Briggs, Matter of, 1078S235

Citation502 N.E.2d 879
Decision Date13 January 1987
Docket NumberNo. 1078S235,1078S235
PartiesIn the Matter of William BRIGGS.
CourtSupreme Court of Indiana

PER CURIAM.

This Disciplinary cause is before us on a verified amended complaint charging the Respondent with misconduct arising out of his association with an elderly client. This is a companion case to In re Florence Ann Briggs which involves Respondent's spouse and law associate. After a joint hearing, the Hearing Officer has submitted two separate, excellently presented, reports in each case. Both Respondent and the Commission have petitioned for review of the ultimate findings of fact and conclusions of law in this case, but the underlying findings of fact as submitted by the Hearing Officer remain, for the most part, unchallenged.

We have reviewed the Hearing Officer's report and all other matters submitted in this cause and now find that the Respondent is a member of the Bar of this state and is, thereby, subject to this Court's jurisdiction. He maintains an office for the practice of law in Carroll County with his spouse, Florence Anne Briggs. Though never under a formal agreement, the Respondent and his spouse held themselves out to the public as a law partnership operating as Briggs and Briggs.

During the mid 1960's, the Respondent began representing Kate Smoker in a variety of legal matters. Kate Smoker was an elderly childless widow with an estate consisting approximately of a 292 acre farm and $150,000 cash. With the exception of a few small fees, the Respondent did not charge her for his services, and she did not pay him. The two had discussed some sort of a lifetime fee arrangement whereby the Respondent would perform legal services until her death for the sum of $10,000. In 1967 she first mentioned that she wanted the lifetime payment arrangement with the Respondent and, by 1970, there was an understanding that the Respondent would receive $10,000 out of Mrs. Smoker's estate.

The Respondent prepared several wills for Kate Smoker while he represented her. The first will was drafted in 1967 while she was hospitalized; therein the Respondent was left a legacy of $1,000. In 1968, he prepared another will and again the Respondent was to receive a legacy of $1,000. The Respondent was named coexecutor and both he and Florence Anne Briggs were named to serve as attorneys for the estate and for an educational trust created under the residuary clause of the will. The trust was to provide college scholarship grants to residents of Burlington Township who maintain a C-plus average for their college years. This trust provision was part of the earlier wills, however, in this will, Mrs. Smoker directed that an additional clause be added naming Winston Briggs, Respondent's son, the first recipient of the trust. The trust was to accumulate income until Winston Briggs started college and was to be payable to him regardless of his residence or grade average through both undergraduate and professional or graduate school. A 1970 Will drafted by the Respondent again retained the legacy to the Respondent and the trust provisions for Winston. Florence Anne Briggs was named co-executrix, and the trust was modified to provide for three years of accumulation after it was formed, except for payments to Winston, and a special clause to reimburse him for the cost of tuition, books and living expense for his school years.

The creation of the trust was entirely Kate Smoker's idea, which she specifically affirmed by executing a holographic statement contemporaneously with the execution of the 1970 Will. Mrs. Smoker's closest relative was an elderly first cousin; she had no other natural object of her bounty. However, at no time prior to the execution of Smoker's 1970 Will did the Respondent suggest to her the possibility of conflict or that she should obtain independent legal advice as to her will.

In the fall of 1976 Mrs. Smoker's health began to fail and she was hospitalized. During this time she and Respondent discussed arrangements for paying the Respondent a $10,000 fee. Mrs. Smoker desired to bequeath this amount through her will, and the Respondent advised her to consult another attorney. They also discussed the method which was eventually used, a certificate of deposit. On November 8, 1976, Mrs. Smoker called the Respondent to suggest three items of business she wanted to conduct: (a) modify her will with a codicil, (b) nominate the Respondent as her guardian should a guardianship become necessary, and (c) to finalize the $10,000 arrangement for a joint certificate of deposit. On November 9, 1976, Respondent went to Kate Smoker's home with his two secretaries. Present were Smoker's friend, John Johnson and a local banker, Earl Rodkey. Mrs. Smoker executed a $9,000 joint certificate issued to herself and the Respondent which, together with the $1,000 legacy, was to be compensation for past and future services. The Certificate was to be held by Johnson. On the same date Mrs. Smoker also nominated the Respondent as her guardian, should one become necessary. That same afternoon Mrs. Smoker visited her doctor, Dr. Wagoner, who opined that, at such time, she was not competent to manage her affairs because of advanced senility.

Thereafter, Mrs. Smoker's health deteriorated rapidly and, on November 13, 1976, she was admitted to a hospital. It was clear that she could no longer manage her own affairs, and, on November 24, 1976, the Respondent was appointed temporary conservator by the Carroll Circuit Court.

As such, the Respondent became involved in the Smoker farm operation and the renewal of tenant leases. Mrs. Smoker had normally operated her farms on a crop-sharing basis. The Respondent, however, in anticipation of the need for cash for Smoker's medical and nursing costs, changed the practice to cash rentals. On December 13, 1976, Mrs. Smoker was discharged again and her doctor advised the Respondent that her condition was irreversible and that she would permanently require custodial care. Mrs. Smoker, however, made a remarkable recovery, and, after an examination on January 11, 1977, her doctor found her mental impairment to be minimal and her medical and mental problems to be in remission.

It was during this time that she became aware of the guardianship and questioned Mr. Rodkey as to the joint certificate of deposit, professing no recollection about making it. Notwithstanding the recovery, on January 13, 1977, the guardianship was made permanent. The doctor continued to opine that she was incompetent because her recovery was temporary.

During the next month the long-standing relationship between the Respondent and Smoker deteriorated. In late January or early February, 1977, Smoker went to Respondent's office to obtain her lock box key. The respondent correctly refused to give it to her, but made a statement to the effect of "you don't like authority, do you." This greatly agitated Smoker who perceived this as a calculated act intended to degrade her. Sometime during this period the Respondent offered to resign as guardian, but Smoker was reluctant to have the bank assume that role and declined his offer.

Mrs. Smoker, with the assistance of a friend, Bobby Ritchey, contacted another attorney, Adrian Marks, to discuss the termination of her guardianship. As arranged by Marks, two physicians examined her; both believed her to be competent to manage her affairs, though one found her to be in the early stages of senility. After Mrs. Smoker informed the Respondent that she had contacted Adrian Marks, and after some unfriendly interchanges between the Respondent and Marks and the Respondent and Bobby Ritchey, the Respondent, on February 12, submitted two petitions to Judge Jeffrey R. Smith, Judge Pro Tem of the Carroll Circuit Court. The Respondent (1) requested that certain persons, particularly Bobby Ritchey, be restrained from interference with Respondent's relationship with his ward and (2) objected to the filing of any pleadings allegedly signed or authorized by the ward and (3) sought a protective order against his production of any documents.

On February 13, Kate Smoker directed Attorney Marks to proceed and, on February 14, he filed a Petition to Remove the Conservator and Appoint a Successor Conservator. A hearing on the petition was scheduled for February 18th. Sometime between February 14th and 19th, the Respondent had a telephone conversation with Kate Smoker during which he read to her a bizarre fish story. It was as follows:

"He would introduce his bills in committee and the chairman would always thank him. They were always very courteous. They'd say something like "we'll be glad to give this bill due consideration" and of course, before the session was over, they'd have chopped everyone to ribbons and finally one day when someone told him that his bill would get due consideration, he let all of his frustrations out. He reared up, eyes flashing and stuck out his finger and said, "Yes, Mr. Chairman, I know the consideration you'll give this bill. It's the consideration of the fisherman for the shad, Mr. Chairman," he said. "When the fisherman catches the shad and brings it into the boat the poor fish flips and flops and tries to escape and the fisherman speaks so politely to the shad." He says, "Lie still, little shad, I am not going to hurt you. I am going to treat you well. I'm, not going to do a thing more to you except cut your head off. And after that I'm not going to do a thing to you except cut all your bones out." And he pounded on the committee table and said, "That's the consideration I expect from you, Mr. Chairman, the shad treatment, Mr. Chairman.... the shad treatment and I may have to take it, but I will fry in hell before I say thank you."

Kate Smoker took the point of the story to be that, on her death, her estate...

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