From time to time Elder Law Issues reports on the kinds of problems lawyers make for themselves—and their clients—by ignoring or skirting ethical rules. In recent months, for example, we have related the stories of lawyers in Maryland and West Virginia who wrote themselves or close family members into clients’ wills; the first received a mild sanction, the second permanent disbarment. Three months ago we would have said that similar abuses by lawyers were very rare—now we’re not so sure.

In Barnstable, Massachusetts, a lawyer (the reported opinion carefully excises the lawyer’s name) prepared a 1994 will for Nathan Southwick leaving some stock to Mr. Southwick’s alma mater (Bentley College) and the rest of his estate to the lawyer. That practice was not clearly forbidden by Massachusetts ethical rules at the time, but four years later the Massachusetts Supreme Judicial Court adopted the rule in place in most states, and it became impermissible to write a will benefiting the lawyer or close family members. Mr. Southwick’s will was not changed, and when he died in 2000 his lawyer received nearly $800,000 from his estate (plus another $50,000 in fees to probate the estate).

The probate court questioned the result and asked the state’s highest court to decide whether the will was valid. Since no one other than the probate judge objected, said the Court, and since the practice was not prohibited at the time, the will should be allowed to stand. Estate of Southwick, July 17, 2006.

At the same time that the probate judge referred the matter to the Massachusetts Supreme Judicial Court, he also filed a complaint with the state's lawyer disciplinary board. That organization determined that the lawyer's behavior did not violate any Massachusetts ethical rules in place at the time he wrote the will, and dismissed the proceedings.

Another Massachusetts attorney, Robert Lupo of Waltham, was more direct. When his aging aunt faced nursing home placement Mr. Lupo, a licensed real estate broker as well as a lawyer, suggested that she would need to get rid of her home. He then purchased it for $170,000, though he knew it was worth at least $240,000. Later he argued that he wasn’t really hurting his aunt; if he had paid the full value, it just would have delayed her eligibility for Medicaid assistance. The Supreme Judicial Court was not amused by that argument; for that and other offenses Mr. Lupo was indefinitely suspended from the practice of law. Matter of Lupo, July 28, 2006.

And then there is Brian Peterson, who was already suspended from the practice of law when he used a power of attorney to help an elderly woman try to qualify for Medicaid long-term care benefits. His “help” included buying her a $37,000 vehicle (which he put in both names and then bought from her for $10,000 less than the original price) and expensive furniture and stereo equipment. He filed two Medicaid applications, but omitted details on both. He didn’t qualify her for Medicaid, but the Minnesota Supreme Court did disbar him after finding that he violated Medicaid rules by not disclosing assets, that he failed to pay state taxes due on the purchase of his client's vehicle, and that he impermissibly benefited himself while supposedly working for his client's benefit. Petition against Peterson, July 27, 2006.

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