Penniann J. Schumann

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My elderly client was dealing with a rift in her relationship with her son and asked me to assist her with estate planning and administration of her trust. She wanted to leave some money for charity, leave money to her deceased daughter's son, and this was contrary to what her son wanted. In advocating for my elderly client I was so concerned with protecting her and assisting her that I failed to adequately protect myself. While I met several elements of Rule 1.8 of the Utah rules of professional conduct for attorneys, including but not limited to referring my client to another attorney to consult with them about the situtation and about her request to me to serve as her co-trustee, I failed to do was an important but techincal requirement. I failed to execute a writing illustrating the agreement that my client asked for me to be her co-trustee, and I agreed. I respected and cared deeply for this woman and what she was facing and wanted to help her. So I chose to be there for her in person, have discussions, review documents etc. rather than spend time proteting myself with cya writings.

The 2018 disciplinary action referred to in the profile is a "public repremand". This means that the Utah State Bar has made public a situation where an opposing party made a complaint and the Utah State Bar investigated the situation. 

My client was a 92 year old woman whom I had represented from 2011 to 2016.  She had received a letter from her son in 2012, which she felt was a complete abandonment. As a result of a lifetime of issues with her son (with that letter being the "straw") she asked me to be a CO-Trustee with her. This means we would always have to work together unanimously in every transaction on a trust which she funded herself. I chose to accept this job as Co-trustee by using a owned by myself and my husband, which we called Family Fiduciary Services LLC.  This was designed to give her not only my assistance as co-trustee but also to take advantage of his expertise as a reegistered investment advisor. When her son found out that Family Fiduciary Services LLC was my husband and myself he objected. At first I didn't resign because my client wanted me to help her, but I resigned eanyway telling her that I could asist from the background through advice. 

It is not against the rules of professional conduct to go into business with a client. This serving as co-trustee is considered going into business with your client. If a lawyer goes into business with a client, then the lawyer is obligated to to inform the client in writing of the situation, advise them to seek other lawyer's advice, and then if the business will be going forward then get the client's approval in writing. My client asked me to serve as her co-trustee. I told her to talk to another lawyer and gave her a referral and contact information.  Two years later she came back to me and asked for me to serve with her again. I have a sworn affidavit from my client stating that she did ask me to serve as co-trustee and agreeing that I had asked her to seek another attorney's advice. Further to be a Co-trustee on her trust it required a court action. So she and I actually sought the court to appoint my company as co-trustee with her over her trust. Keep in mind that a co-trustee meant that she and my company (me) had to work unanimously to do anything for her trust. When her son learned that I was a co-trustee, her son contested the matter. Again I resigned and received no compensation for that time as co-trustee. Her son sued her. Then came the complaint at the Utah Bar.  

What I failed to do, (and admitted) and the reason I have the public reprimand is that I failed to have my client sign a writing acknowledging the situation (the conflict of interest which was my company serving as her co-trustee). But I think it is important for those reading this to know that I was never paid. Not even for the 3-5 weeks of having been named to her trust. In fact my client insisted that I still work with her to complete her estate plan (Will and Trust and a video Will because of her son and his contentous actions) and aid her in the background with her new co-trustee which was a bank. Her estate plan was validated by the court and probated. 

I believe that part of the reason that I failed in the inquiry and hearing with the Utah State Bar is that my client died before my hearing and I had no one to testify that my client and I had talked about all relevant issues many times before she sought the court order to name me as a co-trustee. They told me that my husband's testimony was not sufficient.

I am not regretful that I advocated for an elderly lady who felt abandoned by her son and needed help. I had known her for some years and cared about her.  She was wicked smart and such a lovely person. I am regretful that I didn't track every step of my communications with her in writing. She and I would meet person to person very often. I have however learned that every step I make with clients shall be in writing, as I can be brought to task by others, not just the client, and I need a written record.

I hope this helps those who are seeking to find an attorney and helps those who don't know what the attorney discipline means in my case. 

Please note that all disciplinary matters are different. Unfortunately the Utah State Bar and AVVO do not distinguish from something fairly insignificant or technical as having a writing, which is what I did, from a lawyer who stole from his client or evaded taxes as many have done who bear the same label AVVO has put on me.  So ask the lawyer!!!

Thank you for taking the time to review the situation.