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This matter was before us based on a stipulation of facts signed by the Office of Attorney Ethics ("OAE") and respondent. The OAE contends that respondent violated RPC 1.5(a) (unreasonable trustee and attorneys' fees), RPC 1.7(a) and (b) (conflict of interest), and RPC 8.4(c) (conduct involving dishonesty, fraud, deceit or misrepresentation). Respondent contends that his conduct was not unethical. For the reasons expressed below, we determined that respondent's conduct did not rise to the level of ethics violations and dismissed the charges.

Respondent was admitted to the New Jersey bar in 1973. He maintains a law office in Toms River. In addition, respondent is a municipal court judge in four municipalities and serves as the presiding municipal court judge in Ocean County. Upon the filing of the ethics matter, he voluntarily resigned from those positions. He has no disciplinary history.

The following facts were gleaned from the stipulation and its exhibits, as well as the briefs filed by the parties. In the early 1980s, respondent began representing Elsie Finninger, a widow. From 1986 until her death in 2001 at the age of ninety, respondent represented Finninger on a regular basis. In time, particularly as her health suffered, Finninger developed a strong trust in respondent and relied on him to handle not only her legal affairs, but other matters as well, such as answering correspondence and buying personal items, such as a car and household furnishings. This matter arose after the Ocean County Board of Social Services questioned some of the expenditures made by respondent on Finninger's behalf. Although Norma Taylor, Finninger's stepdaughter, investigated these concerns and was satisfied with respondent's services, the OAE believed that respondent engaged in unethical conduct. We deemed it significant that Finninger, her stepdaughter, her medical caregivers, and her accountant did not voice any complaints about respondent's services on Finninger's behalf.

Finninger had employed a bookkeeper, Bea Corrigan. After Corrigan's death in 1990, Finninger hired respondent's wife, Jane Halligan, as bookkeeper. Jane Halligan performed similar bookkeeping services as had Corrigan and received approximately the same salary, $24,000 per year. The bookkeeping services included reviewing, verifying and paying household bills; forwarding payroll and other information to Finninger's accountant; and preparing nurses' time sheets, calculating their wages and preparing their payroll checks. In November 1991, Finninger signed a "Living Will and Directive for Durable Power of Attorney" prepared by respondent. The document designated Jane Halligan as primary and respondent as alternate "Medical Decision Attorney-in-Fact."

In 1992, shortly after Finninger had broken her hip, the nursing home where she had been residing advised respondent that Finninger needed around-the-clock nursing care after her release from the nursing home. One of the nurses who provided home health care to Finninger was respondent's sister, Kathleen Rogalski. Rogalski was paid the standard hourly rate paid by the nursing agency to nurses with similar credentials.

In early 1992, based on respondent's suggestion, Finninger consulted Roy Adams, a Chicago attorney with an office in New York, for tax and estate planning advice. In March 1992, Finninger signed a will, power of attorney and revocable living trust, all of which Adams had prepared. Finninger insisted that respondent be named executor of her will, attorney-in-fact under the power of attorney, and trustee of the trust. Respondent did not ask to serve in those roles.

The trust required the trustee to distribute to Finninger such amounts as she may direct in writing and, during any period of disability, to distribute to her or to apply for her benefit such amounts, even to the extent of exhausting principal, as the trustee determined was required for her "health, support and best interests." The trust provided for specific bequests, including a single distribution of $75,000 to respondent and Jane Halligan, upon Finninger's death. The balance of the trust principal was to be distributed to Finninger's two stepdaughters.

FRANCIS X. HALLIGAN, JR., or any firm of which he is a member, may be engaged by the trustee to render legal services on behalf of any trust hereunder, even though he, as trustee hereunder, shall make or participate in the decision so to engage himself or a firm of which he is a member. FRANCIS X. HALLIGAN, JR., or any firm so engaged, shall be entitled to receive his or its fair, usual, and customary compensation for those legal services and he shall be entitled to receive that compensation or distributive share of the compensation received by that firm, without diminution of the compensation to which he is entitled for services as trustee hereunder.

From 1992 to 1996, respondent billed Finninger $200 per hour for all services provided, including as her personal attorney, as attorney and trustee for the trust, and as attorney in fact under the power of attorney. In the fall of 1996, Finninger's accountant, Robert Hutchins, advised respondent that trustee fees should be paid on a commission, not an hourly, basis. Beginning in September 1996, although respondent continued to keep track of his time spent on Finninger's behalf, he stopped issuing bills to her. Pursuant to respondent's request, Hutchins reviewed respondent's billings from 1992 to 1996. Hutchins conferred with Thomas Abendroth, an attorney from the law firm of Roy Adams, the drafter of the trust, who estimated the portion of services that should be deemed trustee services. In a letter dated December 4, 1996, Hutchins informed respondent that the allowable trustee commissions from 1992 through 1995 were $124,972, that the fees respondent had collected for that time period were $103,200, and that the difference was $21,772.

Respondent met with Finninger on February 3, 1997 and thoroughly explained the reason for the change in billing procedures for trust services. Finninger confirmed that she understood the billing change and authorized it. Respondent also hand-delivered to Finninger a letter explaining the change in billing procedures. On February 7, 1997, respondent sent another letter to Finninger, confirming the February 3, 1997 meeting and advising that Hutchins was performing a similar analysis of his 1996 billings. Enclosed with the letter was an invoice listing services provided from September 1996 through January 1997. The letter also stated that the invoice represented a charge "which you have not been billed for and thus I have not been compensated for same. If you will review the monthly billing invoices I have provided you with since September, of 1996, you will notice that you have not been billed for any of these Trust related activities although they were undertaken on your behalf through the months of September 1996 through and inclusive of January 1997." Respondent did not provide additional professional services in exchange for the invoice, which Finninger paid.

In a letter dated March 6, 1997, Hutchins informed respondent that allowable trustee commissions for 1996 were $31,360, that respondent had billed $14,080 on an hourly basis through August 31, and that respondent was owed an additional $17,280 as trustee fees for 1996. On March 21, 1997, respondent told Finninger that, beginning in September 1996, he had begun billing her quarterly for trustee services. Respondent did not provide additional legal services in exchange for the $17,280, which Finninger paid. N.J.S.A. 3B:18-26 permits a trustee to collect trustee commissions retroactively.

Respondent received total trustee commissions of $147,780 for the five-year period from 1996 to 2000. In addition, respondent billed Finninger legal fees at the rate of $200 per hour and received $225,363.64 in attorneys' fees from January 1, 1996 to February 29, 2000. He, thus, received a total of $363,143.64 in counsel fees and trustee commissions from 1996 to 2000.

Because as trustee, respondent was required to disburse such sums needed for Finninger's health, support, and best interests, he was obligated to remain aware of her health, her financial needs and her best interests. Respondent billed Finninger for counsel fees for reviewing Hutchins' accounting and tax services, including state and federal tax returns. Included among Hutchins' services was an analysis of whether Finninger's nurses were employees or independent contractors, and whether she owed additional state taxes. Respondent relied on and deferred to Hutchins' expertise in tax matters. He signed certain tax returns as a fiduciary and was required to attest to their accuracy to the best of his knowledge. Respondent was, thus, required to review the tax returns.

Between April 1996 and December 1999, respondent received more than $60,000 in attorneys' fees for sending 840 identical letters to charities that had solicited contributions from Finninger. Although respondent and Finninger's nurses often advised her that she need not respond to the letters, Finninger instructed respondent to do so. In letters dated July 15, 1996 and August 26, 1996, Finninger expressed concern that the letters do "not take up too much of your time" and stated that "I hope it isn't too much to handle and you can handle it all."

The stipulation recites that Finninger was satisfied with respondent's services, as confirmed by her long-time nurses, accountant, and stepdaughter. In an interview by the OAE on August 23, 2000, Rogalski, respondent's sister, stated that, although she had been hired to care for Finninger on a part-time basis, the agency requested that she work full-time because Finninger liked her. Rogalski stated that she began caring for Finninger in 1990 at respondent's request. According to Rogalski, Finninger gave generous tips to restaurant waiters because she was demanding and enjoyed attention. Rogalski asserted that until Finninger's strokes in 1996, Finninger had kept files on all her mail. Thereafter, Finninger could not handle the correspondence and asked respondent to do so, insisting that he promptly reply to every mailing that she received.

Robin Torro, a nurse employed by Finninger since August 1991, confirmed in an OAE interview on August 23, 2000, that Finninger commonly tipped waiters twenty to thirty percent, or more, if she was pleased with the service. She further confirmed that Finninger instructed respondent to answer all letters that she received. According to Torro, until recently, Finninger had signed her own checks, but after her most recent stroke, respondent began signing the checks for her. Finally, Torro stated that respondent visited Finninger at least once a week and "assisted her in any manner he could."

In an OAE interview on April 27, 2000, Taylor, Finninger's stepdaughter, indicated that Finninger retained respondent after the death of Finninger's husband in 1980, to handle the estate. Although Taylor had not seen the living trust or the will, respondent told her that she and her sister would inherit Finninger's estate, which she knew was substantial. According to Taylor, before Finninger's health had declined, she had told Taylor that only the trust income, not the principal, was to be used for her living expenses.

Mrs. Taylor was contacted by the Ocean County Board of Social Services regarding Mrs. Finninger's care. She visited Mrs. Finninger, and consulted with Mr. Halligan concerning the Board's concerns. She said she was upset by this and looked into the situation personally. She is aware that the Board questioned the amount of money spent by Mr. Halligan on Mrs. Finninger's care, that Mr. Halligan's sister is one of the nurses hired to care for Mrs. Finninger, and that a Lexus was purchased for Mrs. Finninger by Mr. Halligan. She was concerned about each of these facts. However, after visiting Mrs. Finninger, and meeting with Mr. Halligan, she is satisfied that Mrs. Finninger is well cared for, and that the expenditures of funds for the car were necessary. She is also satisfied that Mr. Halligan's sister is a good health care provider for Mrs. Finninger.

Mrs. Taylor said she knows that Mrs. Finninger could be cared for in a less costly manner, such as a nursing home. However, she was told by Mrs. Finninger a number of years ago that it was her wish to remain in her home, with people present at all times who could assist her. Mrs. Taylor believes that Mrs. Finninger instructed Mr. Halligan to see that this was done. She thinks that Mr. Halligan is carrying out Mrs. Finninger's instructions.

Taylor further indicated that she stayed in touch with Finninger via weekly telephone contact. She monitored Finninger's health by calling Finninger's nurses and a friend in the area and received regular communications from respondent. According to Taylor, although Finninger recovered substantially from the series of strokes, her most recent illness left Finninger unable to speak.

The stipulation recites the following mitigating factors: respondent has been a member of the bar since 1973 and has never been disciplined; he is a member of numerous community service organizations; he cooperated fully with the OAE; he is the president of the American Judges Association; he is Regional Presiding Judge of Municipal Courts for Ocean County and previously served in the same capacity in Monmouth County; he is a municipal court judge in four municipalities; he has served in various military and law enforcement capacities, including as a member of the United States Marine Corps, a police officer for the United States Capitol Police Department and the Seaside Heights Police Department, and as assistant county prosecutor, municipal prosecutor and special deputy attorney general; he received various professional awards; he served on many judicial professional committees; and, despite his belief that his charges were fair and reasonable, he "adjusted his legal fees" and returned $50,000 to Finninger's estate.

b. By preparing a "Living Will and Directive for Durable Power of Attorney" naming his wife, Jane Halligan, (an employee of Finninger) as primary and himself as alternate "Medical Decision Attorney-in-Fact", while his wife was both an employee of Finninger and a beneficiary of her estate, and while he was named both as executor of her estate and a beneficiary of Finninger's estate;

k. By serving as Trustee of the Finninger Trust in which role he was obligated to expend such sums from income and/or principal as he deemed necessary for the health, support and best interests of Mrs. Finninger during her incapacity, while as beneficiary, he was personally and substantially interested in preserving the trust principal;

l. By being named as executor of Finninger's Estate, in which capacity the amounts of respondent's interest and corpus commissions would increase as the value of the gross estate increased, while also serving as trustee of the Finninger Trust under which he was obligated to deplete Trust income and/or assets, in a responsible fashion, for Mrs. Finninger's benefit;

The presenter alleges that, by acting in multiple capacities, respondent fostered his client's complete dependence on him. He argues that respondent's change in his billing in 1997 is the "clearest example of the damage done to the client's interests by virtue of these conflicts of interest." According to the presenter, an independent counsel, trustee, or attorney-in-fact would not have approved of the "back-billing" of trustee fees.

The presenter also contends that respondent violated RPC 1.5(a) by charging unreasonable trustee fees in two respects and by charging unreasonable attorneys' fees in four respects. As to the trustee fees, the presenter asserts that, as trustee, respondent was required to remain aware of Finninger's "health, support and best interests" and was compensated for those services by way of trustee commissions. The presenter argues that respondent improperly and unreasonably received attorneys' fees for the same services for which he had been compensated as trustee. The stipulation lists the names of fourteen files for which respondent issued bills for legal fees. The presenter further contends that, by unilaterally changing his trustee billing method from hourly to the statutory trustee commission retroactively, respondent received more than $31,000 in fees after he had billed and received payment in full for his services.

With respect to attorneys' fees, the presenter asserts that respondent violated RPC 1.5(a) by: (1) collecting fees for providing banking and clerical services that should have been provided by his wife, Jane Halligan, as bookkeeper, for which she was compensated; (2) collecting fees for reviewing Hutchins' tax and accounting work, for which the client received no benefit; (3) collecting fees of $60,000 for sending 840 identical letters; and (4) collecting fees for the non-legal services listed in the stipulation.

Finally, the presenter contends that respondent violated RPC 8.4(c) when he back-billed Finninger for trustee fees and represented that this was a charge "which you have not been billed for and thus I have not been compensated for same" even though respondent had been paid for those services. In addition, the presenter argues that respondent's failure to inform Finninger that "modern word processing technology enabled him to produce and mail out hundreds of responses to charitable solicitations with little time or effort."

At the outset, we believe it important to emphasize several points. First, there has been no allegation of any undue influence by respondent. Second, although the presenter has referred to Finninger's strokes and her health condition, the record does not contain evidence of her incompetency. To the contrary, the OAE's interview with Norma Taylor, Finninger's stepdaughter, reveals that, after several months, Finninger recovered substantially from a series of strokes. According to that interview, Taylor kept in touch with Finninger through weekly telephone contact and visited her immediately after Finninger had suffered the strokes. Third, neither Finninger nor her stepdaughters filed an ethics grievance against respondent. Finninger was pleased with respondent's services, as confirmed by Taylor and Torro, a nurse who was not related to respondent. Taylor, who anticipated receiving a substantial inheritance upon Finninger's death, was aware of respondent's roles in Finninger's affairs and had no objection to them.

The presenter alleges that respondent engaged in a conflict of interest because, as Finninger's counsel, he was responsible for overseeing his wife's activities as his client's bookkeeper and his sister's activities as his client's medical caregiver. There is no suggestion that respondent's wife or sister failed to adequately perform the required services, or that they were overpaid. The stipulation provides that respondent's wife performed the same, if not additional, services as the prior bookkeeper, for the same compensation. Similarly, the stipulation recites that Finninger and her stepdaughter were satisfied with the services of respondent's sister, who received compensation commensurate with her nursing experience.

The presenter relies on Haynes v. First National State Bank of New Jersey, 87 N.J. 163 (1981), for the proposition that a conflict of interest "need not be obvious or actual to create an ethical impropriety. The mere possibility of such a conflict at the outset of the relationship is sufficient to establish an ethical breach on the part of the attorney." Id., at 181. In that case, the attorney who had drafted the will for the testatrix was also the attorney for the primary beneficiary, and the issue was whether the will was invalid due to the conflict of interest. The Court did not announce that attorneys may never engage in dual representation when potential conflicts exist. Indeed, the Court has permitted dual representation under certain circumstances. For example, in In re Lanza, 65 N.J. 347 (1974), although the Court underscored the dangers in representing both the buyer and seller in a real estate transaction, the Court ruled that attorneys may do so. In that case, after the attorney was retained by the seller, he agreed to represent the buyer, without first advising the seller of the dual representation and without explaining to both parties the potential conflicts of interest that could develop. Later, when a dispute arose, the attorney did not withdraw from representation. Although Justice Pashman, concurring in the result, urged that dual representation of buyers and sellers should be totally forbidden, the Court determined that, so long as the attorney advises both parties of the facts and areas of potential conflict, an attorney may represent both buyer and seller. The Court, however, cautioned attorneys that they must withdraw when a conflict arises. Thus, although the potential for a conflict may exist, a mere potential does not necessarily bar an attorney's representation.

Here, if a dispute had developed concerning the services of either respondent's wife or sister, he would have been required to take the appropriate steps to withdraw from the matter. Because no dispute arose, we concluded that respondent did not engage in a conflict of interest by permitting Finninger to hire his wife and sister.

Next, the presenter asserts that respondent engaged in a conflict of interest by preparing a living will naming his wife as primary and himself as alternate medical decision attorney-in-fact, while his wife was Finninger's employee and a beneficiary of her estate and he was both executor and beneficiary of her estate. Ostensibly, the concern is that respondent and his wife could make medical decisions against Finninger's interests to hasten her demise so that they could receive their $75,000 bequest. We note that the same claim could be made in almost any situation in which a testator designates a family member, who is also a beneficiary, as medical decision-maker. Apart from the lack of factual support for such an accusation and for the proposition that a medical decision-maker cannot serve in another fiduciary capacity, if we were to attribute a financial motive to respondent, we observe that it was in his and his wife's interest for Finninger to enjoy a long life so that they could continue to receive their respective salaries, fees, and commissions.

The next alleged conflict of interest involves respondent's recommendation of Roy Adams to perform estate-planning services for Finninger. No authority has been cited to support the proposition that a conflict arises from an attorney's recommendation of other counsel to perform services for a client, either because the attorney believes a conflict would otherwise result or because he believes counsel with greater experience or expertise is required. Indeed, it may not have been prudent for respondent to advise Finninger, who had an estate valued at four million dollars, to retain an estate-planning attorney on her own. There is no suggestion in the stipulation that Adams acted in any manner other than as Finninger's independent counsel to prepare testamentary documents in accordance with her wishes.

We wish to reiterate what has been said repeatedly by our courts as to the proprieties of a situation where the testatrix wishes to make her attorney or a member of his immediate family a beneficiary under a will. Ordinary prudence requires that such a will be drawn by some other lawyer of the testatrix' own choosing, so that any suspicion of undue influence is thereby avoided. Such steps are in conformance with the spirit of Canons 6, 11, of the Canons of Professional Ethics promulgated by this court.

In Davis, the testatrix left her entire estate to her attorney's children. When she stated her testamentary intent, the attorney called in a second attorney, with whom he was closely associated, who drafted the will. The second attorney met with the testatrix for approximately one-half of an hour. The original attorney retained the will in his office. Even under these circumstances, the Court upheld the validity of the will, finding no undue influence, and the case contains no suggestion of an ethics impropriety. Here, respondent recommended Adams, an attorney whom he recognized as a leading expert in estate planning. Adams met with Finninger several times before drafting the will, trust and power of attorney. Under these circumstances, no conflict existed.

The presenter also alleges that respondent's multiple roles, such as trustee, attorney for Finninger, attorney for the trust, attorney-in-fact, executor of Finninger's estate and beneficiary of the trust, created a conflict of interest. As a general matter, it is permissible for an attorney to serve both as counsel and as a fiduciary, such as executor or trustee. N.J.S.A. 3B:18-6 provides, in part: "If the fiduciary is a duly licensed attorney of this State and shall have performed professional services in addition to his fiduciary duties, the court shall, in addition to the commissions provided by this chapter, allow him a just counsel fee." In turn, N.J.S.A. 3B:18-8 includes the executor of an estate as a "fiduciary" and N.J.S.A. 3B:18-23 provides that a "fiduciary" includes a nontestamentary trustee. Moreover, an opinion of the Advisory Committee on Professional Ethics, Opinion 683, 145 N.J.L.J. 1501 (1996), authorizes attorneys not only to receive compensation for services performed as an attorney and as a fiduciary, but also to prepare wills naming themselves as fiduciaries.

In addition, the presenter claims that respondent was not permitted to act as counsel for the trust at the same time that he was personal counsel for Finninger. Because the trust was created for Finninger's benefit, there appears to be little, if any, potential for a conflict to arise. The presenter also contends that respondent created a conflict of interest by serving as counsel to the trust, as well as trustee, while he was a beneficiary of the trust. Perhaps if the trust had been of limited resources, a potential conflict might have arisen. Here, however, respondent's interest in receiving a joint bequest, along with his wife, of $75,000 did not conflict with his role as counsel to, and trustee of, a trust worth four million dollars.

The presenter further asserts that respondent engaged in a conflict of interest by serving as trustee of the Finninger trust and as Finninger's legal counsel and attorney-in-fact. According to this argument, respondent's interest in receiving commissions based on the value of the trust was adverse to his responsibility, as Finninger's counsel and attorney-in-fact, to expend trust funds on her behalf. Taylor stated, however, that Finninger had directed that the trust corpus not be invaded on her behalf. Respondent's use of the trust income for Finninger's support would not compromise the value of the trust. Moreover, the stipulation provided that from 1992 to 1996, respondent billed for his trustee services on an hourly basis because he was not aware of the statute providing for commission-based fees. Because respondent was billing on an hourly basis, he could not have been motivated, at least during the first four years of the trust, to increase the value of the trust and, in turn, to increase his commissions. In addition, as mentioned above, the statutes expressly permit attorneys to serve both as counsel and as fiduciaries.

Next, the presenter contends that it was a conflict for respondent to serve as counsel for the trust while acting as attorney-in-fact for Finninger. As counsel for the trust, respondent was obligated to act in the best interests of the trust, the primary beneficiary of which was Finninger. As her attorney-in-fact, he was also obligated to act in Finninger's best interests. There was no divergence of interests, and, therefore, no conflict. The presenter argues that respondent improperly back-billed more than $30,000 for trustee fees and that an independent personal attorney, attorney-in-fact, or trustee would not have approved the bill. As will be seen below, however, respondent's billing was not improper and was approved by the client after full disclosure.

Finally, the presenter argues that respondent engaged in a conflict of interest by being named executor of Finninger's estate while serving as trustee. According to the presenter, as executor, respondent would benefit from an increase in the value of the estate because his fees would be based on a percentage of the estate's worth, while as trustee, he was required to deplete trust income or assets for Finninger's benefit. As noted above, however, Finninger had directed that only the trust income, not the assets, be used for her benefit. In addition, multiple fiduciary roles are permitted by law.

As noted above, the presenter contends that, by receiving attorneys' fees for the same services for which respondent was compensated as trustee, he collected unreasonable trustee fees. The stipulation does not contain clear and convincing evidence of the alleged duplication of services. It merely recites that, as trustee, respondent was required to remain aware of Finninger's "health, support and best interests," and that respondent billed Finninger as her personal counsel for services under fourteen file names. The stipulation contains no information about the types of legal services for which respondent received fees. We cannot presume that the services were duplicative of respondent's services as trustee, particularly in light of the fact that a trustee need not be an attorney. A non-attorney trustee may have been required to hire an attorney to provide the legal services that respondent provided. Indeed, according to respondent, he billed Finninger for such legal services as handling litigation and researching whether nurses caring for Finninger were independent contractors or employees. These are not services required to be performed by a trustee. We did not find clear and convincing evidence that respondent received legal fees for the same services which he was required to provide as trustee.

Next, the presenter asserts that respondent also violated RPC 1.5(a) when he unilaterally changed his billing method for trustee services from hourly to statutory commission. From 1992 to 1996, respondent billed Finninger for trustee services at the rate of $200 per hour. After Finninger's accountant, Hutchins, informed respondent that he should be receiving commissions based on a percentage of the estate, not an hourly fee, respondent advised Finninger of his error and received additional fees for 1992 through 1995 and an additional fee for 1996. Before receiving these fees, respondent met with Finninger and explained the reason for the additional charges and the reason for the change in billing procedures. In addition, before respondent charged the additional fees, he provided copies of all of his legal bills to Hutchins, who conferred with Thomas Abendroth, an attorney from the office of Roy Adams, who had drafted the trust. Abendroth determined which services were properly deemed trustee services. Two independent professionals, thus, reviewed and approved respondent's billing, as did the client, after full disclosure.

Had respondent been aware of his entitlement to the statutory commissions from the onset of the trust, there is no doubt that he would have been entitled to receive the fees. He did not forfeit the fees by his failure to initially charge them. Moreover, N.J.S.A. 3B:18-26 provides that "The failure of a fiduciary to take commissions in any year shall not constitute a waiver by the fiduciary to take in a subsequent year the commissions not taken for that year." Respondent, thus, was entitled to correct his mistake and receive additional fees.

The presenter alleges that respondent charged unreasonable counsel fees, in violation of RPC 1.5(a), in four respects. As a general defense to these charges, respondent urges that the disciplinary system is an inappropriate forum for fee disputes. He contends that in estate and trust matters, it is not uncommon for a party to challenge the reasonableness of an attorney's fee and that the courts routinely reduce fees without referring the matter to disciplinary authorities. Respondent argues further that the fee arbitration system often reduces fees without finding grounds for referring the matter for ethics investigations. Moreover, he relies on our determination in In the Matter of Anthony N. Verni, DRB Docket No. 01-245 (January 30, 2002) that "Not every instance of unreasonable fees rises to the level of overreaching." Id. at 11. Respondent points out that his fee has not been challenged by a client or interested party and that he agreed to reimburse Finninger's estate $50,000.

With respect to the specific claims of overreaching, the presenter contends that respondent charged Finninger counsel fees for performing banking and clerical services that his wife should have provided in her capacity as bookkeeper for which she was compensated. The stipulation does not mention this issue and we did not find clear and convincing evidence to support it.

Second, it is alleged that respondent improperly billed Finninger for reviewing the tax and accounting work performed by her accountant, Hutchins. According to the presenter, respondent's service "provided no level of meaningful review and no benefit to the client." In turn, respondent argues that his role as Finninger's attorney was analogous to that of general counsel for a corporation who reviews the work product of an attorney to whom legal matters are referred and that "it is extraordinary to allege that an attorney has committed ethical wrongdoing by reviewing and monitoring the work of professionals who are serving his client." He further claims that he was acting pursuant to Finninger's direction that he communicate with her accountant and that he review and understand, and explain to her, the accountant's work performed on her behalf. We found no clear and convincing evidence that respondent's review of Hutchins' work was unethical. Respondent was acting at his client's direction and she benefited from his communication with Hutchins and from respondent's explanation to her of tax matters. We found that respondent's additional level of review conferred a benefit on his client. The review that respondent performed as an attorney was not the same review that a trustee would provide.

Third, the presenter asserts that respondent violated RPC 1.5(a) by billing Finninger $60,000 for preparing and mailing 840 identical letters. As noted above, over a period of about three and one-half years, respondent sent 840 letters to charities that had solicited contributions from Finninger. Despite respondent's and Finninger's nurses' advice that she need not reply to those letters, Finninger instructed respondent to do so. According to respondent, his charges reflect administrative and organizational time required to address, print, sign, and copy the letters and to prepare a transmittal letter to the client, as well as the "value of a letter sent on his law firm stationary [sic]."

Respondent's $60,000 fee to send 840 "form letters" appears disproportionate. At the rate of $200 per hour, respondent would have expended 300 hours to send the letters, which amounts to about twenty minutes per letter. A finding that the fee is high does not dispose of the issue, however. We also must determine whether respondent's high fee in this regard rises to the level of an ethics violation. As respondent pointed out, legal fees in estate matters often are reduced by judges without any ethics implications. In addition, in numerous cases, although a fee arbitration committee may reduce attorney's fees, the committee usually does not refer the matter to an ethics committee for investigation. In considering fee arbitration appeals, we, too, often find that, although an attorney's fee ought to be reduced, the attorney's conduct was not unethical. Here, we found that respondent's compensation, although high, did not amount to an ethics violation, particularly in light of his refund of $50,000 to the estate.

Fourth, the presenter claims that respondent violated RPC 1.5(a) by billing Finninger for the non-legal services described above, such as attending an annual dinner in New York, assisting her with major purchases, completing magazine subscription and warranty forms, and so on. Respondent argues that clients, particularly wealthy clients, are free to make choices about the work that they want accomplished and the price that they are willing to pay for that work. According to respondent, Finninger was comfortable with having him perform non-legal work because she trusted him and valued his services, both legal and non-legal. In addition, respondent asserts that, because an attorney is precluded from performing legal services for others when he provides non-legal services to a client, he should be compensated for his time. He further contends that the presenter's position would deprive clients of the right to select and hire attorneys to serve them.

Although respondent's fees for non-legal services may have been high, respondent's argument that Finninger not only consented to his performing such services, but also directed him to do so, is not without merit. According to the stipulation, Finninger's two stepdaughters comprised her family and they apparently did not take an active interest in her affairs. After respondent represented Finninger intermittently, he represented her on a regular basis for fifteen years. She obviously placed a great deal of trust in respondent and vested him with substantial responsibility over her affairs. The record contains no evidence that her trust was misplaced or that respondent abused that trust.

Although it may appear peculiar that Finninger was willing to compensate respondent at the rate of $200 per hour to perform routine tasks, she was a woman of wealth and chose to spend her money in that fashion, even before she became ill. She appeared to be generous with others as well, such as waiters whom she tipped handsomely. It is not disputed that respondent's bills to Finninger clearly explained the services that he performed, both legal and non-legal. There is no allegation that respondent did not disclose the services for which he billed Finninger. There also is no doubt that Finninger did not object to his invoices. On the contrary, the OAE's interviews with Finninger's stepdaughter and others revealed that Finninger was very pleased with respondent's services. Under these circumstances, respondent's fees were not unethical.

Finally, the presenter contends that respondent made two misrepresentations to Finninger: (1) his February 7, 1997 letter to Finninger stated that the back-billing for trustee fees was a charge that had not previously been billed or paid, when respondent had received compensation for those services and (2) his failure to inform her that "modern word processing technology enabled him to produce and mail out hundreds of responses to charitable solicitations with little time or effort."

A review of the letters dated February 3, February 7, and March 21, 1997 that respondent sent to Finninger shows that he went to great lengths to explain to her the reason for the change in his trustee billings. The February 3, 1997 letter explained that Hutchins had reviewed respondent's invoices through December 1995 and that he was undertaking a similar analysis for the 1996 invoices. In the February 7, 1997 letter, respondent enclosed a trust billing invoice for informational purposes, stating that he had not billed Finninger for trust services performed during and after September 1996. That statement was accurate, because in September 1996, respondent changed his trustee billing from hourly to percentage, based on Hutchins' advice. He stopped billing her hourly at that point and, at the time he sent the letter, he had not yet billed her for trustee services. Respondent's letters contain no misrepresentation.

Similarly, respondent's failure to inform Finninger that "modern word processing technology" permitted him to easily reply to requests for donations was not unethical. It is not disputed that respondent advised Finninger that she need not respond to every charitable solicitation. It is also not disputed that, nevertheless, Finninger instructed respondent to reply to every letter. Respondent then complied with Finninger's request, sent the letters, and submitted invoices detailing his services. Finninger then paid those invoices, without objection. Respondent did not have a duty to tell Finninger that office automation increased the efficiency of performing those tasks and his failure to do so was not unethical.

A five-member majority determined that respondent's conduct did not amount to ethics violations and, accordingly, that all charges should be dismissed and no discipline imposed. While not unmindful of the concerns of the dissenting members, we believe that the client has the right to employ and compensate an attorney for both legal and non-legal services, provided that there is no overreaching. In this case, we found no evidence that respondent unduly influenced Finninger or took advantage of her, or that she had become incompetent. We also took into consideration respondent's return to the estate of $50,000 of his legal fee. Three members, finding that respondent's excessive fees amounted to overreaching, in violation of RPC 1.5(a), voted to impose a reprimand. Those members filed a separate dissenting decision. One member did not participate.