Widmer v. Widmer, s. 85-290

• Decision Date: 24 March 1986
• Docket Number: Nos. 85-290,P83-272,s. 85-290
• Citation: 705 S.W.2d 878,288 Ark. 381
• Parties: Carl WIDMER, Appellant, v. Raymond F. WIDMER, Executor of the Estate of Walter Widmer, Deceased, Appellee.
• Court: Arkansas Supreme Court

Page 878

705 S.W.2d 878

288 Ark. 381

Carl WIDMER, Appellant, v. Raymond F. WIDMER, Executor of the Estate of Walter Widmer Deceased, Appellee.

Nos. 85-290, P83-272

Supreme Court of Arkansas.

March 24, 1986.

Rehearing Denied April 28, 1986.

Walters Law Firm, Greenwood, for appellant.

John T. Tuohey, Redwood City, Cal., for appellee.

HOLT, Chief Justice.

This appeal involves the right of an attorney who has not paid his Arkansas Supreme Court bar dues to collect fees for representation which occurred during his delinquent period. Our jurisdiction is pursuant to Sup.Ct.R. 29(1)(h) since the case concerns regulating the practice of law. We hold that the attorney may not collect his fee.

Raymond Widmer, son of the testator, Walter Widmer, and executor of his estate, employed John Tuohey as attorney for the estate. On April 15, 1985, executor Widmer, appellee, filed a First Accounting and Petition for Other Matters, seeking executor's and attorney's fees, and an order approving encumbrance of the real property of the estate to obtain funds to pay these fees and other obligations. Appellant, Carl Widmer, the brother of Raymond Widmer, filed a response, objecting that the accounting was not filed in proper form, claiming misuse of estate funds, and requesting the court to substitute him as executor and to pay minimal attorney's fees to Tuohey, since he was not a member in good standing of the Arkansas Bar.

A scheduled hearing was held on June 20, 1985, attended by Tuohey and appellee Raymond Widmer. Appellant and his counsel, Bill Walters, did not attend, although notice was given.

On August 7, 1985, the probate judge entered an order approving the First Accounting of Executor for a period from September 26, 1983 to February 14, 1985. He also awarded certain fees to the executor, together with reimbursement of out-of-pocket expenses and $20,000.00 in attorney's fees to Tuohey. In addition, the probate judge found there was no basis for removing the appellee as the designated executor. Appellant's objections to the qualifications and payment of Tuohey were denied inasmuch as Tuohey was a resident of Arkansas and duly licensed in this state until sometime after the commencement of the action, and he was in good standing as of June 3, 1985. In so ruling, the court stated it was cognizant of the Supreme Court Clerk's Certificate stating that Tuohey had not paid his Arkansas Supreme Court Bar dues in 1984 and 1985. However, the probate judge held there was no proof that these dues had not now been paid.

This finding ignores Rule X of Rules of the Court Regulating Professional Conduct of Attorneys which states in part:

ALL LICENSED ATTORNEYS-MEMBERS OF BAR

Every lawyer now licensed to practice and engage in the practice shall be a member of the Bar of this State, subject to these rules or those hereafter made.

SUSPENSION FOR FAILURE TO PAY FEE--NOTICE OF DELINQUENCY.

REINSTATEMENT--HOW.

Failure to pay the annual license fee herein provided shall automatically suspend such delinquent lawyer from the practice. Notice of delinquencies shall be given by the Clerk of this Court to the delinquent, and to the Judges of the Circuit and Chancery Courts of the District of the delinquent's residence, and a list of all delinquents shall be posted in the office of the Clerk of this Court. Where delinquency is for no more than three years reinstatement may be had by the payment of all such delinquent dues, and a penalty of $1.00. (Delinquency in a given year dates from March 2 of that year.) If...