In two separate Ohio Supreme Court cases, two Ohio attorneys received six-month suspensions for their affiliations with living trust companies. Cincinnati Bar Assoc. v. Heisler(Ohio, No. 2006-2309, May 30, 2007) and Disciplinary Counsel v. Kramer(Ohio, No. 2006-2332, May 30, 2007).
D. Daniel Heisler and Lawrence Joseph Kramer, Jr. were attorneys admitted to practice law in Ohio. Mr. Heisler worked for Senior Estate Planning Services, Inc. (SEPS), a Louisiana-based company marketing and selling estate-planning services (later Mid-South Estate Planning). SEPS recruited customers through mass mailings and referred sales leads to Mr. Heisler. Mr. Heisler then personally interviewed clients and reviewed their estate planning needs, sometimes recommending a living trust. Mr. Heisler received a salary from SEPS, and if the client decided to purchase a living trust through SEPS, Mr. Heisler received a commission. He provided the client's information to SEPS and SEPS compiled the information and sent the customer the living trust after Mr. Heisler reviewed it.
Mr. Kramer worked with CLA USA, Inc., a Texas corporation marketing and selling insurance. CLA recruited customers through mass mailings and sales agents met with customers to finalize sales. CLA then referred clients to Mr. Kramer, who provided the company with a retainer agreement to give clients. Mr. Kramer prepared documents for the clients, including living trusts, and talked to the clients over the phone to review his work. He then returned the living trust documents to CLA, which delivered them to the client along with a sales pitch for insurance.
The state disciplinary board found that Mr. Heisler and Mr. Kramer violated professional conduct rules that prohibit a lawyer from engaging a person or organization to promote the lawyer's professional services and prohibit a lawyer from aiding a non-lawyer in the unauthorized practice of law. The board also found Mr. Heisler violated the rules prohibiting a lawyer from sharing fees with a non-lawyer and prohibiting lawyers from practicing under a trade name. In both cases, the board recommended a six-month suspension, stayed.
The Supreme Court of Ohio agrees with the board's recommendations and suspends both attorneys for six months, with the suspensions stayed. The court states that it has repeatedly seen lawyers violate ethical standards by affiliating with companies that offer living-trust agreements and insurance to older customers. According to the court, "[t]hese affiliations necessarily dilute the independence of a lawyer's counsel because, from the earliest possible moment, the company's sales objectives, not the client's individual interests, drive the outcome of the transaction."
The court notes that neither Mr. Heisler nor Mr. Kramer completely surrendered his independent judgment for the sake of a sale, so a six-month suspension was appropriate rather than a longer suspension. Both attorneys occasionally dissuaded clients from purchasing living trusts when it wasn't in the customer's best interest and both personally performed all the work for their clients.
To download the full text of these decisions in PDF, go to https://www.sconet.state.oh.us/rod/docs/pdf/0/2007/2007-ohio-2338.pdf and https://www.sconet.state.oh.us/rod/docs/pdf/0/2007/2007-ohio-2340.pdf.
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