The controlling RPC
A N.J. lawyer drafted reciprocal wills for a mother (Monica Grossi) and son (Fred Grossi, a good friend and longtime client) with his wife (Bjorlo) as a contingent beneficiary. Both wills specifically disinherited a sister (Sheila Redman), who moved to California many years prior to the death of her mother and brother. Fred Grassi and his mother died unexpectedly, resulting in the lawyer’s wife inheriting $1.3 M, a lawsuit and ethics complaint filed by Redman.
The version of RPC 1.8 (c) in effect at the time the will was drafted stated, in relevant part, that:
A lawyer shall not prepare an instrument giving . . . a spouse any substantial gift from a client, including a testamentary gift, except where the client is related to the attorney.” Obviously, respondent was not related to Fred, having met him through his wife. ” [1]
The story
Redman complained that respondent and his wife, Carolyn Bjorlo, wheedled their way, over a twenty-year friendship with her brother, into his last will and testament and that of their mother.
In October 2003, respondent’s friend and long time client, Fred Grossi, retained respondent to prepare his will. Fred signed the will on October 7, 2003, at which time it was witnessed by Robert Simon, an associate in respondent’s office, and Joanne Caswell, respondent’s secretary. Another employee in respondent’s office, Michelle Snyder, affixed her notary seal. The will directed that, in the event of Fred’s death, his estate would pass to his mother, Monica Grossi (Mrs. Grossi). If his mother predeceased him, then his estate was to pass to his dear friend, Bjorlo, who is respondent’s wife.
In March 2004, Mrs. Grossi retained respondent to prepare her last will and testament, which left her entire estate to her son, Fred. The will expressly disinherited Redman. On March 22, 2004, Mrs. Grossi executed the will, which was witnessed by respondent and Joanne Caswell and notarized by Snyder.
Respondent’s wife, Bjorlo testified at the DEC hearing. It was she who had introduced respondent to Fred. Bjorlo met Fred in the mid 1980s, when he had taken a position as her supervisor, at AT&T. The two had become friendly. Over the next twenty years, they had developed a very close friendship. That friendship had continued through Fred’s later retirement from AT&T and Bjorlo’s marriage to respondent, in April 1993. In fact, after respondent and Bjorlo had wed, all three had become fast friends and had socialized together regularly.
As to the genesis of Fred’s 2004 will, Bjorlo testified that she and respondent had dined with him many times over the years, especially at Fred’s favorite restaurant, “Vincenzo’s.” Bjorlo and Fred had also celebrated their birthdays together for many years, agreeing never to exchange birthday gifts.
In September, 2003, Bjorlo and respondent celebrated Fred’s birthday with a dinner for him and a number of his friends at Vincenzo’s. Bjorlo recalled a peculiar event that had occurred that evening:
He suddenly said he had something to say to the group and that he had a birthday present for me. And I said, well, Fred, we agreed not to exchange presents, because I didn’t have anything for him. And he said, no, no, it is something a little different. And then he announced that he was going to have a will done and that I would be the beneficiary after Monica.”
Respondent testified that he had met Fred through Bjorlo’s prior friendship with Fred, and that the three had become friends. Respondent also recalled having represented Fred on numerous occasions, over the years. The representation started as early as 1994, in a traffic matter and extended to four or five real estate transactions and a workers’ compensation claim.
When asked why Fred and Mrs. Grossi had written Redman out of their wills, respondent recalled that Fred had spoken to him on numerous occasions about his and his mother’s estrangement from Redman. Two aspects of her behavior particularly upset Fred. The first was her failure to visit their father, Ralph, when he was dying:
Like for instance, when their father was ill suffering from cancer, which from my understanding was a fairly long process, Ralph would repeatedly ask Fred and/or [Mrs. Grossi] to get a hold of Sheila to come out and, because Ralph knew he was on, this was the final illness. It was pretty clear. And that he was in great pain and he wanted the comfort of having his daughter, his first-born near the bedside to be able to give him some comfort and talk about whatever was going to happen from there forward. And when Sheila was contacted, she appeared very cavalier about it, made various excuses, that she was working for some sort of check cashing agency I think was one of the things that I heard.”
In addition, respondent cited Fred’s aversion to his sister’s chosen lifestyle:
Q. Were there any other issues that you haven’t described to me that he mentioned to you about Sheila?
A. Yeah, there was. Q. What?
A. The fact that she was a lesbian and the fact that behavior disgusted him and that his mother was elderly when she found out about and was embarrassed by it because people in that age bracket had a hard time dealing with such a thing and that they were trying to keep that secret, that it seemed like Sheila was more, coming more towards coming out of the closet and making it more of a pronounced type of involvement. And he didn’t like that.”
Ultimately, Redman settled the underlying estate litigation for fifty-five percent of the combined estates, or $700,000. Bjorlo received the remaining forty-five percent, or $600,000.
N.J. Supreme Court decision
The N.J. Supreme Court determined that a reprimand was sufficient discipline for respondent’s imprudent action for several reasons:
- Fred was clearly closer to Bjorlo than he was to Redman his own sister;
- Bjorlo was only a contingent beneficiary;
- Had any other attorney prepared Fred’s will in the exact manner as respondent did, Bjorlo would likely have received everything in any event.
- There are no aggravating factors — certainly not the one found so objectionable by the DEC, namely, that respondent’s wife received $600,000 from the estate. There is no evidence in the record that Fred did not intend for Bjorlo to inherit his estate, which serendipitously included that of his recently deceased mother. In fact, it appears from this record that wife would likely have received everything, had any attorney but respondent prepared the wills.
- Respondent has an unblemished career of over thirty years at the New Jersey bar and expressed sincere remorse for his actions.
Commentary
Don’t do it. Do you really believe none of the disgruntled heirs are going to launch a full-scale assault on the lawyer whose wife is a beneficiary of the will he prepared? It smells bad. This guy is very, very lucky. He should know better after thirty years of practice. To his credit, he fully acknowledged his bad judgment, and sincerely demonstrated remorse.
[Larry's note: At the inception of the DEC hearing, before testimony was taken or other evidence presented, respondent admitted having violated RPC 1.8(c) and RPC 1.16(a)(1). He contested, through counsel, the RPC 8.4(c) and RPC 8.4(d) charges]
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