mr. Rogers met with Ms. Jumper outside of court, the meet
.Mr. Rogers’ defense that throughout he was "simply acting as [Mr. Anderson's] attorney” does not pass muster. As the Seventh Circuit has said, quoting Elihu Root, " ‘about half of the practice of a decent lawyer is telling would-be clients that they are damned fools and should stop.’ ”
McCandless,
. For variations on the spelling and punctuation of this famous quote,
see Marboah v. Ackerman,
. Mr. Anderson’s protestations to the contrary notwithstanding, it is difficult to see why the 2001 Trust's treatment of Mr. Anderson was anything but reasonable. To be sure, unlike the 1995 Trust, the 2001 Trust did not give Mr. Anderson a lump sum amounting to 40% of Ms. Jumper’s estate. The 2001 Trust,
. Mr. Anderson claims that he did not know of the change made by the 2001 Trust until September 2002, but approximately one month after the 2001 Trust was executed Mr. Anderson wrote a letter to Mr. Cohen in which he "questioned] [Ms. Jumper's] mental competence to have had all her documents rewritten.” Further, clearly suggesting that Mr. Anderson knew of some specific changes that had been made, Mr. Anderson wrote to Mr. Cohen: "I find it interesting that you too were not aware she had re-done her papers. .... especially since you are the back-up trustee .... or were.” (Ellipses in original.)