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In re Application for Disciplinary Action Against Kuhn

July 7, 2010

IN THE MATTER OF THE APPLICATION FOR DISCIPLINARY ACTION AGAINST GERALD A. KUHN, A MEMBER OF THE BAR OF THE STATE OF NORTH DAKOTA
DISCIPLINARY BOARD OF THE SUPREME COURT OF THE STATE OF NORTH DAKOTA, PETITIONER
v.
GERALD A. KUHN, RESPONDENT



Per curiam.

Application for Disciplinary Action.

SUSPENSION ORDERED.

[¶1] A hearing panel of the Disciplinary Board recommended attorney Gerald A. Kuhn be suspended from the practice of law for ninety days and pay the costs of the disciplinary proceeding in the amount of $2,654.07 for violating N.D.R. Prof. Conduct 1.7(a), Conflict of Interest, and 1.14, Client With Limited Capacity. Counsel for the Disciplinary Board urges this Court to accept the hearing panel's recommendation. Kuhn objects to the hearing panel's conclusions, arguing they are not supported by clear and convincing evidence. Determining there is clear and convincing evidence Kuhn violated N.D.R. Prof. Conduct 1.14, we direct that Kuhn be suspended from the practice of law for ninety days and that he pay the costs of the disciplinary proceeding in the amount of $2,654.07.

I.

[¶2] Kuhn has been licensed to practice law in the courts of North Dakota since July 8, 1974. Shortly after he started his practice, he began to do tax work for Jake Leno. In 2005, Kuhn wrote a will for Jake Leno. In that will, Jake Leno devised his condominium to his daughter, Kathleen McKinley.

[¶3] In 2006, McKinley filed a petition for appointment of a guardian/conservator for Jake Leno. The district court appointed Guardian and Protective Services, Inc. ("GAPS") as Jake Leno's temporary guardian/conservator. The district court also appointed a physician, guardian ad litem, and visitor to meet with Jake Leno and report back to the district court.

[¶4] The court-appointed physician reported Jake Leno suffered from "Parkinson's disease with concurrent adult onset diabetes" and "some short term memory loss," and indicated Jake Leno needed full-time care. The guardian ad litem reported she "firmly believe[d] that the proposed ward needs a guardian." Jake Leno's former home health care provider informed the guardian ad litem Jake Leno "has Parkinson's disease and dementia of the Alzheimer's type." The court-appointed visitor also recommended Jake Leno needed a guardian/conservator.

[¶5] At the hearing on the guardianship/conservatorship petition, Kuhn represented Jake Leno's sons, Ronald Leno and Randy Leno. Ronald Leno and Randy Leno testified they were willing to serve as Jake Leno's guardians/conservators. Jake Leno testified he did not think he needed a guardian/conservator. The district court found Jake Leno "has a current medical diagnosis of Parkinson's disease with adult onset diabetes and exhibits short term memory loss." The district court concluded Jake Leno was incapacitated and appointed GAPS full guardian and conservator, with full control over his place of residence, legal matters, financial matters, and medical treatment.

[¶6] In 2007, an unidentified person contacted Kuhn's office and told Kuhn's receptionist Jake Leno wanted his will changed. Kuhn testified at the disciplinary hearing that he thought an employee of GAPS had contacted his office to change the will. However, Kuhn acknowledged he did not contact GAPS to verify whether one of its employees had called his office. Kuhn learned later one of Jake Leno's caregivers had contacted his office. After speaking with Jake Leno, Kuhn drafted a new will that gave all of Jake Leno's property, including the condominium, to the three children equally, instead of devising the condominium solely to McKinley.

[¶7] Kuhn testified that at the time he wrote the will he "knew [Jake Leno] had been declared incompetent" and "there was allegations that he had dementia of the Alzheimer's type." Kuhn took two of his employees to Jake Leno's apartment to act as witnesses as Jake Leno executed the new will. Kuhn testified at the disciplinary hearing regarding his state of mind:

I was a little uneasy because he was in-under a judicial order that said he was incompetent. So I questioned him, I questioned his caregiver to ask her if he's-how he's doing. And she said, "Oh, he's fine. He knows what's going on, and, Jake, he knows." And I questioned him in front of the witnesses-in front of the two witnesses about the will. Told him exactly what-what he was doing. And said, "Now, are you sure this is what you want to do? This is what's going to happen." And he said, "Yes." So, I mean, my impression that day was that he was fine.

[¶8] A year later, McKinley sent a letter to Kuhn protesting his actions regarding Jake Leno's new will. Kuhn, as preparer of the will, subsequently filed a petition seeking an order determining the validity of the will. The district court dismissed the petition, stating, "[T]he guardianship/conservatorship created for the Ward Jake Leno, granted to the appointed guardian/conservator full authority for all legal matters on behalf of Jake Leno, effective as of the date of appointment. The attempted execution of a Will thereafter by the Ward Jake Leno is therefore without legal authority and therefore invalid." Kuhn did not appeal the district court's order.

[¶9] In 2009, counsel for the Disciplinary Board filed a petition alleging Kuhn had violated N.D.R. Prof. Conduct 1.2(a), Scope of Representation and Allocation of Authority Between Client and Lawyer; 1.4(a)(2) and (b), Communication; 1.7(a) and (c), Conflict of Interest; and 1.14, Client With Limited Capacity, by his actions regarding Jake Leno's guardianship/conservatorship hearing and second will. The allegations in the Petition for Discipline of misconduct assert a violation of N.D.R. Prof. Conduct 1.7(a) and (c) which provide that a lawyer shall not represent a client if the lawyer's ability to consider, recommend, or carry out a course of action on behalf of the client will be adversely affected by the lawyer's responsibilities to another client, and a lawyer shall not represent a client if the representation of that client might be adversely affected by the lawyer's responsibilities to another client, in that Kuhn represented Ronald Leno and Randy Leno at the guardianship/conservatorship hearing and thereafter drafted a new will for Jake Leno, purportedly on Jake Leno's behalf, which favored the interests of Ronald Leno and Randy Leno.

The allegations in the Petition for Discipline of misconduct assert a violation of N.D.R. Prof. Conduct 1.14, Comment 5 which provides that if the client has an appointed representative, the lawyer should ordinarily look to the representative for decisions on behalf of the client, in that Kuhn prepared a new will for Jake Leno without having first looked to Guardian & Protective Services, Inc., as the court-appointed guardian and conservator of Jake Leno, for decision-making authority to make a new will.

[¶10] The hearing panel found "Kuhn's testimony that he believed that GAPS was aware of Jake Leno's desire to make a new will is not credible." The hearing panel concluded Kuhn had violated N.D.R. Prof. Conduct 1.7(a), Conflict of Interest, because he:

Represented Ronald and Randy, who were seeking appointment as guardians/conservators over Kuhn's long-time client, Jake, and then drafted a new will for Jake, which favored the interests of Ronald and Randy, after Kuhn had represented Ronald and Randy at the guardianship/conservatorship hearing and after Jake had been judicially declared incapacitated.

The hearing panel also concluded Kuhn violated N.D.R. Prof. Conduct 1.14, Client With Limited Capacity, when he "prepared a new will for Jake without communicating with or securing decision-making authority from GAPS, the court-appointed guardian and conservator with full authority over Jake's legal matters." In recommending discipline, the hearing panel considered the following aggravating factors:

Standard 9.22(a), N.D. Stds. Imposing Lawyer Sanctions, a prior disciplinary offense;

Standard 9.22(c), a pattern of misconduct;

Standard 9.22(h), vulnerability of the ...


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