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ATTORNEY disciplinary proceeding.
Attorney's license suspended.
¶1 PER CURIAM. Pending before the
court is the report of referee Jonathan V.
Goodman, following a hearing and the receipt
of a stipulation and supplemental
stipulation between the Office of Lawyer
Regulation (OLR) and the respondent,
Attorney Linda L. Gray. Attorney Gray has
opted to plead no contest to the sole
misconduct count brought against her: a
violation of SCR 20:1.8(c) related to her
drafting of the will of M.A., who died at
age 71 in January 2015. Although Attorney
Gray is not related to M.A., she received a
significant testamentary gift from her: the
balance of her estate after specific
bequests to charities were distributed,
which resulted in Attorney Gray receiving
$298,742.12. Consistent with the parties'
stipulation, the referee recommended that
this court suspend Attorney Gray's Wisconsin
law license for 60 days for her professional
misconduct. The referee further recommended
that Attorney Gray should be assessed the
full costs of the proceeding, which are
$2,067.67 as of January 17, 2018. The OLR
does not seek the payment of restitution in
these proceedings, and the referee does not
recommend it.
¶2 No appeal has been filed so we
review this matter pursuant to SCR 22.17(2).
We approve and adopt the referee's findings
and conclusions and we agree that a 60-day
suspension is sufficient discipline for
Attorney Gray's misconduct. We further
order that Attorney Gray pay the full costs
of this disciplinary proceeding. We decline
to order restitution.
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¶3 Attorney Gray was admitted to the
practice of law in Wisconsin in 1982. She
practiced law in East Troy, Wisconsin at the
time of the filing of the complaint. Her
disciplinary history consists of one private
reprimand imposed some time ago, in the
1980s.
¶4 Attorney Gray knew M.A. since the
mid-1980s. M.A. never married, had no
children, and was estranged from her
siblings and other relatives. Attorney Gray
and M.A. became close friends and remained
so for many years preceding M.A.'s death.
¶5 M.A. died in January 2015 at age 71
after a battle with cancer. During M.A.'s
illness, Attorney Gray spent a great deal of
time attending to M.A.'s needs, rendering
what the referee described as "outstanding
care and attention" that went "above and
beyond the norm in her devotion to [M.A.]
and her assistance and care in [M.A.'s]
final years, months, and days." The care
rendered by Attorney Gray included, but was
not limited to, spending considerable time
taking M.A. to and from her required medical
treatments.
¶6 In 2013, M.A. asked Attorney Gray to
draft a will to replace one that Attorney
Gray had drafted for her many years earlier,
in 2000. Attorney Gray did so, and M.A
signed the will before witnesses in
September 2013. M.A.'s drafting
instructions for the will were clear: no
bequests were to be made to any of her
relatives; specific bequests were to be made
to certain charities; and the balance of her
estate was to be distributed to Attorney
Gray. Attorney Gray drafted the will in
accordance with these instructions, and M.A.
signed the will in the presence of
witnesses. There is no dispute that M.A.
had testamentary capacity at the time she
signed her will.
¶7 After M.A.'s death, the will went
through probate without contest. Attorney
Gray served as the personal representative.
¶8 As explained above, under the terms
of the will, Attorney Gray received over
$290,000 from M.A.'s estate. Her receipt of
this money triggered a complaint to the OLR
by a relative of M.A. who had little in the
way of a relationship with M.A. during her
lifetime.
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¶9 The parties stipulated and the
referee concluded that Attorney Gray had
violated SCR 20:1.8(c) by drafting M.A.'s
will, given that Attorney Gray was not
related to M.A. and received a significant
residuary gift from the will. On the basis
of this professional misconduct, the parties
stipulated to a 60-day suspension of
Attorney Gray's license. The referee
adopted that stipulation as his
recommendation to the court. He wrote that,
although one could "easily conclude" that a
public reprimand would be appropriate here,
a 60-day suspension is appropriate given the
gravity of the offense and the need to deter
other attorneys from engaging in similar
conduct.
¶10 The referee held an evidentiary
hearing to evaluate whether this court
should order Attorney Gray to reimburse
M.A.'s estate for the nearly $300,000
residuary gift she received. After hearing
testimony from Attorney Gray and two of
M.A.'s long-time friends, the referee
recommended against a restitution order,
citing Attorney Gray's age (70 years old),
the loss of business and income she incurred
as a result of adverse publicity generated
by these proceedings, and "the lack of
evidence of any undue influence" by Attorney
Gray on M.A.
¶11 After careful review of the matter,
we conclude that the record supports the
referee's findings of fact. Accordingly, we
adopt them.
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¶12 We further agree with the referee's
conclusion of law that Attorney Gray
violated SCR 20:1.8(c). As an admitted non-
relative of M.A., Attorney Gray had a duty
to refuse to draft a will in which she would
receive a testamentary gift. See
State v.
Collentine, 39 Wis. 2d 325, 332–33, 159
N.W.2d 50 (1968). She was obliged to advise
M.A. to consult another attorney if M.A.
insisted on making such a bequest. Id.
Attorney Gray violated this duty when she
drafted M.A.'s will and included herself as
a beneficiary.
¶13 We further agree that a 60-day
suspension is appropriate. Our case law
dictates that a suspension, rather than a
reprimand, is required. In State v.
Beaudry, 53 Wis. 2d 148, 191 N.W.2d 842
(1971), we concluded that a reprimand was
appropriate for an attorney-beneficiary who
selected another attorney to act as a mere
scrivener, not as an independent legal
advisor, in drafting a client's will in
which the selecting attorney was named the
primary beneficiary. We warned that "we
consider the seriousness of this reprimand
to be but a notch or a hairline from
suspension." Id. at 156. Here, no
daylight
separates Attorney Gray's actions from what
we have demarked as unethical behavior, both
by rule and by precedent.
¶14 But like the referee, we see no need
to order a suspension longer than the
parties' stipulated 60-day suspension. A
60-day suspension is, generally, our minimum
suspension length. See In re
Disciplinary
Proceedings Against Grady, 188 Wis. 2d 98,
108–09, 523 N.W.2d 564 (1994). A minimum
suspension length is appropriate here given
Attorney Gray's scant disciplinary history
and the absolute absence of evidence in the
record that she took advantage of M.A., her
longtime friend. By all indications,
Attorney Gray's preparation of M.A.'s will
was misguided, not malevolent.
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¶15 We turn next to the issue of
restitution. We agree with the referee's
determination, based on the parties'
stipulation and the testimony received at an
evidentiary hearing, that a restitution
order would be inappropriate. M.A.'s will
has been fully probated and the estate is
closed. Ordering Attorney Gray to make
restitution of the amount of her residuary
gift here would undo the results of those
probate proceedings——something we decline to
do, particularly given the facts of this
case.
¶16 Finally, we turn to the issue of
costs. The referee has recommended that
Attorney Gray pay the full costs of this
proceeding, which total $2,067.67 as of
January 17, 2018. Attorney Gray has not
objected to this recommendation. In the
absence of any objection, and consistent
with our general practice, we impose full
costs. See SCR 22.24(1m).
¶17 IT IS ORDERED that the license of
Linda L. Gray to practice law in Wisconsin
is suspended for a period of 60 days,
effective May 30, 2018.
¶18 IT IS FURTHER ORDERED that Linda L.
Gray shall comply with the provisions of SCR
22.26 concerning the duties of a person
whose license to practice law in Wisconsin
has been suspended.
¶19 IT IS FURTHER ORDERED that within 60
days of the date of this order, Linda L.
Gray shall pay to the Office of Lawyer
Regulation the costs of this proceeding,
which are $2,067.67 as of January 17, 2018.
¶20 IT IS FURTHER ORDERED that
compliance with all conditions of this order
is required for reinstatement. See SCR
22.29(4)(c).
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