Whelan’s Case

Dennis Whelan (defendant) and his wife lived next door to an elderly woman. Whelan’s wife visited the woman almost daily and helped care for her. Attorney Daniel Smith handled the woman’s financial affairs and drafted her original will, a revision, and a codicil. Whelan was admitted to the New Hampshire bar and formed a law firm with Smith and another lawyer. The woman asked Whelan to draft a codicil to her will so that she could leave her real estate to Whelan and his wife. Whelan told the woman it would be improper for him to draft the codicil and to consult Smith. Smith drafted the codicil, in which the woman’s house and property were left to Whelan and his wife. In a disciplinary proceeding against Smith, the New Hampshire Supreme Court found that Smith had violated Rule 1.8(c) of the rules of professional conduct by preparing a codicil that benefited his partner, and Rule 1.10(a) by representing a client when Whelan would be prohibited from representing the client if he were practicing alone. The committee on professional conduct (plaintiff) requested that Whelan be suspended from the practice of law for violating those rules and for violating Rule 5.1(c)(2), which made a lawyer responsible for the violation of another lawyer in his firm, and Rule 8.4(a), which prohibited a lawyer from knowingly assisting or inducing another to violate the rules of professional conduct. Whelan argued that mere knowledge of a course of conduct does not constitute a violation of the ethical rules.