Kuzman, Matter of, 1173S230
Citation | 335 N.E.2d 210 |
Decision Date | 16 October 1975 |
Docket Number | No. 1173S230,1173S230 |
Parties | In the Matter of Daniel C. KUZMAN. |
Court | Supreme Court of Indiana |
Myron J. Hack, South Bend, Richard L. Gilliom, Stewart, Irwin, Gilliom, Fuller & Meyer, Indianapolis, John Kappos, Marlatt, Kappos & Gavit, Merrillville, for respondent.
Richard H. Grabham, Executive Secretary, Indianapolis, for Indiana Supreme Court Disciplinary Commission.
This disciplinary action was commenced by the Disciplinary Commission in November, 1973. A hearing was held in October, 1974. Upon consideration of the hearing officer's findings and recommendations, respondent's petition for review and memorandum in support, the Disciplinary Commission's reply, and the record in this matter, we believe further proceedings are unnecessary.
Respondent was admitted to the Indiana bar in 1959, and has established a reputation as a competent and ethical attorney. Nevertheless, certain aspects of respondent's professional relationship with his client, Nellie Speece, fell below the minimum standards of professional conduct.
Soon after respondent was employed by Mrs. Speece, she asked him to become a joint tenant with her in a savings account with rights of survivorship. Respondent consented to these arrangements as an accommodation to his client who, because of her disability, was not always able to do her own banking. Respondent further stated that she did not trust her household help and suspected them of informing her former husband about her business affairs and that the respondent was the only person she felt she could trust. The hearing officer found that respondent never deposited any monies in the account, never made any withdrawals from it and never saw or had possession of the passbook. In addition, respondent testified that it was a common practice for him and other Lake County, Indiana, lawyers to become joint tenants in back accounts of clients as an accommodation, at the client's request, so that, for example, emergency funds could be transmitted to a client traveling in Europe.
While respondent's accommodation of his client was for valid business purposes, nevertheless, the method of accommodation selected was one which placed respondent in a position to inherit ownership of the account. As stated in State v. Horan (1963), 21 Wis.2d 66, 72--75, 123 N.W.2d 488, 491:
It is not unusual for a client untrained in the laws to come into an attorney's office and state that he wants the attorney to form a corporation for him. If the attorney accedes and completes the forms without first exploring the sole proprietorship and partnership forms of business with the client, and the tax aspects of each, the attorney has failed to give the client the full and disinterested advice to which he was entitled, and which the bar demands be given.
State v. Horan, supra, 21 Wis.2d 66, 70, 123 N.W.2d 488, 489--90. Similarly, when Mrs. Speece informed respondent of her reasons for creating the joint tenancy, it was incumbent upon him to explain to her the other legal arrangements for achieving her goals--arrangements which would not have at the same time given respondent a personal stake in the funds.
In reaching this conclusion, we reject respondent's contention that 'any surface impropriety one might read into respondent's conduct was fully justified by his client's extreme circumstances.' The rationale that the ends justify the means has an place in the legal profession.
It was charged that respondent's conduct in this matter breached Canons 11, 29, and 32 of the Canons of Professional Ethics of the American Bar Association. 1 While the Canons do not have the authority of Indiana statutes or case law, they evidence proper standards of conduct for the legal profession, Tokash v. State (1953), 232 Ind. 668, 115 N.E.2d 745. Canon 11 provides:
'The lawyer should refrain from any action whereby for his personal benefit or gain he abuses or takes advantage of the confidence reposed in him by his client. 'Money of the client or collected for the client or other trust property coming into the possession of the lawyer should be reported and accounted for promptly, and should not under any circumstances be commingled with his own or be used by him.'
Canon 29 provides:
Canon 32 provides:
'No client, corporate or individual, however powerful, nor any cause, civil or political, however, important, is entitled to receive nor should any lawyer render any service or advice involving disloyalty to the law whose ministers we are, or disrespect of the judicial office, which we are bound to uphold, or corruption of any person or persons exercising a public office or private trust, or deception or betrayal of the public. When rendering any such improper service or advice, the lawyer invites and merits stern and just condemnation. Correspondingly, he advances the honor of his profession and the best interests of his client when he renders service or gives advice tending to impress upon the client and his undertaking exact compliance with the strictest principles of moral law. He must also observe and advise his client to observe the statute law, though until a statute shall have been construed and interpreted by competent adjudication, he is free and is entitled to advise as to its validity and as to what he conscientiously believes to be its just meaning and extent. ...
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