Wilson, In re
| Decision Date | 09 June 1970 |
| Docket Number | No. 9536,9536 |
| Citation | 470 P.2d 441,106 Ariz. 34 |
| Parties | In the matter of W. Francis WILSON, a Member of the State Bar of Arizona, Respondent. |
| Court | Arizona Supreme Court |
Evans, Kitchel & Jenckes, by Jos S. Jenckes, Jr., Phoenix, for respondent.
O'Connor, Cavanagh, Anderson, Westover, Killingsworth & Beshears by Ralph E. Hunsaker, Phoenix, for State Bar of Arizona.
Formal charges were filed by the Board of Governors against W. Francis Wilson--hereinafter referred to as Respondent--alleging that he had violated the Canons of Professional Ethics of an attorney at law, including Canons 11 and 22; also that he had violated Sec. 32--267, A.R.S.
Consideration of the questions involved by both the Bar and this Court are complicated by the unique situation which developed during and after the hearings on this matter by the Board of Governors and before final presentation to this Court. The charges grew out of the handling of the cases of two of Respondent's clients, Elizabeth Bates Counter and Gladys Porter; but both retracted their original expressions of dissatisfaction with the manner their respective cases were handled by Respondent. However, the original complaints against Respondent, as set forth in the record furnished this Court by the Bar Association, involved ten complaints by Joe Weber, a former business associate of Respondent, eight of which related to the handling of business transactions between himself and Respondent and statements made by Respondent in regard to their business transactions and lawsuits Both clients not only retracted their expressions of dissatisfaction, stating that their previous representations had grown out of a misunderstanding, but also expressed satisfaction with the manner in which the Respondent had handled their respective cases.
and in regard to Respondent's own divorce case. The other two involved Weber's part in the handling of the Counter and Porter matters. The Bar Association recommendations were confined to Respondent's handling of the Counter and Porter matters. Weber's testimony was accordingly confined to the handling of these matters.
Since the other clients, Counter and Porter, have in effect withdrawn their previous expressions of dissatisfaction with the Respondent's handling of their cases, Weber remains the only complainant who contends that the cases were improperly handled. This will be discussed more in detail under the respective counts. The Bar Association did not have the benefit of the letter and affidavit by Mrs. Counter expressing satisfaction with Respondent's handling of her case, and requesting that the Bar Association's recommendation be withdrawn. These were received after its recommendation had been submitted.
We have held that this Court is a trier of the ultimate facts. In re Rogers, 100 Ariz. 214, 412 P.2d 710; In re Tribble, 94 Ariz. 129, 382 P.2d 237. We have also recognized that the recommendations of the Board of Governors of the State Bar Association are entitled to serious consideration. In re Rogers, supra; In re Tribble, supra; In re MacDonald, 56 Ariz. 120, 105 P.2d 1114. This Court, in determining whether the facts justify disbarment, has also held that while disbarment proceedings are not, strictly speaking, criminal in nature they are quasi so. While the allegations that a number of the Bar is guilty of unprofessional practice does not have to be proven beyond a reasonable doubt, the evidence must be clear and convincing to justify the imposition of such a penalty. In re Lewkowitz, 70 Ariz. 325, 220 P.2d 229; In re Sweeney, 51 Ariz. 9, 73 P.2d 1349; In re Myrland, 43 Ariz. 126, 29 P.2d 483.
The question then is whether under this test it is proven by clear and convincing evidence that the Respondent is guilty of unprofessional conduct. In the instant case, the Board of Governors of the State Bar Association based its recommendations on allegations set forth in two counts.
The Respondent was employed as an attorney prior to 1959 by Elizabeth Bates Counter for the purpose of representing her in the claim against Greyhound Bus Lines. The Respondent and Dick Wilson, not a party to these proceedings, secured a settlement of Mrs. Counter's claim against Greyhound Bus Lines in the sum of $32,500. The Board of Governors contends that the money was paid to Wilson in trust for Mrs. Counter and was thereafter comingled with the Respondent's own assets and funds. It also contends:
The Respondent's story in regard to these allegations is that he made the settlement on the personal-injury case against Greyhound in the sum of $32,500, and that after he deducted attorney's fees and costs there was left a balance of $21,564.97 belonging to Mrs. Counter--that Mrs. Counter and his family were life-long friends. He and Richard Wilson both advised her she was liable to lose the money because of a personal problem. Her husband had died shortly after the accident, and she 'I don't have any at this moment, but I have some in a client's fund that I can't take, but I can loan it to you and you use it in the business and I will pay it back.'
was keeping company with another man whom she later married, and because of the situation that existed she agreed that the Respondent would keep the money and pay it out to her at the rate of $250 per month--that there were no strings attached to the manner in which he was to handle the money, and that he would have unrestricted use of the funds and the right to invest them. Thereafter he did lend $6,500 of the money to Joe Weber with whom he had business dealings. The evidence shows that Joe Weber testified that the Respondent, upon giving him the $6,500 in response to Weber's request for money, said:
The investigator for the Bar Association recommended that:
'The determination of the dispute between Wilson and Weber as to the circumstances and purposes for the loan from Counter's funds might appropriately be deferred until termination of the current litigation concerning this question.'
The court in that litigation found against the accuracy of Weber's version of this transaction, and rendered judgment against Weber. This, in line with the recommendation, eliminates the charge of Joe Weber in regard to the loan.
The question of whether the Respondent violated the code of ethics in handling the money in the Counter matter depends largly upon whether he was handling the money under a debtor-creditor relationship, or as a trustee for Mrs. Counter. This must be determined by the facts as presented. The testimony of both the Respondent and Richard Wilson was that the relationship was that of debtor and creditor. Respondent testified:
'Q Then is it fair to say that what you are describing is not a trustee-beneficiary relationship, but a debtor-creditor relationship between Mrs. Bates and yourself?
'A Yes.
'Q And you then simply were indebted to her for that portion of her share of the settlement which had not previously been expended to her from her account at any moment in time.
'A Yes.
'Q Together with any earnings which might be derived from those funds if they had been placed at interest?
'A True. That's right.
'And Richard and I talked to her on several occasions saying, 'You are going to lose your money.' And she said she was aware of it. And within a few days, why, we ended up with an agreement that I would take care of the money as I saw fit. Specifically, I think that we discussed loaning it to Weber and somebody else that I can't think of and we did not loan it to. And that I was supposed to do with the money as--as I saw fit and make it go as long as possible.
'We especially were stressing it with her that she did not have enough money to last her but a few years.'
Richard Wilson testified:
* * *'
The money was lent to Joe Weber, which required a lawsuit to collect. There was collected from Weber $9,663.83, which included interest and attorney's fees. The testimony of the Respondent was that Mrs. Counter had left the State, and that he Paid out to or for the account of Elizabeth
did not have her address until a letter came to him from Hawaii. He also states there was a complete settlement between himself and Mrs. Counter at the time that he received the sum of $32,500. After deducting the attorney's fees and costs it left a balance of $21,564.97 belonging to Mrs. Counter, and had she wanted the money she could have had it. He would have been guilty of a violation of Canon 11 and § 32--267, %.A.r.s/, had he refused to deliver the money, but, instead, the agreement was worked out which changed the relationship to that of debtor and creditor. There was a complete accounting to Mrs. Counter after the collection of the money from Joe Weber. The accounting filed by Respondent shows:
Counter $25,648.35
Recovery--Bates v. Greyhound $32,500.00
Attorney fees and costs 10,955.97
Recovery--Bates v. Weber 9,663.83
Attorney fees to H.
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