Clark, In re

• Decision Date: 28 February 1963
• Docket Number: No. C,C
• Citation: 379 P.2d 354,61 Wn.2d 547
• Parties: In the Matter of the Disciplinary Proceeding Against Neal CLARK, an Attorney at Law. D. 2472.
• Court: Washington Supreme Court

Page 547

61 Wn.2d 547

379 P.2d 354

In the Matter of the Disciplinary Proceeding Against Neal CLARK, an Attorney at Law.

No. C. D. 2472.

Supreme Court of Washington, En Banc.

Feb. 28, 1963.

Philip M. Lande, Kent, for appellant.

T. M. Royce, Counsel, Washington State Bar Ass'n, Seattle, for respondent.

OTT, Chief Justice.

March 20, 1961, Neal Clark, at attorney practicing law in this state, was served with a disciplinary complaint by the Washington State Bar Association, charging him with three counts of conduct in violation of the Canons of Professional Ethics and his oath of attorney. His answer denied the charges and requested that they be dismissed. After trial upon the issues thus joined, the hearing panel entered findings of fact and conclusions sustaining all of the charges, and recommended disbarment. February 12, 1962, the Board of Governors, after it had reviewed the record, approved and adopted the panel's findings, conclusions, and recommendations as to counts 1 and 2, but disapproved the panel's findings relative to count 3 and recommended that it be dismissed.

Count 1 of the disciplinary complaint charged, inter alia, that Neal Clark had secured a deed to the residence property of Della J. Harper, aged 95, who was mentally and physically ill, upon his promise to furnish her care and support for the rest of her life; that he had not kept his promise to support, and that he reconveyed the property to the legal representatives of the grantor only after a trial to set aside the deed was had upon the merits, and the court had orally announced its decision that the deed would be set aside.

The record discloses that Della J. Harper owned and occupied a home in Kent, Washington, valued at approximately $13,000. July 15, 1954, she executed and delivered to Fred W. Schmidt a deed conveying the residence property to him. The consideration for the deed was that Schmidt agreed, in writing, to support her for the rest of her life, as follows:

'NOW, THEREFORE, Second party [Fred W. Schmidt] covenants and agrees to and with the first party [Della J. Harper] that said first party may continue to live with the second party in said premises during the remainder of first party's life, and during all that time, the second party will furnish to the first party the same standard of comfort and care and the same or equally adequate accommodations for her personal use and comfort in the said premises as first party has heretofore had, and will provide the first party adequate food, supplies and other necessities to her well-being, health and comfort, and second party further covenants and agrees to furnish to first party, at second party's expense, normal medical care and medication, necessary for the first party during the remainder of her life, and second party further covenants and agrees that upon the death of the first party that second party will furnish for the first party a decedent burial in accordance with the first party's state in life, and will pay funeral expenses and cemetery expenses therefor.'

Fred Schmidt did support Della J. Harper until his death.

October 17, 1957, Schmidt executed a will, prepared by Neal Clark, in which all of his property was devised and bequeathed to Della J. Harper. November 1, 1957, Fred Schmidt became critically ill and was taken to the hospital by Neal Clark, who personally guaranteed payment of his hospital expenses. Fred Schmidt died November 7, 1957. Neal Clark presented Fred Schmidt's will, in which Della J. Harper was the sole beneficiary, for probate. Josephine W. West was appointed executrix. The estate was inventoried and appraised in the sum of $12,325.

November 18, 1957, Neal Clark obtained a deed from Della J. Harper to her residence property, which she had reacquired as the sole beneficiary of the will of Fred Schmidt, deceased. The consideration expressed in the deed was 'for and in consideration of agreement, assumption of, and the performance by grantee [Neal Clark] of the agreement dated July 15, 1954 between grantor [Della J. Harper] and Fred W. Schmidt, deceased.'

The next day, Neal Clark prepared a petition for appointment of Ruth B. Morris as guardian for Della J. Harper, in which he alleged her to be an incompetent person and incapable of managing her affairs. Josephine West, the executrix of the Fred Schmidt estate, joined in the petition. At the hearing on the petition, December 2, 1957, the only witness who testified to Della J. Harper's incompetency was Neal Clark. She was adjudicated to be an incompetent person, and Ruth B. Morris was appointed her guardian.

January 15, 1958, the guardian filed an inventory of the assets of the ward's estate, in which the residence property was valued at $11,500. March 17, 1958, Neal Clark recorded his deed conveying to him the residence property of Della J. Harper.

July 22, 1959, Della J. Harper died. August 12, 1959, Josephine West, in her capacity as executrix of the estates of Fred Schmidt and Della J. Harper, commenced an action to set aside the Harper deed, alleging that Neal Clark had fraudulently overreached his client, Della J. Harper. Neal Clark answered the complaint, denied the allegations of fraud and overreaching, and alleged that he had performed the Fred Schmidt agreement by arranging for Della J. Harper's care and support during her lifetime. He further affirmatively alleged that he had not been paid for his services as attorney for the estate of Fred Schmidt and for the guardianship estate of Della J. Harper, and that 'the conveyance from the said Della J. Harper was given in payment for all services or costs and expenses to be incurred by defendants, in performance of the Schmidt agreement.' The answer prayed, inter alia, that the complaint be dismissed, and that defendant Clark be paid for professional services rendered.

Upon the issues thus joined, the cause was heard by the court, and, at the close of the evidence, the court orally announced that findings of fact, conclusions of law, and judgment could be prepared setting aside the deed. Thereafter, Neal Clark requested leave of the court to reconvey the premises to the executrix, and that the court enter an order of dismissal. The request was granted, the property reconveyed, and the cause dismissed.

The second count of the complaint charged that Neal Clark had obtained support for Della J. Harper through the Department of Public Assistance for King County by knowingly concealing from the department the existence of the deed to himself and his promise to support Della J. Harper.

The record discloses that, on November 4, 1957, during the time Fred Schmidt was a patient in the hospital, Neal Clark, signing as 'agent for Della J. Harper,' made an application in her behalf for public assistance, alleging that Della J. Harper was over 95 years of age, and 'incapable of self care and indigent.' The accompanying statement of her resources indicated that she had no property. Mr. Clark was informed that financial assistance could not be granted until a guardian was appointed for Della J. Harper. As above indicated, a petition for guardianship was filed November 19, 1957, and, on December 2, 1957, Ruth B. Morris was appointed guardian for Della J. Harper. Thereafter, on December 4, 1957, the original application for assistance, unaltered except for the addition of Ruth B. Morris' signature as guardian, was renewed.

In the meantime, on November 18, 1957, Neal Clark had obtained the deed from Della J. Harper. The December 4, 1957, application for public assistance did not disclose, in the statement of Della J. Harper's resources, that she had a life estate in the residence property in which she resided; that Neal Clark had agreed to support her for the remainder of her life, and that she was the sole beneficiary of the assets of the Fred Schmidt estate.

The department, based upon the information contained in the application, commenced making public assistance payments for the care and support of Della J. Harper on January 1, 1958, and continued the payments until her death on July 22, 1959, expending a total of approximately $3,000. $Count 3 of the complaint charged Neal Clark with entering into a conspiracy to extort funds from a former client by falsely accusing him of having improper relations with a married woman other than his wife. The hearing panel, relying only upon the testimony of he client and his wife, found as a fact that the charge had been sustained. The Board of Governors, in its review of the record, determined that the charge had not been sustained, and recommended that it be dismissed.

The disclosure, in this opinion, of the sordid details of the accusations and counteraccusations, would serve no useful purpose. Our review of the record discloses that all of the witnesses, other than the client and his wife, repudiated their previous statements relative to Neal Clark's participation in the alleged extortion. The testimony of the client and his wife established that neither of them had any personal knowledge of the alleged conspiracy, other than the fact of the service of a summons and complaint upon them. Their testimony relative to Neal Clark's participation in the conspiracy was based upon hearsay and upon statements which had been repudiated by those who made them. In our opinion, the evidence which the hearing panel relied upon was not sufficient to establish the elements of a conspiracy to extort.

With reference to count 3, we accept the recommendation of the Board of Governors that the charge be dismissed.

With reference to counts 1 and 2, the conclusions and recommendations of the hearing panel, as...