Lowney was hired in 2002 to prepare a pour-over will and a revocable trust that distributed Tollefsen’s property upon his death. His estate was valued at between $1,000,000 and $1,500,000. Tollefsen named his sister, Solveig Bergsaker, as beneficiary, and if she did not survive him, her children Elisabeth and Anne Bergsaker, who were also designated as successor co-trustees.
The bar report below appears skeptical from the outset about whether Lowney was in love with Thor or his money. At the time, he was 81 years old, suffering from emphysema and terminal cancer, and using a walker. The bar noted “[b]y August 2005, Tollefsen and Lowney had become romantically involved despite the 30-year age difference and Tollefsen’s deteriorating health. Around this time, Lowney promised Tollefsen she would take care of him.”
The relatives accused Lowney of abandoning Tollefsen. The Bar made the following finding:
Near the end of 2005, Lowney told Tollefsen she wanted to get married. He agreed. But Lowney did not want her minor daughter or the Bergsakers to find out and suggested a confidential marriage. Lowney and Tollefsen filled out the confidential marriage license application, which required that the applicants had been living together. Under penalty of perjury, Lowney and Tollefsen falsely stated they were living together and filed the application. They were married under a confidential license that was issued to them on January 23, 2006.
By the fall of 2006, Tollefsen told his relatives in Norway that he was “fed up” with Lowney because he could not reach her and she did not take care of him as she had promised. In early January 2007, Tollefsen moved into a senior care facility.
On January 26, 2007, Lowney brought Tollefsen to his home for the weekend. The next day, he did not appear well and Lowney called an ambulance. She followed the ambulance to the emergency room but did not stay, claiming Tollefsen told her to go home. Lowney was not present when Tollefsen died the following day.
At his death, Lowney still held the remainder of $340,000 in funds that he had transferred to her in August 2005 with the expectation that she would use the money to pay for his care. Lowney insisted that the money had been given to her as his girlfriend, not as his attorney. The bar investigators disagreed and found that she had been entrusted with the money as a fiduciary, as Tollefsen’s attorney. She was therefore found to have committed an act of moral turpitude by misappropriating the funds, among other misconduct. The bar also found that she lacked remorse for her misconduct.
The hearing judge correctly found that Lowney “displayed indifference to her misconduct . . . [and] she does not appreciate the seriousness of her misconduct.” Lowney has not acknowledged that filing a false document in a public office constitutes attorney misconduct. Instead, she argues that the law should not apply. And she views herself as the victim in these proceedings despite depriving the Bergsakers of their rightful inheritance for nearly four years. While Lowney need not be falsely penitent, the law “does require that [she] accept responsibility for [her] acts and come to grips with [her] culpability. [Citation.]” (In the Matter of Katz (Review Dept. 1991) 1 Cal. State Bar Ct. Rptr. 502, 511.) We assign substantial weight to this factor because it demonstrates that Lowney does not understand that her conduct is wrong, making her a danger to the public.
The record could not therefore be worse for Lowney who was described by the hearing officer as “heartless and egregious.”
What is fascinating about the case is the underlying skepticism over the marriage and how that influenced the ruling on the fiduciary element. The “confidential marriage” was clearly viewed as opportunistic and insincere. However, would the bar have reached the same conclusion on the money if they viewed the marriage as sincere? The bar investigators reached their conclusions by rejecting the factual claims of Lowney as to the purpose of these transfers as based on the personal rather than the legal relationship that she had with her husband.
Another interesting question is why, if the bar report is correct, Lowney was not charged with a crime of fraud, abuse of the elderly, or some other offense.
What do you think? If you agree with the factual findings, would you recommend disbarment as opposed to a less sanction?
Here is the opinion: Lowney
Source: ABA Journal