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Prairie du Chien attorney says OLR complaint took his responses ‘out of context’

Prairie du Chien attorney says OLR complaint took his responses ‘out of context’

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A Prairie du Chien attorney is firing back at the Office of Lawyer Regulation, arguing the office took his responses to its questions out of context in order to charge him with misconduct.

The OLR filed a complaint against Daniel Key of The Key Law Firm in December. The complaint included six charges for his involvement in drafting a will for Carol Horstman, a woman who was terminally ill.

In 2016, one of Horstman’s adult children, Wesley Horstman, made an appointment with Key to have a will drafted for his mother. Carol Horstman was on speakerphone from a La Crosse hospital during the meeting to discuss the drafting, but the complaint said Key never discussed Horstman’s property and assets; her adult daughter, Audra Dawson; or her intentions in making a will during the call or at any point after.

However, Key said Horstman made it clear that she wanted a simple will done during the four or so minutes he talked with her during the conference call. He said Horstman asked him to come to the hospital a few days later to write the will.

Because of already scheduled appointments, Key told her that he’d send his paralegal, Lydia Holt, and remain available by phone to answer questions.

“There was some urgency here because Carol was dying,” Key said.

Holt met with Horstman at a hospital shortly after the call, and she drafted a will for Horstman with Wesley present. Key said Holt used the State Bar of Wisconsin’s standard, two-page form for basic wills, and he talked with her several times while she was there.

The will left the Horstman’s entire estate to her son and excluded her daughter. The OLR took issue with Key’s decision to send his paralegal instead of working directly with Horstman.

“Key had not fully or adequately instructed Holt on how to draft a will, or how to protect and express Carol Ho(r)stman’s desire to exclude Audra Dawson,” the complaint said.

Attorneys frequently do simple wills for people without estate plans, Key said, and he didn’t think it was an error in judgment on his part to send his paralegal or to conduct the matter over the phone. He asked the OLR to point out the state statute that defines how substantive the conversation need to be in order to prepare the will, and he said he didn’t get a response.

“All that did was aggravate and irritate them because there is nothing,” Key said.

The OLR said Key charged his attorney billing rate of $175 for Holt’s work in preparing the will. Key said during the initial phone call, he explained to Horstman that it would cost more to have his paralegal travel from Prairie du Chien to the hospital in La Crosse, and Horstman had agreed to the higher rate.

Carol Horstman died five days after the will was prepared, and her son submitted the will for probate. Her daughter objected to the will on the grounds of undue influence.

According to the complaint, Key told Dawson’s lawyer during a deposition and a hearing that he never spoke with Carol Horstman. The complaint said he had only listened to the phone call and never spoke directly to her.

After the judge denied admission of the will into probate, Wesley Horstman fired Key and filed a grievance with the OLR. The complaint said Key told the OLR that he did speak with Carol Horstman during the conference call.

“His response repeated his assertion that he spoke directly with Carol Horstman, including asking her what sort of will she wanted, contradicting his earlier testimony,” the complaint said.

Key said the OLR took his answers to its questions out of context to come to that conclusion. He said the office asked if he had substantial conversations with Horstman about her will, such as names of people and property that would be in the will, and he answered no. He pointed to her desire for a simple will as the reason why they didn’t have those conversations, and he said it seemed the OLR was insinuating that he should have talked her out of it.

“Frankly, I don’t care what people want to do with their property and their wills,” Key said. “It’s none of my business.”

The OLR charged Key with six counts of misconduct, including failing to take steps to confirm Horstman’s testamentary intent, failing to properly instruct Holt and misrepresenting what had happened to the OLR. The requested punishment is a public reprimand.

Key is determined to fight the allegations “to the last breath.” He filed an answer to the complaint and affirmative defenses on Feb. 16. Key said his attitude and his questioning of the OLR’s legal basis for its allegations could be why the organization is pursing the case.

“This is more of a matter of what happens when you defy OLR and you get Monday morning quarterbacked from someone who hasn’t practiced law in 20 years,” Key said.

Key’s previous disciplinary history consists of a private reprimand in 2018 for attempting to keep a client’s pre-payment litigation expense as a fee in a contingent-fee matter.

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