Ethics in Action

September 30, 2016 § 1 Comment

Ethical rules are clear in an academic context. Anyone who has practiced law, however, will tell you that applying them in the day-to-day scrum can be devilishly difficult.

For instance: You have discovered that, in a will you had prepared some time before your client’s death, you omitted one of his children whom he intended to be a beneficiary, and neither you nor he caught the omission. Now you are being called upon to probate the will, and you realize your oversight. What do you do?

A reader sent me this:

Attorney Parker Clifton was retained by Frank Henry to prepare estate planning documents. Clifton inadvertently omitted one of Henry’s daughters as a child on the first page of a pour-over will. The omission did not have any effect on the dispositive provisions of the document. At Henry’s death, Clifton was retained to probate the will. Before filing the document with the probate court, Clifton altered the first page to correct the error. After questioning by the daughter about the alteration, Clifton withdrew as counsel and self-reported his conduct.

The Ohio Board of Professional Conduct concluded that Clifton had violated Ohio R. Prof. Conduct 3.3(a)(1) (knowingly making a false statement of law or fact to a tribunal) and 8.4(c) (engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation). Based on these violations, and considering mitigating factors such as a lack of prior discipline and Clifton’s self-reporting, the Ohio Supreme Court adopted the Board’s recommendation and issued a public reprimand.

Warren Cty. Bar Assn. v. Clifton, 2016 WL 4553838 (Ohio Sept. 1, 2016).

I invite your comments on how you would have addressed this situation.

Did Mr. Clifton really have to do anything, in light of the fact that, ” … The omission did not have any effect on the dispositive provisions of the document” ? The omission was “on the first page” of the will; we don’t know whether the missing name appeared elsewhere in the document.

If she were completely omitted and the testator had intended for her to be included, that would be a major problem. Otherwise, mere failure to name her in one paragraph would probably be inconsequential if she were identified elsewhere in the document.

Here, Mr. Clifton’s sin was in the alteration of the document and the initial dishonesty. Had he acknowledged the error and then had withdrawn and offered himself as a witness to the true facts, we would not be reading about him here.

This is the kind of thing that haunts lawyers sitting alone in their offices, confronted with a simple mistake that could have far-reaching implications that could reach into the lawyer’s wallet.


Thanks to Attorney Hale Freeland

§ One Response to Ethics in Action

  • Bentley Conner says:

    There’s not enough information to say with certainty how to handle that situation. In Cain v. Dunn, 241 So.2d 650 (1970), the drafter of the will was Cain (GAL for one of the legatees) Issue was presented as to whether the bequest was to a “class” of beneficiaries or to named individuals. Testator named 5 grandchildren. At the time of drafting the will, Number 6 was in gestation and nobody knew it. She was born 4 months after the will was executed. Testator died 6 years later without writing a new will. SCOMs talks about surrounding circumstances 8 times in the opinion and concludes that it was intended to be a gift to a class.

    Interpretation of these circumstances is vested in the Chancellor. In the words of SCOMs, “Mississippi Code 1942 Annotated section 1263 (1956) provides that the court in which a will has been probated has jurisdiction to hear and determine ‘all questions in relation to the execution of the trust of the executor * * * appointed for the administration and management of the estate, and all demands against it * * *.’ Mississippi Constitution 1890 section 159 vests the chancery court with full jurisdiction in testamentary matters. Interpretation of this will is incidental to needed relief in the form of proper distribution of the estate’s assets. In short, this proceeding is for determination of property rights in the assets of an estate being administered under the jurisdiction of the chancery court.”

    Another issue, not mentioned by the litigants or SCOMs, is that such a bequest could be interpreted as a gift “to my grandchildren, born or unborn” which would violate the Rule Against Perpetuities and could void that provision altogether. That decision is above my pay grade. Thank God for Chancellors.

    I was recently asked to probate a will where the Testator had asked the drafting attorney to change the first page. Testator and lawyer removed page 1 and substitute alternate page 1 without re-executing it. They relied on the previous attestation of two otherwise competent witnesses. I tried to explain to the family that it was not a “New Will”. The first page having been destroyed by the Testator, It was a “Not a Will.” But, too many copies of both documents had been distributed to make anybody really happy. We offered both versions for probate, making full disclosure to the Chancellor, summonsed all heirs at law, and summonsed all testamentary beneficiaries. Rather than risk a finding that the will had been revoked by the Testator’s act of destruction, everybody agreed that the second will was the accurate expression of testamentary intent. Then they agreed to a distribution and signed off on receipts..

    Thusly I learned that you don’t have to be good if you’re lucky.

    Ben Conner

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