Cary, In re, CD

• Decision Date: 26 October 1978
• Docket Number: No. CD,CD
• Citation: 585 P.2d 1161,90 Wn.2d 762
• Parties: In re Richard S. CARY, an Attorney at Law. 4463.
• Court: Washington Supreme Court

Page 762

90 Wn.2d 762

585 P.2d 1161

In re Richard S. CARY, an Attorney at Law.

No. CD 4463.

Supreme Court of Washington, En Banc.

Oct. 26, 1978.

Jack J. Cullen, Staff Atty., Washington State Bar Assoc., Seattle, for petitioner.

John G. Ritchie, Seattle, for respondent.

HAMILTON, Justice.

This case is a disciplinary matter involving an attorney, Richard S. Cary (respondent). The Disciplinary Board of the Washington State Bar Association has recommended he be disbarred.

We concur and adopt the board's recommendation.

Respondent was admitted to the practice of law in Washington State on September 14, 1955. At all times since he has engaged in the practice of law in King County, Washington.

The will of respondent's grandfather created a certain trust fund in the state of New York. Respondent and his two sisters were the named remainder persons of this trust. Sometime prior to the death of the life tenant, respondent was appointed by the Surrogate Court of New York as successor trustee of the fund which consisted of units of investment in Security Equity Fund, a mutual fund. Its value was approximately.$23,500.

The life tenant of the trust died a resident of California on December 25, 1973. In May 1974, respondent, acting in his capacity as trustee, ordered and in some undisclosed fashion accomplished liquidation of the assets held in trust without either the approval of the Surrogate Court or the knowledge or consent of his sisters. He then deposited the liquidated proceeds in his attorney's trust account and considered terminating the trust. In order to formally do so without submitting a final accounting to the New York courts, it would have been necessary to have the consent of the various persons who might claim an interest in the fund, I. e., his sisters' and the executor of the deceased life tenant's estate. Respondent sought the necessary consents, but was unsuccessful. Thus, the liquidated funds languished in respondent's trust account.

Then, in late 1974, respondent formed and was principal shareholder of a zinc mining corporation. This activity consumed much of respondent's time and by January 1975 he was working full time at the site of this venture. In February 1975, faced with a serious cash flow problem at the mine, respondent withdrew from his trust account and used all the trust funds which were the proceeds of the liquidated trust assets. Respondent's sisters, who resided outside Washington State, neither gave permission nor had knowledge of respondent's action. In fact, by a letter, which respondent indicated was dated February 27, 1975, he intimated to his sisters that the trust assets were intact and still held in New York State.

Within a very short time, respondent's mine corporation failed and his sisters became aware that the trust funds were lost in the mining venture. The sisters evidently contacted an out-of-state attorney who in turn contacted the Washington State Bar Association. The attorney did not lodge a formal complaint against respondent; rather, he inquired whether the sisters might recover any of the lost funds through Washington's client security fund.

The bar association then began its inquiry into the entire matter. As a result of its inquiry, it filed a formal complaint alleging respondent violated the rules of professional conduct by commission of an act involving moral turpitude.

Respondent readily admits that some degree of moral turpitude is involved in his diversion of the funds. However, he points out he has made efforts to repay his sisters; he has practiced law 22 years and he has never been subject to discipline. Further, he notes he did not use a client's funds but rather his sisters' funds with whom there was no attorney-client relationship.

Respondent's familial relation to the other remainder persons of the trust does not alter the ethical standards and responsibilities which he, as an attorney, was sworn to uphold. Acting, as he was, in a fiduciary relationship to his sisters, he owed to them, as beneficiaries of the trust, the highest degree of good faith, care, loyalty, and integrity, as well as the obligation to fully, timely, and honestly inform them of all facts which would aid them in protecting their respective interests. Esmieu v. Schrag, 88 Wash.2d 490, 563 P.2d 203 (1977). Respondent did not fulfill his responsibilities. Instead, he liquidated the trust assets and thereafter converted over $15,000 of his sisters' funds without their knowledge or consent.

Furthermore, respondent misused and abused his attorney's trust account. Such an account is required and maintained by an attorney for the separate deposit and accounting of clients' or beneficiaries' funds coming into his hands. The nourishment of public trust and confidence in the legal profession, as well as our legal system, demands the utmost fidelity of the attorney with respect to his trust account. In no fashion can the personal invasion of the funds of others deposited in such an account be condoned, justified, or rationalized, whatever the personal urgency of the moment may appear to be, or however faithful to his trust an attorney has...