MATTER OF BRIGGS

• Decision Date: 13 January 1987
• Docket Number: No. 783S262.,783S262.
• Citation: 502 N.E.2d 890
• Parties: In the matter of Florence Anne Briggs.
• Court: Indiana Supreme Court

502 N.E.2d 890

In the matter of Florence Anne Briggs.

No. 783S262.

Supreme Court of Indiana.

January 13, 1987.

Florence Anne Briggs, Flora, pro se.

David B. Hughes, Staff Atty., Indianapolis, for the Indiana Supreme Court Disciplinary Com'n.

PER CURIAM.

This case is before us on a Verified Complaint for Disciplinary Action filed by the Indiana Supreme Court Disciplinary Commission. It is a companion case to In re William Briggs 502 N.E.2d 879 which involves Respondent's law associate and spouse. After a lengthy joint hearing, the Hearing Officer, the Honorable Douglas B. Morton, has submitted his excellent findings, conclusions of law and recommendation in this case. The Respondent and the Commission have challenged different aspects of the Hearing Officer's report and have petitioned for review of the same. In her petition for review the Respondent also requests to appear before this Court for the purpose of oral argument. Such request is hereby denied. She also takes issue with several statements contained throughout the report's 43 pages. Such issues will be resolved through this Court's determination of the ultimate findings and conclusions.

We have examined all matters presented and now find generally that the Respondent is a member of the Bar of this state, having been admitted in 1958 and is, therefore, subject to this Court's jurisdiction. She is engaged in the practice of law with her spouse, William Briggs. Though never under a formal partnership agreement, they held themselves out to the public as a partnership operating as Briggs and Briggs.

By way of background, we find that the Respondent was aware that William Briggs began representing Mary Bernice (Kate) Smoker during the 1960's. Smoker was an elderly, childless widow with an estate of approximately 292 acre farm and $150,000 cash. Except for a few minor bills, Smoker did not pay for the representation but, in time, entered into an oral agreement with William Briggs for a lifetime legal service fee of $10,000. The Respondent was also conversant with the terms of a will prepared by William Briggs, whereby Smoker left William Briggs a specific bequest of $1,000. The will further established an educational trust specifying the Briggs' son, Winston, as a major beneficiary under the trust which would have paid for all college and post graduate school, and named the Respondent as co-executor and attorney for the trust.

Thereafter, Smoker's mental and physical health declined and she was hospitalized in October of 1976. Though she was released from the hospital, her health remained marginal. On November 9, she met with William Briggs at her home and executed a codicil to her will nominating William Briggs as guardian, should one become necessary, and formalized the lifetime services contract by written agreement and by funding a $9,000 joint certificate of deposit in her and William Briggs' names. Thereafter, Smoker was again hospitalized and, upon her cousin's petition, a temporary guardianship was commenced on November 24, 1976, with William Briggs as guardian.

By January, 1977, Kate Smoker made a miraculous recovery, and her physician found that her physical and mental problems were in a state of "remission". At this time Smoker became aware of the guardianship and professed no recollection of making the joint certificate of deposit.

Notwithstanding her recovery, the guardianship was made permanent on January 13, 1977. During the next month, the long standing relationship between Smoker and William Briggs deteriorated. In anticipation of large cash expenditures for Smoker's care, William Briggs had negotiated cash leases for Smoker's farm, a practice she strongly disapproved. Additionally, Smoker was exceedingly unhappy and frustrated with not having control of her business affairs. She was particularly incensed with William Briggs when he, correctly, refused to give her the key to her safety deposit box. However, he also taunted her by displaying the key and stating, "you don't like authority, do you?" Though not a participant, the Respondent was present during this event. Immediately after termination of the guardianship, Smoker executed a codicil to her 1977 will reaffirming its terms.

Kate Smoker set out to retain the services of Attorney R. Adrian Marks in order to terminate the guardianship. Marks had her examined by two physicians, both of whom found her to be able to handle her own affairs, although, they found, she may be in the early stages of senility and showed some confusion.

At some point thereafter, William Briggs became aware that Smoker had sought the services of another attorney. This resulted in strong animosity between William Briggs, Marks and Bobby Ritchy, a friend of Mrs. Smoker who had assisted her in retaining attorney Marks. This also precipitated the filing of petitions by William Briggs (1) requesting that the court issue a temporary restraining order restraining certain persons, particularly Bobby Ritchy, from interfering with the ward, Smoker; (2) objecting to the filing of any pleadings allegedly signed or authorized by the ward; and (3) seeking a protective order against his producing any documents, should such allegations be made.

Upon Smoker's direction, on February 14, Marks presented a Petition to Remove the Guardian. On February 18, 1977, the Respondent, together with William Briggs, attended a pre-hearing conference on the matter. William Briggs and the Respondent had a lengthy conversation as to the advisability of his filing a "Petition to Terminate" the conservatorship based on Smoker's now apparent competency. William Briggs decided to file the petition against Respondent's counsel. It contained William Briggs' statement, without reservation, that the conservatorship should be terminated. At this juncture, the Respondent became a more active participant.

On February 23, 1977, Smoker executed a new will prepared at her direction by Marks.

After the filing of the "Petition to Remove" by Marks and the "Petition to Terminate" by William Briggs, William Briggs, with Respondent's assistance, began delaying and resisting action on these petitions. On February 23, Marks sent a letter to William Briggs agreeing to the granting of Briggs' "Petition to Terminate"; William Briggs did not answer the letter. Thereafter, Marks and Power, Smoker's other attorney, contacted William Briggs by telephone to discuss the same, but William Briggs refused to agree to the granting of his own petition. In a letter written on May 2, 1977, to Judge Mauro, Special Judge in the guardianship case, William Briggs stated that he had informed Power that "... before I, myself, would agree to any order of any nature, including a dismissal of their Petition to Discharge, etc., there would have to be a finding that certainly I had NOT mismanaged the funds of Mrs. Smoker in any way." The Respondent drafted this letter for William Briggs' signature.

Between March 9 and 15, 1977, three physicians filed their written reports with the Court in which each of them affirmed that Kate Smoker was of sound mind and capable of managing her own affairs. On April 12, 1977, failing to get an agreed entry from William Briggs to his own petition, Smoker's attorneys filed a reply to the Petition to Terminate which admitted that the guardianship should be terminated. In a motion for summary judgment filed on April 19, Smoker's counsel pointed out that the parties and all physicians were agreed that Smoker was mentally competent. The Court then entered an order limiting the hearing to the issues raised by the "Petition to Terminate" and informed counsel that the court will take judicial notice of the physician's reports so that they need not testify. William Briggs filed his objection to this order arguing strenuously that the granting of his Petition to Terminate without a hearing on the Petition to Remove would do "irreparable harm" to him because the Petition to Remove "has cast doubt on the character of William J. Briggs by innuendo." These objections and an Affidavit and Response were prepared by William Briggs and reviewed and concurred in by the Respondent.

During this period of time Smoker suffered great emotional distress due to the continuation of the guardianship and her own inability to gain control over her property. As noted by the trial judge and the hearing officer, the termination of a conservatorship where three physicians unanimously agree as to competence is a simple matter. However, in this instance, William Briggs treated this as an adversary proceeding for his own benefit and vindication, all the while being fully aware of the emotional harm beset upon Smoker. The Respondent assisted William Briggs in this action.

On May 26, 1977, the guardianship was terminated. The termination order directed that Smoker could take over her affairs immediately, that William Briggs was to file his final report within two weeks, that $2,000 was to be transferred to Smoker for her immediate use, and that all her papers and Will were to be made available for her at the time of the final report. Further confrontations, delay and strife accompanied the transfer of the ordered matters, though, in the end, the majority were turned over.

With the filing of his Guardian's Final Report, William Briggs also objected to his having to file a claim for services, claiming the contract with Smoker for lifetime services. His objections were overruled, and he filed a claim for $17,585 for serving as guardian for a period of six months and two days. The amount of the claim was an attempt to assure that the $10,000 lifetime services contract would be paid.

In August, 1977, the Respondent made a request to withdraw from the case, but remained active nonetheless. William Briggs also employed attorney Joseph T. Ives, who entered his appearance in the guardianship matter and began participation in the disciplinary matter as well.

From May, 1977 to 1979, ...