A Montgomery County attorney was disbarred Tuesday by the state Supreme Court for his role in several estate-planning companies that had nonlawyers drafting trusts for the elderly.
The Disciplinary Board of the Pennsylvania Supreme Court determined after nine days of hearings that attorney Brett Weinstein of King of Prussia, Pa., had violated several Rules of Professional Conduct by having little if any contact with clients of several estate-planning businesses who were assisted in drafting trusts by nonlawyer employees of the companies associated with Weinstein’s law office.
“From 2001 to 2012, [Weinstein], both in his solo practice and acting in concert with Barry Bohmueller, Esquire, assisted sales and delivery agents for a series of estate planning companies in the unauthorized practice of law,” the Disciplinary Board said in its report and recommendation of disbarment to the Supreme Court. “In the course of his participation in these activities, [Weinstein] engaged in false and misleading conduct, failed to consult with his clients concerning their objectives and placed his own interests above his responsibilities.”
Bohmueller, according to the opinion, was simultaneously charged by the board for acting in cooperation with Weinstein. The cases were consolidated for purposes of the disciplinary hearing, but separate hearing committee reports were filed. According to Bohmueller’s history report on the Disciplinary Board’s website, the hearing committee recommended a two-year suspension for Bohmueller in August 2013 and asked the Supreme Court in March 2014 to act on the recommendation. The board’s report on Weinstein was also dated March 2014. The Supreme Court has not ruled on Bohmueller’s recommended punishment.
Calls to Weinstein and Bohmueller were not returned by press time.
Weinstein was admitted to the bar in 1996 and began his associations with estate planning businesses as early as 1999, drafting trusts that were sold to seniors by nonlawyers, the board said.
Weinstein’s practice caught the attention of the Office of Disciplinary Counsel, which issued letters of concern to Weinstein in 2001 and 2002 about his use of nonlawyer sales agents to sell, deliver and explain living trusts to clients, according to the opinion. In 2001, Weinstein entered into an assurance of voluntary compliance with the Pennsylvania Attorney General’s Office, agreeing to stop the alleged misconduct, according to the opinion.
In 2004, according to the board’s opinion, the attorney general initiated an action in Commonwealth Court against Weinstein, Bohmueller and others, alleging violations of consumer protection laws and the prohibition of the unauthorized practice of law. The ODC initiated an investigation into Weinstein and Bohmueller, which was deferred by the Disciplinary Board subject to the condition that Weinstein not engage in the type of work that was the subject of the board’s concerns and the civil action in the Commonwealth Court, according to the opinion.
“Nevertheless, instead of ceasing the conduct of which he had been repeatedly warned, the record is replete with evidence that respondent continued unabated, and deepened his involvement still further by co-opting his law school classmate, Mr. Bohmueller, to participate in the same activities and to share the fees generated from the unethical activities,” the board said in its opinion recommending disbarment.
The board said the testimony from the nonlawyer agents who worked with Weinstein consistently noted the agent went to the client’s home and sold the living trust through a pitch that it would help the client “avoid probate.” The agent would use Weinstein’s brochure and “misleading charts,” have the client sign documents and a Weinstein fee agreement, collect the fee and obtain personal and financial information, according to the opinion.
The information was given to Weinstein’s law office, where a living trust was drafted. The board said in the opinion, however, that Weinstein never had the benefit of interviewing the clients himself, reviewing existing estate-planning documents, discussing intentions, analyzing tax situations and determining the competency of the client. The only explanation of the trust the client received came from the nonlawyer agent, the board said.
The board further found that Weinstein’s misconduct was exacerbated by his relationship and shared practice with Bohmueller. After graduating from law school, Weinstein loaned Bohmueller money to set up a “virtual office.” Weinstein then gave Bohmueller access to the staff and client files of Weinstein Law Offices and Weinstein had full access to Bohmueller’s IOLTA accounts, according to the opinion.
Weinstein wrote checks to himself from those IOLTA accounts to the sum of approximately $1.2 million, according to the opinion.
Weinstein “was not persuasive when he claimed that this money was paid to him for office expenses, staff and capital improvements, especially as [Weinstein] had no records substantiating these payments, nor did Mr. Bohmueller,” the board said in the opinion. “With the addition of Mr. Bohmueller to the practice, [Weinstein] realized a new way to generate even more income in the living trust scheme.”
The board said trust marketing schemes have repeatedly been found to violate the prohibition against unauthorized practice of law. The board rejected Weinstein’s claims that he modified his behavior after 2002, finding the evidence didn’t support that contention. The board said Weinstein’s defenses only corroborated the “deceptive and damaging nature of his scheme.”
Weinstein had argued he simply did what his clients asked of him—drafted trusts. But the board said the clients had no intention of purchasing a living trust until they became anxious after receiving a postcard suggesting that was the only way to avoid “‘exorbitant probate costs.’”
“The instant matter represents an extremely egregious example of the unauthorized practice of law, as [Weinstein] assisted laypersons in practicing law for an extended period of time, despite his full awareness of the impropriety of his actions,” the board said. “There is no other comparable case in Pennsylvania in terms of the gravity of the deception, the determined persistence, and the harm to enormous numbers of vulnerable clients.”
The board also noted Weinstein has not recognized his misconduct or made any apologies for it. In recommending his disbarment, the board said Weinstein was the type of attorney from whom the rules of conduct seek to shelter the public.