## Facts

- Dennis Whelan was admitted to the New Hampshire bar and later formed a law firm with attorney Daniel Smith and another lawyer.
- Whelan and his wife lived next door to an elderly woman.
- Whelan’s wife visited the elderly woman frequently and helped care for her.
- Smith handled the elderly woman’s financial affairs and prepared her original will, a later revision, and a codicil.
- The elderly woman asked Whelan to draft a codicil that would leave her real estate (house and property) to Whelan and his wife.
- Whelan told the woman it would be improper for him to draft that codicil and instructed her to consult Smith.
- Smith then drafted the codicil that left the woman’s house and property to Whelan and his wife.
- In a separate disciplinary matter against Smith, the New Hampshire Supreme Court concluded Smith violated Rule 1.8(c) (preparing an instrument that makes a substantial gift to the lawyer or specified related persons) and Rule 1.10(a) (imputed disqualification within a firm) by preparing an instrument benefiting his law partner.
- In this proceeding, the Committee on Professional Conduct sought discipline against Whelan based on his role in and benefit from the codicil, including under Rule 5.1(c)(2) (responsibility for another lawyer’s violation when consequences can be avoided or reduced) and Rule 8.4(a) (misconduct to knowingly assist or induce a rules violation).
- Whelan argued that mere knowledge of another lawyer’s course of conduct does not, by itself, establish an ethics violation by the lawyer who did not draft the instrument.

## Issues

1. Whether a lawyer who benefits from a client’s testamentary gift violates the Rules of Professional Conduct when the gift instrument is drafted by the lawyer’s partner, even though the lawyer declined to draft it personally.
2. Whether a partner’s knowledge of, and failure to prevent or remedy, another lawyer’s improper preparation of a gift instrument can make the partner professionally responsible under Rule 5.1(c)(2).
3. Whether directing the client to a law partner to prepare a prohibited gift instrument, and then accepting the benefit, constitutes knowingly assisting or inducing misconduct under Rule 8.4(a).

## Decision

- The court rejected Whelan’s position that “mere knowledge” can never support discipline when the lawyer is aware of the conduct while it is occurring and is in a position to prevent or reduce its consequences.
- The court determined that the ethical prohibition on preparing substantial gifts could not be avoided by having a law partner perform the drafting when the transaction benefits the lawyer and the conflict is imputed within the firm.
- The court concluded that Whelan bore professional responsibility for the partner’s misconduct under the rules governing partner oversight and misconduct through the acts of another, given his knowledge of the planned gift, his role in steering the client to his partner for the drafting, and his receipt of the gift.
- The court imposed attorney discipline against Whelan.

## Legal Principles

- A lawyer may not evade Rule 1.8(c)’s restriction on preparing an instrument that makes a substantial gift to the lawyer by arranging for another lawyer in the same firm to prepare the instrument when firm-wide conflict rules apply.
- Under Rule 1.10(a), conflicts and disqualifications are generally imputed among lawyers in the same firm, which can bar one lawyer from undertaking representation that another lawyer in the firm could not undertake alone.
- Under Rule 5.1(c)(2), a partner may be responsible for another lawyer’s rules violation when the partner knows of the conduct at a time when its consequences can be avoided or reduced and the partner does not take reasonable remedial action.
- Under Rule 8.4(a), a lawyer commits misconduct by violating the rules through the acts of another or by knowingly assisting or inducing another to violate the rules.
- In lawyer-discipline matters, the court evaluates both the lawyer’s conduct and the lawyer’s duties arising from firm relationships, including duties tied to knowledge, supervision, and intervention when misconduct is foreseeable and preventable.

## Conclusion

Whelan’s Case is an attorney-discipline decision holding that a lawyer cannot sidestep the prohibition on preparing a client’s substantial testamentary gift to the lawyer by sending the client to the lawyer’s partner to draft the instrument; when the lawyer knows of the conduct in time to act, helps channel the drafting to a partner, and benefits from the gift, the lawyer may be professionally responsible under the rules on imputed conflicts, partner responsibility, and assisting or inducing misconduct.


Whelan's Case, 1992 N.H. LEXIS 196 (1992)