                                                         2018 WI 39

                  SUPREME COURT          OF   WISCONSIN
CASE NO.:               2017AP1273-D
COMPLETE TITLE:         In the Matter of Disciplinary Proceedings
                        Against Linda L. Gray, Attorney at Law:

                        Office of Lawyer Regulation,
                                  Complainant,
                             v.
                        Linda L. Gray,
                                  Respondent.

                             DISCIPLINARY PROCEEDINGS AGAINST GRAY

OPINION FILED:          April 18, 2018
SUBMITTED ON BRIEFS:
ORAL ARGUMENT:

SOURCE OF APPEAL:
   COURT:
   COUNTY:
   JUDGE:

JUSTICES:
   CONCURRED:
   DISSENTED:
   NOT PARTICIPATING:


ATTORNEYS:
                                                                      2018 WI 39
                                                              NOTICE
                                                This opinion is subject to further
                                                editing and modification.   The final
                                                version will appear in the bound
                                                volume of the official reports.
No.       2017AP1273-D


STATE OF WISCONSIN                          :            IN SUPREME COURT

In the Matter of Disciplinary Proceedings
Against Linda L. Gray, Attorney at Law:

Office of Lawyer Regulation,                                       FILED
              Complainant,
                                                              APR 18, 2018
      v.
                                                                 Sheila T. Reiff
                                                              Clerk of Supreme Court
Linda L. Gray,

              Respondent.




      ATTORNEY       disciplinary   proceeding.        Attorney's         license

suspended.



      ¶1      PER CURIAM.     Pending before the court is the report

of referee Jonathan V. Goodman, following a hearing and the

receipt of a stipulation and supplemental stipulation between

the   Office    of   Lawyer   Regulation   (OLR)     and     the    respondent,

Attorney Linda L. Gray.         Attorney Gray has opted to plead no

contest to the sole misconduct count brought against her:                          a

violation of SCR 20:1.8(c)1 related to her drafting of the will
      1
          SCR 20:1.8(c) provides:
                                                                    (continued)
                                                              No.    2017AP1273-D



of M.A., who died at age 71 in January 2015.              Although Attorney

Gray       is   not   related   to   M.A.,   she   received    a    significant

testamentary gift from her:            the balance of her estate after

specific bequests to charities were distributed, which resulted

in Attorney Gray receiving $298,742.12.               Consistent with the

parties' stipulation, the referee recommended that this court

suspend Attorney Gray's Wisconsin law license for 60 days for

her professional misconduct.            The referee further recommended

that Attorney Gray should be assessed the full costs of the

proceeding, which are $2,067.67 as of January 17, 2018.                 The OLR

does not seek the payment of restitution in these proceedings,

and the referee does not recommend it.

       ¶2       No appeal has been filed so we review this matter

pursuant to SCR 22.17(2).2           We approve and adopt the referee's

            A lawyer shall not solicit any substantial gift
       from a client, including a testamentary gift, nor
       prepare an instrument giving the lawyer or a person
       related to the lawyer any substantial gift from a
       client, including a testamentary gift, except where
       (1) the client is related to the donee, (2) the donee
       is a natural object of the bounty of the client, (3)
       there is no reasonable ground to anticipate a contest,
       or a claim of undue influence or for the public to
       lose confidence in the integrity of the bar, and (4)
       the amount of the gift or bequest is reasonable and
       natural under the circumstances. For purposes of this
       paragraph, related persons include a spouse, child,
       grandchild, parent, grandparent or other relative or
       individual with whom the lawyer or the client
       maintains a close, familial relationship.
       2
           SCR 22.17(2) provides:

            If no appeal is filed timely, the supreme court
       shall review the referee's report; adopt, reject or
                                                     (continued)
                                        2
                                                                   No.     2017AP1273-D



findings and conclusions and we agree that a 60-day suspension

is sufficient discipline for Attorney Gray's misconduct.                            We

further order that Attorney Gray pay the full costs of this

disciplinary proceeding.            We decline to order restitution.

       ¶3     Attorney Gray was admitted to the practice of law in

Wisconsin in 1982.           She practiced law in East Troy, Wisconsin at

the    time   of     the   filing    of   the    complaint.      Her     disciplinary

history consists of one private reprimand imposed some time ago,

in the 1980s.

       ¶4     Attorney Gray knew M.A. since the mid-1980s.                         M.A.

never    married,      had   no     children,      and   was   estranged    from   her

siblings and other relatives.                   Attorney Gray and M.A. became

close friends and remained so for many years preceding M.A.'s

death.

       ¶5     M.A. died in January 2015 at age 71 after a battle

with cancer.         During M.A.'s illness, Attorney Gray spent a great

deal    of    time    attending      to   M.A.'s    needs,     rendering    what   the

referee described as "outstanding care and attention" that went
"above and beyond the norm in her devotion to [M.A.] and her

assistance and care in [M.A.'s] final years, months, and days."

The care rendered by Attorney Gray included, but was not limited




       modify the referee's findings and conclusions or
       remand the matter to the referee for additional
       findings;   and   determine  and   impose  appropriate
       discipline.   The court, on its own motion, may order
       the parties to file briefs in the matter.


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                                                                        No.        2017AP1273-D



to,   spending     considerable       time    taking       M.A.    to    and        from    her

required medical treatments.

      ¶6    In 2013, M.A. asked Attorney Gray to draft a will to

replace one that Attorney Gray had drafted for her many years

earlier, in 2000.         Attorney Gray did so, and M.A signed the will

before     witnesses       in   September           2013.          M.A.'s            drafting

instructions for the will were clear:                      no bequests were to be

made to any of her relatives; specific bequests were to be made

to certain charities; and the balance of her estate was to be

distributed to Attorney Gray.            Attorney Gray drafted the will in

accordance with these instructions, and M.A. signed the will in

the presence of witnesses.             There is no dispute that M.A. had

testamentary capacity at the time she signed her will.

      ¶7    After    M.A.'s     death,       the    will    went    through           probate

without    contest.          Attorney        Gray    served       as     the         personal

representative.

      ¶8    As     explained    above,       under    the    terms       of        the    will,

Attorney Gray received over $290,000 from M.A.'s estate.                                    Her
receipt of this money triggered a complaint to the OLR by a

relative of M.A. who had little in the way of a relationship

with M.A. during her lifetime.

      ¶9    The parties stipulated and the referee concluded that

Attorney    Gray    had    violated    SCR     20:1.8(c)      by       drafting          M.A.'s

will,    given   that     Attorney    Gray     was   not     related          to    M.A.    and

received a significant residuary gift from the will.                                     On the

basis of this professional misconduct, the parties stipulated to
a 60-day suspension of Attorney Gray's license.                               The referee
                                         4
                                                                          No.     2017AP1273-D



adopted that stipulation as his recommendation to the court.                                He

wrote that, although one could "easily conclude" that a public

reprimand      would    be     appropriate        here,     a    60-day      suspension      is

appropriate given the gravity of the offense and the need to

deter other attorneys from engaging in similar conduct.

       ¶10    The referee held an evidentiary hearing to evaluate

whether      this     court    should      order    Attorney          Gray   to    reimburse

M.A.'s       estate    for     the   nearly        $300,000       residuary        gift    she

received.       After hearing testimony from Attorney Gray and two of

M.A.'s    long-time         friends,    the       referee       recommended       against    a

restitution order, citing Attorney Gray's age (70 years old),

the loss of business and income she incurred as a result of

adverse publicity generated by these proceedings, and "the lack

of evidence of any undue influence" by Attorney Gray on M.A.

       ¶11    After careful review of the matter, we conclude that

the     record        supports       the      referee's          findings         of      fact.

Accordingly, we adopt them.

       ¶12    We further agree with the referee's conclusion of law
that Attorney Gray violated SCR 20:1.8(c).                         As an admitted non-

relative of M.A., Attorney Gray had a duty to refuse to draft a

will in which she would receive a testamentary gift.                               See State

v.    Collentine,      39     Wis. 2d 325,        332–33,       159    N.W.2d 50       (1968).

She was obliged to advise M.A. to consult another attorney if

M.A. insisted on making such a bequest.                            Id.       Attorney Gray

violated this duty when she drafted M.A.'s will and included

herself as a beneficiary.


                                              5
                                                                               No.       2017AP1273-D



       ¶13    We     further         agree    that       a     60-day          suspension          is

appropriate.         Our case law dictates that a suspension, rather

than   a     reprimand,        is     required.          In     State         v.     Beaudry,       53

Wis. 2d 148,         191      N.W.2d 842        (1971),        we        concluded          that    a

reprimand      was        appropriate        for    an       attorney-beneficiary                  who

selected another attorney to act as a mere scrivener, not as an

independent legal advisor, in drafting a client's will in which

the selecting attorney was named the primary beneficiary.                                          We

warned that "we consider the seriousness of this reprimand to be

but a notch or a hairline from suspension."                              Id. at 156.          Here,

no daylight separates Attorney Gray's actions from what we have

demarked as unethical behavior, both by rule and by precedent.

       ¶14    But    like      the    referee,      we    see       no    need       to    order    a

suspension         longer          than   the       parties'             stipulated          60-day

suspension.          A    60-day      suspension     is,      generally,             our    minimum

suspension length.             See In re Disciplinary Proceedings Against

Grady, 188 Wis. 2d 98, 108–09, 523 N.W.2d 564 (1994).                                     A minimum

suspension     length         is    appropriate      here       given         Attorney       Gray's
scant disciplinary history and the absolute absence of evidence

in the record that she took advantage of M.A., her longtime

friend.       By     all     indications,       Attorney        Gray's         preparation         of

M.A.'s will was misguided, not malevolent.

       ¶15    We turn next to the issue of restitution.                                    We agree

with    the    referee's            determination,           based        on       the     parties'

stipulation         and      the     testimony      received         at        an    evidentiary

hearing,      that       a   restitution        order        would       be     inappropriate.
M.A.'s will has been fully probated and the estate is closed.
                                                6
                                                                 No.     2017AP1273-D



Ordering Attorney Gray to make restitution of the amount of her

residuary gift here would undo the results of those probate

proceedings——something we decline to do, particularly given the

facts of this case.

    ¶16     Finally, we turn to the issue of costs.                    The referee

has recommended that Attorney Gray pay the full costs of this

proceeding,       which    total    $2,067.67    as     of   January     17,       2018.

Attorney Gray has not objected to this recommendation.                         In the

absence    of     any   objection,    and     consistent      with     our    general

practice, we impose full costs.              See SCR 22.24(1m).

    ¶17     IT IS ORDERED that the license of Linda L. Gray to

practice law in Wisconsin is suspended for a period of 60 days,

effective May 30, 2018.

    ¶18     IT IS FURTHER ORDERED that Linda L. Gray shall comply

with the provisions of SCR 22.26 concerning the duties of a

person    whose    license    to    practice    law     in   Wisconsin       has    been

suspended.

    ¶19     IT IS FURTHER ORDERED that within 60 days of the date
of this order, Linda L. Gray shall pay to the Office of Lawyer

Regulation the costs of this proceeding, which are $2,067.67 as

of January 17, 2018.

    ¶20     IT     IS     FURTHER   ORDERED      that    compliance      with       all

conditions of this order is required for reinstatement.                       See SCR

22.29(4)(c).




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