Two lawyers disbarred for preying on elderly clients

Two Virginia lawyers have been stripped of their licenses for taking advantage of elderly clients.

Each contested a lengthy list of alleged ethics violations, but both lost their battles with the Virginia State Bar.

One lawyer was found to have crafted a will leaving the bulk of a widow’s $1.7 million estate to himself. The Supreme Court of Virginia last year affirmed a trial court judgment that Robert B. Machen of Arlington had procured the will by undue influence and fraud. A three-judge circuit court panel went further on Feb. 18, expressly finding that Machen had forged the client’s earlier handwritten will, according to a VSB prosecutor.

The other attorney repeatedly spent unearned client fees for personal use, a disciplinary panel concluded. Citing a “lack of a moral compass and lack of fitness to practice law,” the VSB Disciplinary Board concluded Fairfax estate planning lawyer David G. Hoffman moved unearned client money into his personal accounts more than 200 times.

“Respondent also preyed on elderly victims who were particularly vulnerable and unable to take action to protect their own interests,” the board wrote in a Feb. 7 order.

Such cases bring dishonor to the legal profession, said VSB Bar Counsel Renu M. Brennan, who prosecuted Machen’s case in Arlington County Circuit Court.

$1.3 million bequest

Machen drafted a will which bequeathed about $1.3 million to himself from the estate of a 93-year-old widow confined in a rehabilitation center after a stroke. He contended the will was a valid expression of her intent, but the bar argued she was unaware of the terms.

The Machen-drafted will included $10,000 in bequests to family members, valid only if they did not challenge any part of the will.

Outraged at what appeared to be a brazen money grab by someone they had never heard of, family members hired state Sen. Mark Obenshain, a Harrisonburg lawyer, to challenge the will offered by Machen. Obenshain persuaded a Fairfax County judge to overturn the will, and the Supreme Court of Virginia upheld the result last June.

The same family members testified by video before the three-judge disciplinary panel in February, Brennan said. Among a dozen witnesses was a handwriting expert who reportedly testified that Machen likely signed the widow’s handwritten version of the will. The expert was certain the widow did not sign it, Brennan said.

Machen, 88, was represented by Stephen A. Armstrong of Fairfax, who argued the widow was “sharp as a tack” up to the point she signed the typed will. Machen, he said, had offered to give her a place to live and pay for medical care before he discovered her wealth.

“He’d been serving her for free for 34 years, because he didn’t think she had any money. Who snookered who?” Armstrong said by telephone on Feb. 22.

In announcing their decision to disbar Machen, the judges expressly stated their finding that he had forged the holographic will, Brennan said. The panel also found violations of all seven ethics rules cited in the bar charges, including conduct involving dishonesty, fraud, deceit or misrepresentation.

Loudoun County Circuit Judge Douglas L. Fleming sat as chief judge of the panel, with retired Prince William County Judge Steven S. Smith and Judge Victoria A.B. Willis of Stafford County also participating.

Armstrong said he planned to file a motion to reconsider and then an appeal if necessary.

Shifted fees

Unlike Machen, Hoffman was charged with a pattern of violations. He routinely charged an advanced flat fee for preparing wills, trusts and power of attorney documents in his estate planning and administration practice, according to the findings of the Disciplinary Board. In 2013, he began accepting advanced fees to administer estates upon the clients’ deaths, with amounts based on the clients’ net worth.

Despite taking in nearly $2 million in advanced fees over a five-year period, Hoffman did not have a trust account, according to the board’s order. He moved money in and out of his business and personal bank accounts, sometimes shifting money from a personal account to cover overdrafts in his business accounts.

“These funds were never going into trust and were funneled to his personal account on a regular basis,” said Senior Assistant Bar Counsel Elizabeth Schoenfeld at a Dec. 17 hearing.

Banks had no obligation to report the overdrafts since none of the accounts were set up as trust accounts. Thus, Hoffman “was able to skirt the Rules and engage in these nefarious financial transactions without detection,” the board wrote in its order.

The son of one Hoffman client went to police to report the lawyer’s conduct, according to the order. David Gawrylowicz had a power of attorney for his father, Henry, but Hoffman nonetheless signed the father to an agreement for estate planning work.

The 90-year-old father was in a memory care unit. The son had allowed the father to keep a credit card, but the son had removed the chip and scratched the magnetic strip so the card could not be used, the order said. Hoffman used the visible numbers on the card to bill $12,818 for “ongoing representation” and “estate settlement,” the board found.

When the son discovered the credit card bill, he filed a complaint with police and sued Hoffman in Fairfax General District Court.

Later, Hoffman said he would return the money, the order said. He reportedly said it was “just the right thing to do.” As of the VSB hearing, however, he had not returned any of the Gawrylowicz money, and the lawsuit was still pending, the bar said.

“Not only did the Respondent’s pattern of misconduct demonstrate a dishonest or selfish motive, but the Respondent refused to acknowledge the wrongful nature of his conduct. Respondent also preyed on elderly victims who were particularly vulnerable and unable to take action to protect their own interests,” the board wrote.

“Respondent’s actions demonstrate his lack of a moral compass and lack of fitness to practice law. Accordingly, any sanction other than revocation would be a disservice to the Virginia legal community and the public at large,” the order states.

Commenting on the two cases in a Feb. 22 email, Brennan said a law license is a privilege conferred on an attorney to benefit the public.

“Attorneys who turn the fiduciary relationship on its head and abuse the trust reposed in them to act for their own benefit instead of for their clients — particularly the elderly and vulnerable — indelibly tarnish the reputation of the profession,” she wrote.