In a series of hearings held more than two years ago, a District of Columbia attorney disciplinary hearing committee delved into the messy affairs of the Ackerman family.
Genevieve Ackerman, who died in February at age 94, had two children pitted against one another in a bitter fight over managing their mother’s assets. Ackerman’s daughter, Mary Frances Abbott, lodged ethics complaints against four Washington-area lawyers who had represented Ackerman and, in some instances, her son, Stephen Ackerman Jr., over the past decade.
At the heart of the case was whether Genevieve Ackerman had the mental capacity to make complex legal decisions. During a dozen hearing days between October 2009 and March 2010, the Office of Bar Counsel and Abbott argued that Ackerman lacked capacity, and charged that the lawyers exploited her to further her son’s interests. But in a report released on September 28, the hearing committee disagreed, clearing the four lawyers — John T. Szymkowicz and J.P. Szymkowicz of Washington’s Szymkowicz & Szymkowicz and solo practitioners Leslie Silverman and Robert King — of wrongdoing on almost every charge.
Capacity has been characterized as “the black hole” of legal ethics, according to elder law practitioners. But as millions of baby boomers age, lawyers say the question of when an impairment such as dementia crosses the line to legal incapacity demands greater attention.
Robert Bullock of the Elder & Disability Law Center in the District said that while the D.C. Code has a broad definition of incapacity, it’s not always clear how it applies in practice. He cited a case involving an elderly client who could clearly express her wishes, but couldn’t remember what she said 20 minutes earlier. “Does that mean she lacks capacity? All these are issues that the law hasn’t caught up on. No one has the answer,” he said.
The hearing committee found that, although Ackerman had memory problems consistent with mild to moderate dementia, she could still clearly articulate what she wanted to her lawyers. The committee found that while Senior Assistant Bar Counsel Julia Porter presented evidence that Ackerman was mentally impaired, she failed to show that it affected Ackerman’s capacity to make specific decisions at distinct moments in time.
Porter declined to comment. John and J.P. Szymkowicz referred questions to their Rockville, Md.-based lawyer, Robert Levin, who also declined to comment. Silverman did not return a request for comment. King said he was relieved by the report, calling the bar counsel’s case “ludicrous” and overly influenced by Ackerman’s daughter. The committee did find that King violated the rules of professional conduct by failing to have a written retainer. King said he did not plan to object to that finding.
The Office of Bar Counsel has until October 19 to file objections to the committee’s findings. The case will then go before the Board on Professional Responsibility, which will issue its own report and recommendations to the final decision-making body, the District of Columbia Court of Appeals.
The case stemmed from disputes between Ackerman’s two children over a trust set up to manage her assets, which was overseen by her daughter’s husband. Beginning in 2002, according to the hearing committee report, John and J.P. Szymkowicz represented Stephen Ackerman Jr. in his unsuccessful attempt to have a disinterested trustee appointed and to have a piece of property belonging to his mother transferred to him, which he said was his mother’s intent.
In 2005, the Szymkowiczs began representing Ackerman in her unsuccessful attempt to revoke the trust and regain control of her assets. The hearing committee found that Ackerman had capacity to retain lawyers and to understand the potential conflict of interest posed by their representation of her son. When it did become a conflict, the committee found she had capacity to hire another lawyer, Silverman, and, later on, King.
Porter argued that Ackerman’s lawyers pursued positions that would only benefit her son, such as giving him property or engaging in litigation that would reduce her own assets. But the committee found that bar counsel wrongly identified the preservation of assets as Ackerman’s only legitimate interest. “We find on the basis of clear and convincing evidence that Mrs. Ackerman had another motivation: to help her son, even if to her own financial detriment,” the members wrote.
The committee found that just because Ackerman displayed signs of dementia, she didn’t lack capacity to make the legal decisions at issue. “Capacity’s not an on-off switch,” said Washington solo practitioner Edward Varrone. “Think of it more like a dimmer. It really depends on what it is that the client is making decisions about.”
Jennifer Berger, supervisory legal aid attorney at the Legal Counsel for the Elderly, said lawyers should set up multiple meetings and take their time with a potential client if there are capacity concerns. When in doubt, she said, call a professional for an evaluation. Her organization has an on-site social worker, she said, but “a lot of attorneys do not have that luxury, and it’s dangerous because they’re put in the role of practicing a discipline that they do not have the skills to practice.”
Ira Burnim, legal director of the Judge David L. Bazelon Center for Mental Health Law, said lawyers should treat all clients equally and address capacity issues as they arise. “If they have clear ideas of what they want,” he said, “you don’t ignore that.”
Contact Zoe Tillman at firstname.lastname@example.org.