Kuzman, Matter of, 1173S230

Citation335 N.E.2d 210
Decision Date16 October 1975
Docket NumberNo. 1173S230,1173S230
PartiesIn the Matter of Daniel C. KUZMAN.
CourtSupreme 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.

HUNTER, Justice.

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.

I.

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:

'An attorney's duty of fidelity to his client involves more than refraining from exercising undue influence. A client has a right to full and disinterested advice.'

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.

'The practice of the law is not a business but a profession--a form of public trust, the performance of which is entrusted only to those who can qualify by fitness, not the least of which is good moral character. While within his power, an attorney has no right to jeopardize the performance of his duties or the confidence, approval and esteem of the public which the legal profession has traditionally enjoyed. An attorney has a duty not to harm but to maintain the integrity of the legal profession even though this may call for a personal sacrifice or the omission of acts which are not intrinsically bad.'

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:

'Lawyers should expose without fear or favor before the proper tribunals corrupt or dishonest conduct in the profession, and should accept without hesitation employment against a member of the Bar who has wronged his client. The counsel upon the trial of a cause in which perjury has been committed owe it to the profession and to the public to bring the matter to the knowledge of the prosecuting authorities. The lawyer should aid in guarding the Bar against the admission to the profession of candidates unfit or unqualified because deficient in either moral character or education. He should strive at all times to uphold the honor and to maintain the dignity of the profession and to improve not only the law but the administration of justice.'

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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3 cases
  • Kizer v. Davis
    • United States
    • Indiana Appellate Court
    • 16 Noviembre 1977
    ...and effect of Indiana statutes or case law, it does evidence the proper standard of conduct for the legal profession. In re Kuzman (1975) Ind., 335 N.E.2d 210, 212; Bell et al. v. Conner (1968) 251 Ind. 409, 241 N.E.2d 360; Tokash v. State (1953) 232 Ind. 668, 115 N.E.2d 745. Specifically, ......
  • Briggs, Matter of, 1078S235
    • United States
    • Indiana Supreme Court
    • 13 Enero 1987
    ...In re Crumpacker (1978), 269 Ind. 630, 383 N.E.2d 36, cert. denied 100 S.Ct. 481, 444 U.S. 979, 62 L.Ed.2d 406 (1979); In re Kuzman (1975), --- Ind. ----, 335 N.E.2d 210. The amendment to the Complaint more appropriately set out the standard by which the same conduct was measured prior to t......
  • Crumpacker, Matter of
    • United States
    • Indiana Supreme Court
    • 29 Noviembre 1978
    ...discipline, and the standards for such conduct were the Canons of Professional Ethics of the American Bar Association. In re Kuzman, (1975) Ind., 335 N.E.2d 210, Tokash v. State, (1953) 232 Ind. 668, 115 N.E.2d 745. Accordingly, where it is properly charged, this Court will examine events w......
1 books & journal articles
  • Attorney Fee Disgorgement as a Disciplinary Action
    • United States
    • Seattle University School of Law Seattle University Law Review No. 7-03, March 1984
    • Invalid date
    ...The courts have generally accepted code violations as evidence of negligence, rather than as negligence per se. See, e.g., In re Kuzman, 335 N.E.2d 210, 212 (Ind. 1975). The recent adoption of the Model Rules of Professional Conduct (1983), which replaced the Model Code of Professional Resp......

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