Bartholet, In re, 42819

• Decision Date: 19 May 1972
• Docket Number: No. 42819,42819
• Citation: 198 N.W.2d 152,293 Minn. 495
• Parties: In re Application for Discipline of Francis Leon BARTHOLET, an attorney at law of the State of Minnesota.
• Court: Minnesota Supreme Court

Page 152

198 N.W.2d 152

293 Minn. 495

In re Application for Discipline of Francis Leon BARTHOLET an attorney at law of the State of Minnesota.

No. 42819.

Supreme Court of Minnesota.

May 19, 1972.

R. B. Reavill, State Administrative Director on Professional Conduct, St. Paul, Herbert C. Davis, St. Louis Park, Kenneth M. Anderson, Minneapolis, for petitioner.

Thuet, Todd, Collins & Mitchell, South St. Paul, for respondent.

Heard and considered en banc.

PER CURIAM.

This matter is before this court on a petition by the State Board of Law Examiners for the disbarment of Francis Leon Bartholet as an attorney at law in the State of Minnesota. ¹

The Honorable Irving C. Iverson, Judge of the District Court of the Fourth Judicial District, was appointed referee to hear and report the evidence and to make findings and recommendations. The referee filed his findings and report on April 27, 1971. The matter was thereafter presented to this court en banc on January 4, 1972.

Our studied consideration of the extensive record leads us to adopt the findings of the referee, which will be abbreviated in this opinion. The findings compel the conclusion that Francis Leon Bartholet has inexcusably failed to conduct himself in the manner consistent with fundamental ethical principles of the legal profession. We hold that the record requires his disbarment, and it is so ordered.

Respondent Bartholet was the probate judge of Dakota County from the date of his appointment, September 1, 1965, to the acceptance of his resignation by the Governor on April 30, 1969. He had tendered his resignation on April 21, 1969, contemporaneously with, and as a condition of, a negotiated plea of guilty on two counts of violation of the Minnesota Election Law, Minn.St. 210.20, and to one count of asking and receiving compensation in excess of that allowed by law to a public officer, § 609.45. He has not engaged in the practice of law since his resignation.

The accusation of unprofessional conduct, as the proceedings that had led to his indictment by a grand jury, arose out of his actions as probate judge with respect to the estate of one Marjorie C. Mears, decedent, during the period of June 28, 1966, to February 10, 1967. The evidence credited by the referee established, independent of the statutory offenses acknowledged by respondent in his negotiated plea of guilty, that respondent, in willful disregard of his fiduciary obligations as a judicial officer, mulcted the Mears' estate through the conduit of judicially appointed appraisers from whom he asked and received kickbacks of appraisal fees authorized by him.

The initial hearing on the petition for probate of decedent Mears' will occurred on June 28, 1966, at which time respondent, as the probate judge, knew, or should have known, that decedent's estate had very substantial assets. Ignoring the request of counsel for the estate for consultation on the appointment of appraisers, respondent forthwith appointed two appraisers: Kenneth M. Truax and T. H. Freiling. Truax was at that time a probation officer and referee of the juvenile court of Dakota County, and his salary was established by recommendation of respondent and approval of the Board of County Commissioners for Dakota County. Freiling, an insurance agent and broker, had never before served as an appraiser. He was at that time a member of the board of county commissioners, which board, except for respondent's salary, established and approved the operating budget of the probate and juvenile courts for Dakota County.

Respondent asserted a bona fide belief, based on the generalized statement of assets and liabilities in the petition for probate filed on April 11, 1966, and heard on June 28, 1966, that the Mears' estate was probably insolvent. Even so, it is clear, from specific information disclosed to respondent on July 5, 1966, incident to a million dollar statement of claim made by the First National Bank of St. Paul, that he could not thereafter have believed that the estate was insolvent or other than, as decedent's husband had stated at the first hearing, a 'sizeable estate.' On October 4 or 5, 1966, counsel for the estate petitioned for permission to invest estate cash in municipal bonds and other securities not statutorily authorized for investment by executors, affirmatively disclosing that this cash--in excess of $8,000,000 and the major asset of the estate--had been made available from the sale of Buckbee-Mears stock, closely held stock that recently had been authorized for public sale. Respondent without any doubt then knew the multimilion dollar character of the estate.

Shortly thereafter, on approximately November 17, 1966, respondent appointed John T. McDonough, judge of the probate court for Washington County, as a third appraiser. Notwithstanding that the value of the stock had been reliably determined in the market, respondent's ostensible reason for appointing McDonough was to provide the estate with his technical competence in its appraisal.

The appraisal of the estate by McDonough took place on December 8 and by Truax and Freiling on December 9, 1966. The appraisers at no time discussed the matter with each other and made no physical inspection of any of the properties in the estate. Except for a brief and apparently general conversation with representatives of the corporate executor, each of them signed the appraisal submitted to them by the executor. The appraisal fee authorized by respondent was .2 of 1 percent of the assets of the estate as shown on the inventory and appraisal, or $19,800. This amount was divided equally among the three appraisers, and a check to each in the amount of $6,600 was mailed or delivered on December 15, 1966.

The gravamen of the referee's findings is that, at the time respondent appointed the appraisers or, in any event, at some subsequent time, the payment of their fees as appraisers was subject to an understanding that each would make a 'contribution' to the 'Citizen's Committee to Keep Judge Francis L. (Frank) Bartholet Probate and Juvenile Judge, Bartholet Volunteer Committee,' this personal campaign committee serving as a conduit for payments to respondent for his own personal use. These are the extraordinary circumstances of the payments:

(1) Kenneth M. Truax, at an unspecified date during the period of his appointment, was asked directly by respondent to make a contribution to his campaign fund in the sum of $2,600. The largest political contribution Truax had ever made before that time was $10. Truax wrote a check in the amount requested on December 17, 1966, having been received the appraisal fee by mail, but, at respondent's suggestion, the check was predated to November 15, 1966.

(2) T. H. Freiling, on a date sometime prior to December 20, 1966, was asked by respondent for a campaign contribution, ostensibly because of a campaign deficit. Upon receiving his appraisal fee by mail, Freiling deposited $3,200 with his bank and took the balance in cash. He then, by telephone, asked respondent to stop by his insurance office. Freiling went to respondent's automobile upon his arrival, partly entered the open door, and held out to respo...