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  • DANGERS WITH BECOMING TO FRIENDLY WITH YOUR LAWYER

    This week’s question:
    I was wondering if it is possible to become too friendly with your lawyer. Aren’t you guys supposed to follow strict rules of ethics?
    /s/Ruben R.
    Almaden Valley

    Dear Ruben:
    Yes, Ruben, we are supposed to follow strict rules of ethics and I would say that 99.99% of us do. However, every now and then one of us goes astray and difficulties arise.
    Take, for example, a brand new case that was just reported in the “advance sheets” as we call them, out of Santa Barbara. The case is entitled “Butler v. LeBouef” and the case came down from the Court of Appeal, State of California, Second Appellate District, on June 20, 2016, about one week ago.
    In that case, an older and infirm man, John A. Patton, had left his sizeable estate to his two nieces, Kim Butler and Julie Black and a family friend, Wendy Greenstein. Ms. Butler and Ms. Black are the decedent’s last known heirs.
    However, some time after he signed his new will and an amendment to his trust wherein he was persuaded to leave $5,000,000 of his estate to his attorney, John LeBouef. This came after Attorney LeBouef befriended the elderly and sick Patton and visited him frequently, more often as Patton’s health deteriorated.
    When Patton died, a 2006 will and trust were found, naming Attorney LeBouef as the principal beneficiary of Patton’s estate.
    The two nieces learned about being disinherited and filed a petition to invalidate the will and trust in Probate Court, alleging that LeBouef drafted the documents to enrich himself.
    At trial, the two nieces offered evidence to show that Attorney LeBouef drafted two prior, different, trusts, the Cook trust, and the Grant trust, also after LeBouef befriended elderly trustors (trust makers). In both of those cases, the decedents’ estates also passed to Mr. LeBouef or to his close friends.
    A forensic expert examined the linguistic idiosyncrasies in the Patton and Cook trusts and concluded that they were drafted by the same person.
    At trial, the Probate Court deemed the John A. Patton testamentary documents invalid, based on LeBouef’s participation in their drafting.
    After the case went up from the trial court to the Court of Appeal, the Court of Appeal for the Second Appellate District held that substantial evidence supported the Probate Court’s finding that Patton’s will and trust were the product of fraud or undue influence.
    The evidence included the expert’s assertion of “virtual certainty” that the Cook and Patton trusts were prepared by the same entity.
    The Probate Court also heard evidence concerning the Patton Trust and Grant Trust to the effect that LeBouef befriended an elderly person and drafted or helped draft documents that had benefited himself or his associates. This evidence was admissible to show a common plan or scheme and to impeach LeBouef testimony that he did not know who drafted Patton’s will and trust.
    In this particular case, the Court of Appeal found that this case was not only one where an attorney took advantage of an elderly and infirm man, but it suggested criminal culpability. (We do not know what happened if criminal proceedings were filed.)
    In a Supplemental Statement of Decision, the trial court factually found that Appellant LeBouef caused the loss of the original trust instrument with the help of a fake staged burglary, which made it impossible for the court to determine the true terms of the trust.
    Almaden Times readers can read one of the key statutes for themselves by going to their favorite search engine, like Google, and by entering California Probate Code Section 21380, entitled Presumption of Fraud or Undue Influence; Costs and Attorney’s Fees.
    The Court of Appeal also adds that an ethical estate planning attorney will plan for his client, not for himself. And that a license to practice law is not a license to take advantage of an elderly and mentally infirm client.
    So, there you have it, Ruben. I hope you have found this article interesting.
    Just to repeat, attorneys are absolutely supposed to follow a strict code of ethics. There is no doubt about that and there are no exceptions, once those rules are adopted by the State Bar of California. I am very proud to be a member of this State Bar and have been a member for 46 years as of June 26, 2017. And I just hate it when our fellow members go wrong.

    /s/Donald J. DeVries
    Almaden Valley

    You can reach Mr. DeVries with your questions by email at don@almadenvalleylawyers.com, with “Almaden Times” in the subject line, fax at (408)268-6502, telephone at (408)268-9500, or mail at DeVries Law Office at 6475 Camden Avenue, Suite 200, San Jose, CA 95120. Your name will not be used. No attorney-client relationship is created by these articles.

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