Second District, Division Six Sustains Award under Welfare and Institutions Code section 15657.5.
Welfare and Institutions Code section 15657.5(a) provides for an award of costs and reasonable attorney’s fees to the prevailing plaintiff where the defendant has been found liable for financial elder abuse under section 15610.30.
In Wood v. Jamison, Case No. B196898 (2d Dist., Div. 6 Sept. 30, 2008) (certified for publication), an attorney representing an elderly client did not disclose his conflict of interest, resulting in financial harm to his client, institutional harm to his profession, and catastrophic harm to himself. Specifically, attorney never disclosed that he represented an elderly wife, that he took a $4,000 referral fee in a loan that wife made to attorney’s real client (a younger man who wanted to open a night a club), and that he obtained $10,000 from the night club loan to repay a prior loan attorney had made to younger man. No conflict waivers, no conflict disclosures, and no referral of the elderly wife to independent counsel. Elderly wife defaulted on the loan and foreclosure proceedings were commenced against wife’s residence (the security for the night club loan). Elderly wife died, and her executor sued younger man, attorney, and lender. The trial court stayed foreclosure proceedings, and the lender parties settled by reconveying the residential property in exchange for payment of loan interest. After a bench trial, the lower court found attorney committed malpractice, breached his fiduciary duty to elderly wife, and committed financial abuse of an elder under section 15610.30(a). The trial court also awarded attorney’s fees against attorney pursuant to section 15657.7(a). Attorney appealed.
He lost.
Presiding Justice Gilbert, writing for a 3-0 panel of the Second District, Division Six, found that the evidence did support a finding of financial elder abuse. Attorney did take an undisclosed finder’s fee, and he aided and abetted younger man’s scheme to take the night club loan proceeds for a speculative venture inappropriate for risk taking by elderly wife. The attorney’s fees award against attorney was affirmed, and costs on appeal were awarded as well to executor of decreased elderly wife’s estate.