Matter of Lowther

SEILER, Judge,

concurring in result.

I concur in the result, but do not agree that respondent should be disciplined with respect to Count I. In view of what Rie-bold said as to what he would do about conveying an additional two percent interest in event the directors did not get their money back in six months (as they did not — then or ever) and in light of the fact that they paid $50,000 per point for their 5% as against $33,000 paid per point by Founders (none of this is in dispute), I do not believe we can find or say with confidence that respondent used his position as attorney to obtain an additional interest as a condition precedent to Founder’s guarantee of the loan to Riebold. I do not believe the parol evidence rule requires that we close our eyes in this disciplinary action to the explanation offered by Riebold and respondent.

I would dismiss Count I.

However, as to Count II, the undisputed facts are that respondent held out, without the knowledge of the other partners (except as to John Miller), fees which belonged to the partnership. I do not doubt respondent’s word that he talked to John Miller about it, but not even John Miller, as senior partner, would have the right or authority to change the partnership agreement as to fees, without the knowledge of and at least the tacit, if not express, consent of the others. Respondent himself acknowledges as much when he testified that he assumed Miller would tell the others. It is apparent from the record that Miller did not so inform the others and equally apparent that respondent could not have helped but realize that the others were unaware of what he was doing. In my opinion this is not the way one partner should conduct himself with respect to partnership fees which come into his possession and I am further of the opinion that this falls short of the standards required of lawyers. I see no escape from this conclusion and therefore concur in the result reached in the per curiam.