Welke, Matter of
| Decision Date | 22 February 1984 |
| Docket Number | No. 1082,1082 |
| Parties | In the Matter of E. Frank WELKE. S 389. |
| Court | Indiana Supreme Court |
Mark W. Gray, Kightlinger, Young, Gray & De Trude, Indianapolis, for respondent.
Martha S. Hoover, Staff Atty., Indianapolis, for Indiana Supreme Court Disciplinary Com'n.
This proceeding was commenced by the filing of a Three-Count Verified Complaint by the Disciplinary Commission of this Court. At the time of filing the complaint, the Disciplinary Commission moved for suspension of the Respondent pending this Court's final determination. Pursuant to the Rules of this Court, a Hearing Officer was appointed, hearings on the temporary suspension and complaint were conducted, and a report was filed. On April 13, 1983, the Respondent was suspended pending the final determination of this Court relative to the complaint. 446 N.E.2d 1333. A stay of the Order of Suspension was denied on June 14, 1983. Respondent now petitions for review of the Hearing Officer's findings, requests an argument and alternatively moves that any order of suspension have retroactive application to the initial date of suspension. Both parties have submitted briefs. Respondent's request for oral argument is now denied.
In his petition for review, Respondent challenges the findings and conclusions of the Hearing Officer. These matters will be considered within the process of our review of this case. Such process includes an examination of the record presented, argument raised in the pleadings, and the Hearing Officer's tendered findings and conclusions. This Court is not obligated to accept the Hearing Officer's findings, although such matters are given due deference. See, In re Callahan, (1982)
Ind., 442 N.E.2d 1092; In re Murray, (1977) 266 Ind. 221, 362 N.E.2d 128, appeal dismissed, 434 U.S. 1029, 98 S.Ct. 758, 54 L.Ed.2d 777; In re Pawlowski, (1959) 240 Ind. 412, 165 N.E.2d 595.
Under Count I of the Verified Complaint filed in this cause, the Respondent is charged with failing to withdraw from professional employment after being discharged by his client, in violation of Disciplinary Rule 2-110(B)(4); recommending himself and requesting another to recommend his services, in violation of Disciplinary Rules 2-103(A) and (C); and charging a clearly excessive fee, in violation of Disciplinary Rules 2-106(A) and (B).
Upon review of all matters which have been submitted under this cause, this Court now finds that the Respondent is an attorney duly admitted to the practice of law in this State and, accordingly, is subject to this Court's disciplinary authority. Under Count I of the Verified Complaint filed in this cause, this Court now further finds that on January 26, 1980, Christine Spurgeon and her daughter were injured in an automobile accident; Mrs. Spurgeon made an appointment with an attorney to handle her accident claim. On February 16, 1980, Respondent's sister-in-law recommended Respondent to Spurgeon's sister; on February 17, 1980, Respondent's sister-in-law contacted Spurgeon and solicited a meeting between Spurgeon and Respondent; and on that same evening Respondent met with Spurgeon at her parents' home. Respondent was informed of a scheduled meeting between Spurgeon and another attorney the following day.
As a result of this conversation, Spurgeon employed Respondent to represent her interests under an oral contingency fee arrangement with a 25% attorney fee should the matter be settled prior to trial and a 33 1/3% attorney fee should the case go to trial. On September 11, 1980, Respondent filed a claim on behalf of Spurgeon in Howard County.
On September 30, 1981, Respondent advised Spurgeon of a settlement offer in the amount of $8,250.00. Spurgeon rejected the settlement, sought advice of another attorney and discharged the Respondent. Thereafter, Spurgeon went to the Respondent's office, demanded, unsuccessfully, the return of the file and asked for a statement of the fee owed. Respondent quoted a fee of one-third of the settlement offer. Respondent also refused to return Spurgeon's file and withdraw from the case after being requested to do so by Spurgeon's new attorney.
On October 30, 1981, Spurgeon's new attorney directed a subpoena to Respondent to gain the return of the file; Respondent moved to quash this subpoena and on December 1, 1981, offered to compromise his claim on the condition that Spurgeon withdraw her disciplinary grievance and that Peru Trust, another client of Spurgeon's new attorney, not execute under a separate judgment against this fee. On January 14, 1982, a court hearing was conducted and Spurgeon was directed to sign a personal surety in Respondent's favor in an amount not to exceed $2,500.00 to cover any outstanding fee. Thereafter, Respondent rejected the form of the surety tendered and upon further hearing the trial court ordered that any surety not be considered as a lien. On February 5, 1982, the file was returned and on April 8, 1982, Respondent filed a lawsuit against Spurgeon and her attorney over the fee.
It is not improper for an attorney to volunteer legal advice if motivated by a desire to protect a person who is not aware of his legal rights or obligations. However, this does not appear to be the circumstance in the present case. Respondent's relative initiated the contact with Spurgeon and solicited a meeting with Respondent. Respondent may not have participated in the initial contact, but he readily acquiesced in his relative's acts. Furthermore, Respondent persisted in his communication with Spurgeon even though a meeting between Spurgeon and another attorney was scheduled for the very next
day. This conduct is clearly violative of Disciplinary Rules 2-103(A) and (C). Additionally, we further find under the facts set forth in this count that Respondent violated Disciplinary Rule 2-110(B)(4) by failing to withdraw from professional employment after being discharged by a client. There is insufficient evidence to find under a clear and convincing standard that the Respondent charged a clearly excessive fee.
The Respondent is charged under Count II of the Verified Complaint with engaging in conduct involving dishonesty, fraud, deceit or misrepresentation, conduct prejudicial to the administration of justice and conduct which adversely reflects on his fitness to practice law, in violation, respectively, of Disciplinary Rules 1-102(A)(4)(5) and (6) of the Code of Professional Responsibility for Attorneys at Law; with failing to withdraw from employment when it is obvious that continued employment will result in a violation of a Disciplinary Rule, in violation of Disciplinary Rule 2-110(B)(2); with accepting professional employment in a matter where the exercise of professional judgment on behalf of a client might reasonably be affected by Respondent's own financial, business, property, or personal interests, in violation of Disciplinary Rule 5-101(A); with entering into a business transaction with a client having differing interests when such client expects his attorney to exercise his professional judgment for the protection of such client, without full disclosure and consent, in violation of Disciplinary Rule 5-104(A); with failing to decline proffered employment and continuing employment in a situation where his independent professional judgment in behalf of a client is likely to be adversely affected by the acceptance of the proffered employment or the interests of another client and failing to make a disclosure of such conflict, in violation of Disciplinary Rules 5-105(A) and (B); and with making an aggregate settlement of claims against multiple clients without consent of such clients, in violation of Disciplinary Rule 5-106(A).
Upon review of the matters submitted in this cause, this Court now finds that in 1975 the Respondent represented Dr. Diego Reyes, as guardian for his son who was injured in a school accident; Dr. Reyes recovered damages on behalf of his son. Dr. Reyes, a Filipino, possessed an impressive financial statement but was decidedly lacking in business acumen. In November 1978, the Respondent and Reyes, along with Russell Rostron, formed a corporation named "Terre-Reale Development Corporation". Respondent prepared the corporate papers for the real property development business. All three parties signed promissory notes in order to capitalize Terre-Reale.
One promissory note executed...
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Carmany, Matter of
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