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Elder Law Issues
JULY 10, 2006  VOLUME 14, NUMBER 2

Lawyer Names Self as Executor, Sets High Fees, Gets Disbarred

Just three months ago we reported on a Maryland case in which a lawyer wrote his daughter into a client’s will, and was reprimanded—but not given any more serious sanction—by that state’s highest court. In that case, the judges thought the punishment should be light, since they believed the lawyer when he said that he had never heard of the rule prohibiting lawyers from writing wills benefiting themselves or family members.

A similar argument proved to be far less persuasive in neighboring West Virginia recently. The West Virginia Supreme Court annulled the license of (that is, permanently disbarred) Morgantown lawyer John Patrick Ball and ordered that he return over $2.8 million he and his family had received in bequests and fees from three estates.

Mr. Ball’s behavior was admittedly more egregious than that of the Maryland lawyer in the earlier case—especially if judged by the amount of money involved. Mr. Ball was also much subtler, as most of the funds he received came not from naming himself as a beneficiary directly, but by inserting himself into wills and trusts as executor or trustee, and setting outrageously high fees (7.5% of each estate, plus additional fees of 1% of the value of assets annually for overseeing distributions to charities). In addition, Mr. Ball helped one client modify her annuities so that they named Mr. Ball's sons as beneficiaries (to the tune of $487,783.13), and two of the three wills left personal property (a $20,000 automobile and $44,000 worth of personal effects and jewelry) to Mr. Ball and his wife. Finally, at least one of the wills provided that Mr. Ball's wife would succeed him in the role of overseeing distributions to charity, and his law partner and another lawyer would act if neither Mr. nor Mrs. Ball could do so.

Mr. Ball, who first began practicing law in 1963, argued that he was unaware that his actions violated ethical rules and that he was simply carrying out the wishes of clients. A bar disciplinary panel recommended that he be suspended from practicing law for five years (Mr. Ball is 71 years old, incidentally), and that if he applied to return to practice after the five year suspension he should be required to show that he had refunded about one-third of the fees he had received.

Nonsense, ruled the West Virginia Justices. "We find Mr. Ball’s position to be insulting to the integrity of the Rules and to this Court. Rather than taking full responsibility for his misconduct by admitting what the evidence conclusively establishes, Mr. Ball argues that although he practice law for over thirty years, he did not know that charging excessive fees, drafting self-aggrandizing wills and assisting a client to enrich his children constituted conduct that was prohibited by the Rules." Lawyer Disciplinary Board v. Ball, June 15, 2006.

People visit lawyers—and often develop close personal as well as professional relationships with them—precisely because they need unbiased counsel, free from any self-interest or motivation for personal gain, and they should be able to trust that the lawyer is providing exactly that. Sometimes (rarely) it may be appropriate for a lawyer to draft a will or trust naming himself or herself as personal representative, executor or trustee—but not at fees far above prevailing rates, or with any special protections given to the lawyer.

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