An article in the Washington Post last month caught my eye: “She needed a will. A lawyer named himself the main heir to her $1.7 million estate.” The article describes a tragic situation in which 93-year-old Wilma Williams signed a will only 10 days prior to her death, leaving the majority of her assets, approximately $1.5 million of her $1.7 million total estate, to be split between her estate planning attorney Bob Machen and Mr. Machen’s son, whom she had never met. Ms. Williams did not have children or a surviving spouse, but she did have nieces and nephews. Once they began piecing together what had occurred, Ms. Williams’s family filed a lawsuit in Fairfax County, Virginia to have the court declare the will invalid.
At the start of the trial, Mark Obenshain, the attorney representing the family, stated the seemingly obvious: “[I]t was a blatant conflict of interest for Machen to author a will that would make himself a millionaire.” But Machen’s attorney argued: “his client had been a trusted caretaker for Williams, one who repeatedly offered a lifeline when she needed it over the years. Naming Machen an heir made sense.” Although unlikely, this statement could conceivably be factually correct. But that does not mean that Mr. Machen acted appropriately. A response that most estate attorneys would make to such an argument is: “Okay. That may well be true. But, if it is true, then why did Mr. Machen write the will himself? Why didn’t he quickly find a referral for Ms. Williams, so that she could receive neutral, independent legal advice in making a choice as to who would receive the bulk of her assets?”
If this incident had occurred in Washington, our state’s Rule of Professional Conduct for attorneys (RPC) 1.7 governing conflicts of interests would undoubtedly come into play. Comment 1 to RPC 1.7 states in part: “Loyalty and independent judgment are essential elements in the lawyer’s relationship to a client. Concurrent conflicts of interest can arise from the lawyer’s responsibilities to another client, a former client or a third person or from the lawyer’s own interests” (emphasis added). Similarly, Comment 10 states in part: “The lawyer’s own interests should not be permitted to have an adverse effect on representation of a client.” In this instance, it’s hard to imagine that Mr. Machen did not have a strong personal interest in receiving $1.5 million dollars. As such, it would likely be a conflict of interest for him to represent Ms. Williams in preparing the will.
The family prevailed in the Fairfax County proceeding. Perhaps unsurprisingly, Mr. Machen is appealing the decision to the Virginia Supreme Court. Although the article indicates that Mr. Machen is still licensed to practice law, the night is still young. The Virginia State Bar may take a look at Mr. Machen’s license, once this case has come to a conclusion.
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