Castello, Matter of, 977S688
| Decision Date | 10 April 1980 |
| Docket Number | No. 977S688,977S688 |
| Citation | 273 Ind. 136,402 N.E.2d 970 |
| Parties | In the Matter of Frank A. CASTELLO. |
| Court | Indiana Supreme Court |
This cause is before this Court on a two-court verified complaint filed by the Indiana Supreme Court Disciplinary Commission pursuant to Admission and Discipline Rule 23, Section 12. Under the appropriate provisions of Rule 23, a hearing has been conducted and the Hearing Officer's report has been filed under this cause. The Disciplinary Commission, accepting the Hearing Officer's findings of fact, has petitioned this Court to review several conclusions drawn by the Hearing Officer. Respondent, also accepting the findings of fact, has requested the Court to consider a suggested form of discipline under the findings and conclusions tendered by the Hearing Officer.
The Respondent is charged with similar misconduct under both counts of the verified complaint filed in this cause. Specifically, he is charged with violating disciplinary rules; conduct involving dishonesty, fraud, and deceit; conduct prejudicial to the administration of justice; and conduct adversely reflecting on his fitness to practice law, all in violation of Disciplinary Rules 1-102(A)(1), (3), (4), (5) and (6) of the Code of Professional Responsibility for Attorneys at Law. The alleged misconduct under both counts stems from the Respondent's handling of estate matters. Consequently, the Respondent is additionally charged with failing to preserve estate assets and failing to make these assets available to the legatees in violation of Disciplinary Rules 9-102(A) and 9-102(B)(2), (3) and (4) of the Code of Professional Responsibility for Attorneys at Law.
After reviewing all matters which have been submitted in this cause, this Court now adopts and accepts as its own the findings of the Hearing Officer which establish that the Respondent was admitted to practice in 1961 and maintained a legal practice in Michigan City, Indiana, from the time of admission until September, 1976. Since the latter date, the Respondent has not actively engaged in the private practice of law.
Relative to the allegation of misconduct set out under Count I of the verified complaint, we find that in December, 1972, the Respondent was appointed as the Personal Representative of the Estate of Herman A. Wilke, a Florida resident with assets in Indiana at the time of his death. This was the Respondent's first estate. As Personal Representative, on December 21, 1972, the Respondent obtained possession of the only asset in Indiana, a 15,000 dollar savings account, and deposited this money in the Respondent's checking account # 2-64786 at the First National Bank and Trust Company of LaPorte, Indiana. This account contained both funds of the Respondent and funds of clients. During 1973, the Respondent expended all funds in this account, including the funds deposited from the Wilke estate. By January 26, 1973, this account had been reduced to a balance of $1,579.60 and by April 12, 1973, was overdrawn in the sum of $364.63. From April, 1973, until March, 1974, when the Respondent attempted final distribution, this account was overdrawn by the Respondent on seven occasions. There were numerous occasions during the administration of the estate when the total of Respondent's personal cash assets were less than his obligation to the Wilke estate.
On March 18, 1974, the final account in the Wilke estate was approved showing a balance for distribution of 12,480.61 dollars to be distributed in equal shares to the decedent's childless second wife and two children. On March 28, 1974, a check to one of the children was dishonored by reason of insufficient funds in the Respondent's account in the First National Bank and Trust Company. On April 23, 1974, this legatee received a cashier's check for the amount of the distributive share drawn on Account # 00120-1 at the Lake Shore Bank and Trust Company, Michigan City, Indiana.
Relative to the allegations of misconduct set out under Count II of the verified complaint, we find that on May 10, 1974, the Respondent was appointed Co-Executor and became the attorney for the Estate of Hilda Marie Kroening, an Indiana resident who died testate on March 30, 1974. The principal probate asset in this estate was a savings account in the amount of $16,638.65 in the decedent's name at the Michigan City Savings and Loan Association, of Michigan City, Indiana, Account # 12244. On or about May 14, 1974, the Respondent, as Executor, drew down this account at the Michigan City Savings and Loan Association in the sum of $16,638.65 and deposited the funds in the Respondent's personal checking account # 00120-1 at the Lake Shore Bank and Trust Company of Michigan City, Indiana. The latter checking account was opened on April 23, 1974, the day funds were withdrawn to pay the distributive share of the Wilke estate dealt with in Count I. The Respondent's checking account at the Lake Shore Bank and Trust Company of Michigan City was what he called his "commercial" law office checking account. In this account the Respondent maintained his own personal funds and from which he routinely paid his personal and law office expenses. This checking account was not an escrow account or trust account, and the Respondent did not maintain an escrow account during the period of time in question. During the year 1974, the Respondent expended all of the funds in his checking account with the Lake Shore Bank and Trust Company, including the funds from the Kroening estate. By July 15, 1975, this checking account was overdrawn. During the administration of this estate, there were numerous instances when the total cash deposits did not equal his obligation to the Kroening estate.
The sole heir of the Kroening estate was the decedent's son, Ronald L. Kroening. On ...
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Helman, Matter of
...(1990), Ind., 560 N.E.2d 66 (inexperience a factor in mitigation in relation to attorney's conflict of interest). Cf. In re Castello (1980), 273 Ind. 136, 402 N.E.2d 970 (unfamiliarity with disciplinary rules should not excuse misconduct). Further, absent in this case is any indication of c......
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Iowa Supreme Court Bd. of Professional Ethics and Conduct v. Evans, 95-258
...with the rules. If anything the fact that respondent was unaware of the rules demonstrates his unfitness. In re Castello, 273 Ind. 136, 141, 402 N.E.2d 970, 972-73 (1980). II. Excessiveness of The committee charged that the respondent received excessive fees in the Hoogland estate by includ......
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