State v. Horan
| Decision Date | 01 October 1963 |
| Citation | 21 Wis.2d 66,123 N.W.2d 488 |
| Parties | , 98 A.L.R.2d 1227 STATE of Wisconsin, Plaintiff, v. James F. HORAN, Defendant. |
| Court | Wisconsin Supreme Court |
Rudolph P. Regez, Monroe, for plaintiff.
Callahan & Arnold, Columbus, for defendant.
Mr. Horan, a bachelor 46 years old, has practiced law in Friendship, Wisconsin, for over 20 years. He also has served as postmaster at Friendship since 1941 excepting for a period of approximately three and one-half years during which he was in military service as a special agent with the Intelligence Corp of the Army. He enjoys a good reputation in his community and was a close friend and advisor of Wellington B. Barnes, a widower, who died on October 11, 1959, at the age of 87 leaving an estate of approximately $265,000. Upon Barnes' death, the only heir at law was Myrtle Marks, a first cousin of the half-blood. He also left a relative Elizabeth Hover, a first cousin once removed. After Mrs. Barnes' death and between April 28, 1955, and November 29, 1958, Horan drew six wills for Barnes and a codicil on February 14, 1959. The general scheme of the wills provided specific bequests and a proportion of the residuary estate to various friends and to Myrtle Marks, Elizabeth Hover and Horan. The first will contained a bequest to Mr. Horan of $12,633 and a proportional share of the residuary estate. In each succeeding will, as other beneficiaries were eliminated or their share cut down, the specific bequest or the share of the residuary estate to Horan was increased until in the last and sixth will the bequest amounted to $46,500 and one-thirteenth of the residue. In the last four wills an in terrorem clause was inserted because of the concern of the testator about a threatened will contest by Myrtle Marks who had stated on several occasions that it made no difference what the will provided she was an heir and intended to get her money anyway. Horan advised the testator such a clause was against public policy but the testator insisted it be inserted in the wills. No claim is made the testator was incompetent or the defendant used undue influence in procuring the financial benefit to himself under the will.
After the decision in the Estate of Barnes, supra, which held the sixth will should not be admitted to probate on the ground of lack of proof the testator knew the contents thereof, he not having read it or having had it read to him, the fifth will dated May 7, 1958, was propounded for probate and objections were filed. Subsequently a stipulation was entered into whereby the objections to the will and the claims against the estate by Elizabeth Hover and Myrtle Marks and others were withdrawn upon certain payments to be made. The stipulation was approved by the court and the will was admitted to probate. As a result, Horan's legacy and residuary share totaled $38,817.22 and at least one claimant received a substantial payment although not a beneficiary under the fifth will.
Posed for consideration is the specific question of whether Mr. Horan's conduct subjects him to any disciplinary action and a broader question of whether an attorney under any circumstances may draft and supervise the execution of a will for his client wherein he is named a substantial beneficiary without violating the rules of professional conduct. No claim is made Horan exercised any undue influence in drafting the wills in which he became a substantial beneficiary. If he did, his conduct would involve moral turpitude and would demand that this court impose more severe discipline than it does in this case. An attorney who by undue influence or fraud or overreaching obtains a gift or a benefit from a client in a will or by an inter vivos transaction is guilty of an act involving moral turpitude. Magee v. State Bar of California (1962), 58 Cal.2d 423, 24 Cal. Rptr. 839, 374 P.2d 807; Lantz v. The State Bar (1931), 212 Cal. 213, 298 P. 497. 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. In re Stolen (1927), 193 Wis. 602, 214 N.W. 379, 216 N.W. 127, 55 A.L.R. 1355. '[T]he profession of the law, in its nature the noblest and most beneficial to mankind, is in its abuse and abasement the most sordid and pernicious.' Lord Bolingbroke, as quoted in People ex rel. Bulkley v. Salomon (1900), 184 Ill. 490, 501, 56 N.E. 815, 818.
Many lawyers in their practice have been confronted with the situation of drawing a will for a friend or a relative who wishes to make a bequest to him or to a member of his family. Perhaps sufficient consideration of the problem involved has not been given by lawyers or by the bar. The recurrence of the problem in the practice does not dull its serious dangers. The conflict of interests, the incompetency of an attorney-beneficiary to testify because of a transaction with the deceased (sec 325.16, Stats.), the possible jeopardy of the will if its admission to probate is contested, the possible harm done to other beneficiaries and the undermining of the public trust and confidence in the integrity of the legal profession, are only some of the dangers which a lawyer must consider.
The Canons of Professional Ethics, which may be considered as broad but not all inclusive standards, do not expressly mention the drafting of wills. Canon 6 makes it unprofessional conduct 'to represent conflicting interests, except by the express consent of all concerned given after a full disclosure of the facts.' 1 Canon 11 requires '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.' 2 What little authority there is on the subject seems to be in conflict. One interpretation of the Canons goes no further than to state 'the lawyer should consider having the testator submit the will [in which the attorney is the beneficiary] to another lawyer prior to its execution.' 3 Orkin apparently does not consider an attorney is under any duty to see that his client has independent advice although it may be expedient to take such precaution. 4 Drinker, 5 a well-known authority, views the propriety of a lawyer inserting in a will a legacy to himself as depending upon surrounding circumstances. He suggests on p. 94 of his book if the circumstances 'are such that a lawyer might reasonably be accused of using undue influence, he will be wise to have the provision inserted in a codicil drawn by another lawyer.' However, when 'a testator is entirely competent and the relation has been a longstanding one, and where the suggestion originates with the testator, there is no necessity of having another lawyer in the case of a reasonable legacy.'
We cannot approve these views in their totality as they do not sufficiently consider the effects such beneficiary's participation in the making of the will has in light of conflict of interests, the incompetency of the attorney-beneficiary to testify, or the effect on the integrity of the bar in the eyes of the public. Somewhat opposed to these authorities is the view that where a testator wishes to make his attorney or a member of his immediate family a...
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