Monday, April 9, 2012
Bar Panel Urges Disbarment of Lawyer Who Married Elderly Client
Judges Say Bay Area Attorney Took Man’s Money Instead of Giving It to His Relatives
From Staff and Wire Service Reports
A lawyer is facing the loss of her law license after marrying an elderly client and then allegedly misappropriating more than $300,000 of his money after his death.
The State Bar Court on Friday recommended that Linda Nell Lowney be disbarred. Lowney was placed on inactive status last year after a hearing judge recommended she be disbarred.
Judge Patrice McElroy found that Lowney, of Pacifica in San Mateo County, was hired by Thor Tollefsen to prepare his will and organize his estate in 2002. The two became romantically involved and in January 2006 the couple married confidentially, although the hearing judge found that the attestation on the application that they were living together as husband and wife was false.
They didn’t live together after the marriage either, McElroy found. She was 54 and he was 85 and stricken with cancer. He died the next year.
Office Phone Disconnected
Tollefsen’s family accused Lowney of keeping nearly $340,000 of his estate she controlled as his lawyer meant for them upon his death. Lowney’s office phone was disconnected and she couldn’t be reached for comment.
State Bar prosecutors called Tollefson’s sister and a niece, who lived in Norway, as witnesses, and the hearing judge rejected challenges to their credibility. The judge rejected as not credible Lowney’s testimony that she advised Tollefson to seek independent advice of counsel, noting that no written proof of such advice was given.
Also lacking in credibility, the judge said, was Lowney’s testimony that she disregarded Tollefson’s instructions that his body not be cremated because he later told her he had changed his mind. As his attorney, McElroy reasoned, Lowney would have advised him to change his will if he had told her his intentions had changed.
The niece and sister testified that Tollefson called them in 2005 and told them he had decided to transfer his mutual funds to his attorney, who would use the money to care for him, and they said they did not object, but that Lowney never explained the significance of her becoming joint tenant on the account.
Within days of Tollefson’s death, Lowney petitioned the San Mateo Superior Court to remove his two nieces as co-trustees. A judge found the petition to have been brought in bad faith and imposed monetary sanctions, saying the attorney knew that she lacked standing under the Probate Code and that the petition was contrary to Tollefson’s wishes.
Lowney later filed a spousal property petition, which was rejected on the ground that the confidential marriage was void. The Court of Appeal affirmed and referred the matter to the State Bar, saying it appeared that Lowney had engaged in misrepresentation in order to gain a personal financial advantage for herself.
McElroy concluded that Lowney violated the State Bar Act and the Rules of Professional Conduct by acquiring an interest adverse to a client, specifically by acquiring the mutual funds without Tollefson’s informed consent; that she misappropriated the funds and did not use them for his care, as he anticipated; that she committed moral turpitude by registering a false marriage certificate; and that she maintained an “unjust action” to remove the family members as trustees.
The judge rejected charges resulting from Lowney’s filing of the spousal property petition, saying that while the filing was “dubious at best,” it was at least arguable that the marriage was voidable, rather than void.
McElroy found in mitigation that Lowney had practiced for 32 years without discipline, and that many witnesses who had known her for years testified to her good character, although the judge noted that many of the witnesses did not know she was “married” and never met Tollefson.
Many Aggravating Factors
The judge found in aggravation that the attorney engaged in multiple acts of misconduct, harmed her client and the public, lacked “the decency to call [Tollefson’s] nieces and tell them of his death when their telephone numbers were written in big numbers on his desk in his house,” and injured the administration of justice by bringing, and forcing the nieces to bring, litigation that should not have been necessary. She also found that Lowney was remorseless and had not made restitution.
“This case is about a lawyer who saw an opportunity to take a sick, elderly man’s money and went for it,” the judge summarized. “Lesser discipline than disbarment is not warranted. The egregious and heartless nature of the misconduct suggests that respondent is capable of future wrongdoing and raise concerns about her ability or willingness to comply with her ethical responsibilities to the public and to the State Bar.”
The case is In the Matter of Lowney, 07-O-11504-PEM.
Copyright 2012, Metropolitan News Company