## Facts

- William G. Berge, a Colorado attorney, represented Allen C. Stephenson for many years on business and estate matters.
- In 1967, Berge prepared Stephenson’s will giving small bequests to relatives, specific gifts to a museum, and the residuary estate primarily to animal-related charities.
- In 1968, Stephenson asked Berge to prepare a new will that would leave Berge a portion of the residuary estate; Berge declined to draft it.
- Berge directed Stephenson to an attorney (Smith) who rented office space from Berge and performed occasional legal work for him; Stephenson met with Smith immediately.
- After a brief meeting in which Smith provided little substantive counseling and largely followed Stephenson’s instructions, Smith drafted a new will.
- The 1968 will reduced a major charity’s share to a fixed $25,000 bequest, eliminated another charity, and left the residue 53% to Leon DuCharme and 47% to Berge.
- Berge witnessed execution of the 1968 will; Smith did not charge the client and considered the work a favor to Berge.
- After Stephenson died in 1976, the estate was valued at nearly $600,000; DuCharme retained Berge as counsel for the estate.
- Berge told the prior charitable residuary beneficiary it would receive only $25,000 and misstated the estate’s value as roughly $250,000.
- The charity retained counsel; the parties settled so the prior charitable beneficiaries received one-third of the residue, with DuCharme and Berge dividing the remaining two-thirds; Berge’s net share exceeded $113,000.
- Disciplinary proceedings found the allegations proven by clear and convincing evidence; a hearing committee recommended public censure, a panel recommended a one-year suspension, and the supreme court reviewed the sanction.

## Issues

1. Whether Berge’s participation in arranging and witnessing a will that made him a substantial beneficiary, without effective safeguards ensuring independent advice, constituted professional misconduct.
2. Whether Berge’s statements to a prior charitable beneficiary about the estate and its interests breached duties of candor and ethical obligations while he served as estate counsel.
3. What sanction was appropriate given the misconduct and the record.

## Decision

- The court found cause for discipline based on violations of professional responsibility standards governing conflicts of interest and loyalty.
- Berge’s handling of the testamentary gift failed to ensure genuinely independent counsel and created an unacceptable risk and appearance of improper influence.
- Berge’s misstatement of the estate’s value to a prior beneficiary while acting as estate counsel supported discipline for lack of candor in a conflicted setting.
- The court treated disciplinary recommendations as advisory and imposed a 90-day suspension, modifying the panel’s recommended one-year suspension.

## Legal Principles

- A lawyer must not allow personal financial interests to affect professional judgment; when a client seeks to make the lawyer a substantial testamentary beneficiary, the lawyer must employ strict safeguards to ensure independent advice and avoid involvement that compromises independence.
- Steering a client to counsel closely tied to the lawyer-beneficiary, combined with the lawyer’s continued participation in execution, can violate conflict-of-interest rules even absent an express finding of actual undue influence.
- An attorney representing a personal representative while also being a beneficiary must deal candidly with other heirs and beneficiaries; material misstatements about estate value or their potential interests constitute professional misconduct.
- In attorney-discipline matters, factual findings must be supported by clear and convincing evidence, and the supreme court independently determines the appropriate sanction.

## Conclusion

The Colorado Supreme Court disciplined Berge for conflicted conduct surrounding a will that substantially benefited him and for misleading a prior beneficiary during estate administration, ordering a 90-day suspension from the practice of law.


People v. Berge, 620 P.2d 23 (Colo. 1980)