In the Matter of DANIEL R. BECK, Respondent
Kate F. Baird, Deputy Disciplinary Administrator, argued the cause, and Stanton A. Hazlett, Disciplinary Administrator, was with her on the brief for the petitioner.
Amy S. Lemley, of Foulston Siefkin LLP, of Wichita, argued the cause and was on the brief for respondent, and Daniel R. Beck, respondent, argued the cause Pro se.
ORIGINAL PROCEEDING IN DISCIPLINE
This is a contested original proceeding in discipline filed by the office of the Disciplinary Administrator against respondent, Daniel R. Beck, of Andover, an attorney admitted to the practice of law in Kansas in 1988.
On January 5, 2012, the office of the Disciplinary Administrator filed a formal complaint against respondent alleging violations of the Kansas Rules of Professional Conduct (KRPC). On February 21, 2012, respondent filed an answer to the formal complaint. The Disciplinary Administrator filed a second formal complaint on November 14, 2012, which respondent answered on December 4, 2012. Respondent filed a proposed plan of probation on January 25, 2013.
The Kansas Board for Discipline of Attorneys conducted a hearing on the formal complaints on April 9, 2013, when the respondent was present and represented by counsel. Respondent stipulated he violated KRPC 1.4 (2013 Kan. Ct. R. Annot. 484) (communication with clients); KRPC 8.4(c) (2013 Kan. Ct. R. Annot. 655) (dishonest conduct); and KRPC 5.5 (2013 Kan. Ct. R. Annot. 630) (unauthorized practice of law). The panel accepted those stipulations and further determined respondent violated KRPC 1.1 (2013 Kan. Ct. R. Annot. 446) (competent representation); Kansas Supreme Court Rule 208 (2013 Kan. Ct. R. Annot. 349) (properly registered attorneys may practice law); and Kansas Supreme Court Rule 218 [298 Kan. 882] (2013 Kan. Ct. R. Annot. 406) (giving notice following suspension).
Upon conclusion of the hearing, the panel made the following findings of fact and conclusions of law, together with its recommendation to this court:
" Findings of Fact
. . . .
" 15. In 1990, M.H. and L.H. established the M.F.H. Revocable Family Trust (hereinafter 'family trust'). M.H. and L.H. designated themselves as trustees. In the event of the death, resignation, or incapacity of M.H. and L.H., all rights and powers of the trustees were to vest in R.H., their only child.
" 16. According to the family trust document, following the death of the surviving grantor, R.H. was to receive 100% of the assets of the trust. However, in the event R.H. predeceased the surviving grantor, the remainder of the trust property was to go to one of R.H.'s children, T.H., solely. Additionally, in the event R.H. did not desire to serve as trustee, B.D.N. was to be appointed as trustee.
" 17. Following M.H.'s death in 1996, L.H. served as trustee of the trust until her resignation in 2008. Thereafter, R.H. assumed the duties as trustee of the family trust.
" 18. In 2010, L.H. celebrated her 90th birthday. At that time, L.H. resided in nursing home in Hillsboro, Kansas.
" 19. On February 10, 2010, the respondent met with R.H., his longstanding client, regarding R.H.'s estate planning matters. During that same meeting, the two discussed R.H.'s mother's estate planning matters. R.H. told the respondent that his mother, L.H., was not doing well. The respondent recommended that the family trust agreement entered by R.H.'s parents be updated to better protect the
trust assets. L.H. was not present during the February 10, 2010, meeting. The respondent did not contact L.H. regarding revisions he proposed to be made to her trust document.
" 20. After the February 10, 2010, meeting, for L.H., the respondent drafted a revised trust document, an updated general durable power of attorney, an updated living will, an updated last will and testament, an updated healthcare power of attorney, an updated assignment of personal property to R.H., and updated an authorization to release health care information.
" 21. At the hearing on the formal complaint, the respondent testified that he recommended that the trust document be updated to better protect trust assets. The respondent stated that he updated the other six documents because in his experience, sometimes hospitals and financial institutions would not honor those documents if the documents are from some time ago. [Footnote: The respondent's testimony in this regard is unsubstantiated.]
[298 Kan. 883] " 22. The respondent also testified, initially, that he made no substantive changes to the trust document. The respondent testified that he merely updated the trust document in an attempt to better protect the trust assets. However, upon further questioning, the respondent admitted that the revised trust document substantially changed the original family trust document by changing who would stand to receive the trust corpus in the event R.H. predeceased one of his parents. Who would stand to receive the trust corpus in the event R.H. predeceased one of his parents appears to have been a major consideration by M.H. and L.H. when the original family trust document was executed.
" 23. The respondent did not meet with or talk to L.H. prior to drafting the estate planning documents.
" 24. On February 19, 2010, respondent prepared a bill for $2,800.00 for preparing the family trust document and the other six documents.
" 25. The respondent planned to meet R.H. at the nursing home on February 20, 2010. In preparation of a February 20, 2010, meeting, Kim Waugh, the respondent's secretary, packed the respondent's brief case with the original trust document, the other six documents, and Ms. Waugh's notary stamp.
" 26. On Saturday, February 20, 2010, the respondent and his spouse drove to Hillsboro, Kansas, to meet with L.H. to discuss the revised trust documents and other six documents. Ms. Waugh planned to travel to Hillsboro, Kansas, with the respondent and the respondent's wife. However, because Ms. Waugh was feeling ill, she did not attend the meeting. At the hearing on the formal complaint, the respondent stated that he was not concerned about Ms. Waugh's absence because he planned to find a notary public at the nursing home.
" 27. R.H. met the respondent and the respondent's wife at the nursing home on February 20, 2010. At the time the respondent arrived at the nursing home, L.H. was asleep. L.H. did not wake up at any time during the respondent's visit.
" 28. The respondent did not discuss any of the documents with L.H. She did not review the documents or authorize their execution. The respondent did not determine if L.H. was competent or had the requisite capacity to sign the documents. L.H. did not sign any of the documents prepared by the respondent.
" 29. The trust document that the respondent prepared contained the following execution section:
'I have executed this agreement on the day and the year first above written. This restated trust instrument is effective when signed by me, whether or not now signed by a Trustee.
'I certify that I have read this restated trust instrument, that I understand it, and that it correctly states the provisions under which my trust property is to be administered and distributed by my Trustee.
[298 Kan. 884] 'The foregoing instrument was signed, declared and published by [L.H.] who indicated to us her present intention to authenticate said instrument, by her placing an (X) or her thumb print, in the presence of us and each of us, who, at their request and in their presence and in the presence of each other have hereunto subscribed our names as attesting witnesses at Marion, Kansas, on this 20th day of February, 2010.
Daniel R. Beck, Witness
Carol D. Beck, Witness
'STATE OF KANSAS, MARION COUNTY, ss:
'BEFORE ME, the undersigned authority, on this day personally appeared [L.H.], Daniel R. Beck, and Carol D. Beck known to me to be the Grantor, and the witnesses, respectively, whose names are subscribed to the annexed or foregoing instrument in their respective capacities, and, all of said persons being by me first duly sworn, said [L.H.], Testator, declared to me and to the said witnesses in my presence that said instrument in her instrument, and that she has willingly made and executed it as her free and voluntary act and deed for the purposes therein expressed; and the said witnesses, each on her oath stated to me, in the presence and hearing of the said [L.H.], that said [L.H.] has declared to them that she executed the above instrument as stated above and requested each of them to sign it as a witness; and upon their oaths each witness stated further that they did sign the same as witnesses in the presence of each other and in the presence of [L.H.] at that time possessed the rights of majority, were of sound mind and under no restraint.
'SUBSCRIBED, acknowledged and sworn to before me by [L.H.] and the above witnesses this 20th day of February, 2010.
Kim D. Waugh, Notary Public
'My appointment expires:
'November 4, 2012'
Each of the other six documents contain similar execution sections.
" 30. Because L.H. was not awake, the respondent instructed R.H. to sign L.H.'s name to the family trust document. Additionally, the respondent instructed R.H. to sign his mother's name to each of the other six documents prepared on behalf of L.H. Without his mother's knowledge or authorization, R.H. signed his mother's name to the trust document and each of the other six documents drafted by the respondent.
" 31. The respondent and his wife signed as witnesses to the trust document and each of the other six documents. Additionally, the respondent signed Ms. Waugh's name and used Ms. Waugh's notary seal, making it appear that Ms. Waugh attested to having witnessed L.H.'s execution of the trust agreement, as well as all the other six documents. By signing Ms. Waugh's name and using Ms. [298 Kan. 885] Waugh's notary stamp, the respondent falsely attested that the ...