Attorney John M. Aversa is Disbarred After Acting As A Guardian And Submitting Unverified Petition For Probate

LEGAL ETHICS

Lawyer Acting as Guardian Disbarred for Helping Ward Will $5M Estate to His Wife

Posted Aug 30, 2011 11:51 AM CST
By Martha Neil

Despite a hitherto unblemished disciplinary record over a 30-year legal career, a New York attorney appointed as a guardian to an incapacitated person has been disbarred for helping her prepare a will in favor of his wife.

John M. Aversa was appointed in July 2009, and the next month his ward got a settlement of over $5 million in a personal injury suit, recounts the Fourth Judicial Department of the New York Supreme Court Appellate Division in an opinion (PDF) earlier this month.

A court told Aversa to retain independent counsel to help the woman prepare a will. Instead he prepared the will himself without bringing in independent counsel or evaluating the woman's testimentary capacity. It named Aversa as the executor and his wife, under her maiden name, as the beneficiary. Two members of his immediate family were witnesses.

Besides committing what the court described as serious misconduct for personal gain, Aversa also "demonstrated a shocking lack of candor in this proceeding," the court wrote, "by belatedly presenting to the Grievance Committee a document designed to conceal his misconduct and by providing explanations for his conduct that lack credibility."

Aversa had claimed that the will was drafted in an effort to distribute his ward's assets to charity, as she wished, via his wife. He presented an unsigned, undated will addendum giving instructions to that effect after he was asked to resign as guardian, the opinion says.

Hat tip: Legal Profession Blog.

 SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department
MATTER OF JOHN M. AVERSA, AN ATTORNEY, RESPONDENT.  GRIEVANCECOMMITTEE OF THE SEVENTH JUDICIAL DISTRICT, PETITIONER. -- Order
of disbarment entered.  

Per Curiam Opinion: 

Respondent was admitted to the practice of law by this Court on February 18,
1981, and maintains an office in Niagara Falls.  The Grievance Committee filed

a petition charging respondent with acts of
misconduct arising from his appointment as guardian of an
incapacitated person (hereafter, IP).  Respondent filed an answer
admitting the material allegations of the petition and he
appeared before this Court and submitted matters in mitigation.
Respondent admits that, in July 2009, he was appointed as
guardian for the IP, who was a plaintiff in a pending personal
injury action.  Respondent further admits that, in August 2009,
the IP received settlement funds in an amount in excess of $5
million and, on numerous occasions thereafter, Supreme Court
instructed respondent to retain independent counsel to draft a
will on behalf of the IP.

Respondent admits that, in contravention of those
instructions, he prepared a will for the IP, which was executed
in March 2010, appointing himself as sole executor of the estate
and designating respondent’s wife, in her maiden name, as sole
beneficiary of the will.  Respondent further admits that, prior
to the execution of the will, the IP did not receive advice from
independent counsel and was not evaluated to determine if she
possessed testamentary capacity.  In addition, respondent admits
that two members of his immediate family served as subscribing
witnesses to the will.

In June 2010, the court advised respondent in a letter that
his conduct in preparing the will, designating his wife as sole
beneficiary, and retaining counsel to probate the will was
improper, and the court requested that respondent resign as
guardian.  Respondent admits that he thereafter resigned as
guardian without responding to the letter and did not attempt to
offer the will for probate.  Additionally, respondent admits
that, during the investigation conducted by the Grievance
Committee into this matter, he produced a petition for probate,
which he had prepared and verified, that had not been filed and
that contained an undated, unsigned addendum purporting to
instruct respondent’s wife to distribute the IP’s assets to
charity.  The petition for probate was verified by respondent two
days after the date of the letter from the court requesting his
resignation as guardian.

When respondent appeared before this Court in relation to
this matter, he submitted that he did not understand that his
conduct was improper and did not construe the instructions by the

 court as a directive to retain independent counsel for the IP.
He further stated that he drafted the will in an attempt to
fulfill the IP’s testamentary wish to distribute her assets to
charity.  We reject respondent’s explanation for his misconduct
as incredible.

We conclude that respondent has violated the following Rules
of Professional Conduct:
rule 1.8 (c) (1) (22 NYCRR 1200.0) - soliciting a gift from
a client, including a testamentary gift, for the benefit of the
lawyer or a person related to the lawyer;
rule 1.8 (c) (2) (22 NYCRR 1200.0) - preparing on behalf of
a client an instrument giving the lawyer or a person related to
the lawyer any gift where the lawyer or other recipient is not
related to the client and a reasonable lawyer would not conclude
that the transaction is fair and reasonable; and,
rule 8.4 (h) (22 NYCRR 1200.0) - engaging in conduct that
adversely reflects on his fitness as a lawyer.
In determining an appropriate sanction, we have considered
respondent’s previously unblemished record after 30 years in the
practice of law.  Respondent, however, has committed serious
misconduct for personal gain.  Additionally, respondent has
demonstrated a shocking lack of candor in this proceeding by
belatedly presenting to the Grievance Committee a document
designed to conceal his misconduct and by providing explanations
for his conduct that lack credibility. 

Accordingly, after consideration of all of the factors in this matter, we conclude
that respondent should be disbarred.  

PRESENT: CENTRA, J. P.,
PERADOTTO, LINDLEY, GREEN, AND MARTOCHE, JJ.  (Filed Aug. 2,
2011.)