Discipline Board Must Examine Whether Attorneys' Representation of Both Mother and Son Was a Conflict

A District of Columbia appeals court rules that the attorney disciplinary board needs to investigate whether attorneys who represented both a son and mother in two disputes regarding the mother's trust needed informed consent even though the board concluded that the son’s and mother's interest were aligned. In Re: Szymkowicz (D.C. Ct. App., No. 14-BG-0884, Sept. 17, 2015).

In 2002, Genevieve Ackerman executed a trust that named her daughter's husband as trustee. Ms. Ackerman's son, Dr. Stephan Ackerman, hired attorney John T. Szymkowicz and his son, John P. Szymkowicz, to challenge the trust. The attorneys filed suit to remove the trustee and to reform the trust to remove a piece of property from it. In connection with the lawsuit, John T. Szymkowicz met with Ms. Ackerman and obtained an affidavit in support of Dr. Ackerman. In 2004, several health professionals evaluated Ms. Ackerman and differed on whether she was able to make decisions for herself. Ms. Ackerman executed a power of attorney in favor of Dr. Ackerman. In 2005, the attorneys began to represent Ms. Ackerman and filed suit to revoke the trust. Mr. John T. Szymkowicz withdrew from the lawsuit because he was afraid he would be called as a witness. Ms. Ackerman hired attorneys Leslie Silverman and Robert King to replace him. Dr. Ackerman paid both the attorneys from Ms. Ackerman's account. In both lawsuits against the trust, the trust was upheld as valid. Ms. Ackerman was eventually found incompetent and her daughter was appointed as guardian.

Ms. Ackerman's daughter filed a complaint with the Bar Counsel about the attorneys' actions. The Bar Counsel charged the Szymkowiczes with conflict of interest and all the attorneys with dishonesty because they knew Ms. Ackerman was incompetent. The Board on Professional Responsibility concluded that Ms. Ackerman was capable of consulting with a lawyer, the attorneys were acting pursuant to what appeared to be a valid power of attorney, and the attorneys' actions were in Ms. Ackerman's interest, so there was no conflict of interest.

The District of Columbia Court of Appeal finds the attorneys did not violate rules regarding dishonesty, but that the case should be remanded to determine whether the attorneys violated rules regarding conflict of interest. The court concludes that there was not enough evidence to prove "Ms. Ackerman was incompetent and lacked capacity to make the decisions at issue in this case and that [attorneys] knew or should have known that to be true." However, the court holds that even though Dr. Ackerman and Ms. Ackerman's interest seemed to be aligned, "there was evidence indicating a substantial risk that those interests did or might diverge in particular respects relevant to the conduct of the joint representation," so the attorneys were required to get informed consent before representing both parties. 

For the full text of this decision, go to: https://www.dccourts.gov/internet/documents/14-BG-0884.pdf

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