A Matter of Trust : How to prevent unscrupulous lawyers from exploiting the elderly

The State Bar of California is right to move swiftly to adopt a new rule that would prohibit lawyers--under the threat of disbarment--from preparing wills or trusts that result in gifts for themselves.

The rule, which now must undergo an extensive review process, is almost identical to one in the American Bar Assn.’s long-held model rules, some versions of which are now in effect in 38 states. It is high time that Californians are afforded the same protection as other states’ residents.

The rule is being proposed in the wake of Times articles detailing how Laguna Hills lawyer James D. Gunderson, who has boasted of representing 7,000 Leisure World retirees, prepared numerous wills and trusts making himself a major beneficiary. Gunderson has since been removed as trustee of two estates, including one in which he allegedly arranged to inherit $3.5 million under questionable circumstances. Gunderson, who is now the subject of four investigations, has denied all wrongdoing.

The Gunderson allegations also have prompted two measures before the state Legislature that deserve support. One, by Assemblyman Tom Umberg (D-Garden Grove), would prevent lawyers from including “no contest” provisions in wills. These have been used by some lawyers to head off possible litigation from family members or others who object to the terms.

The other measure, by state Sen. Marian Bergeson (R-Newport Beach) and Assemblyman Bill Morrow (R-Oceanside), would cover some of the same ground as the new State Bar rule. It also would codify additional safeguards, including one that would outlaw payment of fees to law partners or family members of guardian-conservators.

The proposed State Bar rule revision and the proposed legislation would issue a strong warning to lawyers that they must work only for fees--not for bequests or gifts. Scrupulous lawyers don’t need these rules to keep them in line. But, sadly, to uphold the reputations of those who are honest, and to protect vulnerable clients from being taken advantage of, there have to be adequate safeguards against lawyers who can’t be trusted.