From this week's New Jersey Law Journal. It may well be that the lawyer here did not actually do anything improper, but anyone concerned about appearances might have acted differently. Anything that even looks like it might be self-dealing should be inherently suspect and avoided:
A New Jersey attorney and his client, who last May escaped conviction on charges they unduly pressured an elderly widow to name them as executor and beneficiary of her multimillion dollar estate, now are trying to avoid punitive damages.
A New Jersey appeals court ruled last December that although Ronald Casale and his client, Dr. Ronald Sollitto, could not be forced to pay attorney fees to the beneficiary they effectively disinherited, a jury could still assess punitive damages against them.
Last week, Casale and a lawyer for Sollitto argued to the state Supreme Court that to allow such a remedy would clog the courts and drastically alter the law of trusts and estates.
The case, In the Matter of the Estate of Madeline Stockdale, A-121-06, stems from a challenge to a 2000 will drafted by Casale that named Sollitto, his friend and longtime client, as the chief beneficiary of Madeline Stockdale's estate and Casale the sole executor. The challenger was the Spring Lake First Aid Squad, which under an earlier will would have received most of the estate.
Casale drafted the later will for Stockdale, a nonagenarian, while she was in a rehabilitation facility recovering from a hip fracture. It was executed on Jan. 3, 2000, a day before she had throat surgery.
The same day, Stockdale also signed a real estate contract -- drawn up by Spring Lake, N.J., solo Thomas Foley on instructions from Sollitto -- by which she agreed to sell Sollitto her Spring Lake home for $1.3 million. The contract required only a $1,000 initial deposit, followed by a second deposit of $56,000, with Stockdale taking back a purchase money mortgage for the rest. The will drafted by Casale excused Sollitto's obligation to pay off the mortgage, since as residuary beneficiary the money would go to him anyway.
Stockdale also gave Sollitto power of attorney over her affairs. Stockdale died three months later.
Superior Court Judge Ronald Reisner of Monmouth County, N.J., refused to admit the 2000 will to probate, saying it appeared to be the product of "sharp dealing" by Casale and Sollitto. He also refused to enforce the sale of the house.
Reisner denied the squad's claim for punitive damages but awarded it $1,193,726 in counsel fees against Sollitto and Casale, relying on In the Matter of the Niles Trust, 176 N.J. 282 (2003). That case held that an estate executor or trustee who benefits from undue influence to the detriment of the estate may be required to pay counsel fees.
The Appellate Division reversed, holding Niles did not apply because Sollitto was not an executor or fiduciary, neither he nor Casale had depleted the estate and there was no attorney-client relationship between the squad and Casale.
However, the court remanded for reconsideration of punitive damages, finding Reisner apparently had mistakenly thought the fee award was the equivalent of a punitive award. Casale and Sollitto appealed.
On Oct. 9, Sollitto's lawyer, Frederick Dennehy, urged the state supreme court to reject the squad's claim for punitive damages and counsel fees.
"The question of fee shifting hovers like a ghost over all settlement negotiations" in disputes over wills and estates, said Dennehy, of Woodbridge, N.J.'s Wilentz, Goldman & Spitzer.
"Punitive damages are a much larger issue," he added. "We have the possibility that in ... virtually every will contest, there will be an application and a claim to entitlement for punitive damages."
The result, said Dennehy, would be to clog the courts with estates that cannot be settled because of the possibility of fee shifting and punitive damages.
"Why are you so fearful?" asked Justice Roberto Rivera-Soto.
"This would be a seismic change in the law of estates and trusts," Dennehy replied.
Rivera-Soto wasn't convinced, asking Dennehy why rules concerning fee shifting and punitive damages should not apply in will contests the way they do in tort claims.
Dennehy said those rules could apply if there were clear indications of fraud, but not of undue influence.
"Undue influence covers a very wide spectrum," Dennehy said.
Casale, arguing pro se, said Niles did not apply here because there was no diminution of the estate as in Niles. "In Niles, the Court had to send a message out," said Casale, a former head of the New Jersey State Bar Association's Real Property and Probate section.
Rivera-Soto asked about the circumstances under which punitive damages might be awarded. Casale said they could be available if there were compensatory damages, but since there were none in this case, punitive damages cannot be awarded, he said.
Casale added that there is no evidence he exerted influence over Stockdale.
"There was not a single finding that I exercised any undue influence," he said. "I couldn't have. I didn't know the woman long enough." On May 11, a Monmouth County jury hung on conspiracy and theft-by-deception charges against Casale and Sollitto for allegedly bilking Stockdale out of her fortune.
Casale told the justices they would send a bad signal to the bar by ruling in favor of the rescue squad.
"I know a lot of practitioners who will stop doing wills and estates," he said. "It will just be too risky."
The rescue squad's lawyer, Spring Lake solo William Gearty, said the two did exert undue influence over an elderly woman in ill health.
"They were the 'driving force,'" said Gearty, quoting Reisner, even though Sollitto was not a fiduciary. By persuading Stockdale to change her will, they engaged in a "pernicious tort."
Several justices suggested it may not be possible to rule in the rescue squad's favor because there is no indication it suffered financially.
Gearty disagreed. "It's difficult for the squad to accept the fact that it was not harmed at all," he said. Stockdale's property is now worth about $5 million and, under the terms of her original will, the rescue squad was to be given the property after she died.
"They still don't have title to the property seven years after Mrs. Stockdale died," Gearty said.
Justice Virginia Long asked Gearty to respond to Dennehy's assertion that a ruling in the rescue squad's favor would jam up the Chancery Division with contested claims.
The court's ruling in Niles has not led to that result, said Gearty, and there is no reason to believe it would happen if the court ruled in the rescue squad's favor. "I don't see the floodgates opening in any fashion," he said. "This case is identical to Niles."
