Robak, Matter of

• Decision Date: 03 August 1995
• Docket Number: No. 30S00-9203-DI-139,30S00-9203-DI-139
• Citation: 654 N.E.2d 731
• Parties: In the Matter of Raymond S. ROBAK.
• Court: Indiana Supreme Court

Page 731

654 N.E.2d 731

In the Matter of Raymond S. ROBAK.

No. 30S00-9203-DI-139.

Supreme Court of Indiana.

Aug. 3, 1995.

Kevin P. McGoff, Kiefer & McGoff, Indianapolis, for respondent.

Donald R. Lundberg, Executive Secretary and Charles M. Kidd, Staff Attorney, Indianapolis, for the Indiana Supreme Court Disciplinary Commission.

DISCIPLINARY ACTION

PER CURIAM.

Raymond S. Robak is charged with several violations of the Rules of Professional Conduct for Attorneys at Law arising from his representation of a client with interests adverse to those of a former client. Following the Disciplinary Commission's filing of a formal complaint, this Court appointed a hearing officer pursuant to Ind.Admission and Discipline Rule 23, Section 11. After an evidentiary hearing on the charges, the hearing officer submitted her findings of fact and conclusions of law to this Court, therein finding that Respondent engaged in misconduct as charged. Respondent has petitioned this Court for review of the hearing officer's report, challenging the hearing officer's findings. Our review of disciplinary cases is de novo in nature and involves review of the entire record submitted in this case In re Blackwelder (1993), Ind., 615 N.E.2d 106. The hearing officer's report, being a product of direct observation of witnesses, will be given appropriate emphasis, but this Court is the final arbiter of disputed facts and ultimate conclusions. In re Levinson (1992), Ind., 604 N.E.2d 599; In re Gemmer (1991), Ind., 566 N.E.2d 528. To support a finding of misconduct, this Court must be satisfied that such is based on clear and convincing evidence. Admis.Disc.R. 23(14)(f); In re Heamon (1993), Ind., 622 N.E.2d 484; In re Oliver (1986), Ind., 493 N.E.2d 1237. Respondent's challenges will be addressed within the context of this review process.

Accordingly, we now find that Respondent was admitted to the practice of law in this state in 1965, and is therefore subject to this Court's disciplinary jurisdiction. Respondent represented a client ("client") regarding numerous legal matters beginning in the early 1980s. The client had married for a second time on July 15, 1978, and soon thereafter, he and his new wife ("wife") signed a "Marital Property Agreement" which purported to allow each to maintain a separate right to property brought into the marriage and any assets acquired in their own names during the marriage. The agreement, which was not drafted by Respondent, also provided that any will made before or after execution of the agreement need not contain provisions in favor of the other person and that neither party would contest the terms of the other's will or make claims contrary to the intent of the agreement.

At various times after execution of the marital property agreement, Respondent drafted wills for his client. One such will was executed on May 19, 1988. It provided no bequests in favor of the wife and indicated that it was made "with full cognizance of the terms of the marital property agreement ..." The client also executed a trust agreement on May 19, 1988, which provided that the wife would receive an income from the trust's corpus and the right to live in the marital residence.

Respondent drafted a will for the wife in September, 1981. She was alone with Respondent in his office when that will was prepared. It was executed on September 23, 1981, and contained no bequests in favor of the client, but named her as executor of the estate.

The client died in November, 1989. His children from his first marriage, as executors of the estate, employed Respondent to represent the estate. In May of 1989, Respondent offered the client's May 19, 1988 will for probate.

In late 1989, the wife employed counsel in an effort to obtain her one-third Indiana statutory spouse's share ¹, or a significant amount of cash, certain real estate, furnishings, and personal items from the estate in settlement. One of the issues explored by the wife's counsel was the validity of the marital property agreement, since it purported to restrict each spouse from challenging the other's will or taking other action contrary to the agreement. In response to the wife's efforts, Respondent filed a Petition to Determine Heirship and Determine Rights of Parties on January 9, 1990, stating, inter alia, that

Counsel for the estate and your personal representatives have been advised by Counsel for [the wife] that the property settlement agreement is void and of no force or effect alleging various reasons ... your personal representatives are of the opinion that ... said property settlement agreement is based on existing Indiana law and therefore, valid.

That due to the nature of the claims of [the wife], uncertainty has arisen as to her interest in said estate and until such time as a determination is made as to the validity of said property settlement agreement, ... the orderly administration of said estate will be disturbed.

The wife alleged that she had not received a full disclosure of assets at the time the marital property agreement was entered and that it was therefore void.

Respondent questioned the wife at a deposition on February 20, 1990, in the presence of the wife's counsel. The following colloquy occurred:

[Respondent]: Have you made a will subsequent to the one that I prepared?

[Wife]: No.

[Respondent]: And do you recall what provisions you made for [client] in that will?

[Wife]: No.

[Respondent]: And do you recall discussion about the marital property agreement at the time that Will was signed?

[Wife]: No. To be truthful I don't. The making of the Will was an emotional thing for me and I'm--I probably cried in your office at that time.

[Respondent]: If I would suggest you didn't, would that refresh your recollection?

[Wife]: If you what?

[Respondent]: Would refresh [sic] your recollection that you didn't cry when you did that?

[Wife]: Oh dear. I don't remember. I know--I know it was emotional for me because those things always are.

(Emphasis supplied).

The hearing officer found that Respondent, through his questioning, sought to establish that the wife understood the effect of the marital property agreement and relied upon it when creating her own will. ²

On April 4, 1990, the wife's attorney sent a letter to Respondent, which stated in part:

I do want to confirm to you that if it is necessary to litigate the Post Nuptial issues in the estate ..., we will ask the Court to disqualify you because you more than likely will be a witness and because of conflict of interest.

The wife ultimately entered an agreement with the executors of the estate settling the contested issues. Under the terms of the agreement, the wife received that which she would have received under the terms of the trust agreement. Respondent remained as counsel to the estate until the conclusion of the matter and filed a final accounting on July 13, 1990.

The Commission charged that Respondent, by representing the estate in direct opposition of his former client, the wife, violated Ind.Professional Conduct Rules 1.9 ³ and 8.4(a). ⁴ The hearing officer found that an attorney-client relationship was formed between Respondent and the wife and that Respondent violated Prof.Cond.R. 1.9(a) by representing the wife during preparation of her will, and then by representing the estate of his client, her late husband, in a substantially related matter in which the estate's interests were materially adverse. The hearing officer also concluded that Respondent violated Prof.Cond.R. 1.9(b) by questioning the wife about the representation he provided to her during the creation of her 1981 will with the intention of using that information to her disadvantage. The hearing officer also found Respondent violated Prof.Cond.R. 8.4(a) by violating the Rules of Professional Conduct. Respondent claims that the hearing officer's findings of misconduct are erroneous because the Commission failed to meet its burden of proof and because the factual findings of the hearing officer are incomplete and do not support her legal conclusions.

Respondent contends that the Commission offered no evidence that the wife's claims against the estate were "substantially related" to Respondent's prior representation of her. He also claims the Commission failed to prove the interests of the estate and the wife were "materially adverse," stating that, in fact, his representation of the wife had nothing to do with her claims against the estate. The wife, he argues, ultimately received precisely what was provided for her in the client's estate plan and that, therefore, the position of the estate representatives and the wife were not materially adverse.

This Court has not had occasion to specifically define "substantially related matter" within the context of Prof.Cond.R. 1.9(a). However, in regard to serial representation by a lawyer, we have said the lawyer must be disqualified in a present action if the issues of a prior and present case are "essentially the same or are closely interwoven therewith." State v. Tippecanoe County Court (1982), Ind., 432 N.E.2d 1377. See also In re Zinman (1983), Ind., 450 N.E.2d 1000, 1002 (citing Tippecanoe County Court in finding violation of DR 5-105(C)); Shuttleworth v. State (1984), Ind.App., 469 N.E.2d 1210, 1217 (suggesting that "substantially related" in the context of ethical rules must be ascertained in regard to avoiding an "appearance of impropriety.") ⁵ The Comment to Rule 1.9 provides further guidance:

When a lawyer has been directly involved in a specific transaction, subsequent representation of other clients with materially adverse interests clearly is prohibited. On the other hand, a lawyer who recurrently handled a type of problem for a former client is not precluded from representing another client in a wholly distinct problem of that type even though the subsequent representation involves a position adverse to the prior client. The underlying question is...