In the Disciplinary Matter Involving MELINDA D. MILES, Respondent
Appeal from the Alaska Bar Association Disciplinary Board. ABA File No. 2010D144.
John M. Murtagh, Anchorage, for Respondent.
Louise R. Driscoll, Assistant Bar Counsel, and Stephen J. Van Goor, Bar Counsel, Anchorage, for Alaska Bar Association.
Before: Fabe, Chief Justice, Winfree, Stowers, and Bolger, Justices. Maassen, Justice, not participating.
An attorney misappropriated a deceased client's funds -- rightfully belonging to the decedent's estate -- and hid this misappropriation through deception while providing legal services to the estate's personal representative. Throughout more than three years of disciplinary proceedings, the attorney maintained that the funds had been gifted to her and that she was following the decedent's wishes in deceiving the estate. The Alaska Bar Association's Disciplinary Board found that no gift had been intended or accomplished and that, among other violations, the attorney committed the criminal act of theft, misappropriation, or wrongful conversion. The Board recommends that we disbar the attorney. After independently reviewing the record, we agree with the Board and impose the recommended sanction.
II. FACTS AND PROCEEDINGS
Like many disciplinary matters, this case is fact-specific. We therefore outline the facts in detail.
A. Melinda Miles And The Moren Brothers
Melinda Miles was admitted to the Alaska Bar in 1989. During the relevant time period Miles was a sole practitioner handling a variety of legal matters, including will preparation and other estate planning and probate services. In 2006 Miles became acquainted with Donald Moren, who built a fence for her as a handyman. According to Miles they became close friends and she occasionally performed legal work for him.
In May 2008, for a fee, Miles formed Progressive Diversified Services, LLC (Progressive) for Donald. Progressive's Articles of Organization list Donald as both the company's organizer and its registered agent. The next day Miles signed a notarized " Special Power of Attorney" form, prepared on her office letterhead, declaring that she, as the " registered agent" of Progressive, appointed Donald as her " attorney-infact to act in [her] capacity to . . . cash and sign checks, make deposits and withdrawals, close the account, and otherwise have sole signatory authority and sole authority to manage as he sees fit the Key Bank banking account for Progressive Diversified Services, LLC." The form states that the " rights, powers, and authority" given to Donald " shall remain in full force and effect as long as that referenced bank account is open." That same day two bank accounts were opened at KeyBank under Progressive's name -- one business checking account with an opening deposit of $15,000, and one business savings account with an opening deposit of $100,000. The account signature cards list Miles as the sole signer for each account, and each card was signed by Miles. On each card, between Miles's name and signature, under the word " Title," are the handwritten words " Registered Agent."
About two weeks later Donald signed paperwork removing him as Progressive's registered agent and making Miles the new registered agent. The " Special Power of
Attorney" form signed earlier by Miles was received by KeyBank in July. Later Miles signed, in two places, a new signature card for Progressive's bank accounts. Next to both signatures, in handwriting, Miles is designated as Progressive's registered agent. On this signature card, Donald, as Progressive's " owner," is newly added as a second signer on the accounts.
In May 2009 Donald died unexpectedly. He had no will, and his mother, Mary, was his sole heir. Donald's brother, Patrick, had power of attorney to act on Mary's behalf. In early June Patrick contacted Miles because he learned Miles had assisted Donald in setting up Progressive, and Patrick wanted assistance being appointed personal representative of Donald's estate in Alaska.
Miles did not know Donald had died until Patrick contacted her, and she immediately began recording the time she spent reviewing Donald's file and communicating with Patrick. On June 11 she recorded time for " [b]ank research." The next day Miles went to KeyBank and wrote herself counter checks for the remaining balance in each Progressive bank account: $1,162 from the business checking account and $20,072 from the business savings account. Miles then deposited the smaller checking account balance into her law office trust account and the larger savings account balance into the account of a rental property company she owned. Over the next week Miles moved $20,000 from her rental company account to her personal account and began spending the money. Miles also changed the mailing address for Progressive's bank statements from Donald's address to her own address.
The same day Miles deposited the counter checks, she wrote to Patrick that she had " done quite a bit of checking into Donald's affairs" and " wanted . . . to memorialize what [she had] discovered thus far." Setting out a " rough inventory" of Donald's assets, Miles listed the smaller Progressive checking account balance of $1,162 and other possessions, including Donald's vehicle, boat, guns, electronics, and storage unit of unknown contents. Miles did not mention the Progressive savings account. She advised Patrick of a procedure in Alaska for handling small estates, broached the subject of billing the estate for her services, and attached an invoice.
Patrick responded with a request that Miles procure information about Donald's assets, including " [i]nformation from any banks in which Don[ald] had accounts." At the end of July Miles emailed Patrick a list of the items in Donald's storage unit. Patrick responded by email a week later:
My primary concern at this time is to obtain all information regarding Don[ald]'s bank assets. If you are unable to obtain [information] from Key Bank or any other bank in which Don[ald] had assets . .., I want to commence action in . . . Alaska to effect my appointment as personal representative of Don[ald]'s estate.
Miles responded by email that same day:
A long time ago I told you about the bank account at Key Bank. There is that one account. I do not have the information in front of me as I have been in court . . . . I have confirmed that there are no accounts at First National, and Mat Valley and Denalia Alaska [sic]. This only leaves . . . Wells Fargo. . . . I can check that tomorrow . . . . I will let you know if [Donald] did not end up closing that account as he told me he planned to. It may be where he has additional funds.
About a week later an attorney working with Patrick sent Miles an email, stating: " I just wanted to touch base regarding Don[ald]'s estate. . . . Any updates regarding other bank accounts?" A few days later Miles wrote a letter to Patrick, stating:
[T]his is not how I usually investigate a probate. Usually, I gather all of the mail, and review all of the bookmarks from the decedent's computer. That way, we know which banks . . . to approach. This has been more of a fishing expedition . . . . I knew a little about Donald's finances but not a lot . . . .
Information from any banks in which Don[ald] had accounts: I have checked all of the major banks in the Anchorage/Mat Su area. The most uncooperative was Wells Fargo. But, I have confirmed that Donald did not have an account there anymore.
The only accounts at a bank I have found is KeyBank. I previously sent you that information. I have closed out that account, mainly because after I told you the amount in that account an automatic payment for his cell phone came through. (Emphasis omitted.)
At some point in the next seven months, Patrick retained Alaska attorney Nelson Page to assist him with Donald's estate and obtained information from KeyBank about both Progressive accounts. In March 2010 Page contacted Miles about the two accounts, asking why the funds were withdrawn, where the funds then were located, and the basis of Miles's authority to write the checks from the accounts. A week later Miles responded:
Not until I pulled Donald's file did I recall that I was, of course, a signatory on his two accounts. One account that he wanted to use on a daily basis, and another account, that in light of the attorney/client privilege, I will only state that he wanted to be certain that the money went to me if anything happened to him. You may or may not know that that account even used my social security number, and not Donald's.
. . . .
Once I realized that I was the signatory on these accounts, I sought legal counsel from an ethical standpoint. I at no time or in any way wish to miss-handle [sic] these funds. If you think otherwise please let me know.
Page responded in May that Patrick, as the personal representative of the estate, was gathering Donald's assets and requested that Miles give Page " all property and funds from Donald Moren that are in your possession, custody, or control" for later distribution under the law.
Two weeks later Miles mailed Page a check for $1,162. In the accompanying letter, Miles wrote:
Please let me know your position on the bank account that Donald held with me as principal and with my social security number. The main reason Donald structured that account that way was to protect the money from his brothers. He also claimed that one day, we would make money in joint ...