Appendix — Briggs v. Indiana Supreme Court Disciplinary Commission
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Supreme Court, 0S,
FILED
86 1976 Jun 12 we
‘
7 JOSEPH F. SPANIOL, JRe
| CLERK
haem
No.
IN THE SUPREME COURT OF THE UNITED STATES
October Term, 1987
IN THE MATTER OF
WILLIAM J. BRIGGS, PETITIONER
PETITION FOR WRIT OF CERTIORARI TO THE
SUPREME COURT OF THE STATE OF INDIANA
APPEND IX
WILLIAM J. BRIGGS
P.O. Box 2
Flora, IN 46929
(219) 967-3630
Pro Se
EDITOR'S NOTE
THE FOLLOWING PAGES WERE POOR HARD COPY
AT THE TIME OF FILMING, Ik AND WHEN A
BETTER COPY CAN BELOBTAINED, A NEW FICUE
WILT BE ISSUED,
No.
IN THE SUPREME COURT OF THE UNITED STATES
y October Term, 1987
IN THE MATTER OF
WILLIAM J. BRIGGS, PETITIONER
PETITION FOR WRIT OF CERTIORARI TO THE
SUPREME COURT OF THE STATE OF INDIANA
APPENDIX
WILLIAM J. BRIGGS
P.O. Box 2
Flora, IN 46929
(219) 967-3630
Pro Se
Appendix A Constitution,Court Rules
and American Bar Ass'n Canons.......... A-1
Appendix B Judgment of Indiana Supreme
Court dated January 13, 1987........... B-1
Appendix C Hearing Officer's Report....C-1
Appendix D Petition for Review......... D-1
ESO ee ee ee eee ee eee E-1
Petition for temporary stay............ E-1
Order denying petition for temporary
Dee e cee ce ewe es be eee e ces eb eecoeces E-9
Petition for modification of Court's
Dia coe kb bw ss ce cece ececesece E-11
Order denying Respondent's petition
ee ee eee E-16
EE ee eae rae F-1
Pleading -- Presentation of Constitu-
tional Issues and Errors - Petition
for Hearing, Oral Argument, and Order
acm wes ecsceccces F-1
Appendix G Motion for Separation
of Causes........ Cet b wee eee be eeeccs ch « eG]
CONSTITUTIONAL AND STATUTORY
PROVISIONS INVOLVED
The following Amendments to the
United States Constitution provide:
lst
5th
Amendment
a.
"RELIGIOUS AND POLITICAL
FREEDOM.---Congress shall make no
law respecting an establishment of
religion, or rohibiting the free
exercise thereof; or abridging the
freedom of speech, or of the press,
or the right of the people peaceably
to assemble, and to petition the
government for a redress of
grievances."
Amendment
"Criminal actions---Provisions
concerning---Due process of law and
just compensation clauses.---No
person shall be helf to answer for a
capital, or otherwise infamous
crime, unless on a presentment or
indictment by a grand jury, except
in cases arising in the land or
naval forces, or in the militia,
when in actual service in time of
war or public danger; nor shall any
person be subject for the same
offense to be twice put in jeopardy
of 3ife@ oc iigb:; . aoe sehaii=™ Be
compelled in any criminal case to be
a witness against himself; nor be
deprived of life, liberty, or
property, without due process of
law; nor shall private property be
taken for public use, without just
compensation.
Appendix A
6th Amendment
"RIGHTS OF THE ACCUSED.---In all
criminal prosecutions, the accused
shall enjoy the right to a speedy
and public trial: by an impartial
jury of the state and district
wherein the crime shall have been
committed, which district shall have
been previously ascertained by law,
and to be informed of the nature and
cause of the accusation; to be
confronted with the witnesses
against him; to have compulsory
process for obtaining witnesses in
his favor, and to have the
assistance of counsel for his
defense."
8th Amendment
BAIL -- PUNISHMENT --Excessive bail
shall not be required, nor excessive
fines imposed, nor cruel and unusual
punishment inflicted.
14th Amendment
Citizenship---Due process of
law---Equal protection.---All
persons born or naturalized in the
United States, and subject to the
jurisdiction thereof, are citizens
of the United States and of the
state wherein they reside. No state
shall make or enforce any law which
shall abridge the privileges or
immunities of citizens of the United
States; nor shall any state deprive
any person of life, liberty, or
property, without due process of
law; nor deny to any person within
its jurisdiction the equal
protection of the laws.
|
Indiana Constitution
Article 7 Sec. 4
Jurisdiction of Supreme Court.---The
Supreme Court shall have no original
jurisdiction except in admission to
the practice of law; discipline or
disbarment of those admitted; the
unauthorized practice of law;
discipline, removal and retirement
of justices and judges; supervision
of the exerci of jurisdiction by
the other cour of the State; and
issuance of writs necessary or
appropriate in aid of its
jurisdiction. The Supreme Court
shall exercise appellate
jurisdiction under such terms and
conditions as specified by rules
except that appeals from a judgment
imposing a sentence of death, life
imprisonment or imprisonment for a
term greater than ten years shall be
taken directly to the Supreme Court.
The Supreme Court shall have, in all
appeals of criminal cases, the power
to review all questions of law and
to review and revise the sentence
imposed. —
Indiana Rules for Admission and Discipline
(provide in part):
Ind. R.A.D. 23, Sec. 13
In addition to the powers and duties
set forth in. the rule, hearing
officers shall have the power and
duty to:
(a) Conduct a hearing on a complaint
of misconduct within sixty (60) days
after the hearing officer is
appointed and has qualified;
(b) Administer oaths to witnesses
Ind.
Ind.
(c) Receive evidence and make
written findings of fact and
recommendations to the court; and
(d) Do all things necessary and
proper to carry out their
responsibilities under this rule.
R.A.D. 23, Sec. 14(a)
(a) The rules of pleading and
practice in civil cases shall not
apply. No motion to dismiss or
dilatory motions shall be
entertained. The case mall be
heard on the complaint and &An answer
which may be filed by the
respondent within thirty (30) days
after notice of the filing of the
complaint. . (balance of (a)
omitted).
R.A.D. 23, Sec. 14 (e) (£)
(e) The proceedings may be summary
in form and shall be without tne
intervention of a jury and shall be
reported.
(f£) Within thirty (30) days after
the conclusion of the hearing, the
hearing officers shall determine
whether misconduct has been proven
by a preponderance of the evidence
and shall submit to the Supreme
Court written findings of fact.
Recommendations concerning the
disposition of the case may be made
by the hearing officer in
discretion. A copy of said findings
and any recommendations shall be
served by the hearing officer on the
respondent and the executive
secretary of the disciplinary
commission at the time of filing
same with the Supreme Court.
mmm a = = = a ame me HE EF FF me
Ind. R.A.D. 23, Sec. 15 (a) (b)
(a) The respondent or Commission
shall have thirty (30) days aftem
the filing of the hearing officer's
finding and recommendation to
petition for a review of the same
before the Supreme Court. se neo
petition for review is filed within
thirty (30) days of the finding and
recommendation of the hearing
officer of the Supreme Court shall
enter judgment or such other
appropriate order in the premises.
(b) Upon receipt of written
recommendation for suspension,
pending final determination of the
cause, this court may forthwith
enter an order of suspension
thereon. Respondent shall have
fifteen (15) days thereafter to
petition this court for a review and
a dissolution of such order.
Canons of Professional Ethics of the
American Bar Association
Canon 6 Adverse Influences and Conflicting
Interests
It is the duty of a lawyer at the time
of retainer to disclose to the client all
the circumstances of his relations to the
parties, and any interest in or connection
with the controversy, which might influence
the client in the selection of counsel.
It is unprofessional to represent
conflicting interestrs, except by express
consent of all concerned given after a full
Gisclosure of the _ facts. Within the
meaning of this canon, a lawyer represents
conflicting interests when, in behalf of
one client, it is his duty to contend for
that which duty to another client requires
him to oppose.
The obligation to represent the client
with undivided fidelity and not to divulge
his secrets or confidences forbids also the
subsequent acceptance of retainers or
employment from others in matters adversely
affecting any interest of the client with
respect to which confidence has_ been
reposed.
Canon 37 Confidence of a Client
It is the duty of a lawyer to preserve
his client's confidences. This duty
outlasts the lawyer's employment, and
extends as well to his employees, and
neither of them should accept employment
which involves or may involved the
disclosure or use of these confidences,
either for the private advantages of the
lawyer or his employees, or to the
ad
fe”
em ee He He Ee He Ee He SS FH SF He Se = =
disadvantage of the client, without his
knowledge and consent, and even though
there are other available sources of such
information. A lawyer should not continue
employment when he discovers that this
obligation prevents the performance of his
full duty to his former or to his new
client.
If a lawyer is accused by his client, he
is not precluded from disclosing the truth
in respect to the accusation. The
announced intention of a client to commit a
crime is not included within the
confidences which is bound to respect. He
may properly make such disclosures as may
be necessary to prevent the act or protect
those against whom it is threatened.
Filed 1/13/87
IN THE
SUPREME COURT OF INDIANA
IN THE MATTER OF
Cause No. 1078 S 235
WILLIAM BRIGGS
DISCIPLINARY ACTION
Per Curiam
This Disciplinary cause is before
us on a verified amended complaint charging
tre Respondent with misconduct arising out
of his association with an elderly client.
This is a companion case to In re Florence
Ann Briggs which involves Respondent's
spouse and law associate. After a joint
hearing, the Hearing Officer he submitted
two separate, excellently presented, reports
in each case. Both Respondent and the
Commission have petitioned for review of the
ultimate findings of fact and conclusions of
Appendix B B-1
law in this case, but the underlying
findings of fact as submitted by the Hearing
Officer remain, for the most part,
unchallenged.
We have reviewed the Hearing
Officer's report and all other matters
submitted in this cause and now find that
the Respondent is a member of the Bar of
this state and is, thereby, subject to this
Court's jurisdiction. He maintains an
office for the practice of law in Carroll
County with his spouse, Florence Anne
>
Briggs. Though never under aé_e formal
agreement, the Respondent and his spouse
held themselves out to the public as a law
partnership operating as Briggs and Briggs.
During the mid 1960's, the
Respondent began representing Kate Smoker
in a variety of legal matters. Kate Smoker
was an elderly childless widow with an
estate consisting approximately of a 292
acre farm and $150,000 cash. With the
B-2
exception of a few small fees, the
Respondent did not charge her for his
services, and she did not pay him. The two
had discussed some sort of a lifetime fee
arrangement whereby the Respondent would
perform legal services until her death for
the sum of $10,000. In 1967 she first
mentioned that she wanted the lifetime
payment arrangement with the Respondent and,
by 1970, there was an understanding that the
Respondent would receive $10,000 out of Mrs.
Smoker's estate.
The Respondent prepared several
wills for Kate Smoker while he represented
her. The first will was drafted in 1967
while she was hospitalized; therein the
Respondent was left a legacy of $1,000. In
1968, he prepared another will and again the
Respondent was to receive a legacy of
$1,000. The Respondent was named coexecutor
and both he and Florence Anne Briggs were
named to serve as attorneys for the estate
B-3
and for an educational trust created under
the residuary clause of the will. The trust
was to provide college scholarship grants to
residents of Burlington Township who
maintain é~ C-plus average for their college
years. This trust provision was part of the
earlier wills, however, in this will, Mrs.
Smoker directed that an additional clause be
added naming Winston Briggs, Respondent's
son, the first recipient of the trust. The
trust was to accumulate income until Winston
Briggs started college and was to be payable
to him regardless of his residence or grade
average through both undergraduate and
professional or graduate school. A 1970
will drafted by the Respondent again
retained the legacy to the Respondent and
the trust provisions for Winston. Florence
Anne Briggs was named co-executrix, and the
trust was modified to provide for three
years of accumulation after it was formed,
except for payments to Winston, and a
B-4
— —_
special clause to reimburse him for the cost
of tuition, books and living expense for his
school years.
The creation of the trust was
entirely Kate Smoker's idea, which’ she
specifically affirmed by executing a
holographic statement contemporaneously with
the execution of the 1970 Will. Mrs.
Smoiker's closest relative was an elderly
first cousin; she had no other natural
object of her bounty. However, at no time
prior to the execution of Smoker's 1970 Will
did the Respondent suggest to hér_ the
possibility of conflict or that she should
obtain independent legal advice as to her
will.
In the fall of 1976 Mrs. Smoker's
health began to fail and she was
hospitalized. During this time she and
Respondent discussed arrangements for paying
the Respondent a $10,000. fee. Mrs. Smoker
desired to bequeath this amount through her
B-5
will, and the Respondent advised her to
consult another attorney. They also
discussed the method which was eventually
used, a certificate of deposit. On November
8, 1976, Mrs. Smoker called the Respondent
to suggest -three items of business’~ she
wanted to conduct: (a) modify her will
with a codicil, (b) ominate the
Respondent as her guardian should a
guardianship become necessary, and (c) to
finalize theS$10,000 arrangement for a joint
certificate of deposit. -On November 9,
1976, Respondent went to Kate Smoker's home
with his two secretaries. Present were
Smoker's friend, John Johnson and a local
banker, Earl Rodkey. Mrs. Smoker executed
a $9,000 joint certificate issued to herself
and the Respondent which, together with the
$1,000 legacy, was to be compensation for
past and future services. The Certificate
was to be held by Johnson. On the same date
Mrs. Smoker also nominated the Respondent as
B-6
her guardian, should one become necessary.
That same afternoon Mrs. Smoker visited her
doctor, Dr. Wagoner, who opined that, at
such time, she was not competent to manage
her affairs because of advanced senility.
Thereafter, Mrs. Smoker's health
deteriorated rapidly and, on November 13,
1976, she was admitted to a hospital. g
was clear that she could no longer manage
her own affairs, and, on November 24, 1976,
the Respondent was appointed temporary
conservator by the Carroll Circuit Court.
As such, the Respondent became involved in
the Smoker farm operation and the renewal of
tenant leases. Mrs. Smoker had normally
operated her farms on a crop-sharing basis.
The Respondent, however, in anticipation of
the need for cash for enin a widens and
nursing costs, changed the practice to cash
rentals. On December 13, 1976, Mrs. Smoker
s
was discharged again and her doctor advised
che Respondent that her condition was
B-7
irreversible and that she would permanently
require custodial care. Mrs. Smoker, howev-
er, made a remarkable recovery, and, after
an examination on January 1l, 1977, her
doctor found her mental impairment to be
minimal and her medical and mental problems
to be in remission.
It was during this time that she
became aware of the guardianship and
questioned Mr. Rodkey as to the joint
certificate of deposit, professing no
recollection about making it. Notwithstand-
ing the recovery, on January 13, 1977, the
guardianship was made permanent. The
doctor continued to opine that she was
incompetent because her recovery was tempor-
ary.
During the next month the
long-standing relationship between the Re-
spondent and Smoker deteriorated. In late
January or early February, 1977, Smoker went
to Respondent's office to Obtain her lock
B-8
box key. The respondent correctly refused
to give it to her, but made a statement to
the effect of “you don't like authority, do
you." This greatly agitated Smoker who
perceived this as a calculated act intended
to degrade her. Sometime during this period
the Respoondent offered to resign as
guardian, but Smoker was reluctant to have
the bank assume that role and declined his
offer.
Mrs. Smoker, with the assistance
of a friend, Bobby Ritchey, contacted
another attorney, Adrian Marks, to discuss
the termination of her guardianship. As
arranged by Marks, two physicians examined
her; both believed her to be competent to
manage her affairs, though one found her to
be in the early stages of senility. After
Mrs. Smoker informed the Respondent that she
had contacted Adrian Marks, and after some
unfriendly interchanges between the
Respondent and Marks and the Respondent and
B-9
Bobby Ritchey, the Respondent, on February
12, submitted two petitions to Judge Jeffrey
R. Smith, Judge Pro Tem of the Carroll
Circuit Court. The Respondent (1) requested
that certain persons, particularly Bobby
Ritchey, be restrained from interference
with Respondent's relationship with his ward
and (2) objected to the filing of any
pleadings allegedly signed or authorized by
the ward and (3) sought a protective order
against his production of any documents.
On February 13, Kate Smoker
directed Attorney Marks to proceed and, on
February 14, he filed a Petition to Remove
the Conservator and Appoint a Successor
Conservator... A hearing on the petition was
scheduled for February 18th. Sometime
between February 14th and 19th, the
Respondent had a telephone conversation with
Kate Smoker during which he read to her a
bizarre fish story. It was as follows:
"He would introduce his
bills in committee and B-10
|
the chairman would
always thank him. They
were always very
courteous. They'd say
something like "we'll
be glad to give this
bill due consideration"
and of course, before
the session was over,
they'd have chopped
everyone to ribbons and
finally one day when
someone told him that
his bill would get due
consideration, he let
all of his frustrations
out. He reared up,
eyes flashing and stuck
out his finger and
said, “Yes, Mr. Chair-
man, I know the
consideration you'll
give this bill. cs
the consideration of
the fisherman for the
shad, Mr. Chairman," he
said. "When the
fisherman catches’ the
shad and brings it into
the boat the poor fish
flips and flops’ and
tries to escape and the
fisherman speaks so po-
litely to the shad. He
says, "Lie stili,
little shad, I am not
going to hurt you. I
am going to treat you
well. I'm not going to
do a thing more to you
except cut your. head °
off. And after that
I'm not going to do a
thing to you except cut
————>—O°—FVVOOOOO
all your bones out."
And he pounded on the
committee table and
said, “That's the con-
sideration I expect
from you, Mr. Chairman,
the shad treatment, Mr.
Chairman . . . .- the
shad treatment and I
may have to take it,
but I will fry in hell
before I say thank
you."
Kate Smoker took the point of the story to
be that, on her death, her estate will be
carved up. This particular incident
occurred during a time of great stress for
Mrs. Smoker and was calculated to cause her
further stress and discomfort.
After some deliberation, the Re-
spondent himself filed a Petition to Termin-
ate the Conservatorship. In the meantime,
Mrs. Smoker had, on February 23, 1977,
executed a new will drafted by Attorney
Marks. It did not provide for an
educational trust. She madea modest bequest
of farm land to Bobby Ritchey and left resi-
due equally divided between a trust for the
B-12
Burlington Methodist Church and the
Burlington Cemetery.
After filing of the Petition to
Discharge and Remove by Attorney Marks and
the Petition to Terminate by Respondent, the
Respondent began delaying and _ resisting
action on these petitions. On February 23,
Attorney Marks by letter, agreed to respond-
ent's Petition to Terminate and suggested a
form decree which would end the
conservatorship as asked for by the
Respondent. The Respondent failed to
answer. Further discussion also resulted in
Respondent refusing to agree to the grating
of his own petition. Between March 9 and 15
three physicians filed their written reports
with the Court in which each of them
affirmed that Kate Smoker was of sound mind
and capable to manage her own affairs. On
April 12, failing to get an agreed entry
from the Respondent on his own Petition to
Terminate, her attorneys filed a reply which
B-13
admitted his allegations that the
paedinaate should be terminated. On April
19, Smoker's attorneys also filed a Motion
for Summary Judgment contending that the
pleadings showed that the parties and all of
the physicians were in agreement as to
Smoker's competence. The Court took
judicial notice of the doctor's reports,
finding that they need not be called as
witness and limited the issues for hearing.
On May 11, the date of the
scheduled hearing, the Respondent filed his
"Objection to Court Order" objecting to the
foregoing limitations and objecting to the
doctor's reports. On the same day he also
filed a response to the Motion for Summary
Judgment objecting to the granting of his
own Petition to Terminate without a hearing
on Smoker's Petition to Remove because the
latter petition, he claimed, "has cast doubt
on the character of William Briggs by
innuendo." The hearing was again continued,
B-14
this time to May 26, to allow Dr. Wagoner,
who was then unavailable, to testify in
person. During the time after the filing of
the Petition to Remove and the ultimate
return of her property, Kate Smoker was in a
state of strain and emotional distress as a
direct result of Respondent's continued
control of her property and her inability to
alter this.
On May 26, the Court entered its
termination order. Immediately after,
Smoker executed a codicil to her 1977 Will
reaffirming its terms. The order of
termination provided that Rate Saoket Cagis
take over her business affairs immediately, °
the Respondent was to file his final report
within two weeks, $2,000 was to be
transferred to Smoker for her immediate use,
and that her, will, tax papers, and all other
papers be available to her at the time the
final report was submitted. Even at this
stage, there were causes of further
friction. The $2,000 was made available
B-15
ee as :
s
before June 15, but the Respondent gave it
no priority: mumerous business’ records,
including checking account records were not
timely delivered. The Respondent took no
special steps to return the lock box key
though it was delivered on Aucust 2, 1977.
The Respondent objected to b eing
required to file his claim as conservator
and attorney claiming the lifetime fee
contract with Smoker. Upon the overruling
of his objections, he filed a claim for
$1;7,585 for administering the guardianship
from November 24, 1976 to May 25, 1977, a
total of 6 months and 2 days. Though his
prayers for relief were in the alternative,
Respondent's ultimate goal was to assure the
payment of the $10,000 lifetime contract.
It was during these lengthy termination
proceedings that the Respondent became aware
that Smoker and her attorneys had filed a
grievance with the Disciplinary Commission.
The matters scheduled for
B-16
conclusion as part of the guardianship's
final report included (1) determination of
Respondent's fee; (2) the Ward's objection
to the final report; (3) Respondent's claim
for damages because of defamation; and (4)
Claim for personal injuries and damages by
the Ward against the Respondent.
Between 1977 and 1979, Smoker
managed her own affairs but there was a
gradual erosion of her alertness and
increased symptoms of senile dementia. In
anticipation of this deterioration, her
evidentiary deposition was taken for this
proceeding on November 22, 1977. She passed
away on November 21, 1979, approximately two
weeks prior to the commencement of the trial
scheduled on the final report of her
conservatorship.
On November 26, 1979, the
Respondent filed sworn objections to the
probate of "any will" Smoker may have
executed after February 24, 1970.
B-17
Respondent's ultimate purpose in contesting
the 1977 Will and codicil was to preserve
his own claim and all of the benefits which
the 1970 Will, as drafted by him, had
contained. Smoker's competence at the time
of the execution of the 1977 Will was not
challenged; his claim was based on the issue
of undue influence in the drafting of the
1977 Will on which the Respondent felt he
could prevail.
Trial on the guardianship's final
report and related matters was held over a
period of thirty (30) trial days, between
December 3, 1979, and August 7, 1980.
Though Smoker's Petition to Discharge was
not an issue because the guardianship had
been terminated, substantially all
allegations therein were litigated during
this trial. The trial court approved the
final report except for the guardian's fees
and attorney fees, all of which were denied
based upon apparent conflict of interest;
B-18
Respondent's claim to the $9,000 certificate
of deposit was set aside and the underlying
contract for lifetime legal services was
rescinded upon a theory of undue influence;
Smoker's administrator's claim against the
Respondent for misfeasance in managing the
estate was denied. Included in the latter
argument was an attempt to recover for
psychological abuse and emotional strain,
but the court held that Smoker's’ death
rendered any such issue moot. Respondent's
Claim for defamation allegedly caused by
p leadings filed on July 14, 1977, was
upheld, but he received nominal damages of
$1.00. The trial court further concluded
that no oral contract nor implied contract
for legal services had existed prior to
November 9, 1976, that the prior services
were rendered gratuitously and that fees
could not be recovered on a
guasi-contractual basis. Except for
reversal of a $25 fee awarded to the
PUBLISHER'S NOTE:
The following pages are unavailable
for filming:
i ~ 20
Respondent wanted the settlement to be
communicated to the Church Board; he could
not present the offer himself because the
attorney for the church had forbade such
presentation. The Chairman of the
Administrative Board of the Church rejected
the idea of presenting the settlement.
An eleven day trial to a jury
ensued and, after eight hours of
deliberation, the j ury returned a verdict
against the Respondent, effectively
upholding the 1977 Will.
On review before us and at the
hearing stage of this proceeding, the
Respondent makes sweeping challenges to the
entire proceeding, claiming numerous
constitutional infirmaties and arguing for
dismissal of this case. The framework of
his petition for review is such that issues
overlap, are difficult to discern, isolate
or address in an orderly manner. The
Hearing Officer has made extensive findings
B-21
and conclusions as to Respondent's
constitutional challenges of colorable
merit. At this juncture, we will address
the general challenges directed to the
entire proceeding; challenges to specific
disciplinary rules and charges are resolved
within this Court's determination of
possible misconduct by reason of the
above-noted findings.
A primary issue raised by the
Respondent is his contention that delay in
bringing this matter to a hearing has served
to deny him his constitutional right to a
speedy trial and due process of law and has
visited cruel and unusual punishment upon
him.
On this issue of delay, the
Hearing Officer found, and we agree, that
the Disciplinary Commission received a
couplaint letter from attorney Marks in
July, 1977; it was followed by a grievance
submitted by Mrs. Smoker and her attorneys,
B-22
Marks and Powers. After determining that
basis for further investigation existed, the
Executive Secretary of the Commission set in
motion further investigatory procedures
which included notice to the Respondent and
an invitation for any response the
Respondent may deem appropriate. Again, in
accordance with Admission and Discipline
Rule 23, and standard procedures, the
Commission, by a vote on July 14, 1978,
decided to file a disciplinary action
against the Respondent; the complaint was
filed on October 24, 1978. On October 30,
1978, the Honorable Harold Staffeld was
appointed as Hearing Officer.
Respondent was first represented
by attorney Thomas Ives, then Attorney James
Stewart of Indianapolis, un til Stewart's
death in June, 1983. Stewart's partner,
Gilliam, withdrew from the representation
some months thereafter. After his
appointment, the Hearing Officer did not
B-23
schedule the case because much o f his time
was taken up by the so called "Pinto" case,
though the Commission attorney, Hughes,
wrote a letter requesting a pretrial
conference. Informally, Attorney Stewart
and Hughes, had agreed to await the result
of the pending litigation before proceeding
to trial in this cause. As noted earlier,
the guardianship trial lasted until August
7, 1980, and final judgment was entered on
November 5, 1980. Shortly thereafter, the
will contest was commenced; judgment was
entered on December 9, 1980. Subsequently,
Hearing Officer Staffeld became seriously
ill and died in the fall of 1981. In the
interim, new grievances were filed against
Respondent and his spoouse and law partner
based upon their action in the guardianship
and will contest trials. This Court
appointed a second Hearing Officer and, upon
Respondent's objections, removed him and
appointed the present Hearing Officer who
B-24
qualified on February 24, 1982. Based on
the new grievance, the Commission, on
September 10, 1982, approved the filing of
complaints against the Respondent and his
oy On July 19, 1983, the Commission
filed an amended complaint against’ the
Respondent and a Verified Complaint against
Florence Ann Briggs. Any delay between
approval of the latter complaints and their
filing was incidental delay related to the
workload and scheduling of the Commission's
attorneys.
Respondent's claim :c a Sixth
Amendment Right to a speedy trial is not
supported by authority. The Sixth Amendment
of the Constitution of the United States
speaks of rights in “criminal prosecutions";
this Court has held that a proceeding such
as the one befcre us is not a criminal
proceeding and the application of standards
generally afforded a criminal defendant is
not appropriate here. In re Roberts (1983),
B-25
Re, e
+
Ind., 442 N.E. 2d 986. Similarly, the
Respondent has failed to cite nor could we
find any authority which could support his
contention that Article 1, Section 12 of the
Constitution of Indiana is applicable to
these proceedings. Respondent's related
claim that the passage of time constituted
cruel and unusual punishment is likewise un-
substantiated and without merit.
The Respondent also claims that
the delay has resulted in a violation of his
right to due process as guaranteed by the
Fifth and Fourteenth Amemndments to the
Constitution of the United States and
Article l, Section 12 of the Constitution
of Indiana. In the past we have had several
occasions to examine the applicability of
civil and criminal due process requirements
in the context of a disciplinary proceeding,
and we have measured these standards within
the unique character of these proceedings.
In re Roberts, Supra. Due process, as
B-26
applied to disciplinary proceedings,
requires notice of the charges and an
opportunity to be heard. In re Ruffalo, 390
U. S. 544, 868 S. Ct. 1222, 20 L.Ed.2d 17,
reh. den. 391 U.S. 961, 88 S.Ct. 1833, 30
L.Ed.2d 874; In re Roberts, Supra; In re
Murray (1977), 266 Ind. 221, 362 N.E. 2d
128: In re Stivers (1973), 260 Ind. 120, 292
N.E.2d 804. Beyond these requirements,
there may be factual situations in which the
expiration of time destroys the fundamental
fairness of the entire proceeding, thus,
rising to the level of due process
violation. In re Wireman, Supra. Both
parties made reference to a four-factor
speedy trial test set out in Barker v. Wingo
(1972), 407 U.S. 514, 92 S.Ct. 2182, 33
L.Ed.2d 101, and its Indiana progeny. In
the context of the proceeding before us, the
four factors, 1) length of delay; 2) reason
for the delay; 3) assertion of a desire for
a speedy trial, and 4) prejudice arising
B-27
from the delay, can provide guideposts for
our deliberation; however the premise of our
examination is not whether the Respondent
was denied a speedy trial, but whether, in
light of the totality of the circumstances,
the proceeding afforded fundamental
fairness.
We agree, as the Hearing Officer
found, that the Respondent made no request
for an expedited hearing and, in fact,
through his counsel, agreed to postponement
of this hearing pending the outcome of the
termination of the guardianship matter and
the will contest. We fully agree with the
Hearing Officer's rejection of the
contention that the incidental delay
occasioned by the Commission's staff
scheduling causes constitutional infirmity.
Respondent's claims of prejudicial harm due
to loss of witnesses, loss of evidence, loss
of his trial attorney and the originally
appointed Hearing Officer fail to persuade
B-28
nm mhH He He es eae we Ee HE EF ES & EF
us. As the Hearing Officer found,
preservation of evidence in this case was
far easier than might have been in many
others. The Respondent was put on notice
that this action would result and had more
than ample opportunity to make arrangements
tc preserve whatever he deemed necessary.
Respondent's claim of harm due to loss of
his attorney and earlier Hearing Officer is
without merit; as the Hearing Officer
concluded, we agree that fundamental
fairness is not indeibly attached to the
participation of any one individual. In
light of the findings and foregoing
considerations, we conclude that in this
case, the lapse of time between notice to
the Respondent and the hearing does not
constitute denial of due process.
The Respondent next contends that
this Court, the Hearing Officer and the
Disciplinary Commission have all lost
jurisdiction of the case because 1) a
B-29
provision in Admission and Discipline Rule
23, Section 13, that a hearing take place
within 60 days has not been followed; 2) the
rule has been applied in an unconstitutional
fashion; and 3) this postponement has caused
the entire proceeding to be "in excess of
jurisdiction”. The cases referred to in
support of his contention have no
precedential value to proceedings involving
discipline of attorneys. This Court derives
its jurisdiction over discipline of
disbarment of those admitted from Article 7,
Section 4, Constitution of Indiana. This
Court has previously held that there is no
authority for the proposition that
expiration of the 60 day period found in
Adnkonion and Discipline Rule 23, Section 13
establishes a constitutional infirmity. In
re Wireman, Supra. We are further mindful
of the fact that, through his’ counsel, the
Respondent agreed to postponement of the
hearing. In conclusion, we find this
B-30
argument withour merit.
Respondent contends that he was
denied effective judicial review and right
to seek redress of grievances, including
redress of constitutional errors. This
claim is premised on the contention that the
Respondent was deprived of a fair and
adequate opportunity to pre sent his
constitutional claims because he did not
receive a bifurcated hearing as requested.
The Respondent has cited to no authority or
argument which would tend to support his
proposition; his reliance on the case of In
re Sekerez (1984) 458 N.E.2d 229 is
.
misguided. Additionally, it is clear from
the record that the Hearing Officer expanded
more than adequate effort on hearing and
evaluating Respondent's allegations of
constitutional infirmities. In conclusion,
we find this argument to be insupportable.
Respondent claims that he was
deprived of his constitutional right to have
B-31
meal
compulsory attendance of witnesses because
his subpoenas to Commission members were
quashed and his questions propounded to the
Commission Executive Secretary and Attorney
were limited. We note that no record has
been submitted as to the latter contention.
This argument relates to Respondent's
attempt to allege and prove that he was
selectively prosecuted and thus, denied
equal protection of the law. The Hearing
Officer found and we agree, that
Respondent's chief purpose was to inquire of
the Commission members why they did not seek
to prosecute the other attorneys involved in
the protracted Smoker litigation. We agree
with the Hearing Officer's finding that
there was no showing that the members had
firsthand knowledge of some fact in issue.
Respondent's contention fails to convince us
that the Hearing Officer's decision relative
to these witnesses and the quashed subpoenas
was erroneous or somehow constitutionally
B-32
improper.
The Respondent further claims
denial of a fair hearing due to several
alleged constitutional infirmaties caused by
violations of specific provisions of
Admission and Discipline Rule 23
Apparently during 1978, he was not advised,
pursuant to Admission and Discipline Rule
23, Section 10(b), that the grievance filed
against him had been docketed for
investigation. We fail to see, nor has the
Respondent been able to show us, why or how
such omission could be a constitutional bar
to these proceedings. se contenss that tne
Commission failed to give him notice of
investigation of charges beyond those
contained in the grievance filed by the
grievants. This Court has held that, so
long as the grievance serves to inform the
Respondent of the general nature of the
charges against him, there is no denial of
due process merely because the complaint
filed by the Commission is not limited to
B-33
the charges specified in the grievance.
Because grievances are drafted by those
unskilled in the law, they will not be
strictly construed. In re Wireman, Supra.
Thirdly, he contends that’ the
Commission failed to find "probable cause."
We note that Admission and Discipiine Rule
23, Section 11(d) specifically provides for
the finding of “reasonable cause." We,
thus, conclude that the provisions of
Admission and Discipline Rule 23 were not
applied to the Respondent in an
unconstitutional manner and did not result
in an unfair proceeding.
The Respondent contends that his
right to freedomo of speech was abridged
when he was denied a request to appear
before the Disciplinary Commission during
the administrative stage of the proceeding
and by Admission and Discipline Rule 23,
Section 14, which proscribes dilatory
motions and motion to dismiss. Again, the
B-34
Respondent has failed to refer us_ to
authority which would tend to support his
claim. We find these contentions without
merit.
The remaining issues on review
before us relate to the specific charges and
will be resolved within that context.
By way of background, we find that
the Verified Complaint filed against the
Respondent in 1978 and the Amended Verified
Complaint filed in 1983 charged that, by
giving advise on and drafting the 1970 Will
of Kate Smoker, the Respondent engaged in
conflict of interest and failed to seek his
client's objectives in violation of
Discipline Rule 5-101(A) (1) and 7-101(A)
(1) of the Code of Professional
Responsibility for Attorneys at Law. The
Respondent moved to dismiss these charges
because they alleged misconduct occurring
prior to the adoption of the Code. The
Hearing Officer allowed the es *
B-
—
attorney to amend the complaint and charge
the same misconduct under the Canons of
Professional Ethics of the American Bar
Association.
The Respondent challenges’ this
amendment arguing that, 1) he is somehow
being punished retroactively; 2) allowing
such amendment was beyond the jurisdiction
of both the Commission and the Hearing
Officer; 3) the amendment was not authorized
by the Commission; 4) the Respondent was not
given the opportunity to respond to the
Commission; and 5) the Canons under which he
was charged are unconstitutionally vague
and, therefore, void. Respondent's
contentions are not convincing.
The Respondent was on notice in
1978 as to the conduct which was alleged to
constitute misconduct. The Commission's
initial determination that Respondent's
alleged conduct is unethical was not altered
by the subsequent amendment. This Court,
B-36
prior to the adoption of the _ present
disciplinary rules, did impose di cipline,
and thestandards for such conduct were the
Code of Professional Ethics of the American
Bar Association. In re Crumpacker (1978),
169 Ind. 630, 383 N.E.2d 36, cert. denied
100 S. Ct. 481, 444 U.S. 979, 62 L.Ed.2d
406; In re Kuzman (1975), Ind. » 228
N.E.2d 210. The amendment to the
Complaint more appropriately set out the
standard by which the same conduct was
measured prior to the adoption of the Code.
Similarly, we are not persuaded by
Respondent's unsubstantiated claim that the
Canona he is alleged to have violated are
void for vagueness.
In addition to the foregoing
procedural and constitutional challenges,
the Respondent contends that during 1968,
when he drafted Mrs. Smoker's earlier will,
he advised her to seek another attorney.
Thus, he contends, he was relieved of any
B-37
7
mE a nealrmaeaerllCaeEEllUraeelCcreelCreerlCUreerlCreetlCreertlCeelUeeUee Ce
obligation relative to the 1970 Will. We
find that such advise was not pertinent to
the 1970 Will, and was insufficient to fully
appraise Smoker of the potential conflict,
tax and other legal remifications embodied
in the 1970 Will. The resulting scenario of
events is a sad example of the sort of
consequence intended to be proscribed by the
Canons and, presently, by Disciplinary Rule
5-101 of the Code. We conclude that, by
drafting the 1970 Will of Mrs. Smoker, and
counseling her thereon, without fully
disclosing the legal ramifications of the
document and the potential conflict of
interests, the Respondent violated Canons 6
and 11 of the Canons of Professional Ethics.
The Respondent is further charged
with engaging in conflict of interest in
violation of Disciplinary Rule 5-101 and
1-102(A) (4) and (6) of the Code of
Professional Responsibility for Attorneys at
Law, by advising and participating in the
B-38
execution of a joint certificate of deposit
in his and his client's name.
We conclude from the _ foregoing
findings that the Respondent engaged in the
charged misconduct.
The Respondent is charged with
harassing his client thereby engaging in
illegal conduct involving moral turpitude,
conduct involving fraud, deceit and
misrepresentation, conduct that adversely
reflects on his fitness to practice law, and
conduct prejudicial to the administration of
justice, in violation of Disciplinary Rule
1-102(A)(3), (4), (5) and (6). In light of
the findings on this issue, we conclude that
the—- Respondent's acts of harassment toward
his client constitute misconduct, in viola-
tion of Disciplinary Rule 1-102(A)(5) and
(6).
The Respondent is charged with
violating Disciplinary Rules 5-101 and
1-102(A)(1), (5) and (6) of the Code by
B-39
unreasonably delaying the termination of his
client's conservatorship and particularly
delaying the restoration of control over her
property. He contends that imposing dis-
Cipline for his filing pleadings in response
to Smoker's Petition to Discharge him as
conservator constitutes denial of his
constitutional right to seek redress of
grievances and denial of his right to free
speech guaranteed under the First Amendment
of the Constitution of the United States and
Article l, Section 12 of the Constitution of
Indiana.
The rights claimed by the Respon-
dent are not absolute but are measured
within the context of competing social
values; each prohibition, circumscribed by
the factual setting, is measured against the
affected state interest and the imposed
limitations. In re Friedland (1981), 275
Ind. 214, 415 N.E.2d 433. The Respondent
had a professional duty to pursue and
B-40
protect his client's interests. Neither his
personal interests or the interests of
others should be permitted to dilute this
duty. E.C. 5-l. The availability of
independent and competent legal representa-
tion lies at the core of our system of
justice. We must examine Respondent's
actions and contentions in light of this
weighty public interest. We find that he
intentionally set out to frustrate and
hinder his client in an effort to vindicate
his reputation and eyvact retribution. The
termination of a conservatorship, where
three physicians unanimously agree as to the
competence of the ward, normally would be a
simple and routine matter. However, in this
instance, the Respondent treated this
proceeding as an adversary one and sought to
vindicate his position and allay what he
perceived were aspersions to his reputation,
while being fully aware of the extreme
emotional stress caused to Smoker, "for the
B-41
purposes ultimately designed for his own
benefit, namely to protect his own reputa-
tion." Under these circumstances, we find
that Respondent's acts were not protected
and a finding of misconduct and imposition
of sanction is not an unpermissable
infringement on his right to free speech or
his right to petition the government for
redress. We conclude that the Respondent
engaged in the misconduct as charged.
The Respondent was also charged
with attempting to collect an illegal or
clearly excessive fee, in violation of Dis-
ciplinary Rule 2-106(A) and (8B). The
Hearing C¢ficer concluded and we agree, that
the evidence was not sufficient to prove
misconduct under this charge.
The Respondent is further charged
with violating Disciplinary Rule
7-102(A)(1), (5) and (6) by contesting, in
bad faith, a will which he had no probable
cause to consider invalid. The Disciplinary
B-42
Commission has challenged the Hearing
Officer's conclusion that there is insuffi-
cient evidence to prove that the Respondent
filed the will contest in bad faith merely
to harass or maliciously hurt another. The
Hearing Officer made extensive findings on
this issue and determined that the Respon-
dent was motivated by retaliatory feelings,
was aware that the will contest could delay
the guardianship final hearing and the ul-
timate determination of this’ proceeding;
nonetheless, the Respondent believed he
could win his claim based on the issue of
undue influence. We agree with this
assessment and, thus, find that the evidence
is not sufficient to support a finding of
misconduct. This conclusion renders moot
Respondent's challenges to this charge.
The complaint charges that the Respondent's
conduct is also violative of Disciplinary
Rule 7-104(A)(1) in that he communicated
with a party he knew was represented by an
B-43
A
4
attorney. In light of the foregoing find-
ings, we further conclude that the Respon-
dent engaged in the charged misconduct.
Lastly, the Complaint incorporates
the entire course of conduct under one
charge alleging a pattern of misconduct
designed to damage Respondent's client, and
charges a violation of Disciplinary Rule
1-102(A)(1), (2), (5) and (6) of the Code.
We find, as did the Hearing
Officer, that this charge is repetitive and
redundant; as such, we find no misconduct.
In re Stanton (1986), Ind., 492 N.E.2d 1056;
In re Sekerez, Supra.
Upon finding misconduct, we must
now assess an appropriate sanction. As part
of this deliberation, we consider the nature
of the violation, the specific acts of the
Respondent, its impact on the public, this
Court's responsibility to preserve the
integrity of the Bar and the risk, if any,
to which we will subject the public by
B-44
permitting the Respondent to continue in the
profession or be reinstated at some future
date. In re Stanton, Supra; In*re Duffy
(1985), Ind., 482 N.E.2d 1137; In re Hailey
(1985), Ind., 473 N.E.2d 616.
Reflecting upon Respondent's
conduct vis-a-vis his client, Mrs. Smoker,
this Court is not unmindful of the strong
emotional involvement of all participants.
It is, nonetheless, amazing that an attorney
with Respondent's experience and length of
practice, would undertake to draft a will
for the elderly widow making him and his
family substantial beneficiaries, without
any real concern for the ethical con-
sequences. Having once breached his pro-
fessional duties, the Respondent embarked on
further reprehensible conduct by harassing
his client/ward and manipulating the judi-
cial process to exact further retribution.
The Respondent, motivated by his financial
expectations and a desire for personal
B-45
vindication, lost sight of his professional
obligations to his client and the ethical
standards of his profession. In light of
these considerations, the nature of the
violations, the specific acts of the Respon-
dent and this Court's responsibility to the
public, we conclude that a period of suspen-
sion is warranted by respondent's acts of
misconduct.
IT IS, THEREFORE, ORDERED that the
Respondent, William Briggs, be suspended
from the practice of law for a period of two
(2) years beginning February 16, 1987.
Costs of this proceeding are assessed
against the Respondent.
Dickson, J., not participating.
Filed 1/18/85
IN THE
SUPREME COURT OF INDIANA
IN THE MATTER OF
Cause No. 1078 S 235
WILLIAM J. BRIGGS
HEARING OFFICER'S REPORT
The undersigned, the duly
appointed Hearing Officer for the Supreme
Court of Indiana in this cause, having heard
the evidence of the parties and the argu-
ments thereon and having been presented with
legal authority for review therewith, now
makes his report to the Court. Upon the
matters presented the report is divided as
follows:
I FINDINGS OF FACT UPON
VERIFIED AMENDED COMPLAINT pg 1
Appendix C C-1l
Il CONCLUSIONS OF LAW UPON
VERIFIED AMENDED COMPLAINT Bg 33
III FINDINGS OF FACT
UPON PROCEDURAL AND
CONSTITUTIONAL ISSUES pg 36
IV CONCLUSIONS OF LAW
UPON PROCEDURAL AND
CONSTITUTIONAL ISSUES pg 52
V ULTIMATE FINDINGS
AND CONCLUSIONS pg 55
VI RECOMMENDATIONS pg 57
All matters relating to this cause
in the possession of the Hearing Officer and
all documentary evidence offered or admitted
in evidence during the final hearing in this
cause are transmitted to the Indiana Supreme
Court herewith. In the event that a
transcript or partial transcript of the ev-
idence needs to be produced, the reporter.
will need to obtain the documentary evidence
for products on of such a transcript.
I
FINDINGS OF FACT UPON
VERIFIED AMENDED COMPLAINT
1. The Respondent is a member in
good standing of the Bar of the Supreme
Court of Indiana, having been admitted to
practice before such Bar in 1954. Zhe
Respondent also is duly admitted to sibilant ai
law before the Bar of the Supreme Court of
Kentucky.
Ze The Respondent is’ engaged
full-time in the practice of law in Carroll
County, Indiana, and maintains an office in
Flora, Indiana. The Respondent previously
has served as the duly elected Prosecuting
Attorney of Carroll County. The wife of
Respondent, namely Florence Anne Briggs, is
also an attorney and is the respondent in
Cause No. 783-S-262 before this Court and a
companion cause to this matter; at their law
offices the Respondents Briggs operated from
C-3
a common checking account and regularly
presented themselves to participate in the
representation of the other's’ clients,
operated out of a common office, had common
employees and sent letters on common
stationary. Although they never formally
had a partnership agreement or entered into
any regular partnership or profit sharing
arrangement, their personal finances were so
interrelated that each benefitted from the
practice of the other and that they annually
attributed income one to the other in an
unplanned method; that in addition they
filed a joint income tax return but no
partnership return; therefore while no
formal partnership structure exists, this
Officer funds that they held themselves out
to the public as a law partnership operating
as Briggs and Briggs.
3. That Mary Bernice Smoker,
referred to throughout these proceedings as
Kate Smoker, was a lifetime resident of
C=4
Burlington, Indiana, a small town located in
Carroll County. She was an educated woman,
serving as a teacher in the Burlington
school for many years as well as at Indiana
University-Kokomo extension and at the
Charleton High School at Indiana Boy's
School. She was the daughter of a country
doctor named Chiddick who served the Carroll
County area; she had a brief marriage which
was reportedly unhappy, and spent most of
her adult life as a childless widow. She
inherited and owned farmland so that by her
death in the late 1970s her estate consisted
of approximately 282 acres of farmland and
approximately $150,000.00 of cash assets.
She resided in Burlington but took an active
part in her farming operations through the
mid-1970s; while Carroll County is generally
extremely rich farm ground, her acreages
were of poor quality for the area generally
consisting of rolling land and subject to
drainage difficulties; a substantial portion
c-5
of it was devoted to pasture for livestock
and maintaining and caring for a cattle herd
was one of her interests and activities.
Most of her life she dealt with men and her
interest in young people and securing their
education usually centered around boys.
Most noteworthy was that she was a bit of a
local character, used to getting her way,
willing to take advantage of a business sit-
uation, establishing a business history of
backing out of executory land transactions
or cattle sales, and unconcerned with dress
(to the point of embarrassment by others) or
social proprieties. In business matters
Respondent described her as astute and wily.
Her date of birth is October 25, 1894 so
that she was quite elderly throughout these
events and her physical health (which will
be described) was generally poor; she con-
stantly smoked cigarettes and chewed gum;
she was loud and overbearing but she never
swore. C-6
—
4. Beginning in the mid-1960s and
until the events described here the Respon-
dent represented Kate Smoker throughout a
variety of legal matters including several
traffic accidents (one involving a rather
significant Claim against her), tenant
Gisputes, real estate problems, insurance
matters, and will drafting. After a period
of some years he also began completing her
income tax returns. In their
attorney-client relationship she became
rather demanding, interrupting other
clients, seeking that her work be done
first, seeking business as well as legal
advice, and not hesitating to call during
non-business hours. Representing her was
time-consuming in a disproportionate manner
to what attorneys would normally consider
billable hours. After his first few small
transactions for her, Respondent did not
send her bills except for the income tax
work. On one occasion, after working out a
C-7
pipeline easement for her, she voluntarily
paid him $300.00. On another occasion, when
he had done work jointly for her and another
lady, he billed the other lady for half and
was paid, but Kate Smoker did not pay her
half. In 1967 she first mentioned that she
did not want to pay him for all acts he
performed but instead wanted a lifetime fee
arcangement and, commencing in about 1970
the attorney and client had fallen into an
understanding that he would receive
$10,000.00 out of her estate. No steps to
formalize such an arrangement were ever
made, however, the only record being a
bequest to him in her will for $1,000.00.
He generally recognized the unusual nature
of the arrangement but, because of her
strong-willed nature he acquiesced in this
fee arrangement.
5. The Respondent prepared sev-
eral wills for Kate Smoker while he repre-
sented her. In 1967 the Respondent prepared
c-8
a will for Kate Smoker when she was in the
hospital wherein, among other things, the
Respondent was left a legacy of $1,000.00;
this will was prepared under time pressures
because of the hospitalization and did not
well represent her desires. Accordingly it
was soon thereafter superceded. In 1968 the
Respondent prepared a new will for Kate
Smoker. In the 1968 will, the Respondent
again was given a legacy of $1,000.00.
Further, the Respondent was named as co-
executor of the will and the Respondent and
Florence Anne Briggs were named to serve as
attorneys both for the estate and for the
educational trust created under the resid-
uary clause. The said residuary clause
created a perpetual, docketed trust named
the Chiddick Scholarship Trust which was to
provide scholarship grants for college to
Burlington Township residents who- were
maintaining a C-plus average for their
college years. (She had made similar trust
Cc-9
provisions in earlier wills.) In addition,
however, she directed that additional
clauses be added to favor Winston Briggs,
the Respondent's son, naming him individu-
ally, so that he would be the first
recipient with the trust accumulating income
until he started college, and that it be
payable to him regardless of residence or
grade average and throughout both college
and graduate or professional school. The
1970 will retained the legacy to Respondent
and the trust provisions for Winston.
Florence Anne Briggs was named co-executrix
instead of Respondent. The trust was mod-
ified to provide for three years of
accumulation after it was formed, except for
payments for Winston, and contained a
special clause to reimburse him in "an
amount equal to the cost of his tuition,
books, and living expense" for his’ school
years c-10
6. At the time the trust was
created in 1958, Winston was a 5 year old
boy. He was not related to Kate Smoker in
any genealogical fashion, nor were they at
all socially related. Kate Smoker had met
him and believed him to be a bright and
attractive boy. This trust provision was
entirely Kate Smoker's idea and there has
never been any suggestion to the contrary.
Respondent indicated at hearing that one of
the reasons he was willing to put up with
the unusual fee arrangements was because he
was aware of this provision for Winston's
education.
7. Kate Smoker had some knowledge
as to the potential for difficulty she was
creating by so favoring the drafter of her
will. Accordingly she executed entirely on
her own and without prompting from Briggses
a holographic statement contemporaneously
with the execution of her 1970 will as
follows:
I, Bernice Smoker, have made my will
today, February 24, 1970. I wish to
state that I have not been influenced
by anyone in making these bequests
and I expect the provisions of my
will to be carried out without ques-
tions, as I have designated it in my
will.
Dated February 24, 1970.
Bernice Smoker
Witness:
Bertha F. Wolfe
David L. Norris
Jean ¢. Norris
8. Vic (Victoria) Cornell was
Kate Smoker's first cousin and closest
living relataive. She was also an elderly
lady. They had agreed to make specific tes-
tamentary bequests to one another of
$10,000.00. Aside from Vic Cornell, Kate
Smoker had no natural object of her bounty.
She expressed no particular desire to
qualify her trust as a charitable trust
pursuant to the federal estate tax code
although it is fair to infer that she would
have desired that result if it could be
C-12
obtained without destroying her other tes-
tamentary goals. Respondent was aware that
naming Winston as a recipient endangered the
eligibility of the trust for charitable
deduction so that he did seek the opinion of
an Internal Revenue Service estate tax
attorney as to whether the trust qualified.
While he claims to have received an indica-
tion that the trust would qualify, evidence
was presented at hearing that. because of
the provisions favoring Winston and the
impossibility of assigning them a current
cash value, the trust in total would not
qualify.
9. At no time prior to the
execution of Kate Smoker's 1970 will did the
Respondent suggest to her in any manner that
Winston should not be named as a recipient
of trust funds, or that the Respondent
should not be named as a specific legatee in
the amount of $1,000.00, or that she should
obtain independent legal advice on the
C-13
wisdom of naming the Respondent and his son
as beneficiaries, or that she should have
other counsel draft the subject will. No
circumstances were present before or during
1970 that would have precluded her from
seeking the assistance of other counsel in
the planning or drafting of her will.
10. Kate Smoker had been treated
for diabetes since 1966, for coronary
insufficiency since 1967, and she had
suffered a heart attack in 1969. In the
fall of 1976 the condition of her general
health began to deteriorate. On October 22,
1976, she was treated by her family
physician Dr. Don Wagoner at his office for
acute congestive heart failure and was
admitted to St. Joseph Hospital in Kokomo.
She was discharged from the hospital on
October 26, 1976, with a diagnosis of acute
pulmonary edema, inferior myocardial infarc-
tion, hardening of the arteries, diabetes,
glaucoma, severe peripheral vascular
C-14
deficiency to her lower extremities, and
depression although she was well oriented to
time and place. Upon her releases- from the
hospital Respondent took her to a friend's
Jessie Harness' home where she~ stayed
approximately four days but the friend was
unable to care for her because Kate Smoker
was ill, could not sleep at night, and fell
a number of times. Kate Smoker then
returned to her home in Burlington, but she
required someone to stay with and help care
for her. During this period when she was
living at home, she was morose and was not
talkative when visited by friends. She
visited the hospital emergency room on
October 30 with a bowel impaction = and
visited the doctor's office on November 2,
4, and 5 because of bruises resulting from
numerous falls. Dr. Wagoner believed that
the falls were organic brain problems caused
by decreased blood flow complicated by her
diabetes. During this period of time he
C-15
believed her condition: was an irreversible
decline in her circulatory system com-
plicated by the arteriosclerious and
diabetes. Senility was commencing.
ll. Kate Smoker continued to
attempt doing her business. She was
concerned about payment of the utility bills
at her home and at her farm; although the
farm bill should have been a tenant's
responsibility she could not allow a
disconnect because the water pump on that
meter took care of her livestock. She had
accumulated checks for deposit, one of which
was several months old and one of which was
in excess of $7,000.00. After assisting her
to enter these checks in her ledger, Respon-
dent accompanied her to the bank and made a
deposit in the amount of $24,309.15. On
November 2, she voted. Respondent visited
her or talked with her by telephone
throughtout this period of time.
l2. On November 1 and again on
C-16
November 3, Kate Smoker had conversations
with Respondent about the $10,000.00 attor-
ney fee. She generally desired to modify
her will to allow him the entire amount by
will. He advised her that to do that she
should go to another attorney and have the
will prepared elsewhere. She didn't. He
talked to her each of these days about the
method that was eventually used - by
Certificate of Deposit. On the evening of
November 8, Kate Smoker telephoned Respon-
dent to suggest three items of business that
she wanted to do. She desired (a) to modify
her will with a codicil, (b) make a nomina-
tion of Respondent as her guardian should a
guardianship become necessary, and (c) fi-
nalize the arrangements for the $10,000.00
by arrangements on the Certificate of Depos-
it. Respondent completed these documents
for signature the next day.
13. (a) At approximately 9:00
aem. on November 9 Respondent went to the
C-17
Kate Smoker home with his secretaries Bertha
Wolfd and Judy McKinley. Upon arrival (she
was eating breakfast) he telephoned her
friend (later a pallbearer at her funeral)
John T. Johnson, suggesting that John T.
would be doing Respondent and Kate Smoker a
favor if he were to @rop by her home.
(b) Respondent then reviewed the
codicil (Petitioner's Exhibit 9) with her
(Kate asked the secretaries to wait outside
while he reviewed the terms), the witnesses
were called in and the document was execut-
ed. John T. Johnson arrived during this
period and was also asked to wait outside.
(c) John T. Johnson was summoned
and the nature of the agreement he was to
witness and his role as escrow agent were
described. Banker Earl Rodkey was tel-
ephoned to come also; before Rodkey's
arrival, Johnson had the opportunity to
review the agreement (Petitioner's Ex 1) and
observed Respondent review it line by line
Cc-18
with Kate Smoker. Rodkey arrived during
this time and the document was described to
him also. In essence the document created a
$9,000.00 joint certificate of deposit
between Mrs. Smoker and the Respondent which
recited that the certificate of deposit
(plus the $1,000.00 legacy provided for the
Respondent in her 1970 will) was for past
and future legal services and was compensa-
tion ". . . for all of the many kindnesses
that (the Respondent) and his wife, Florence
Anne Briggs, have done for me since I became
acquainted with them in 1965". Johnson was
to hold the certificate. Rodkey recalls
that she asked whether signing these docu-
ments would affect her farm ownership. No
one else recalls this question. During this
conversation she indicated at least three
times that she didn't want to make the
Certificate and much preferred to pay him
the entire $10,000.00 by her will;
Respondent noted for her that he could not
C-19
ethically draft such a will and she remained
adamant that she would not get another
attorney; when she again raised the issue,
Respondent said that if she didn't want to
sign the agreement that they could forget
the whole thing. Thereupon she agreed to
sign it.
(d) To complete the execution of
the document she clarified a possibly ambig-
uous pronoun in it, dated it October 9 and
then corrected the date, and signed.
(e) She inquired of Earl Rodkey
what interest rate she would receive on a
$9,000.00 certificate and then asked if she
could get the same rate as the minimum of
$10,000.00 certificates. He indicated that
he would have to get approval for that (the
rate was 1/2% higher). He did so. She
wrote a check for the $9,000.00 and signed a
signature card.
(£) Sometime during the course of
the morning (nobody ever testified as to
c-20
just when) she executed the nomination of
Respondent as her guardian should a guardian
for her become necessary. (Resp. Ex. B-15).
(g) After these documents were
all signed and everyone else had left,
Respondent and Kate Smoker left her home and
walked the block to a local restaurant and
had luch together.
(h) During the afternoon Kate
Smoker again visited her doctor, Tom J.
Wagoner. At the time he was not aware of
her business activities of the morning. She
was brought to the office by Joann Wilson, a
friend because she had fallen again. She
seemed alert but incorrectly stated the date
by one year. She had a “staggery" gait and
tendency to fall. His opinion, stated in
numerous legal proceedings since then and
again in this proceedings was that she was
not competent to manage her affairs at that
time because of this advancing senility. He
suggested that her disorientation would not
C-21
be obvious to a lay person and that an
inquiry such as the interest rate question
was consistent with his observations; he did
believe that the senility would manifest
itself during an extended meeting with an
attorney.
(i) The events of this date
became a focal point for subsequent litiga-
tion and an understanding of them is nec-
essary to understanding the conduct of the
parties. Respondent wholeheartedly believes
that Kate Smoker was competent on the date
in question; besides his own observations he
notes that Earl Rodkey and John T. Johnson,
both community leaders and lifelong friends
of Kate Smoker, felt that she was acting
normally; he also suggests that Bertha
Wolfe, his secretary, simply would not have
countenanced any misconduct. In a transac-
tion cf this nature between attorney and
client, the law attaches a rebuttable
presumption of undue influence and, in the
C-22
subsequent trial in the “guardianship case"
before Judge Munro, Respondent was unable to
oversome that presumption and the legal ser-
vices contract was set aside.
14. Thereafter her health dete-
riorated rapidly. She saw the doctor again
on November 11, 1976 and had fallen five
more times. On November 12, she had a
particularly bad fall, striking her head on
a bookcase. On November 13 Dr. Wagoner
admitted her to St. Joseph Hospital in
Kokomo and it was clear to everyone that
unquestionably she could not then manage her
own affairs. By November 16, she was
transferred to Methodist Hospital in
Indianapolis for examination by Dr. Russell,
a neurosurgeon, for organic brain deteriora-
tion.
15. She was released from the
hospital thereafter and returned home for a
few days but was again admitted to St.
Joseph Hospital on November 24 in a state of
C-23
complete disorientation. No one could tell
if she would recover or not and some wit-
nesses testified that during this stay they
thought she was dying. Throughout this time
Respondent visited with her and was aware of
her condition.
16. On November 24, 1976 the
Respondent was appointed as temporary
conservator of Mrs. Smoker by the Carroll
Circuit Court on the petition of Victoria
Cornell. At the time of his appointment,
the Respondent informed the Court that he
was making no charges in the guardianship
because he already had been compensated for
any work in the guardianship and other
future matters by a certificate of deposit.
Ave Respondent began marshaling
assets for the guardianship and attempting
to order her business affairs. Since Decem-
ber 1 is annually the date for providing
notice to tenants that their lease will not
be renewed for the following year, he did
C-24
provide such a notice to Ron Unger, the
tenant on this ground.
Kate Smoker had normally operated
her farms with a crop-share tenant such as
Unger, or had simply hired various stages of
raising crops, from cultivation through har-
vest, done on a enaton basis. Much of her
land was devoted to pasture for livestock
and she often was involved in partnership
arrangements for ownership of a herd of
animals or owning outright some animals with
a hired hand to care for them. The farm
properties had homes on them for use by
hired hands or for rental income.
As Respondent anticipated the need
for large amounts of cash for the medical
bills and a constant income for possible
nursing home placement, he anticipated the
need to change these practices in favor of
cash rentals of the farm ground. He was
aware that she opposed this practice (it can
~
lead to deterioration of farm improvements
C-25
and of soil quality) but thought her current
needs made it appropriate. - Accordingly he
began negotiations with several local
farmers, including Unger, to cash rent the
property. Unger claimed an oral lease from
Kate Smoker and in reliance on it had
applied a plow down fertilizer.
18. Attorney Alan Brubaker,
practicing in Kokomo, Indiana had _ been
raised in the town of Burlington and had
known Kate Smoker from pervious years as a
town character and as a person who took
credit for introducing his parents to one
another. He had returned to practice law in
Indiana commencing in 1976 and had been out
of contact with her for a substantial period
of time. He was informed casually by his
father that Kate Smoker was ill and in the
hospital and that he might wish to stop by
and see her. He did so on his way home from
his law office around 5:00 p.m. on Friday,
December 10. He visited her for
C-26
approximately 20 minutes and found her to be
in terrible physical condition. She could
not see him and did not recognize him. She
rambled in conversation talking about God
and talking about dying. He was not aware
that anyone was looking after her in anyway
so that he left her his home telephone num-
ber on the back of a business card, slipped
the card into her purse and left. He
received a telephone call at home _ from
Respondent the next morning. He described
the conversation as commencing with "What in
the hell are you doing visiting Kate
Smoker?" He eventually understood that he
was talking with her attorney and guardian
and began to feel that he understood the
concern of the Respondent, that he was
attempting to steal a client. He felt that
after some words of explanation that the
Respondent was calmed down and that the tel-
ephone conversation ended professionally if
not cordially. Respondent recalls making a
C-27
telephone inquiry of Alan Brubaker after
finding the card which he believes to have
been polite instead of harsh or belligerent.
The tone of this conversation is one of the
very few factual disputes in this entire
case. This Officer believes that a bellig-
erent tone was used to commence the con-
versation and that the conversation reflects
a sense of proprietary interest by
Respondent in his ward and in her business
affairs.
19. On December 13, 1976 Kate
Smoker was discharged from the hospital.
Her condition was still not good but was
stable. Respondent had received the opinion
of Dr. Wagoner that her condition was irre-
versible and that she would permanently
require custodial care. Respondent drove
her home and had made arrangements for a
Suitable hospital bed to be placed there.
He had also arranged for either nursing
care, trained hospital volunterrs or
C-28
townspeople to always be available for
assisting Kate Smoker. He was investigating
nursing homes.
20. Thereafter, she made a
remarkable recovery and by January ll, 1977,
when Dr. Wagoner again examined her, he
found that her mental impairment was
"minimal" and her physical and mental
problems were in a state of "“remission".
During this period of time she became aware
of the guardianship, the restraints it
placed upon her ability to do business, and
the altered farm management goals. During
this time on one specific occasion. she
appeared at Earl Rodkey's' bank office,
agitated over her inability to handle her
affairs; she had heard of the joint certif-
icate of deposit created November 9 and
asked if it really existed. Rodkey showed
her a copy of it and she professed no
recollection about its making.
21. Notwithstanding her recovery,
the guardianship was made permanent’ on
January 13, 1977 after hearing in the
Carroll Circuit Court. Kate Smoker advised
the court at the hearing in Respondent's
presence that she did not want the Respon-
dent taking care of her as a conservator,
that she liked to run her own business, and
that she did not want any conservator. Dr.
Wagoner testified about his examination two
days before but continued to opine that she
was incompetent in the belief that her
recovery was temporary. The Carroll Circuit
Court by Judge Smock believed that a
permanent conservator was advisable under
the circumstances and assured Kate Smoker
that the Respondent would try to follow her
desires with respect to the handling of her
farming and other affairs.
22. During the next month, the
long-standing and close personal
C-30
relationship between Kate Smoker and the
Respondent deteriorated badly. Kate Smoker
was exceedingly unhappy that she was under a
conservatorship (the word "chafing" comes to
mind). Further Mrs. Smoker was used to
being in primary control of her own farming
and monetary affairs, and she was exceed-
ingly unhappy that the Respondent was prin-
Cipally in control of her substantial cash
assets and had negotiated a cash farm lease
for a portion of her farms without her con-
sultation. She was allowed to write checks
for herself, however, and her nurses and
custodians were told by Respondent to take
her wherever she wanted to go. During this
period of time she began to consult with and
complain to Bobby Ritchey, a local man then
in his early 30's who had worked for her as
a youth, who had resided with his parents on
one of her farms, and who had been involved
with her in occasional eatble transactions;
whereas Bobby Ritchey and Kate Smoker had
C-31
previously been acquaintances and occasional
business associates (she probably had
thought of him like a hired man) they now
became confidants and close friends.
23. | In late January or early
February (the exact sequence where this
incident fits is not precisely clear) Kate
Smoker came to Respondent's office to obtain
her lock box key; he (correctly) wouldn't
give it to her. Instead as part of the con-
versation he displayed the key to her and
said something like "You don't like author-
ity, do you?" This greatly agitated and
aggravated her and further wedged apart her
former close relationship to Respondent.
The report of this incident was factually
contested at hearing, the above description
being that of Kate Smoker by deposition,
secretary Judy McKinley, and by slightly
different quote secretary Jean Jones; the
respondents Briggs indicated that incident
occurred when Respondent was in his office
C-32
with a different client and Mrs. Briggs was
in her office on a Saturday when no sec-
retaries were present, that Kate Smoker
wanted to verify that he had the key, that
he produced it, and that while she was leav-
ing she tripped and fell which made everyone
jump. The Officer believes the _ first
description to be accurate with the thought
that Respondent's statement was, at that
juncture, thoughtless but not malicious, and
not cognizant of the distress it would cause
her. She perceived it as a calculated act
degrading her.
24. Kate Smoker became increas-
ingly disgruntled with the Respondent and in
late January privately began conversation
concerning the possibility of obtaining
another attorney. She made inquiry of Alan
Brubaker as to whether he would be willing
to get her out of the guardianship. He
indicated to her that he did not want to
become involved in it and would not
C-33
represent her in the matter although he
could, if she wanted, guide her to other
attorneys. She later asked Bobby Ritchey to
arrange an appointment with another attor-
ney. He did so with R. Adrian Marks, a
Frankfort attorney with whom Ritchey was
casually acquainted. Ritchey arranged for
the initial meeting between Kate Smoker and
Marks for February 3, 1977 but that meeting
date was changed when Ritchey was instead to
meet with the Respondent concerning farm
leases that date. Respondent was never made
aware of the appointment.
25. On February 3, 1977, Bobby
Ritchey together with another area farmer,
Robert Gangwer, met with Respondent at his
office to discuss farm rental. During the
course of the conversation the Respondent
offered to resign as guardian if Bobby
Ritchey would take over that task; Ritchey
declined. Upon returning to consult with
Kate Smoker, Ritchey described to her
c-34
Respondent's plan for cash rental which, he
indicated, included removal of certain
fences to allow for bigger fields and antic-
ipated plowing and planting of permanent
pasture. Naturally she again became
agitated.
26. On February 4, 1977, in the
evening hours, Bobby Ritchey took Kate
Smoker to an interview with attorney Marks
at his office. The interview lasted two and
a half hours. She outlined her goals as,
first, stopping Respondent from altering the
basic nature and "complexion" of her farming
Operation and, second, to get the guardian-
ship terminated. Marks required her to be
examined by two physicians. Luring this
time it is safe to assume that she poured
out to him her frustrations over no longer
managing her own affairs. Marks arranged
for examination by Dr. Beardsley, a Frank-
fort physician, and Dr. Bowman, a Kokomo
psychiatrist.
27. During the next days she was
examined by Dr. Beardsley at his office.
The doctor, not knowing that the report was
for court purposes, gave her a standard
examination, took a history and otherwise
conversed with her sufficiently to determine
that she was pleasant, lucid, and well
oriented. He believed her to be competent
to manage her own affairs and he reduced his
report to written form on February 9, (Comm
Ex. 5). Dr. Bowman examined her on February
7 at his office in Howard Community Hospital
for seventy minutes. He believed her to be
in the early stages of senility and
diagnosed the condition as mild chronic
brain syndrome. While she showed some
confusion during the interview he believed
her to be competent to manage her affairs
and he too reduced this to written form that
date. (Comm Ex. 7). He did not expect to
have further contact with her but in fact
later did provide some supportive
: —
psychotherapy for her as will be reported.
Both doctors made their results known to
Marks.
28. Respondent and Kate Smoker
spent some time together on February 6
visiting a friend at a nursing home. On the
way home Respondent reported to her that he
had talked to Judge Smock about the pos-
sibility of his resigning because of the
strain this was causing their relationship.
He indicated to her that she could prevail
upon a bank to serve as guardian. She in-
dicated that there were too many new people
at the bank and that besides, she didn't
want a bank, that he should not resign
unless or until a new guardian could be
located. He remained entirely uninformed
about her contacting other counsel or other
doctors; they did discuss however that she
was seeing Dr. Wagoner weekly and that it
was becoming apparent that he would have to
change a mis-diagnosis.
C-37
29. Between February 7 and the
end of February 9, the exact time and cir-
cumstances not being adequately described,
Kate Smoker did inform William Briggs that
she had been in contact with another attor-
ney, namely R. Adrian Marks of Frankfort,
Indiana. It is not clear that she described
the extent of her interviews with him and it
is also not clear that she had indicated
that she had been seeing doctors for pur-
poses of examination to end the guardian-
ship; the best evidence would seem to in-
dicate that she did not inform him concern-
ing the doctors. During this period of time
since the guardianship was made permanent
she remained in essentially daily contact
with Respondent over various matters.
30. On Wednesday, February 9
Respondent was in the town of Burlington as
counsel attending the meeting of the
Burlington Town Board. After that meeting
he had a brief conversation with Kate Smoker
C-38
¢
at her home in which the matter of his res-
ignation was again discussed but she noted
that if he resigned a bank would be named to
replace him and she did not desire that.
31. On Thursday, February 10,
1977 the first communication between attor-
ney R. Adrian Marks and the Respondent
occurred. It was filled with the abruptness
and animosity which has plagued any rela-
tionship between these attorneys from that
day to this. On that date Attorney Marks
telephoned Respondent to indicate that he
desired to come to Respondent's office to
discuss the matters pertaining to Kate
Smoker. Respondent indicated that he would
be willing to have a meeting only if Kate
Smoker were present. This difference became
heated and the conversation was abruptly
ended by Marks hanging up. He did call
later in the day to indicate that he would
not be coming.
c-39
32. On Friday, February 11 Kate
Smoker was twice present at Respondent's
office to discuss minor matters concerning
the terms of a written lease that was being
concluded with tenant Ron Unger. Respon-
dent's notes indicate that she requested him
to accompany her to Narke* office to pick up
certain tax papers on that day and that he
declined to do so. That evening she met
with Bobby Ritchey and described the events
of the day. She eventually asked him to
stay over night with her. During the course
of the evening at 7:00 or 7:30 Respondent
called Kate Smoker at her home to discuss
some minor business matter. She did not
mention Ritchey's presence. Within a few
minutes of the termination of that conversa-
tion, he called again, ostensibly on the
same topic but he also inquired if any one
was present with her, to which she responded
in the negative. He thereafter telephoned
the Burlington town marshall and asked him
c-40
i
3
!
i
i
5
i
t
dt
i
i
i
§
i
i
to check on her. The town marshall did so,
making up some inane excuse about
peeping-toms; he duly reported to Respondent
that Ritchey was there.
33. On Saturday, February 12
Respondent arrived at Kate Smoker's home
quite early in the morning, approximately
7:30 a.m. According to Ritchey's testimony,
he tapped at the door, then burst into the
house and upon her being awakened she stated
to him "Bill Briggs, are you nuts?" Respon-
dent indicates that no such comment was
made, that he did knock on the door and upon
coming into the home that she was not
friendly in that she had _ not had her
insulin. A heated discussion followed
between Ritchey and the Respondent concern-
ing the care of Kate Smoker and what she
would be doing later in the day. Ritchey
had anticipated taking her to a birthday
party that evening and possibly having her
stay over night at the Ritchey home that
C-41
-night. The Respondent looked upon that
unfavorably at the time and further discus-
sion resulted; the tone of the testimony
makes clear that a serious confrontation
between two stubborn men occurred here.
Neither Ritchey or Respondent would leave
before the other left so that eventually
they left simultaneously. Respondent called
Kate Smoker later in the day and indicated
to her that it would be satisfactory for her
to go to the birthday party and in fact she
did accompany Ritchey and his family members
to a birthday dinner at a Frankfort res-
taurant that evening. Later that day the
Respondent submitted two petitions to the
Judge Pro Tem, Judge Smith (Judge Smock was
undergoing serious health problems at this
specific time and was in the process of
resigning; Judge Jeffrey R. Smith was not
the regular Judge of the Court although he
was the only Judge available in Carroll
County at the time; the record in the legal
C-42
proceedings suffers during this period of
time because some of the documents hereafter
referred to were delivered directly to him
at his law office and were file stamped at
later times). Respondent's petitions
(1) that the Court issue a_e temporary
restraining order, restraining certain per-
sons particularly including Bobby Ritchey
and his family members from interference
with his relationship with his ward and
(2) objecting to the filing of any papers or
pleadings allegedly signed or authorized by
the ward and further seeking a protective
order against his production of any
documents should such allegations be made.
Judge Smith was well aware of these requests
at the time and subsequently made a record
of overruling them.
34. On Sunday, February 13 as a
result of the scene the previous day and her
frustrations with the guardian and_ the
guardianship, Kate Smoker contacted attorney
C-43
Marks directing him to immediate action for
purposes of terminating the guardianship.
He in fact interviewed her twice during that
day, first whereby she requested immediate
action and they discussed the nature of what
it would be, whereupon he prepared a
petition to removal and second at her home
in the presence of Bobby Ritchey whereby he
read through the Petition to Remove with her
reviewing the document line by line and
having her (or her and Ritchey) initial the
specific facts and allegations therein that
they could document.
35. On Monday, February 14
Attorney Marks presented the Petition to
Remove to Judge Smith who scheduled the
matter for review for Friday, February 18.
Judge Smith indicated to attorney Marks at
that time that the petitions described above
were submitted on the preceding Saturday.
Respondent's receipt of the Peti-
tion to Terminate evoked anger and emotions
C-44
in the Respondent which have not subsided.
His reaction as he described it when reading
the petition was as if someone had "taken a
strap and belted him in the face" and that
he felt required to oppose and fight the
allegations against him because of their
nature. Further, he felt that Kate Smoker
had deceived him by not revealing to him
sooner her visits to Doctors Bowman and
Beardsly.
36. On some date between February
14 and 19, the exact date being unknown an
incident which has been referred to through-
out these proceedings as the "fish story".
Essentially three versions of it exist.
Respondent and Mrs. Briggs testified that
Kate Smoker called their home to discuss
other business matters. She inquired as to
how Respondent felt towards her concerning
the Petition to Remove and in response to
her he read to her the fronticepiece from a
new book named The Shad Treatment as
C-45
follows:
He would introduce his bills
in committee and the chairman
would always thank him. They were
always very courteous. They'd
say something like ‘We'll be glad
to give this bill due consideration'
and of course, before the session
was over, they'd have chopped every-
one to ribbons and finally one day
when someone told him that his
bill would get due consideration,
he let all of his frustrations out.
He reared up, eyes flashing and he
stuck out his finger and he said,
‘Yes, Mr. Chairman, I know the con-
sideration you'll give this bill.
It's the consideration of the fisher-
man for the shad, Mr. Chairman,
he said. ‘When the fisherman
catches the shad and brings it into
the boat the poor fish flips and
flops and tries to escape and the
fisherman speaks so politely to the
shad. He says, ‘Lie still, little
shad, I am not going to hurt you.
I am going to treat you well. I'm
not going to do a thing to you
except cut your tail off and I'm
not going to do a thing more to you
except cut your head off. And
after that I'm not going to doa
thing to you except cut all your
bones out.' And he pounded on the
committee table and said, ‘That's
the consideration I expect from
you, Mr. Chairman, the shad treat-
ment, Mr. Chairman. .. .the shad
treatment and I may have to take
it, but I will fry in hell before
I say thank you.
C-46
m=
Respondent then concluded the con-
versation with something like, "That's just
the way I feel. I may have to take this
from you but I will fry in hell before I say
thank you."
A second version was presented by
the Briggs' then secretaries Ruth Jean Jones
and Judy McKinley, Ruth Jean Jones indicated
that during a weekday early morning hour,
before 9:00 o'clock, Respondent telephoned
Kate Smoker in her presence and read from a
"slick cover" magazine a story substantially
similar to the story quoted above. Upon
completing the reading, he then hung up the
phone in her ear, conduct which the sec-
retary considered shocking and which she
immediately reported to fellow secretary
Judy McKinley. McKinley confirmed that
Jones had reported it and was clearly
distraught over something at the time.
A third version was provided by
Kate Smoker during a later interview by Dr.
C-47
Bowman. She described to him that one of
the items caused by Briggs that was causing
her stress was an example of an early
morning telephone call that awakened her,
that during the call he related to her a
bizarre fish story about a fish being carved
apart and that she interpreted the story to
mean that her estate would be carved up
through the litigations that her actions at
that time seem to be developing. The doctor
indicated that Kate Smoker would have been
capable of abstract reasoning but that she
did not draw this conclusion on her own;
instead at the conclusion of the story the
Respondent asked her "Do you get the point
Kate?" and that the point consisted of the
carving up of her estate. Dr. Bowman in-
dicated that she was not scared or revolted
by the story, only amazed that Respondent
would tell it to her. Bobby Ritchey also
described an amazed attitude.
c-48
It is not clear which of these
descriptions of the incident is most ac-
curate, nor are the descriptions mutally
exclusive; it is even possible that more
than one conversation occurred and that all
of the descriptions are accurate in some
respect. Should this Officer have to choose
one description as being the most accurate
description of the event, this Officer would
choose the description of Dr. Bowman. In
any event it is clear that the event
occurred at a time of great stress in the
relationship between Briggs and Smoker, at a
time when her health was not good and that a
stressful incident could have a detrimental
effect upon her emotional health, and that
the story as recited to her was reasonably
calculated to provide her further stress and
discomfort. It may have been the response
of a former friend aggravated by a specific
Situation but it can not be considered the
proper response of an attorney at law and
C-49
counsellor or of an attorney acting as
guardian of the person and estate of that
individual.
37. On Friday, February 18, 1977,
Respondent together with Mrs. Briggs, attor-
ney Marks and his associate attorney in this
cause, Samuel Power, met with Judge Smith in
a pre-hearing conference. As a result of
that conference Judge Smith ordered written
reports from Doctors Bowman, Beardsly and
Wagoner concerning Kate Smoker's physical
and mental condition to be submitted as part
of the record in the conservatorship cause.
While returning home following such hearing,
Respondent engaged in a lengthy consultation
with Mrs. Briggs concerning the advisibility
of filing his Petition to Terminate the
conservatorship on the basis of Kate
Smoker's now apparent competence; he _ had
prepared such a document and taken it to the
conference but had not filed it or displayed
it at the conference. He eventually
c-50
concluded that the filing of such a document
Was appropriate so that he returned to
Delphi and filed it. It includes his state-
ment without reservation that the conser-
vatorship should be terminated, stating
reasons therefor, and referring in his peti-
tion to the findings of Dr. Beardsly and Dr.
Bowman. He noted that because of the
conservatorship Kate Smoker was extremely
unhappy and had a "frantic feeling" and
further noted; "Until the conservatorship is
terminated Mrs. Smoker will always’ be
unhappy and will not be free from the in-
fluence, ministrations and manipulations of
others.”
38. Within the next days Kate
Smoker indicated a desire to Attorney Marks
to prepare a new will. She had mentioned
this in her initial interview but he refused
to even have a discussion with her about it
until she obtained competency examinations.
Thereafter, he did have a lengthy interview
C-51
-
ob.
with her about what she wanted. He did not
have access to the will prepared by Respon-
dent some years before with the educational
trust. He had to rely upon her memory for
that information because she did not wish to
ask Respondent for a copy of it. When she
described the nature of the trust that she
desired, he approved of such a_ bequest
noting that he had been aware that such an
arrangement could be set up without cost by
the Indiana Universtiy Foundation and could
be established excusively for the Burlington
community. She noted, however, that she was
now not going to participate in such a
program noting "that the whole idea is now
spoiled for me" and that now she desired to
make a series of specific bequests, to make
the bequest of a modest amount of farm land
to Bobby Ritchey and that the residue of her
estate be divided equally between trusts for
the Burlington Methodist Church and the
Burlington Cemetery. In fact, Attorney
C-52
—
baa rss *
Marks prepared that will for her and she
executed it before witnesses on February 23,
1977. Five days later she added a one page
codicil, adding two quite modest specific
bequests. Except for herself and Marks, the
other actors in this drama, particularly
including Bobby Ritchey, were not aware that
she had made a new will for quite some time.
39. After the filing of the Peti-
tion to Remove by Attorney Marks and the
Petition to Terminate by Respondent, the
Respondent began delaying and resisting
action on these petitions. On February 23,
Mr. Marks sent a letter to Mr. Briggs agree-
ing to the granting of the Respondent's
Petition to Terminate, and submitting a
suggested form of decree for the purpose of
ending the conservatorship, as asked for by
the Respondent in his petition. The Respon-
dent did not answer the letter. About one
week later, Attorney Marks telephoned the
Respondent as to the possibility of such an
C-53
agreed termination order. Respondent
answered Marks by telling him that they
would be able to talk when Marks “got the
animosity out of his heart". Marks in-
dicates that his reply was "quick and
pungent". A few days later Mr. Power, Kate
Smoker's other new attorney, called the
Respondent to discuss action on the Petition
to Terminate. Respondent refused to agree
to the granting of his own Petition to Ter-
minate. Ina letter written on May 2, 1977,
to Special Judge Munro who had since qual-
ified in the guardianship, the Respondent
informed the Special Judge that he _ had
informed Mr. Power that ". . .before I,
myself, would agree to any order of any
nature, including a dismissal of their
Petition to Discharge, etc., there would
have to be a finding that certainly I had
NOT mismanaged the funds of Mrs. Smoker in
any way."
40. Judge Munro was selected and
qualified on February 28, 1977, and he set a
hearing to be held on all pending petitions
on April 19. Between March 9 and March 15,
the three physicians filed their written
reports with the Court in which each of them
affirmed that Kate Smoker was of sound mind
and capable of managing her own affairs. On
April 12, failing to get an agreed entry
signed by the Respondent to his own Petition
to Terminate, her attorneys filed a reply to
the Petition to Terminate that admitted the
allegations that the guardianship should be
terminated. Shortly before the scheduled
April 19 hearing, the Respondent discovered
that he would have to be in Washington, D.
C. on other legal business, and the court
granted a continuance and rescheduled the
hearing for May ll.
4l. On April 19, Kate Smoker's
counsel filed a Motion for Summary Judgment
on the Respondent's Petition to Terminate,
c-55
——-
pointing out that the pleadings showed that
the parties and all of the physicians were
in agreement that Kate Smoker was mentally
competent. On May 6, the Court entered an
order limiting the hearing on May 1l to the
issues raised by the Respondent's Petition
to Terminate and also informed counsel that,
since by agreement the physicians' reports
were part of the record, the court would
take judicial notice of them and it would
not be necessary for any party to call any
of them as a witness at the hearing.
42. On May ll, Mr. Briggs filed
his “Objection to Court Order", objecting to
the reception of the doctors' reports and to
limiting the hearing to his own Petition to
Terminate. On the same date, the Respondent
filed his "Affidavit and Response of William
J. Briggs Conservator To Motion for Summary
Judgment". In this pleading, the Respondent
argued strenuously that the granting of a
judgment on his Petition to Terminate,
C-56
without also hearing the Petition to Remove,
would do “irreparable harm" to the Respon-
dent because the Petition to Remove "has
cast doubt on the character of William J.
Briggs by innuendo." He insisted that the
doctors should have to appear personally in
court and be subject to cross-examination.
He alleged that their reports were
"inconclusive" and "inconsistent with one
another". He insisted that, since he had
had his reputation impuned, he should have
the privilege of cross-examining the doctors
in court.
43. On May ll, the Court
proceeded with the hearing on the Respon-
dent's Petition to Terminate, and all of the
evidence was heard thereon except that of
Dr. Wagoner. Since the Respondent wished to
call Dr. Wagoner as a witness and he could
not be present on May ll, the Court, on the
Respondent's motion, granted a continuance
to May 26 to permit Dr. Wagoner to testify
C-57
in person. On that date, following his
evidence, the conservatorship was terminated
by the Court. |
44. During the period of time
from the filing of Petition for Removal by
Attorney Marks and the ultimate return of
control of her property to her, Kate Smoker
was subjected to constant fits of distress,
anxiety, and worry. The record of this case
is replete the examples of individuals
stopping by her home to see or check on her
and finding her in various’ stages of
emotional display concerned over property
control or upset because of some specific
Situation that had occurred. The most
serious example is presented by the
testimony of attorney Alan Brubaker who
received a garbled and near hysterical call
from her on one occasion to stop by to talk
with her. Shortly thereafter when he
arrived at her home, he found her to be
sobbing uncontrollably, literally tearing
C-58
her hair out of her head, and incapable of
speaking sufficiently to even explain the
cause of her distress. He described that
she would cry for 8 to 10 minutes and then
wail "how could he do this to me?" and
relapse into a new fit of despair. After
three to four hours that evening, he was
able to get her settled down so that she was
no longer in such an emoticnal state but he
never was able to conclude the event that
had caused this display.
Throughout this period of time by
far the vast majority of these emotional
upsets were the result of events concerning
the Respondent and his control over her
property but it must be indicated that the
entire situation was the cause of her upset,
that is the continuation of the guardianship
and her own inability to gain control over
her property. Bobby Ritchey described one
event where the apparent cause of her upset
was caused by Attorney Marks where the vast
C-59
majority of what he understood from her was
that Marks had let her down and that Sam
Power was a crook and that she was disgusted
with the entire course of events.
During this period of time several
themes to her emotional upset recurred. She
was upset that Respondent on some occasion
apparently indicated to her that he would
not be able to get her taxes done on time
unless she helped him get out of the "guard-
ianship mess," an allegation which he
denies. She indicated on other occasion
that the legal proceeding seemed to be con-
tinually delayed and that he had indicated
to her that she would never be out from
under the guardianship and that he would
simply obtain continuances whenever trial
dates neared. She was terribly embittered
over the continuances of April 19 and May
ll. She indicated on other occasions that
he denied her access to the medical reports,
and had indicated to her that the medical
C-60
reports would not do her any good and that
he would find a way to either disparage them
or keep them from the judge. He denies
having made any of these comments to her.
She repeated on many occasions that he had
told her that when this whole case was over
her estate would not be worth fifteen cents;
he denies making a comment such as that but
he does recall having a conversation with
her concerning the ultimate result that
these legal expenses would have upon her
estate, a conversaton in whichh he believes
he stated to her that there would be legal
expense and that the ultimate losers of any
legal proceedings would be her and himself,
the Respondent.
Throughout this period of time, it
is clear that her emotional state was far
worse than normal but that the items of
concern for her did involve business matters
or her estate planning matters which would
be natural causes for her concern, an
C-61
indication that her capability of managing
her own business affairs probably remained
intact. While the condition of her physical
health probably added to her inability to
control her emotions, it is clear that the
circumstances surrounding the guardianship
proceedings also greatly exacerbated her
emotional distress.
This officer would be hard pressed
to improve upon the observation of Judge
Munro: "The termination of a conservator-
ship, where three physicians unanimously
agree that the ward is restored to com-
petence, normally would be a simply and
routine matter. While the decision must be
made by the court exercising independent
judgment, even if all parties are agreed, in
a normal case it is something that would be
done routinely and promptly as soon as the
fact of competence became apparent. In the
matter at hand, the Respondent treated the
entire matter as an adversary proceeding,"
C-62
_ ila -omnatenianamennaentell
apparently believing that he would face
allegations of the improper creation of the
guardianship if he simply went on record as
agreeing to end it. He did so fully aware
of the emotional upset being caused to her
and for purposes ultimately designed for his
own benefit, namely, to protect his own
reputation.
45. Immediately following the
granting of the termination of the guardian-
ship, Kate Smoker executed another codicil
to her 1977 Will in which she reaffirmed its
terms as well as the terms of the codicil
made a few days thereafter.
46. Judge Munro's termination
order of May 26 directed specifically that
Kate Smoker could take over her business
affairs immediately and receive her business
mail immediately, that the Respondent was to
file a written final report within two
weeks. That $2,000.00 was to be transferred
to Kate Smoker for her immediate use, that
C-63
her Will, tax papers and other papers would
all be made available to her at the time
that final report was submitted. The date
of June 9 became a date of substantial
importance to Kate Smoker; that was the date
she was to receive all of the items not
immediately delivered. The date was
apparently of less significance to Respon-
dent however. He was expending substantial
effort to filing a written final report, but
had no plans to deliver documents and other
items that date. In fact, Attorney Marks
came to the Briggs law office to pick up
certain items armed with a power of attorney
from Kate Smoker and a specific directive to
deliver papers. Respondent was - absent,
working on another matter and the result was
a confrontation between Marks and “Mrs.
Briggs during which Kate Smoker was
consulted by telephone and both participants
became livid at various times.
C-64
Specifically, three items were the
ultimate causes of further friction:
(a) Respondent understood that the $2,000.00
was to be made available to Kate Smoker for
payment of quarterly estimated taxes, not as
operating funds; this money was made avail-
able before June 15, but Respondent gave it
no priority; (b) numerous business papers
including checking account records were not
timely delivered; no doubt the sheer volume
of materials had something to do with that
but it caused Kate Smoker further distress;
(c) the lock box key was not returned as Mr.
Briggs desired a witness to the transfer of
its contents but took no steps to arrange
it; Attorney Marks suggests that Respondent
was simply holding the certificates hostage
to secure a favorable resolution of fees
issues and indicates that Respondent told
him “We'll talk about keys after we settle
our fees;" (Respondent heatedly denies any
such statement). The lock box key was
C-65
}
delivered August 2, 1977. It is clear that
Respondent took no special steps to return
the key, a fact of special significance be-
cause of the earlier "lock box key"
incident. This episode again further embit-
tered Kate Smoker about Respondent and his
motives.
47. With the filing of the
Respondent's final report, the Respondent
objected to being required to file a claim
for services aS a conservator or as an
attorney. He argued in his objection that
he had undertaken these services as part of
the life time contract that he believed
himself to be under with Kate Smoker. These
objections were overruled and ultimately he
was directed to file a record of his time
expenditure in the case and a statement of
account. His filing in this regard stated
that his service as a conservator and attor-
ney and Mrs. Briggs' services as attorney,
when computed upon hours of service alone,
C-66
were reasonably worth the total sum of
$17,585.00.
The guardianship was opened on a
preliminary basis from November 24, 1976 to
January 13, 1977 and on a permanent basis
from January 13 to May 26, 1977, a total
period of 6 months and 2 days. Total assets
consisted of 282 acres of farm land and cash
assets of approximately $150,000.00. Total
income during this period of time was
$5,893.68 and total expenditures were
$16,019.14. While even under the special
circumstances of this case, this Officer
believes that a fee of $17,585.00 would in .-
fact be an excessive fee, the record well
reflects that the ultimate goal of the
Respondent was not to seek that amount of
recovery for fees but was instead to assure
his life-time services contract and the
payment of the $10,000.00 under it. Cer-
tainly his prayers for relief were in the
C-67
alternataive but his efforts were bent upon
proof of the validity of the contract.
48. Lengthy and acrimonious
proceedings towards final hearing upon the
closing of the guardianship - followed.
Allegations between Respondent and Attorney
Marks and Power followed which included an
effort to bar Respondent from communicating
with Kate Smoker and, more significantly, a
filing by Attorney Marks of certain plead-
ings in camera before Judge Munro which
later became the basis of a defamation
counter-claim by Respondent against Kate
Smoker, Adrian Marks, and Samuel Power
individually. During this period of time
the Respondent also became aware that
Attorney Marks, later supplemented by Attor-
ney Power and Kate Smoker, had filed a
complaint before the Disciplinary Commission
which ultimately gave rise to this
proceeding. Ultimately all of the matters
scheduled for conclusion as part of the
C-68
guardianship final report including
(a) final determination of Respondent's
statement of services as attorney and
conservator (b) . ward's preliminary
objections and final objections to the
report (c) Respondent's claim for damages
because of defamation and (d) a claim for
personal injuries and damages against the
Respondent by the ward were all scheduled
for hearing to commence December 3, 1979.
49. That during the period of
time from May of 1977 to 1979, Kate Smoker
managed her own affairs and was not under
guardianship. There is no indication during
that time that she was unable to execute a
new will or otherwise modify the will that
she had made in 1977. During that time she
remained close to Bobby Ritchey as well as
other former friends but did not remain
friendly with Respondent. As Dr. Wagoner
had predicted, her- health remained on a
gradual downhill course. She returned for
C-69
four more visits with Dr. Bowman, at first
to ventilate her frustrations with the
guardianship, with Respondent, and with the
whole legal process. Other visits were more
in the nature of examinations for a
competency determination as a witness. Her
health did not deteriorate to the levels it
had reached in November of 1976, but Dr.
Bowman's records reveal a gradual erosion of
her alertness and increased symptoms of
senile dementia. He saw her last just a few
weeks before her death and she was not
sharp.
In anticipation of this sequence,
her evidentiary deposition was taken for
this proceeding on November 22, 1977.
50. Mary Bernice Smoker passed
away on November 21, 1979, approximately 2
weeks prior to the commencement of the Court
trial scheduled on the final report on her
conservatorship.
51. On the following Monday,
November 26, 1979, the Respondent’ filed
sworn objections to the probate of "any
will or cidicil) of Mary Bernice Smoker
subsequent to the date of February 24, 1970
re."pursuant to statute. Such objections
resulted in the impounding of Mrs. Smoker's
1977 will and codicil when they were pre-
sented thereafter for probate. The Respond-
ent's purpose in filing such anaction at
that early juncture was to obtain the
appointment of a "neutral" administrator of
theestate, preferably a financial institu-
tion, who would not hire Marks and Power as
their counseland who would, therefore, be
moreamenable to settlement of the pending
claims. Judge Donald Myers, then regular
judge of the Carroll Circuit Court approved
the ClintonCounty Bank and Trust Company of
Frankfort,Indiana, as special administrator;
this was the representative named in the de-
cedent's 1977 will. This administrator
promptly hired Marks and Power as counsel.
52. Respondents' ultimate purpose
in contesting the 1977 will and codicil
was to preserve his own claim and all of the
family benefits which the prior will of 1970
contained. Respondent undertook this
contest fullyaware of the existence of this
disciplinary action pending against him.
While it is safe to assume that his filing
couldwell delay the guardianship’ final
hearing (it did not) and that it would delay
the ultimate determination of the proceeding
(this file contains correspondence that a
disciplinary trial would await the results
of the guardianship hearing) and while it is
further safe to believe that retaliatory
filingsagainst Marks and Power controlling
the final the final determination of 4
C-—
Smoker Estate did at least cross his mind,
the ultimate decision to prosecute a will
contest, no doubtmade after an adverse de-
termination in the guardianship, was
grounded in the appropriate litigant's
decision that he believed he could win the
claim. These considerations of the
"winability"™ of the case and the risk of
further disciplinary filing appear to be the
major areas of discussion as to whether to
proceed.
The decedent's competence at the time
of the execution of the 1977 will and
codicils was never challenged. the entire
lawsuit was fought over the issues of the
use of undue influence upon the decedent and
whether the 1977 will was a product of such
influence. Respondent correctly believed
that a jury would be instructed upon
due"
influence essentially as follows:
False statements and
accusations to a test-
ator concerning the
objects of the lat-
ter's bounty with the
intention and effect
of alienating her
affections and causing
her to make certain
testamentary disposit-
ions of her property
may be a circumstance
to declare the will
void for undue influ-
ence. Attacking the
reputation or charact-
er of a person may be
the means through
which undue influence
or fraud invalidating
a will is perpetrated.
Undue influence may
consistin arousing
bitter feeling that
would be unwarranted
if the whole truth
were known; such
influence maymay be
achieved by initiat-
half-truths so direct-
ed that they will, in
all probability, reach
the person to be
affected, to the
un-
mmHmmHmHmHE me HE Ee Ee HS we & =
injury or prejudice of
another person, and
once the bitter
feeling has been
aroused, it can be kep
alive and the memory
of it sharpened and
even magnified by
repetition.
Factors in this case which led respondent
to believe that he could well previal upon
thisstate of the law were (1) that
Bobby Ritchey, the individual who had taken
decedent to Marks' office, had benefitted
more from thiswill than any other person,
going from a $2,000.00 specific bequest to
a 92 acre farm (2) the pattern of the
previouswills she had drafted had always
been to create an educational trust, even
before she met Respondent, but no educa-
tional trust was left in the 1977 will (3)
thechurch and the cemetery had received
C-75
nat eEe EEE HE EH Ee Ee HE He & =
modest specific bequests beefore, but noth-
ing in scope like the residue of the estate
(4) Dr. Wagoner had already provided testi-
mony that from February 3, 1977, to May 26,
1977, that she could be unduly influenced.
The Respondent also argues that other items
in the will which reflect that it was
hurriedly prepared buttress this position;
those arguments are much less convincing.
: 53.Trial on the guardianship
final report and the related matters there-
to was held over a period of 30 trial days
from December 3, 1979, to August 7, 1980.
At the conclusion of that proceeding Judge
Munro rendered his determination of the
matters presented on November 5, 1980; as
the Court of Appeals, Second District
reviewed that matter by decision of August
9, 1983, cited at 452 N.E~. 2d 989
(cehearingdenied, transfer denied). His
determinations are here summarized as
follows: (a) the final report was
C-76
approved in all respects except for
guardian's fees and attorney fees, all of
which were denied based upon apparent con-
flict of interest; (b) all claim by
Respondent to the $9,000.00 certificate
was set aside and the underlying contract
for life-time legal services was rescinded
upon a theory of undue influence; (c) the
Smoker's administrator's claim against
Respondent for misfeasance in the
management of estate assets was denied
upon the theory that she always had funds
to do as she wished, included in her argu-
ment here was an attempt to recover for
injuries from psychological abuse and
emotional strain, but the judgment was that
her death rendered any issue here moot; (d)
the defamation claim by Respondent was
upheld but no damage had resulted
therefrom; ultimately a $1.00 award was
made on that claim; (e) fees for $25.00
C-77
were awarded for the time period between
the signing of the life-time contract and
the guardianship formation in November,
1976. The Court of Appeals set aside the
$25.00 award and ordered appellate attorney
fees paid.
54. The will contest case was
scheduled to commence in late November,
1980, a matter of days after Judge Munro's
decision was handed down.
55. On October 29, 1980,
Florence Anne Briggs ha;d written a letter
toopposing counsel of record regarding a
desire to discuss a settlement of the Will
Contest using as a frams of reference the
attorney feesand other defense costs which
the Smoker Estate would likely expend in
all phases of the litigation. Mrs. Briggs
undertook to advise Attorney Huffer one of
the opposing counsel in her letter that
Huffer was representing parties with
C-78
conflicting interest since he represented
specific legatees as well as residuary
legatees, the latter parties being the
parties ultimately charged for defense
costs. Mrs. Briggs told Huffer in her
letter that the factsconcerning the
different interests of his clients should
be communicated to and clearly un derstood
by Huffer and theBoards which govern the
residuary legatees.
56. On November 5, 1980, Charles
R.Vaughn, an attorney in Lafayette,
Indiana, entered his appearance in the will
contest case for numerous defendants,
including the Burlington United Methodist
BPRESEHAgsat Re Burlington Cemetery Associ-
ation.
57. On November 8, 1980, Mrs.
Briggs conveyed to Charles R. Vaughn a
written offer to settle the Will Contest
and the Respondent's claim in the
Smoker Estate. The settlement offer
proposedthat the contestants be paid the
sum of $29,250.00 by the Smoker Estate,
such sum being three-fourths of the attor-
neys fees which Mrs. Briggs estimated, the
Smoker Estate would expend ine further
defense of the Will Contest. The
settlement offerconcluded with the
admonition by Mrs. Briggs that, since it
was her opinion that Mr. Vaughn was
representing defendants in the Will
Contest who hadconflicting interests, Mr.
Vaughn had an obligation to fully and
completely discuss the settlement offer
with all parties represented by him.
Because of the language of a letter sent to
the Church Board, copy to respondent and
Mrs. Briggs, that their offer contained
"nothing new," Mrs. Briggs felt that
further pre-trial steps were necessary to
assure thatthe offer was fully conveyed.
58. On November 10, 1980, Mrs.
c-80
«
‘
'
BBriggs telephone (sic) the Special Judge
in the Will Contest, Robert Leirer Justice,
(then a practising attorney, now regular
Judge of the Cass Circuit Court) and
inquired of Judge Justice whether she could
contact persons associated with parties
defendant in the Will Contest to determine
if her settlement offer had been conveyed
to such parties by their counsel. Judge
Justice informed her that, in his opinion,
she ethically could contact such persons
provided that they did not hold
"decision-making" positions with a party
defendant. None of the counsel
representing the defendants in the Will
Contest were privy to thetelephone
conference above described between Mrs.
Briggs and Judge Justice, but the
Respondent was well aware of such
conference and its content.
59. Shortly thereafter, the
Respondent telephoned Reverent Arthur A.
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Schenck, a retired United Methodist pastor
for whom Mr. Briggs had drafted a will in
1971. Reverend Schenck was a resident of
Burlington, Indiana. By virtue of his
residence and retirement status, Reverend
Schenck was a member of the Burlington
United Methodist Church and a member of
such church's Charge Conference and
Administrative Board, the bodies within
such Church that had the decision-making
power with respect to the Chugen*s
participation (if any) in the settlement of
the Will Contest. The Respondent asked
Reverend Schenck to come to the Briggs's
law office in Flora and Reverend Schenck
obliged.
60. Reverend Schenck met at the
Briggs's law office with the Respondent and
Mrs. Briggs. The Respondent advised Rever-
end Schenck that he wanted to be certain
that a settlement offer he had made in
the Will Contest had been communicated to
the Church. The Respondent further told
Reverend Schenck that he wanted his
settlement offer presented to the Church
Board but that the Respondent could not
present the offer himself because the
Church's attorney, James R. Huffer, had
forbade such a presentation. The
Respondent further told Reverend Schenck
that the offer had to be presented by
someonewho was not a member of the Church
Board, whereupon Reverend Schenck advised
the Briggses that he was an ex-officio
member of the Board. The Respondent
informed Reverend Schenck that Respondent
had a claim for
17,000.00 for services performed for Kate
Smoker and that he would dismiss the
Ralphwill contest if he was paid
$29,000.00. The Respondent requested
Reverend Schenck to ask the pastor of the
church, Reverend Ralph Karstedt, to appoint
someone who was not a member of the Board
to present the Respondent's settlement
offer to the Board.
6l. Reverend Schenck promptly
went to see Reverend Karstedt at the
Burlington United Methodist Church.
Reverend Schenck informed Reverend Karstedt
that the Respondent had contacted him about
the Will Contest and that the Respondent
wanted the Church to be aware of his set-
tlement offer and the amount of the
settlement offer of $29,000.00. Reverend
Schenck asked Karstedt to see to it that
the Respondent's settlement offer was
conveyed to the Administrative Board and
told Reverend Karstedt that he had been
told by the Respondent that the Church
C-84
probably would save money by accepting the
settlement offer and that such a settlement
would be to the Church's advantage. Rev-
erend Karstedt informed the Chairman of the
Administrative Board of the settlement
offer, and the two of them felt that they
had no desire to compromise the -claim as a
matter of principle; they rejectea the
Respondent's request conveyed by
Reverend Schenck to take the matter before
the Administrative Board.
62. An eleven day trial to a
jury of the will contest ensued with
Respondent acting both as party and as
co-counsel with Mrs. Briggs acting as lead
counsel for plaintiffs. After eight hours
of jury deliberation a verdict against
Respondent was returned; effectively
upholding the 1977 will. Judge Justice has
indicated that hebelieves the issues
presented provided a fair jury question
and that he believes he would not have set
C-85
aside a verdict for plaintiffs had that
been the decision.
II
CONCLUSIONS OF LAW UPON
VERIFIED COMPLAINT
Upon the issues here presented, this
Officer concludes as follows:
63. That all findings herein are made
based upon a "Clear and convincing"
standard of evidence; as to issues raised
by Respondent as affirmative defenses,
findings thereon are also based upon the
Commission overcoming the defense by "clear
and convincing" evidence.
64. That Canons 6 and 37 of the Canons of
Profession Ethics of the American Bar
Association, the prevailing ethical
standard in Indiana in 1970, provided:
6. Adverse Influences and Conflicting
Interests
—————
ae bd
~: ) oi Na |
ua a one ae |
=
It is the duty of a lawyer at the time
of retainer to disclose to the client all
the circumstances of his relations to the
parties, and any interest in or connection
with the controversy, which might influence
the client in the selection of counsel.
It is unprofessional to represent
conflicting interests, except by express
consent of all concerned given after a full
Gisclosure of the _ facts. Within the
meaning of this canon, a lawyer represents
conflicting interests when, in behalf of
one client, it is his duty to contend for
that which duty to another client requires
him to oppose.
The obligation to represent the client
with undivided fidelityand not to divulge
his secrets or confidences forbidsalso the
subsequent acceptance of retainers or
employment from others in matters adversely
affecting any interest of the client with
respect to which confidence has_ been
reposed.
37. Confidence of a Client
It is the duty of a lawyer to preserve
his client's confidences. This duty
outlasts the lawyer's employment, and
extends as well to his employees, and
neither of them should accept employment
which involves Or may involved the
disclosure or use of these confidences,
either for the private advantage of the
lawyer or his employees or to the
disadvantage of the client, without his
knowledge and consent, and even though
thereare other available sources of such
information. A lawyer should not continue
employment when he discovers that this
obligation prevents the performance of his
full duty to his former or to his new
C-87
Client.
If a lawyer is accused by his client, he
is not precluded from disclosing the truth
in respect to the accusation. The
announced intention of a client to commit a
crime is not included within the
confidences which he is bound to respect.
He may properly make such disclosures as
may be necessary to prevent the act or
protect those against whom it is
threatened.
that these standards are stated with
sufficient (sic) precision to be understood
and to bar certain kinds of activity; and
that these Canons evidence proper standards
of conduct for the legal profession and are
the appropriate vehicle for enforcement of
violations before March 8, 197l. See In
the Matter of Daniel L. Kuzman (1975) 335
N.E. 2d 210 at 212.
65. That by drafting the 1970
will of Mary Bernice Smoker and advising
her chereon, not being a natural ofject of
her bounty, when (a) he was a beneficiary
under the will, (b) his minor-age son was a
most substantial beneficiary of an
educational trust created by the will, and
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(c) he investigated the tax ramifications
of the inclusion of his son, by name, in
the trust with an interest in the results
of such investigation and gave legal advice
to his client thereon, he committed acts
which were conflicts of a client's interest
with his personal interest; that because of
such conflict he would have known that he
was exposing the estate of his client to
risk of litigation.
66. That even though he was the
drafter of the document in violation of the
Canons, Respondent did not forfeit his
right of access to the Courts to protect
his own interest; he had probable cause to
believe he could succeed in litigation to
set aside the 1977 will and for enforcement
of the 1970 will. His determination to
proceed was, as a litigant, supportable
under the appropriate criteria; it was his
misconduct in preparing the 1970 ducument
that is the objectionable element to his
c-89
act.
67. Upon the suggestion of miscon
duct in Respondent or family members bring
named as Personal Representative or Trustee
in the 1970 will, this Officer is mindful
of the distinction in EC 5-5 and EC 5-6:
EC 5-5
A lawyer should not suggest to his
cvlient that a gift be made to himseif or
for his benefit. If a lawyer accepts a
gift from his client, he is peculiarly
susceptible to the charge that he unduly
influenced or overreached the client. If a
client voluntarily offers to make a gift to
his lawyer, the lawyer may accept the gift,
bue before doing so, he should urge that
his client secure disinterested advice from
an independent, competent person who is
cognizant of all the circumstances. Other
than in exceptional circumstances, a lawyer
should insist that an instrument in which
his client desires to name him beneficially
be prepared by another lawyer selected by
the client.
EC 5-6
A lawyer should not consciously
influence a client to name him as executor,
trustee, or lawyer in an instrument. In
those cases where a client wishes to name
his lawyer as such, care should be taken by
the lawyer to avoid even the appearance of
impropriety.
c-90
In preparing the 1970 Will, no exceptional
circumstances were made to appear. On the
other hand, no appearance of impropriety is
shown where the management and beneficiary
scheme is clearly that of the client and
was not shown to be obtained by influence;
there the Respondent being a named personal
representative or attorney for a trustee,
if that were his only involvement in the
dispositive scheme, is not an apparent
violation.
68. Exceptional circumstances did
not exist for the creation of the lifetime
services contract - and $9,000.00 joint
certificate for the Respondent either. He
did appropriately urge her to contact other
counsel, but she did not; if he believed
her health was failing and signing the
documents was urgent, then that might be
considered special circumstances.
Respondent has steadfastly believed,
however, that she was competent and that
C-91
there was no urgency in the November 9,
1976, meeting, a position he espoused while
seeking to have the contract enforced;
accepting that, he should not have
participated in the creation of those
documents.
69. That the evidence as
discussed reflects harrassment’ of his
client by his acts knowing them to increase
her aggravation and frustration with the
guardianship.
70. That he unreasonably delayed
termination, acting both in his capacity as
guardian and as the attorney for the
guardianship, for purposes of his own
self-interest and, as he perceived it,
self-protection, and to the great emotional
cost and to the financial cost to his
client.
71. That he improperly communi-
cated a settlement offer to another,
knowing them to be represented by counsel.
C-92
III: FINDINGS UPON PROCEDURAL AND CONSTI-
TUTIONAL ISSUES
The Respondent has challenged the
procedures of the Indiana Supreme ‘Court
Disciplinary Commission generally and as
applied to this case as violating his
constitutional rights. These issues have
been developed as follows:
A. Did the delay in bringing this
matter to hearing deprive the Respondent of
his fair opportunity to defend himself?
This has been presented as (a) depriving
him of the effective assistance of counsel
(b) because of the death of numerous
witnesses depriving him of the effective
use of the subpoena power and (c) the
generally recognized prejudice attached to
delay arising from faded memories, lost
evidence, living with the uncertainty of
the result, etc.
B. Was the Respondent denied equal
protection of the law in that he was
selectively prosec uted while other
malfeasors herein were not?
C. Was the Respondent denied due process
and the equal protection of the laws by
having his fact-finding hearing joined to
the fact-finding hearing in 783-S-262
wherein the Respondent was his law partner
and his wife.
D. Was the entire proceeding conducted
to deny him the protection of procedural
due process of law; stated another way, are
the Rules of Procedure for these
proceedings as outlined in Admission and
Discipline Rule 23 fundamentally fair?
E. Are the nature of the proceedings
together with the potential sanctions a
cruel and unusual punishment? er
Upon such issues the Court now makes the
following finds of fact:
72.The Disciplinary Commission
received a complaint letter from Attorney
R. Adrian Marks on July 8, 1977, followed
by the submission of a grievance dated
July 20 and received July 22, 1977, signed
by Mary Bernice Smoker, gehernay Samuel
Power and Marks alleging professional
misconduct by the Respondent William J.
Briggs.
736 Sheldon Breskow, Executing
Secretary of the Indiana Supreme Court
Disciplinary Commission reviewed the
grievance and determined that it contained
a basis for further investigation to
determine if misconduct by Respondent had
occurred; Breskow set in motion further
investigatory procedures within the
Disciplinary Commission which included
notification to the Respondent that an
investigation was under way, the issues of
Cc-94
amen
Lo wishes OMAN. we Eo Hala albrua en 2
PRR Sa HOF the
the investigation, and invited by them any
response that they wished to _ provide
concerning the investigation; in fact they
did present one response which would be
considered theequivalent of a general
denial in regular pleading practice; the
executive
secretary's staff replied that that was
not the kind of respose that they were
seeking but they were instead allowing the
opportunity to provide a factual response
as to whether any cause should be
commenced; the
respondent did in fact provide a
substantial response including submission
of vast amounts of material on December 5,
1977.
74. This procedure is the
standard procedure by which grievances are
filed and the Exceutive Secretary
C-95
TGQ, et ew
NR 3%
ASU Eres
commences’ an investigation towards a
filing; aside from the general denial
nature of the Respondent's initial resonse
(sic) and the request for a further
filing, Mr. Breskow has no_- specific
recollection of any procedural
irregularities in the initial stages of
this cause.
75. The grievance together with
results of further investigation and the
response of the Respondent was presented
to the Disciplinary Commission and, as is
the normal practice, was assigned to two
members for specific review and report,
the two members in this cause being
Commission members Jeannie Miller and G.
Daniel Kelley, Jr.
76. That be vote of the
Commission on July 14, 1978, the filing of
a disciplinary action against Respondent,
C-96
William /briggs was decided and was
actually filed before the Supreme Court of
Indiana on October 24, 1978. The case was
assigned to Commission attorney David
Coppenhave, then in his first year of
practice. Attorney Coppenhave left the
employ of the Commission within a few
months and the case was reassigned to
Commission attorney David Hughes.
Respondent obtained the services of
Delphi attorney Thomas Ives to represent
him in this matter; Ives was representing
Respondent’ through the time of Mary
Bernice Smoker's evidentiary deposition
taken in November, 1977 (Respondent has
complained that although Ives had ample
notice of that deposition, he and Mrs.
Briggs had less than 24 hour notice of
it); as the proceeding developed it became
clear that an attorney located in
Indianapolis would be better placed to
C-97
pursue this cause and Respondent
therefore hired Attorney James Stewart to
represent him. Stewart, togehter with his
law partner Richard Gilliom thereafter
represented him until Stewart's death in
June, 1983. Some months’ thereafter,
Gilliom also withdrew from the
representation. Attorney Rakestraw
appeared with Respondent at the November,
1983, pre-trial hearing but did not
formally appear for him until shortly
before trial commenced. No other attorney
ever appeared on behalf of Mrs.
Briggs although one, Mary Beth Ra,mey,
obviously gave it serious consideration
and a trial delay was granted from April
22, 1984 to July 12, 1984 so that she
would be able to participate if it could
be arranged. Mrs. Briggs eventually
represented herself.
meme ee eee Ee HE HR Ee se ee EE Ee =
77. As to the issue of delay in
resolvingthis matter, the following
appears pertinent: (a) On October 30,
1978, Judge Harold Staffeldt was
appointed as Hearing Officer in this
matter and he duly qualified on November
10, 1978. He did not act on his own to
schedule the matter for either pre-trial
conference for for trial setting. (b)
Attorney Hughes expressed to Sheldon
Breskow concern over the failure of
Hearing Officer to schedule such matter
for hearing; they were aware of the trial
of the Pinto" case before Judge Staffeldt
and the vast drain on time that the trial
was causing him; Attorney Hughes wrote
letters to Judge Staffeldt requesting
pre-trial conference dates on August 6,
1980, and again on September 30, 1980.
Correspondence between Attorneys Stewart
and Hughes indicates that informally they
- c-99
—
had agreed to await the results of the
pending litigation before proceeding to
trial in this cause.(c) Attorney Hughes
continued his concern that the cause would
not move forward and suggested that the
Commission attempt to obtain a new hearing
officer, an operation he characterized as
"delicate™; in fact no formal procedure
for the removal of a hearing officer
exists; accordingly Sheldon Breskow
contacted the Supreme Court
Ad,ministrator, Bruce Kotzan, concerning
the failure of the Hearing Officer and to
seek to either obtain a pre-trial
conference date or the Hearing Officer's
removal; his only notification from the
Supreme Court Administrator was that the
matter would be taken care of.
(d) As noted in the preceding findings
the guardianship trial lasted for
approximately 30 trial days between
December 3, 1979 and August 7, 1980;
C-100
Judge Munro entered his determination of
that cause on November 5, 1980, shortly
thereafter the parties commenced the will
contest trial which resulted in a verdict
against Respondent on December 9, 1980.
(e) Subsequently, Hearing Officer
Staffeldt became seriously ill and was not
able to perform judicial or Hearing
ofeicer's functions and following a period
of health decline died in the fall of
1981. At the time of his death h he had
not been relieved of his duties in this
cause. (f) In the interim, a volu,minous
mnew set of grievances were filed against
Respondent and his wife and law partner
Florence Anne Briggs, based upon their
actions in the guardianship and the will
contest trials; these were filed on April
9, 1981 by Attorney Marks and other
participants in those trials. The
grievance document was approximately 100
pages in length. Respondent was notified
C-101
on May 19, 1981 that the matter was again
being assigned to Attorney Hughes for
investigation. It elicited a response
from Respondent andMrs. Briggs of
approximately two volumes.
(g) The Supreme Court of Indiana
appointed the Honorable Thomas Wright as
Hearing Officer in this cause on November
30, 1981. Thereafter Respondent made a
timely objection thereto so that Judge
Wright, the lucky dog, was removed from
the cause. The Supreme Court’ then
appointed this Officer, "ho qualified
herein on February 24, 1982. (h) The
investigation was complated for re-review
by the Commission and was again assigned
to members Jeannie Miller and G. Daniel
Kelley. Respondent, with Mrs. Briggs
requested the opportunity to appear before
the full Commission before any formal
action was taken upon the new grievances
so that the Commission minutes of June ll,
C-101
A Ue EPG cal gt
1982 reads as follows:
The matter of the request to appear by
Richard L. Gilliom and William J. and
Florence Anne Briggs in the matter of R.
Alan Brubaker, R. Adrian Marks, Charles R.
Vaughan, Samuel H. Power, Max Layden and
James Huffer v. William J. Briggs and
Florence Anne Briggs was then considered.
It was the consensus of the Commission that
Mr. Gilliom and Mr. and Mrs. Briggs be
allowed to appear for 15 minutes.
Respondent was never informed of this
opportunity, learning of it only during the
evidence presentation in his case. The
matter came up at each of the next three
monthly meetings:
July 9, 1982
The matter of the request to appear by
William J. and Florence Anne Briggs at the
August meeting in the matter of R. Alan
Brubaker, R. ADrian Marks, Charles R.
Vaughan, Samuel H. Power, Max Layden and
James Huffer v. William J. Briggs and
Florence Anne Briggs was then considered.
It was moved, seconded, and unanimously
passed that the request to appear by
William J. and Florence Anne Briggs be
denied and that the matter be considered at
the August meeting.
C-102
owyTeo} ~~ Ff aWTw!J =
The matter of R. Alan Brubaker, R. Adrian
Marks, Charles R. Vaughan, Samuel H. Power,
Max Layden and James Huffer v. William J.
Briggs and Florence Anne Briggs was held
over until the September meeting.
September 10, 1982
The first item on the agenda was the matter
of R. Alan
Brubaker, R. Adrian Marks, Charles R.
Vaughan, Samuel H. Power, Max Layden and
James Huffer v. William J. Briggs and
Florence Anne Briggs. The Executive
Secretary having reported the results of
the investigation and his recommendation to
the Commission, and the Comission having
considered such report and recommendation,
and the Commission having determined there
is reasonable cause to believe Respondents
are guilty of misconduct which would
warrant disciplinary action, it was moved,
seconded, and unanimously passed that the
Executive Secretary be authorized and
directed to file a Verified Complaint
against William J. Briggs and Florence Anne
Briggs.
This was done by filing of a Verified
Amended Complaint for Disciplinary Action
against Respondent and a Verified Complaint
for Disciplinary Action against Mrs.
Briggs, both filings occurring on July 19,
1983.
(i) In the delays occuring up to
September 12, 1982, this Officer believes
the Disciplinary Commission to be
blameless. Delays caused by the earlier
C-103
ee
*
4 ae cs
Hearing officer in failing to schedule
this matter for conference may hav e been
part of the problem; certainly the concern
shown by the Commission Attorney refklects
approppriate diligence in seeking moving
this matter forward. Much more
importantly, however, the fact pattern had
not yhet played itself out. The trials
that were held during 1980 were an
integral part of the allegations and bore
the distinct possibility in assisting in
resolving issues in this case. It is also
abundantly clear that working on this
cause through further discovery or even a
trial while the trials in Delphi were
occurring would most certainly have led to
a most confusing interrelationship of the
cases for the participants and would have
greatly burdened their time. The solution
reach, mutually awaiting trial results,
was eminently more reasonable than
proceeding; this observation must be
C-104
tempered with the notation that Commission
counsel did apparently conclude (in
retrospect, correctl.y) that the
Respondent could seek his remedies and the
cause in Delphi proceed to conclusion
without the necessity or desirability of
Commission intervention, a determination
that is probably similar to not seeking
suspension pending prosecuting in that no
urgency for intervention was made to
appear.
The policy of the Disciplinary
Commission, as testified to by Sheldon
Breskow, upon the filing of a second
grievance against an individual is that if
the first grievance is nearly “at trial
date so that the trial thereof is
imminent, the procedure upon the second
grievance would be conducted independently
and the trial of the first grievance would
proceed; where however, the trial of the
c-105
initial grievance is not imminent it is
the policy of the Commission to combine
the grievances into a single cause and to
proceed to a single trial. The wisdom of
that policy is obvious here. The matters
here under consideration are not of a
divergent nature, arising from numerous
clients or concerning numerous. legal
problems. Here the cause arises from the
estate planning of Mary Bernice Smoker,
the complexities caused thereby and the
method of their ultimate resolution. A
matter such as this should be tried in one
forum, not piecemeal with 1070 incidents,
1977 incidents and 1979 trial
determinations all being separately
considered in separate forums. The
Respondent has complained of the severe
burdens this proceedings has caused him;
multiple fact-finding hearings could only
make that burden more severe. For the
Hearing Officer and the participants,
C-106
= - =
subse quent hearings which had to take
account of earlier results would be unduly
restricted and the eharing upon the
allegation that the entire course of
conduct was inappropriatewould have to be
duplicate much evidence from earlier
hearings. Continuance to incorporate all
grievances together was clearly proper.
Finally, Respondert correctly notes
that the formal record of this cause shows
no effort by the Disciplinary Commission
to move this case forward; in view of the
findings in this paragraph of actual
efforts not appearing on the - docket
record, such a deter,mination is of no
significance. He further correctly notes
that he has no record of continuance
request and that the continuance granted
in the companion case at Mrs. Briggs'
request in April, 1984 delaying the
commencement of this action by three
months, was over his’ objection. The
C-107
Commission correctly notes that he made no
request for an expedited hearing and that
by counsel he in fact agreed to a delay
through tne 1980 trials. The Disciplinary
Commission again, as testified to by
Sheldon Breskow, has adopted the position
that. the commission has a duty to seek a
prompt resclution of disciplinary cases
because of the "chilling" effect a pending
complaint has upon a petitioner, but that
a respondent's duty to assure prompt trial
is akin to a defendant's duty in a civil
case; while oparenthetically indicating
that he believes this position reasonable,
your Hearing Officer also indicates that
its determination herein is not based upon
any decision that that standard applies.
(3) From September 10, i982, the date of
approval of further proceedings by the
Commission to July 19, 1982, the date of
the Amended Complaint was filed delays
attributable to the Commission occurred,
C-108
Ba
all directly related to the individual
work load and circumstances of commission
trial attorney David Hughes. Specifically
contributing to the delay in his
preparation of complaints were the
following (1) major surgery for his wife
in September, 1982 coupled with his
prosecution of a major civil case which
lea to his exhaustion and placement under
doctor's care in November, 1982. (2)
necessity of his filing in January,1983 of
theDisciplinary Commission appeal applying
to respondent Zarko Sekerez, (3) a
succession of other trials and civil
matters, (4) the complex nature of this
complaint in this cause.
This Officer is sympathetic to
difficulies arisingfrom the sheer volume
of the case. Other workload, however,
raises a new policy consideration of the
Commission upon which no direct evidence
c-109
was submitted. The staffing of a
disciplinary executive branch can 0obe
undertaken in at least three ways: (1) the
employment of a full-time, in house staff
for all trial preparation and trial
proceedings as well as presentations to
the Commission, (2) the hiring of such
staff on a case-by-case basis on what is
essentially an independent contractor
basis, or (3) some combination of theses
using either part-time staff or some staff
members of each origin. I nherent in
choices (2) or (3) is that busy trial
counsel will have conflicting trial
settings and that certain incidental
delays caused by a busy trial schedule
will occur. The Commission has opted for
course of action (3) with aomw trial staff
being full time salaried employees and
others being part-time; Hughes is
part-time. This Officer cannot accept the
notion that incidental deiays cause
C=-110
’
4
constitutional infirmity. By choosing
course (3) the Commission has assured that
it will have available experienced trial
counsel, involved in the daily practice of
law and therfore more attuned to the
concerns, choices and difficulties of
practice than would be any salaried
full-time staff. This staffing method is
certainly reasonable and, in the opinion
of this Officer, is the best choice. The
ten month delay in filing in this
particular circumstance is appropriately
characterized as incidenta. Hughes has
provided adequate explanation of his
activitires during this time period so as
to show diligent pursuit of refiling.
Particularly in view of the complexity and
voluminour record of the cause, Commission
re-assignment to a less burdened staff
member should have been and apparently
was, a last resort.
(k) That in July 1983 the new complaint
C-111
against this Respondent was filed as was
the complaint against co-respondent
Florence Anne Briggs. This Hearing
Officer had previously been appointed to
hear Respondent's matter and had qualified
on March 10, 1982. He subsequently was
named Hearing Officer in Mrs.
Briggs’ matter on September 12, 1983 and
qualified on September 21, 1983. Mrs.
Briggs moves for a change of hearing
officer immediately, citing as cause that
the same Officer was appointed in this
case. The Disciplinary Commission by
Attorney Hughes opposed change and the
Supreme Court of Indiana denied a change
on October 6, 1983.
(1) Pre-trial conference was scheduled
for November 3, 1983, but at such
conference Mrs. Briggs correctly noted
that notice of pre-trial had not been
entered in this cause; Attorney Hughes
C-112
indicated he had believed pre-trial
conference was for both cases and came
prepared accordingly: mrs. Briggs
indicated she was not prepared for
pre-trial conference in her case which was
then rescheduled for and held on December
16, 1983.
At both pre-trials, the joinder or
bifurcation of the trials was debated;
this Officer ordered the trials joined for
fact-finding hearing, but directed:
"All pre-trial proceedings however
including preparation of witness and
exhibit lists, pre-trial motions, and
the Court's ultimate findings’ and
conclusions herein shall be
separately made, with only the actual
evidence presentation to be combined.
A timetable for witness and exhibit lists
was established, and upon representation
that trial would take two to four weeks,
c-113
ene ARLE HE -~
®
meme He He He ee Ee He Ee He Ee Hw EE SF SF
trial was scheduled for April 24, 1984.
(m) Mrs. Briggs had moved to allow Mr.
Briggs to enter his appearance for her, a
request that was eventually denied. On
March 19, 1984, Mrs. Briggs moved for
continuance of the trial date to allow
Mary Beth Ramey to appear for her in this
matter; Respondent in this cause opposed
continuance; the continuance was granted
and trial was rescheduled for July 12,
1984. At trial, she represented herself.
(n) That on June 25, 1984, Respondent
William Briggs, having applied for and
obtaining the right to use the pseudonym
"Anonymous", filed a complaint for
injunctive relief in the United States
District Court for the Northern District
of Indiana Hammond Division naming as
defendants in the cause the Indiana
Disciplinary Commission, Sheldon Breskow,
Executive Secretary, David Hughes, trial
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attorney for the Disciplinary Commission,
and the Supreme Court of Indiana; that
Respondent notified this Hearing “Officer
of this filing in that cause but that this
Hearing Officer was not made a party
thereto; that as a result of such filing
Judge Kanne of the Northern District of
Indiana stayed proceedings in this court
to determine the result of the case in the
State's court to allow the State Court to
make their determination of the
constitutionality of the proceeding.
(o) From all appearances, preservation of
evidence in this matter was far easier
than it might have been in a different
type of case. The relationships of the
parties while various documents were
created, the contents of the documents and
the pleadings and evidence submitted in
the Court struggle make this ‘case one
where the record of events is, by its very
nature, well preserved. Respondent was put
on notice early that this action would
result so he had ample opportunity to
recall and preserve as much as necessary.
As noted before, amazingly little of this
matter has contested factual issues;
virtually all such contested issues center
around the "harrassment" allegations.
(o) Trial of this cause commenced July
12, 1984 and continued with occasional
days for recess for all or part of 15
trial days, final argument was’ heard
herein on August 30, 1984 and the parties
waived the 30 day reporting requirement
for the hearing officer.
78. That at trial Florence Anne Briggs
sought to enter her appearance on behalf
of Respondent. He consented to such
effort; in view of the ensadwilies of
conflict in the positions of the parties,
the Hearing Officer did not allow the
filing of such appearance, particularly
where William Briggs was already
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represented by trial counsel Rakestraw;
in fact, in representing her own interests
Mrs. Briggs conducted much inquiry of a
very limited relevance to her own defense
but of substantial relevance to William
Briggs' defense; the Court also allowed
Mrs. Briggs, respondent William Briggs,
and attorney Rakestraw to freely consult
together throughout the trial of the cause
for purposes of submission of any question
to witnesses or for other trial purposes.
79. Respondent has objected to this cause
being joined for trial with that of Mrs.
Briggs. He first suggested that such a
joint hearing was unheard of and was being
undertaken only because he and the
co-respondent are husband and wife. The
response was made and supported however
that other attorneys have been tried in
jointly held disciplinary proceedings
where the actions arose from a common
underlying fact pattern. Other argument
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bases its precedent upon criminal matters.
The Supreme Court obviously made a
conscious choice to appoint the same
hearing officer in both cases to provide
the option of a joint trial. In point of
fact the underlying fact pattern involving
the estate planning, guardianship, and
estate of Kate Smoker is common to both
cases although the alleged acts of
misconduct of each attorney are distinct.
The determination by this Officer for
joinder of these causes for evidence
presentation and that preliminary matters
and motions and ultimate findings’ and
conclusions should be separately made all
attempt to recognize this difference.
Further, no record of injury to the cause
of the Respondent appears of record.
Respondent and co-respondent indicated at
two or three different stages of trial
that they had held spirited discussions as
to their appropriate course of action and
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that they were not in agreement as to what
it should be. The only specific evidence
on the topic was that one of them wanted
to call two witnesses, the other one
didn't and that they eventually called one
of them; the witnesses involved and the
issue were not identified. They refrained
from presenting a record in any form about
those different choices or their possible
significance. No showing of
constitutional infirmity or of due process
violations was made.
80. As part of the pre-trial proceedings
in this case the Respondent filed a
discovery motion which was a clear
parallel to a "Brady" motion in criminal
law; he asked for all evidence that the
Commission might have which was favorable
to him. This Officer did not accept the
"qQuasi-criminal" argument of Respondent on
this issue and, accordingly denied it to
the extent that it exceeded other
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e
discovery already underta
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