We have often written in our blog about the rise in financial abuse and exploitation of the elderly. Members of our practice group serve on the Board of Directors for Ohio Coalition of Adult Protective Services. We have presented on the topics of elder abuse and diminished capacity to better educate other professionals and the public at large about the special care and protection our seniors require.
Unfortunately, some vulnerable clients are not even safe from their own lawyers. Recently, the Ohio Supreme Court issued a two-year suspension (with one-year stayed) of the law license of James Bishop, II because he took advantage of his elderly estate planning clients, Isadore and Helen Urbanski.
Mr. and Mrs. Urbanski were already 93 and 92 years old, respectively, when they first met Bishop in 2013. At that time, the Urbanskis had a modest annuity with New York Life Insurance Company, which had been in place since 2006. In the years before they met Bishop, the Urbanskis relied on Mr. John W. Hiles, Jr. (presumably a friend, although the facts do not explain his relationship) for assistance with their financial matters.
In the summer of 2013, the Urbanskis met and then retained Bishop to assist with their estate planning. On October 1 of that year, the Urbanskis signed a beneficiary designation form changing the contingent beneficiary of their annuity to 90% to Maureen McQuillen and 10% to the Boy Scout Troop 222. Unknown to the Urbanskis, Maureen McQuillen was in fact Maureen Bishop, the wife of their attorney James Bishop, although she had not gone by her maiden name “McQuillen” in over 20 years. The Boy Scout Troop was the same Troop to which Bishop’s son belonged. During a subsequent investigation, it was determined that Bishop handwrote this beneficiary form himself.
In 2015, the annuity company sent the Urbanskis a letter stating that their annuity did not have a primary beneficiary, although it listed McQuillen and Troop 222 as contingent beneficiaries. Mr. Hiles, by luck and chance, reviewed this letter on behalf of the Urbanskis and kept a copy of it.
In March 2017, Isadore Urbanski died. Shortly thereafter, in May 2017, Mr. Hiles, on behalf of Helen, submitted an attorney grievance to the Toledo Bar Association and included the 2015 letter naming the contingent beneficiaries. In following procedure, the Bar Association sent a copy of the documentation to Bishop for him to reply to the allegations and explain the situation. Bishop – now having been caught – asked Mrs. Urbanski to complete a new beneficiary designation form, which she did naming her estate (which benefited charities) as the beneficiary of the annuity.
By this time, Helen was 96 years old and a widow. Helen passed away in December 2017, and luckily, her annuity passed according to the terms of her will and not to Bishop, his wife, or his son’s Boy Scout Troop.
The Ohio Supreme Court, aided by its authorized Grievance Committees throughout the state, is solely responsible for reviewing attorney conduct, determining violations of the Ohio Professional Rules of Conduct, and determining what discipline, if any, is warranted. Discipline ranges from a “public reprimand” to a complete disbarment.
The relevant Ohio Rules of Professional Conduct is 1.8(c), which states in the pertinent part:
A lawyer shall not prepare on behalf of a client an instrument giving the lawyer, the lawyer’s partner, associate, paralegal, law clerk, or other employee of the lawyer’s firm, a lawyer acting “of counsel” in the lawyer’s firm, or a person related to the lawyer any gift unless the lawyer or other recipient of the gift is related to the client.
Clearly, Bishop’s handwriting on the form indicated that he prepared the form and there is no question that Bishop’s wife is a person related to Bishop.
During the investigation, Bishop was evasive and claimed he had no recollection of the beneficiary form or how it was completed. He did not initially acknowledge that it was his handwriting on the form, which caused the investigating committee to have to hire a handwriting expert. Once finally confronted, Bishop did not acknowledge his wrongdoing. These tactics resulted in a higher sanction than might have otherwise been handed down. Bishop’s law license was suspended for 2 years, with 1 year stayed on the condition that he engage in no further misconduct.
There were two surprising details in the Supreme Court’s opinion: First, the total value of the annuity was approximately $42,000 - meaning that Bishop’s wife would inherit about $38,000. Bishop had been a licensed attorney for over 30 years at the time he committed this breach of ethics and trust. This was a relatively small amount for a long-time attorney to risk his career and reputation. Secondly, Ohio updated its attorney ethics rules in 2007. This is the first case of an attorney ethics violation dealing with 1.8(c). Don’t think that means these violations do not happen – the same prohibition about gifts from clients existed under the prior rules and the Supreme Court cited several similar cases of a lawyer drafting estate planning documents for clients and including the lawyer’s own family as beneficiaries. The new rules cover only conduct occurring on or after February 1, 2007.
Of more importance are the lessons this case can teach us. If the annuity company never sent the letter in 2015, the entire scheme may have gone unnoticed. If the Urbanskis had not had Mr. Hiles assisting them with their finances – apparently a trustworthy friend – they may not have noticed the importance of the 2015 letter pointing out the contingent beneficiaries being Bishop’s wife and the boy scout troop. Clearly, our vulnerable seniors need close and trusted people to assist them with complex estate planning – because one wrong form could change the entire plan.
A conscientious financial institution will stay in touch with clients and remind clients to check their beneficiary designation. At a minimum, this helps to prevent accounts ‘slipping through the cracks’ and in the best cases, as here, that diligence will uncover mistakes and financial exploitation in time to correct it. Reminger’s probate litigation department has been involved in cases holding financial institutions to task if they are neglectful of financial abuse of the elderly and other vulnerable persons. Clearly, this annuity company was minding their p’s and q’s and it helped to protect the Urbanskis.
In this case, when Helen finally passed, the form had been updated to properly reflect Helen’s true intentions. However, if the Urbanskis had both died before the scheme was uncovered, it could have required complex probate litigation to undo the improper beneficiary designations. This is the exact type of intricate scenario in which our probate litigation department focuses. This area of law involves concepts of fraud, lack of capacity, undue influence, and breaches of trust and fiduciary duty. Sometimes the bad actors are otherwise seemingly trustworthy family members, friends, or in this case, even an attorney. If your loved one’s estate plan has been altered by a bad actor, you will need an expert attorney to discover – and correct – the improper documents and transactions.
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- Adam M. Fried Scheduled to Speak at 2020 The Ohio American College of Trust and Estate Counsel Fellow Meeting
- Timothy Gallagher and Paul Shugar Author Article for January/February 2020 Issue of Probate Law Journal of Ohio
- Attorney Ethics Investigation Uncovers Financial Abuse
- Franklin Malemud Authors Article for November/December 2019 Issue of Probate Law Journal of Ohio