Appendix — Briggs v. Indiana Supreme Court Disciplinary Commission

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IN THE SUPREME COURT OF THE UNITED STATES

October Term, 1987

IN THE MATTER OF

FLORENCE ANNE BRIGGS, PETITIONER

PETITION FOR WRIT OF CERTIORARI TO THE

SUPREME COURT OF THE STATE OF INDIANA

APPEND IX

FLORENCE ANNE BRIGGS

P.O. Box 2

Flora, IN 46929

(219) 967-3630

Pro Se

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No.

IN THE SUPREME COURT OF THE UNITED STATES

October Term, 1987

IN THE MATTER OF

FLORENCE ANNE BRIGGS, PETITIONER

PETITION FOR WRIT OF CERTIORARI TO THE

SUPREME COURT OF THE STATE OF INDIANA

APPEND IX

FLORENCE ANNE BRIGGS

P.O. Box 2

Flora, IN 46929

(219) 967-3630

Pro Se

APPENDIX

Appendix A Constitution and statutory

ee Pere or 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 Presentation of Constitu-

tional Issues and Errors - Petition

for Hearing, Oral Argument, and Order

EE EEE rae D-1

DEE Tc cb bes aescteeresccsccencseses E-1

Petition for temporary stay............ E-1

Order denying petition for temporary

DP e ee hh a Gi eeehaeedteeonseeecaneceoes E-9

Petition for modification of Court's

re ee es eas 6466 46 6 Oe ee Oe ees E-11

Order denying Respondent's petition

ewok ee meceseesees E-16

Appendix F Petition for Review......... F-1

Appendix G Motion for Bifurcated

re Sa ce eee cece eessceees G-1

Appendix H Motion to Dismiss

supplementing special defense #3...... H-1

Appendix I Relevant paragraphs of

Compieint filed July 19, 1983........... I

Appendix J Petition for change of

ee ae eee J-1

ee SE a a K-1

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

The following Amendments to the United

States Constitution provide

lst Amendment

5th

"RELIGIOUS AND POLITICAL

FREEDOM.---Congress shall make no

law respecting an establishment of

religion, or prohibiting 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 held to answer for a

capital, or otherwise infamous

crime, unless on a presentment or

Appendix A

9th

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 life or limb; nor _ shall be

compelled in any criminal case to be

a witness against himself; nor be

deprived or life, liberty, or

property, without due process of

law; nor shall private property be

taken for public use, without just

compensation.

Amendment

Rights retained by people.---The

enumeration in the constitution, of

certain rights, shall not be

construed to deny or disparage

others retained by the people.

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.

Article 7 Sec. 4, Indiana Constitution

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 exercise of jurisdiction by

the other courts 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.

AP Rule 4 (A) (1) and (2), Indiana Rules

(A) Appeals from final judgments.

Appeals may be taken by either party

from all final judgments of circuit,

superior, probate, criminal,

juvenile, county, and where provided

by statute for municipal courts. A

ruling or order by the trial court

Granting or denying a motion to

correct errors shall be deemed a

final judgment, and an appeal may

be taken therefrom. The Supreme

Court shall have exclusive

jurisdiction of:

(1) Admissions to practice law;

(2) The discipline and disbarment of

attorneys admitted to the practice

of law;

Indiana disciplinary rule AD 23 provides

relevant part:

(a) AD 23 Sec. 6(a): The

Disciplinary Commission is appointed

in

ee

by the Supreme Court of Indiaga.

(b) AD 23 Sec. 10: Investigatory

procedures.---(a) Upon receipt of a

written, verified claim of

misconduct (hereinafter) referred to

as "the grievance"), from a member

of the public, a member of this bar,

a member of the commission, or a bar

association and completion of such

preliminary investigation as_ he

deems appropriate, the executl1 «

secretary shall: (1) Dismiss the

claim, with the approval of the

commission, if he determines that it

raises no substantial questions of

misconduct; or (2) If he determines

that it does raise a substantial

question of misconduct, send a copy

of the grievance by certified mail

to the attorney against whom the

grievance is filed (hereinafter

referred to as "the respondent") and

a ee ee ee

|

shall request a written response

within twenty (20) days after the

respondent receives a copy of the

grievance. In the event of a

dismissal as provided herein, the

person filing the grievance and the

respondent shall be given written

notice of the executive secretary's

determination. In the event of a

determination that a substantial

question exists, the matter shall

proceed to (b) hereinafter.

(b) Thereafter, after notice to the

respondent, if the executive

secretary, upon consideration of the

grievance, the preliminary

investigation and any response from

the respondent, deteratnes there is

a reasonable cause to believe that

the respondentis guilty of

misconduct the grievance shall be

docketed and investigated. If he

Getermines that no such reasonable

cause exists, the grievance shall be

dismissed with the approval of the

commission. In either event, the

person filing the grievance

(hereinafter referred to as "the

complainant") and the respondent

shall be given written notice of the

executive secretary's determination.

(c) If the grievance is docketed,

for investigation, the executive

secretary shall conduct an

investigation of the grievance.

Upon completion of the investigation

the executive secretary shall

promptly make a report of the

investigation and his

recommendations to the commission at

its next meeting.

(d) In conducting an investigation

of any grievance, or in considering

the same, the executive secretary or

. ’ oewrn te

the commission shall not be limited

to an investigastion or

consideration of only matters set

forth in the grievance, but shall be

permitted to inquire into the

professional conduct of the attorney

generally. In the event that the

executive secretary or the

commission should consider any

charges of misconduct against an

attorney not contained in the

grievance, the executive secretary

shall notify the attorney of the

additional charges under

consideration, and the attorney

shall have the opportunity to make a

written response to the additional

charges under consideration within

twenty (20) days after the receipt

of such notification.

Any additional charges of

misconduct against an attorney,

after such notice has been given by

the executive secretary and the

attorney has had an opportunity to

reply thereto, may be the subject of

a count of any complaint’ filed

against the attorney pursuant to

Sections ll and 12 of this rule.

(c) AD 23 Sec. 9(b): The Executive

Secretary appoints the staff.

(d) AD 23 Sec. 13(a): After a

Complaint is filed, the Supreme

Court of Indiana appoints a hearing

officer.

(e) AD 23 Sec. 14(f£): The Hearing

Officer submits findings of facts

and written recommendations to the

Indiana Supreme Court.

(f) AD 23 Sec. 15(a): The Supreme

Court examines the report of the

Hearing Officer and enters judgment.

(g) AD 23 Sec. 16: Expenses. The

executive secretary shall prepare an

10

itemized statement of expenses

allocable to each case, including

expenses incurred in the course of

the investigatory, hearing or review

procedures under this rule. The

judgment of this court imposing such

discipline shall also order the

respondent to pay such expenses to

the clerk of this court.

Proceedings for the collection of

the costs taxed against the

respondent may be initiated by the

executive secretary on the judgment

entered.

ll

IN THE

SUPREME COURT OF INDIANA

IN THE MATTER OF

Cause No. 783 S 262

FLORENCE ANNE BRIGGS

DISCIPLINARY ACTION

Per Curiam

This case is before usS on a

Verified Complaint for Disciplinary Action

filed by .the Indiana supreme Court

Disciplinary Commission. st if a companion

case to In re William Briggs, which involves

Respondent's law associate and spouse.

After a lengthy joint hearing, the Hearing

Officer, the Honorable Douglas B. Morton,

has submitted his excellent findings,

conclusions of law and recommendation in

this case. The Respondent and the

Commission have challenged different

(Filed Jan. 13,

1987) Appendix B B-1

aspects of the Hearing Officer's report and

have petitioned for review of the same. -In

her petition for review the Respondent also

requests to appear before this Court for the

purpose of oral argument. Such request is

hereby denied. She also takes issue with

several statements contained throughout the

report's 43 pages. Such issues will be

resolved through this Court's determination

of the ultimate findings and conclusions.

We have . examined all matters

presented and now find generally that the

Respondent is a member of the Bar of this

state, having been admitted in 1958 and is,

therefore, subject to this Court's jurisdic-

tion. She is engaged in the practice of law

with her spouse, William Briggs. Though

never under a formal partnership agreement,

they held themselves out to the public as a

partnership operating as Briggs and Briggs.

By way of background, we find that

the Respondent was aware that William

B-2

Briggs began representing Mary Bernice

(Kate) Smoker during the 1960's. Smoker was

an elderly, childless widow with an estate

of approximately 292 acre farm and $150,000

cash. Except for a few minor bills, Smoker

did not pay for the representation but, in

time, entered into an oral agreement with

William Briggs for a lifetime legal service

fee of $10,000. The Respondent was also

conversant with the terms of a will prepared

by William Briggs, whereby Smoker left

William Briggs a specific bequest of $1,000.

The will further established an educational

trust specifying the Briggs' son, sinaton,

as a major beneficiary under the trust which

would have paid for all college and post

graduate school, and named the Respondent as

co-executor and attorney for the trust.

Thereafter, Smoker's mental and

physical health declined and she was hos-

pitalized in October of 1976. Though she

was released from the hospital, her health

remained marginal. On November 9, she met

with William Briggs at her home and executed

a codicil to her will nominating William

Briggs as guardian, should one become nec-

essary, and formalized the lifetime services

contract by written agreement and by funding

a $9,000 joint certificate of deposit in her

and William Briggs‘ names. Thereafter,

Smoker was again hospitalized and, upon her

cousin's petition, a temporary guardianship

was commenced on November 24, 1976, with

William Briggs as guardian.

By January, 1977, Kate Smoker made

a miraculous recovery, and her physician

found that her physical and mental problems

were in a state of "“remission". At this

time Smoker became aware of the guardianship

and professed no recollection of making the

joint certificate of deposit.

Notwithstanding her recovery, the

guardianship was made permanent on January

13, 1977. During the next month, the long

standing relationship between Smoker and

William Briggs deteriorated. In anticipa-

tion of large cash expenditures for Smoker's

care, William Briggs had negotiated cash

leases for Smoker's farm, a practice she

strongly disapproved. Additionally, Smoker

was exceedingly unhappy and frustrated with

not having control of her business affairs.

She was particularly incensed with William

Briggs when he, correctly, refused to give

her the key to her safety deposit box.

However, he also taunted her by displaying

the key and_- stating, "you don't like

authority, do you?" Though not a partic-

ipant, the Respondent was present during

this event. Immediately after termination

of the guardianship, Smoker executed a

codicil to her 1977 will reaffirming its

terms.

Kate Smoker set out to retain the

services of Attorney R. Adrian Marks in

order to terminate the guardianship. Marks

_—

B-5

had her examined by two physicians, both of

whom found her to be able to handle her own

affairs, although, they found, she may be in

the early stages of senility and showed some

confusion.

At some point thereafter, William

Briggs became aware that Smoker had sought

the services of another attorney. This

resulted in strong animosity between William

Briggs, Marks and Bobby Ritchey, a friend of

Mrs. Smoker who had assisted her in retain-

ing attorney Marks. This also precipitated

the filing of petitions by William Briggs

(1) requesting that the court issue a tem-

porary restraining order restraining certain

persons, particularly Bobby Ritchey, from

interfering with the ward, Smoker;

(2) objecting to the filing of any pleadings

allegedly signed or authorized by the ward;

and (3) seeking a protective order against

his producing any documents, should such

allegations be made.

Upon Smoker's direction, on

February 14, Marks presented a Petition to

Remove the Guardian. On February 18, 1977,

the Respondent, together with William

Briggs, attended a pre-hearing conference on

the matter. William Briggs and the Respon-

dent had a lengthly conversation as to the

advisability of his filing a "Petition to

Terminate" the conservatorship based on

Smoker's now apparent competency. William

Briggs decided to file the petition against

Respondent's counsel. It contained William

Briggs' statement, without reservation, that

the conservatorship should be terminated.

At this juncture, the Respondent became a

more active participant.

On February 23, 1977, Smoker

executed a new will prepared at her direc-

tion by Marks.

After the filing of the "Petition

to Remove" by Marks and the "Petition to

Terminate" by William Briggs, William

B-7

Briggs, with Respondent's assistance, began

delaying and resisting action on these peti-

tions. On February 23, Marks sent a letter

to William Briggs agreeing to the granting

o° Briggs’ "“Petiton to Terminate"; William

Briggs did not answer the letter. There-

after, Marks and Power, Smoker's’ other

attorney, contacted William Briggs by tel-

ephone to discuss the same, but William

Briggs refused to agree to the granting of

his own petition. In a letter written on

May 2, 1977, to Judge Munro, Special Judge

in the guardianship case, William Briggs

stated that he had informed Power that

", « « before I, myself, would agree to any

order to 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." The Respondent drafted this

letter for William Briggs' signature.

B-8

Between March 9 and 15, 1977,

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, 1977, failing to get an agreed

entry from William Briggs to his own peti-

tion, Smoker's attorneys filed a reply to

the Petition to Terminate which admitted

that the guardianship should be terminated.

In a motion for summary judgment filed on

April 19, Smoker's counsel pointed out that

the parties and all physicians were agreed

that Smoker was mentally competent. The

Court then entered an order limiting the

hearing to the issues raised by the

"Petition to Terminate" and informed counsel

that the court will take judicial notice of

the physician's reports so that they need

not testify. William Briggs filed his

objection to this order arguing strenuously

that the granting of his Petition to

B-9

Terminate without a hearing on the Petition

to Remove would do “irreparable harm" to him

because the Petition to Remove "has cast

doubt on the character of William J. Briggs

by innuendo." These objections and an

Affidavit and Response were prepared by

William Briggs and reviewed and concurred in

by the Respondent.

During this period of time Smoker

suffered great emotional distress due to the

continuation of the guardianship and her own

inability to gain control over her property.

As noted by the trial judge and the hearing

officer, the termination of a conservator-

ship where three physicians unanimously

agree as to competence is a simple matter.

However, in this instance, William Briggs

treated this as an adversary proceeding for

his own benefit and vindication, all the

while being fully aware of the emotional

harm beset upon Smoker. The Respondent

assisted William Briggs in this action.

B-10

On May 26, 1977, the guardianship

was terminated. The termination order

directed that Smoker could take over her

affairs immediately. that William Briggs was

to file his final report within two weeks,

that $2,000 was to be transferred to Smoker

for her immediate use, and that all her

papers and Will were to be made available

for her at the time of the final report.

Further confrontations, delay and _ strife

accompanied the transfer of the ordered

matters, though, in the end, the majority

were turned over.

With the filing of his Guardian's

Final Report, William Briggs also objected

to his having to file a claim for services,

claiming the contract with Smoker for

lifetime services. His objections were

overruled, and he filed a claim for $17,585

for serving as guardian for a period of six

months and two days. The amount of the

claim was an attempt to assure that the

B-11

$10,000 lifetime services contract would be

paid.

In August, 1977, the Respondent

made a request to withdraw from the case,

but remained active nonetheless. William

Briggs also employed attorney Joseph T.

Ives, who entered his appearance in the

guardianship matter and began participation

in the disciplinary matter as well.

From May, 1977 to 1979, Kate

Smoker managed her own affairs, but there

was a gradual erosion of her condition. In

anticipation of further deterioration,

Smoker's deposition was taken for the

William Briggs’ disciplinary case. The

Respondent was present and took Smoker's

deposition for use in the guardianship case.

On November 21, 1979, two weeks prior to the

commencement of the trial of the final

report in the conservatorship, Kate Smoker

died.

On November 26, 1979, William

Briggs, in consultation with the Respondent,

filed sworn objections to the probate of any

Smoker will executed subsequently to

February 24, 1970. Respondent's = and

William Briggs' ultimate purpose in

contesting the 1977 Smoker will and codicil

was to preserve their family's benefits

contained in the earlier will drafted by

William Briggs. Smoker's competence was not

challenged; the will contest was based on

alleged undue influence in tne execution of

the 1977 will, on which issue the Respondent

and William Briggs felt they could prevail.

Attorney Ives did not significantly partic-

ipate in the guardianship case and

eventually dropped out. The Respondent

became lead counsel in the guardianship

trial. She and Smoker's attorneys, Marks

and Power, were all called as witnesses in

the guardianship proceeding which was held

over a period of thirty days from December

B-13

3, 1979, to August 7, 1980. Though Smoker's

Petition to Discharge was not an issue be-

cause 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; William Briggs' claim

to the $9,000 certificate of deposit was set

aside and the underlying contract for life-

time legal services was rescinded upon a

theory of undue influence; Smoker's admin-

istrator's claim against William Briggs 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. William Briggs' claim for def-

amation allegedly caused by pleadings filed

on July 14, 1977, was upheld, but he

B-14

received nominal damages of $1.00. The

trial court further concluded that no oral

contract nor implied contract for legal ser-

vices had existed prior to November 9, 1976,

that the prior services were rendered gratu-

itously and that fees could not be recovered

on a quasi-contractual basis. Except for

reversal of a $25 fee awarded to William

Briggs and an order that appellate attorney

fees be paid, the Court of Appeals affirmed

the trial court. Rehearing and transfer

were subsequently denied.

The Respondent and William Briggs

were also attorneys of record for the plain-

tiffs in the will contest; in all respects

the Respondent acted as lead counsel during

this trial, knowing that her partner,

William Briggs, would be a most significant

witness.

On October 29, 1980, the

Respondent wrote a letter to opposing

counsel of record concerning a possible

B-15

settlement of the will contest. On Novem-

ber 8, 1980, the Respondent conveyed to

Charles R. Vaughn, attorney for defendant

beneficiaries, the Burlington United Meth-

odist Church and the Burlington Cemetery

Association, a settlement offer for $29,250,

such sum being three fourths of estimated

attorney fee expenses the Estate would

expend in defending the Briggs claim. The

Respondent contacted the special judge in

the will contest tg inquire whether. she

could directly contact parties to the will

contest to determine if her settlement had

been conveyed. The special judge advised

her that she should not contact persons

holding "decision making" positions.

Shortly thereafter, William Briggs

contacted Reverend Arthur A. Schenck. The

Reverend Schenck was a member of the

Burlington United Methodist Church and a

member of the church's ition Conference and

Administrative Board, the bodies within the

B-16

church which had decision making authority

with respect to any settlements. William

Briggs wanted the settlement to be commu-

nicated to the Church Board; he could not

present the offer himself because _ the

attorney for the church had forbidden such

presentation. William Briggs informed

Reverend Schenck that he had a claim for

$17,000 for services performed for Kate

Smoker and that he would dismiss the will

contest if he was paid $29,000. The entire

conversation occurred in Respondent's

presence and with her knowledge, consent and

active assistance. 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 delibera-

tion, the jury returned a verdict against

the Respondent, effectively upholding

Smoker's 1977 will.

B-17

The essential challeges in both

Respondent's and the Commission's petitions

for review are directed toward certain of

the Hearing Officer's conclusions of law.

The Respondent further claims that constitu-

tional infirmities in the proceeding require

dismissal of the charges and imposition of

no sanction. The Hearing Officer has

addressed the numerous constitutional issues

raised by the Respondent at hearing and has

made extensive findings as to those of

colorable merit. On review before us now,

the Respondent claims that she was denied a

fair hearing because one of her witnesses,

her former secretary, Bertha Wolfe, was

unable to appear at the hearing due to ill-

ness. The Hearing Officer found that the

Respondent had failed to explain the extent

of the illness that apparently led to the

absence; further, that the Respondent

indicated that the testimony would have been

favorable as to Respondent's character and

B-18

professional capacity, but in order respects

would have been cumulative. The Respondent

brings nothing more to this review. In

light of the findings, we conclude that the

not fully explained absence of the witness

did not render the hearing unfair nor did it

otherwise prejudice the Respondent.

Respondent next claims that the

Hearing Officer failed to follow the “clear

and convincing" standard of proof. This

contention is simply unsubstantiated and

without merit. The Respondent claims

further prejudice alleging that certain

findings made by the Hearing Officer are

irrelevant to her case because they relate

solely to her husband. She contends that

such findings were included due to the

consolidation of the two cases at hearing,

an action opposed by the Respondent. The

findings at issue relate to the fact that

William Briggs brought an action in the

Federal District Court for the Northern Dis-

B-19

trict of Indiana against this Court, the

Commission, and its attorneys. The Respon-

dent was not a party to such action. The

Hearing Officer in this case and In the

Matter of William Briggs, exerted inordinate

efforts to present this Court with thorough,

extensive and informative findings. The

Respondent's argument fails to convince us

that the findings at issue are irrelevant or

that they are in any way prejudicial to her

case.

Upon review of the specific

charges, we find that the Respondent is

charged with violating Disciplinary Rule

5-102(A) of the Code of Professional

Responsibility by acting as counsel for

William Briggs when it is obvious that she

and her partner/spouse would be called as

witnesses. The Hearing Officer concluded

that the Respondent's conduct is not in

violation of Disciplinary Rule 5-102(A).

The Commission now challenges such

B-20

conclusion arguing that, under the plain

terms of the rule, a lawyer may not appear

in a proceeding in which he or a lawyer in

-his firm will be called as a witness. We

are not persuaded by the Commission's

contention. Though perhaps not advisable, a

lawyer is free to represent himself in any

proceeding. As such, he would, by

necessity, be a witness, an advocate and an

obviously interested party. Any prejudice

or undue weight which his testimony could

conjure in the mind of the trier is counter

balanced by the obvious self interest being

served. In the instance before us, the

marital relationship, the close professional

association and the potential familial

benefits which could be gained, if success-

ful, rendered the client's (Mr. Briggs')

interests indelibly associated with those of

the attorney/spouse. Under such

circumstances, we agree with the Hearing

Officer's conclusion that the Respondent's

B-21

. a = == = . - z

conduct did not constitute misconduct under

Disciplinary Rule 5-102(A)- In light of our

conclusion, Respondent's arguments relative

to this charge are moot.

The Respondent is also charged

with violating Disciplinary Rule 7-104(A)

(1) by causing William Briggs to communicate

a settlement offer to a party she knew to be

represented by an attorney. The Respondent

claims that her attorney, who passed away

prior to trial, had interviewed the material

witness, the Reverend Schenck, obtained

contradicting information, and could have

appeared before the Commission to dissuade

them from filing this charge. However, she

claims, that this opportunity was missed be-

cause the Commission neglected to notify her

that she could appear before them.

Respondent's argument is a tale of

speculation unsubstantiated by any record;

as such, we find it to be untenable.

Accordingly, we conclude that the

g. 22

Respondent's conduct relative to this charge

is in clear violation of Disciplinary Rule

7-104(A) (1) of the Code.

The Respondent is further charged

with assisting William Briggs in

unreasonably delaying the termination of the

conservatorship of Mrs. Smoker, thereby

allowing her personal and firm's interests

to adversely affect her professional

judgment on behalf of the ward, in violating

Disciplinary Rule 5-101(A). She is also

charged with engaging in conduct prejudicial

to the administration of justice which

adversely reflects on her fitness to

practice law, in violation of Disciplinary

Rule 1-102(A) (1), (2), (5) and (6) of the

Code.

The Respondent contends that no

grievance was ever filed against her

charging her with this delay and that she

had no notice of this charge until the Veri-

fied Complaint was filed against her. Due

B-23

to this lack of notice, the Respondent

claims prejudice because she missed an

Opportunity to question and depose Mrs.

Smoker relative to this issue, prior to Mrs.

Smoker's death.

We find, as did the Hearing

Officer, that in July of 1977, a grievance

was filed alleging that William Briggs

engaged in professional misconduct. The

Briggses were notified and they submitted @

response. This resulted in the filing of a

complaint against William Briggs in October,

1978. Because of the many matters involved

in the grievance remained the subject matter

of pending litigation, the Commission's

attorney and James Stewart, William Briggs'

attorney @f the time, agreed to forego

proceedings in the disciplinary case until

the guardianship and will contest trials

were over. On April 9, 1981, a voluminous

new set of grievances were filed against

William Briggs and the Respondent based upon

B-24

their actions in the guardianship and will

contests. The grievance document’ was

approximately 100 pages in length. The

Respondent was notified on May 19, 1981,

that the matter was being assigned to

Attorney Hughes for investigation. There

was a response from the Respondent and

William Briggs of approximately two volumes.

After further investigation and review, on

September 10, 1982, the Commission, having

determined that there is reasonable cause to

believe the Respondent was guilty of

misconduct which would warrant disciplinary

action, by a unanimous vote, authorized the

filing of a complaint against her. The

complaint was filed on July 19, 1983. The

Respondent states in her brief that a

grievance was filed against her in July,

1977, but that it did not allege the delay

charged hereunder. She further states that

in July, 1978, the grievance was found to be

without merit. There is nothing in the

B-25

sequence of events set out above which

would support Respondent's contentions, and

she provides no record which augments or

contradicts the findings. We, thus, find

this contention meritless.

In her second challenge to this

charge, the Respondent insists that, due to

a defamatory attack on her husband's integ-

rity, her actions as his counsel were

justified and simply constituted vigorous

representation. She contends that because

this charge fails for constitutional

infirmity, she, in effect, is being punished

for being the wife of William Briggs.

Her argument is untenable. The

Respondent assisted William Briggs in a

concerted effort to intentionally delay the

termination of Smoker's conservatorship

which they acknowledged should be

terminated. At the same time the Respondent

was fully aware of the personal interests

being served by the delay, the extreme

B-26

emotional strain caused to the ward and that

her actions served to frustrate the orderly

administration of justice. In light of

these considerations and the findings of

fact, we find that the Respondent violated

Disciplinary Rule 5-101(A) and 1-102(A) (5).

We further agree with the Commission's

position that the Respondent's conduct

reflects adversely on her fitness to

practice law and is in violation of

Disciplinary Rule 1-102(A) (6).

The Respondent is also charged

with violating Disciplinary Rule 7-102(A)

(1) and 1-102(A) (1), (2), (5) and (6) by

contesting, in bad faith, Smoker's final

will, in order to preserve her family's

interests. The Disciplinary Commission has

challenged the Hearing Officer's conclusions

that the Respondent's conduct did not

constitute a violation under this charge.

They contend that the Respondent should not

be allowed to seek to recoup benefits

B-27

conferred upon her family by a will drafted

by her partner/husband under circumstances

constituting professional misconduct. Dis-

ciplinary Rule 7-102(A) (1) provides that a

lawyer shall not:

"File a suit, assert a

position, conduct a

defense, delay a trial,

or take other action on

behalf of his client

when he knows or when

it is obvious that such

action would serve

merely to harass or

maliciously injure

another."

The Hearing Officer found that the will

contest was motivated in part by retaliatory

feelings and that the decision to proceed

was made after an adverse determination in

the guardianship proceeding; nonetheless,

the Respondent believed that they could

prevail in the will contest based on the

issue of undue influence. Thus, the issue

before us is whether Respondent's actions

relative to the will contest were violative

of the foregoing rule or otherwise

B-28

constitute conduct prejudicial to the

administration of justice or conduct that

adversely reflects on her fitness’ to

practice law. Upon review of the findings,

we agree with the Hearing Officer's

conclusion that the evidence is not

sufficient to support a finding of

misconduct under the charge.

Lastly, the complaint charges

that, as the law partner, spouse, assistant

and legal counsel to William Briggs, the

Respondent's actions, as set out above,

constitute a course of conduct intentionally

designed and calculated to damage her firm's

former client and ward, in violation of

Disciplinary Rule 1-102(A) (1), (2), (5) and

(6). This charge restates the allegations

and violations already addressed in the

previous charges. We, therefore, find no

misconduct under this charge.

Upon concluding that the Respond-

ent engaged in misconduct, this Court must

B-29

now determine the appropriate sanction. In

making such assessment, this Court examines

the nature of the violation, the specific

acts of the Respondent, the impact on the

public, this Court's responsibility to

preserve the integrity of the Bar and the

risk, if any, to which the public will be

submitted if the Respondent is permitted to

continue in the profession or be reinstated

at some future date. In re Stanton(1986)

Ind., 492°NE 2d 1055; In re Duffy (1985),

nd.-, 482 NE 2d 1137; In re Hailey(1985),

Ind., 473 NE 2d 616. Despite her many years

in practice the Respondent appears unable to

make a distinction hetween the professional

duty owed by her firm to the ward and the

financial and emotional interests of the

Briggs family. Throughout her involvement

in this matter, the Respondent has. been

blinded by self interest and desire for

vindication. While the Respondentmay not

have been the primary moving force in this

B-30

s

unfortunate episode, she did lose sight of

her professional obligations. In light of

the foregoing findings of fact and these

considerations, we conclude that a period of

suspension is warranted under the

circumstances of this case.

} IS, THEREFORE, ORDERED,

ADJUDGED AND DECREED that the Respondent,

Florence Anne Briggs, is suspended from the

practice of law for a period of not less

than one (1) year beginning February 16,

1987.

Costs of this proceeding are

assessed against the Respondent.

Dickson, J., not participating.

IN THE SUPREME COURT OF THE STATE OF

INDIANA

IN THE MATTER OF CAUSE NUMBER

FLORENCE ANNE BRIGGS 783-S-262

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 arguments

thereon and having been presented with

legal authority for review therewith, now

makes nis report to the Court. Upon the

matters presented the report is Givided as

follows:

I FINDINGS OF FACT UPON VERIFIED

COMPLAINT Page l

1 & CONCLUSIONS OF LAW UPON VERIFIED

COMPLAINT ««<c«s eeee#e#*e#e¢ ee --Page 25

III: ZINDINGS OF FACT UPON PROCEDURAL

AND CONSTITUTIONALISSUES.Page 26

IV: CONCLUSIONS OF LAW UPON PROCEDURAL

AND CONSTITUTIONAL ISSUES Page 40

V: ULTIMATE FINDINGS AND CONCLUSIONS

Page 42

VI: RECOMMENDATIONS Page 43

All matters relating to this cause in the

possession of the Hearing Officer and all

Appendix Cc C-1]

FILED 1/18/85

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 ghe

evidence needs to be produced, the

reporter will need to obtain the

documentary evidence for production of

SUCH A TRANSCRIPT.

I; FINDINGS OF FACT UPON VERIFIED

COMPLAINT

l. 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 1958. She

also is duly admitted to practice law

before the Bar of the Supreme Court of

Kentucky.

2. The Respondent is engaged full-time in

the practice of law in Carroll County,

Indiana, and maintains an office in Flora,

Indiana. The husband of the Respondent,

namely William J. Briggs, is also an

attorney and is the respondent in cause

number 1078-S-235 before this Court and a

companion cause tec this matter; at their

law offices the Respondents Briggs

operated from 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 stationery. 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 finds that

they held themselves out to the public as

a law partnership operating as Briggs

and Briggs during all relevant times

herein.

Je That Respondent was aware that Mr.

Briggs was representing Mary Bernice

(Kate) Smoker commencing in the mid-1960's

and through the events here described.

She was an elderly widow, having been born

in 1894, who was an ex-schoolteacher, a

lifelong resident of Burlington, a small

town in Carroll County, and something of a

local character. She sought business as

well as legal advice so that her

representation was more time-consuming

than normal, and she did not pay for her

representation in any normal fashion but,

instead, after paying a few minor bills

normally, entered into an oral agreement

with Mr. Briggs for life-time legal

services at a fee of $10,000.00.

Respondent was also conversant wth (sic)

the terms of the will(prepared by Mr.

Briggs) where Kate Smoker (who had no

children and no natural objects of her

bounty) had favored Respondent's family

members which (1) gave Mr. Briggs a

specific bequest of $1,000.00 (2)

established an educational trust with the

majority of her estate specifying a Briggs

child, Winston, as a major beneficiary of

the trust for all of his college and

post-graduate school expense, and named

Respondent as Co-Executrix and as attorney

for the trust. The unusual fee

arrangement was generally acceptable

because of the will provisions. Kate

Smoker was not related to _— Briggses,

nor was she a close social friend, but she

did regard Mr. Briggs as a valuable

business advisor. She did, in fact, have

significant business assets including 282

acres of farmland in Carroll County and,

by the late 1970's about $150,000.00 in

cash assets.

c >

4. Kate Smoker had been treated for

diabetes since 1966, for coronary

insufficiency since 1967, and had suffered

a heart attack in 1969. In the fall of

1976 the state of her health began to

deteriorate. On October 22, 1976, she was

admitted to St. Joseph Hospital in Kokomo

for four days with a diagnosis of acute

pulmonary edema, inferior myocardial

infarction, hardening of the arteries,

diabetes, glaucoma, severe peripheral

vascular deficiency to her lower

extremeties, and depression. She was

released, lived at a friend's home and

then her own home in Burlington for a few

days, but the state of her health remained

marginal. She was able to vote and she

did continue to conduct some business. On

November 9 she met with Mr. Briggs at her

home and executed a codicil to her will,

a nomination of him as guardian should she

need, and formalized the life-time

|

services contract by written agreement and

by funding $9,000.00 of it.

($1,000.00 was already provided by will)

by joint certificate of deposit. She was

readmitted to the hospital a few days

later where, with a few days exception,

she remained until mid-December,

incompetent to handle her affairs and in

badly deteriorating health; most visitors

felt she was dying.

5. Upon the petition of Kate Smoker's

first counsin(sic), a temporary

1976, with Mr. Briggs as guardian and

acting as his own attorney. He began

marshaling assets for the guardianship and

attempting to order business affairs. As

he 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

i guardianship was commenced on November 24,

rentals of the farm ground. He was aware

that she opposed this practice (it can

lead to deterioration of farm improvements

and of soil quality) but thought her

Current needs made it appropriate.

6. On December 13, 1984, Kate Smoker was

discharged from the hospital. Her. condi-

tion was still not good but was stable.

Mr. Briggs had received the opinion of her

doctor that her condition was irreversible

and that she would require custodial care.

Mr. Briggs drove her home and made

arrangements for a suitable hospital bed

to be placed there. He had also arranged

for either nursing care , trained

hospital voiunteers or townspeople to

always be available for assisting Kate

Smoker. He was investigating nursing

homes.

7. Thereafter she made a remarkable re-

covery and by January 1l, 1977, when her

doctor 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 guardian-

ship, the restraints it placed on her abil-

c 9

ity to do business, and the altered farm

management goals. On one occasion she

professed no recollection of making the

November 9 joint certificate.

8. Notwithstanding her recovery, the

guardianship was made permanent on January

13, 1977 after hearing in the Carroll Cir-

cuitCourt. Kate Smoker advised the Court

at the hearing in Mr. Briggs presence that

she did not want him taking care of her as

conservator, that she liked to run her

Own business, and that she did not want

any conservator. Her doctor testified

about his examination two days before but

continues to opine that she was incompe-

tent in the belief that her recovery was

temporary. The Carroll Circuit Court by

Judge Smock believed that a permanent

conservator was advisable under the

circum-stances and asured Kate Smoker that

Mr. Briggs would try to follow her desires

Cc 10

with respect to the handling of her farm-

ing and other affairs.

9. During the next month, the long-stand-

and close personal relationship between

Kate Smoker and Mr. Briggs deteriorated

badly. Kate Smoker was exceedingly un-

happy that she was under a conservatorship

(the word "“chaffing" comes to mind). Fur-

therMrs. Smoker was use to being in

primarycontrol of her own farming and

monetary affairs, and she was exceedingly

unhappy that Mr. Briggs was principally in

control of her substantial cash assets and

had negotiated a cash farm lease for a

portion of her farms without her

consultation. She was allowed to write

checks for herself,however, and her nurses

and custodians were told by him to take

her wherever she wanted to go. During

this period of time she began to consult

with and complaint to Bobby Ritchey, a

He

©

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 cattle transactions; whereas Bobby

Ritchey and Kate Smoker had previously

been acquaintenances and occasional

business associates (she probably thought

of him like a hired man) they now became

confidants and close friends.

10. One event which particularly incensed

Kate Smoker at about the end of January

involved her coming to the Briggs Law

Office to obtain her lock box key. Mr.

Briggs correctly refused to give it to

her, but thoughtlessly displayed it to her

commenting “you don't like authority, do

you?" This greatly agitated and

aggravated her, further destroying their

relationship.

While the events thus described have

uniformly involved Mr. Briggs only,

. 2

E=-_-_ EET ORS RS RSS SE CT SS =

Ele

Respondent was fully aware of them

and was present at the "lock box incident"

described above. For all purposes here,

however, Respondent had played an entirely

passive role in these events.

ll. Kate Smoker became increasingly

disgruntled with the Respondent and in

late January privately began conversation

concerning the possibility of obtaining

another attorney. She made inquiry of

Kokomo attorney Alan Brubaker, a

Burlington native, as to whether

he would be willing to get her out of the

guardianship. He indicated to her that he

would not represent her in the matter

> = _ ; . + _ “7 9

although he could, if she wanted, to guide

her to other attorneys. She later asked

Ritchey CO arrange an appointment with

notner attorney. He did so with R

ee

Adrian Marks, a Frankfort attorney with

whom Ritchey was casually acquainted.

Richey (sic) arranged for the initial

meeting between Kate Smoker and Marks

held on February 4, 1977 at Marks' law

office. The interview lasted two and a

half hours. She outlined her goals, as,

first stopping Mr. Briggs from altering

the basic nature and "complexion" of her

farming operation and, second to get the

guardianship terminated. Marks required

her to be examined by two physicians.

During this time it is safe to assume that

she poured out to him her frustrations

over no longer manging her own

affirs(sic). Marks arranged for

examinations by Dr. Beardsley, a Frankfort

physician and Dr. Bowman, a Kokomo

psychiatrist.

12. 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, lucie,

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. 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 reduced this to

written form on that day.

Both doctors made their results known to

Marks.

13. Mr. Briggs and Kate Smoker spent some

time together on February 6 visiting a

friend at a nursing home. On the way

home he reported to her that he had talked

to Judge smock about the possibility 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

indicated that there were too many new

people at the bank and that besides, she

didn't want a bank and 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 her doctor

weekly and that it was becoming apparent

that he would have to change a

mis-diagnosis.

14. Between February 7 and the end of

February 9, the exact time and

circumstances not being adequately

described, kate Smoker did inform William

Briggs that she had been in contact with

C 16

another attorney, 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 purposes of

examination to end the guardianship; the

best evidence would seem to indicate that

she did not inform him concerning the

doctors.

15. On Thursday, February 10, 1977, the

first communication between attorney R.

Adrian Marks and Mr.Briggs occurred. It

was filled with the abruptness = and

animosity which has plagued any

relationship between these attorneys

including Respondent from that day to

this. On that date Attorney Marks

telephoned Mr. Briggs to indicate that he

desired to come to the Briggs office to

discuss matters pertaining to Kate Smoker.

t i7

Mr. Briggs indicated that he would be

willing to have a meeting only if Kate

Smoker were present. This difference

becameheated and the conversation was

abruptly ended by Marks hanging up. He

did call later in the day to indicate he

would not be coming.

16. Mr. Briggs learned that Bobby Ritchey

was staying overnight with Kate Smoker on

Friday night, February 1l, so that he came

to the house early Saturday morning,

February 12. A heated discussion followed

between Ritchey and Mr. Briggs concerning

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 night.

Mr. Briggs looked upon that unfavorably at

the time and further discussions resulted;

the tone of the testimony makes clear that

a serious confrontation between two

C 18

stubborn men occurred here. Neither

Ritchey or Mr. Briggs would leave before

the other left so that eventually they

left simultaneously. Mr. Briggs 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 restaurant that evening. Later

that day Mr. Briggs submitted two

petitions to 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 proceedings

suffers during this period of time because

some of the documents here after referred

to were delivered directly to him at his

c i9

law office and were file stamped at later

times). The petitions (1) that the Court

issue a temporary restraining - order,

restraining certain persons 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 tne time and subsequently made

a record of overruling them.

L7s On Sunday, February 13 a result of

the scene the previous day and her

frustrations with the -guardian and the

guardianship, Kate Smoker contacted

Attorney Marks directing him to immediate

action for purposes of terminating the

C 20

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 for

removal and second at her home in the

presence of Bobby Ritchey where 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.

18. 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.

Mr. Briggs receipt of the Petition to

Remove evoked anger and emotions in him

which have not subsided. His reaction as

C 2i

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.

19. On Friday, February 18, 1977,

Respondent together with Mr. Briggs,

Attorney 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, Mr. Briggs engaged in a lengthy

C 22

consultation with Respondent concerning

the advisibility of filing his Petition to

Terminate the conservatorship on the basis

of Kate SmokerS now apparent competency;

he had prepared such adocument and took it

to the conference but nad not filed it or

displayed at the conference. He

eventually concluded that the filing of

such a document was appropriate so that he

returned to Delphi and filed it. It

includes his statement without

reservation that the conservatorship

should be terminated, stating reasons

therefor, and referring in his petition 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

influence, ministrations and manipulations

of others.” This event marks a change

in the participation level of Respondent

in this matter, perhaps such a change is

the natural consequence of their office

division of labors whicn leaves Respondent

virtually all of the trial work. She had

reviewed the Petition to Terminate,

although Mr. Briggs had drafted it, and,

with increasing frequency she drafted or

reviewed various letters, pleadings, or

documents in the Smoker matter.

Ironically, she counseled against his

filing of the Petition that day.

20. 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

C 24

lengthy interview with her about what she

wanted. He did not have access to the

will prepared by Mr. Briggs some years

before with the educational trust. He had

to rely upon her memory for that

information because she did not wish to

ask Mr. Briggs 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 University foundation and

could be established exclusively 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

bequests of a modest amount of farm land.

to Bobby Ritchey , and that the residue of

her estate be divided equally between

C 25

a

trusts for the Burlington Methodist

Church and the Burlington Cemetery. In

fact, Attorney 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. Ex-

cept 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.

21. After the filing of the Petition to

Remove by Attorney Marks and the Petition

to Terminate by Mr. Briggs, Mr. Briggs

with Respondent's assistance began

delaying and resisting action on these

petitions. On February 23, Mr. Marks sent

a letter to Mr. Briggs agreeing to the

granting of the Petition to Terminate, and

submitting a suggested form of decree for

the purpose of ending the guardianship.

Mr. Briggs did not answer the letter.

a week later, Attorney Marks

telephoned Mr. Briggs as to the

possibility of such an agreed termination

order. He answered Marks by telling him

that they would be able to talk when Marks

"got the animosity out of his heart."

Marks indicaates this his reply was

"quick and pungent." A few days later Mr.

Power, Kate Smoker's other new attorney,

called Mr. Briggs to discuss action on the

Petition to Terminate. Mr. Briggs refused

to agree to the granting of his own

Petition to Terminate. In a letter

written on May 2, 1977, to Special Judge

Munro who had since qualified in the

guardianship, Mr. Briggs 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

5

mismanaged the funds of Mrs. Smoker in any

way."Respondent drafted this letter for

Mr. Briggs' signature.

22. 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

Mr. Briggs 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 Briggses

discovered that they would have to be in

Washington, D.C. on other legal business,

C 28

and the court granted a continuance and

rescheduled the hearing for May ll.

23. On April 19, Kate Smoker's counsel

filed a Motion for Summary Judgment on the

Petition to Terminate, 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 11 to the

issues raised by the Petition to Terminate

and also informed counsel that, since by

agreement the pnysicians' 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.

24. On May ll, Mr. Briggs filed his

"Objection to Court Order", objecting to

the reception of the doctors' reports and

to limiting the oer to his own

Petition to Terminate. On the same date,

Mr. Briggs filed his “Affidavit and

Response of William J. Briggs Conservator

to Motion for Summary Judgment." In this

pleading, he argued strenuously that the

granting of a judgment of his Petition to

Terminate, without also hearing the

Petition to Remove, would do “irreparable

harm" to him because the Petition to

Remove “has cast doubt on the character of

William J. Briggs by innuendo."

Respondent believes Mr. Briggs to have

prepared these Objections and theAffidavit

and Response, but she believes that she

reviewed them and concurred in them.

25. On May ll, the Court proceeded with

the hearing on the Petition to Terminate,

and all of the evidence was heard thereon

except that of Dr. Wagoner. Since Mr.

Briggs wished to call Dr. Wagoner as

witness and he could not be present on May

ll, the Court, on Mr. Briggs’ motion,

C 30

SS ee ee ee ee ee ee

granted a continuance to May 26 to permit

Dr. Wagoner to testify in person. On that

date, following his evidence, the

guardianship was terminated by the Court.

26. 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 Kate Smoker, Kate

Smoker was subjected to constant fits of

distress, anxiety, and worry. MThe record

of this case is replete the examples of

individuals stopping by her home so(sic)

see or check on ner 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

occassion(sic) to stop by to talk with

her. Shortly thereafter when he arrived

C 3i

at her home, he found her to be sobbing

uncontrollably, literally tearing 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 9 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 a emotional 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 werethe result of events concerning

Mr. Briggs 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. She was

C 32

terribly embittered over the continuance

of April 19 and May ll.

This Officer would be hard pressed to

improve upon the observation of Judge

Munro: "The termination of a

conservatorship, where three physicians

unanimously agree that the ward is

restored to competence, normally would be

a simple 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, (Mr. Briggs) treated the

entire matter as an adversary proceeding,"

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

c 33

caused to her and for purposes ultimately

designed for his own benefit, namely, to

protect his own reputation. While it must

be noted that Mr. Briggs was the lead

attorney in deciding this course of

action, it must also be noted that

Respondent counseled him to pursue this

wrongful course of action and assisted him

in its perpetration.

27. Immediately following the granting of

the termination of the guardianship, 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.

28. 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 Mr.

Briggs was to file a written final report

within two weeks, that $2,000.00 was to be

C 34

transferred to Kate Smoker for _ her

immediate use, that 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 signaficance to both the Respondent

and the co-respondent however, Mr. Briggs

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 from her

to deliver papers. Mr. Briggs-was absent,

working on another matter and the result

was an angry confrontation between Marks

and Respondent. Marks arrived at about

C 35

1:00 p.m. but Respondent refused to talk

with him unless Kate Smoker was present;

Marks did not leave, so Kate Smoker was

telephoned. She confirmed her written

directives to allow delivery which Marks

delivered to Respondent, the Respondent

then indicated that she didn't trust him

and didn't think she should give the

documents to him. An angry exchange took

place of the the $2,000.00 which hadn't

“been paid yet. Marks also indicated that

mm

Respon@ent rs and co-respondent were

bothering Kate Smoker, that they were no

longer her friends of attorney and that

Mr. Briggs was no longer the guardian so

that any and all contact by them should be

through Marks.

Respondent indicated that Kate Smoker was

their friend and that they would contact

her when they pleased. In spite of this

acrimonious exchange, numerous records and

C 36

documents were delivered that date.

Specifically, three items were the

ultimate causes of further friction (a)

Mr. Briggs 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

available before June 15, but he 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 returend(sic) as Mr. Briggs desired a

witness to the transfer of its contents

but took no steps to arrange it;

Attorney Marks suggests that Mr. Briggs

was simply holding the certificates

hostage to secure a favorable resolution

of fees issues and indicates that Mr.

Briggs told him "We'll talk about keys

C 37

after we settle our fees;" Mr. Briggs

heatedly denies any such statement). The

lock box key was delivered August 2, 1977.

It is clear that Mr. Briggs took no

special steps to return the key, a fact of

special significane(sic) because of the

earlier “lock box key" incident. This

episode again further embittered Kate

Smoker about Mr. and Mrs. Briggs and their

motives.

29. With the filing of the Guardian's

Final Report, Mr. Briggs objected to being

required to file a claim for services as

conservator or as an attorney. He argued

in his objection that he had undertaken

these servicesas 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

C 38

that his service as conservator and Mrs.

Briggs' services as attorney when computed

upon hours of service alone 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. The record

well reflects that the ultimate goal of

Mr. Briggs 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.

Certainly his prayers for relief were in

the alternative but his efforts supported

by Respondent were bent upon proof of the

Cc 39

validity of the contract.

30. Lengthy and acrimonious proceedings

toward final hearing upon the closing of

the guardianship followed. Allegations

between Mr. Briggs and Attorneys Marks and

Power followed which included an effort to

bar the Briggses from communicating with

Kate Smoker and more significantly a

filing by Attorney Marks of certain

pleadings in camera before Judge Munto

which later became the basis of a

defamation counter-claim by Mr. Briggs

against Kate Smoker, Adrian Marks’ and

Samuel Power, individually. During this

period of time both Mr. and Mrs. Briggs

also became aware that Attorney Marks,

later supplemented by Attorney Power and

Kate Smoker, had filed a complaint before

the Disciplinary Commission which

ultimately gave rise to the companion case

against Mr. Briggs. Ultimately all of the

matters scheduled for conclusion as part

C 40

of the guardianship final report including

(a) final determination of Mr. Briggs'

statement of services as attorney and

conservator, (b) ward's preliminary

objections and final objections -to the

report (c) Mr. Briggs' claim for damages

because of defamation, and (d) a claim for

personal injuries and damages against Mr.

Briggs and by the ward were all scheduled

for hearing to commence December 3, 1979.

31. At the August 2, 1977 pre trial

conference, Respondent filed a written

Motion to Withdraw from represenitng Mr.

Briggs. She indicated to him at that time

that she was too close to the case and

that dia had lost her objectivity; this

Motion was accompanied by a request that

her replacement be compensated out of

guardianship funds. Judge Munro did not

approve this request for payment; the

record available to this Officer does not

show whether the Motion to Withdraw was

denied or simply not ruled upon . In any

event Respondent remained active in the

case. Mr. Briggs then employed Delphi

Attorney Joseph T. Ives (known as Tom) who

entered his appearance on behalf of Mr.

Briggs in the guardianship matter and

promptly began participation in the

disciplinary action as well.

32. 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 be.x did not remain friendly with

Brigges(sic) As Dr. Wagoner had

predicted, her health remained on a

gradual downhill course. She returned for

four more visits with Dr. Bowman, at first

C 42

to ventilate her frustrations with the

guardianship, with Mr. Briggs 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

deposition was taken for Mr. Briggs'

disciplinary proceeding on November 22,

1977; the Respondent was present for it.

Respondent also took Kate Smoker's

deposition for use in the guardianship

case.

33. Mary Bernice Smoker passed away on

November 21, 1979, approximately 2 weeks

prior to the commencement of the Court

C 43

trial scheduled on the final report on her

conservatorship. (34) On the following

Monday, November 26, 1979, Mr. Briggs in

consultation with Respondent filed sworn

objections to the probate "of any will (or

codicil) of Mary Bernice Smoker subsequent

to the date of February 24, 1970..."

pursuant to statute. Such objections

resulted in the impounding of Mrs.

Smoker's 1977 will and codicil when they

were presented thereafter for probate.

Mr. Briggs' and the Respondent's stated

purpose in filing such an action at that

early juncture was to obtain the

appointment of a “neutral” administratoir

of the estate, preferably a financial

institution, who would not hire Marks and

Power as their counsel and who would,

therefore, be more amenable to settlement

of the pending claims. Judge Donald

Myers, then regular judge of the Carroll

Circuit Court, approved the Clinton County

Cc 44

Bank and Trust Company of Frankfort,

Indiana, as special administrator; this

was the representative named in the

decedent's 1977 will. This administrator

promptly hired Marks and Power as counsel.

35. Mr. Briggs' and Respondent's

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. Mr.

Briggs undertook this contest fully aware

of the existence of a disciplinary action

pending against him. While it is safe to

assume that Mr. Briggs and Respondent were

aware that his filing could well delay the

guardianship final hearing (it did not)

and that it would delay the ultimate

determination of his disciplinary

proceeding (this file - contains

correspondence that a disciplinary trial

would await the results of the

guardianship hearing) and while it is

C 45

—_-

further safe to believe that retaliatory

filings against Marks and Power

controlling the final determination of the

Smoker Estate did at least cross their

minds, the ultimate decision to prosecute

a will contest, no doubt made after an

adverse determination 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 resk of

further disciplinary filing appear to be

the major areas of discussion as_ to

whether to proceed.

The decedent's competence was 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 under influence upon the decedent

and whether the 1977 will was a product of

such influence. Respondent correctly

believed that a jury would be instructed

C 46

EDITOR'S NOTE :

THE FOLLOWING PAGES WERE POOR HARD COPY

AT THE TIME OF FILMING. IF AND WHEN A

BETTER COPY CAN BE OBTAINED, A NEW FICHE

WILL BE ISSUED.

upon “undue influence" essentially as

follows:

False statements and accusations to a testator con-

ning the objects of the latter's bounty with the

Blercfon and effect of alienating her affections and

ing her to make certain testamentary dispositions

- her property may be a circumstance to believe

{ will void for undue influence. Attacking the reputatior

character of a person may be the means through which

1ague -knfluenge or fraud invalidating a will is perpe-

ted. Undue influence may consist in arousing bitter

Qi that would be unwarranted if the whole truth

sre known; such influence may be achieved by initiat-

half-truths so directed that they will, in all

pms. reach the person to be affected, to the

L

jury or prejudice of another person, and once the

»iccer feeling has been aroused, it can be kept alive

d the memory of it sharpened and even magnified

repetition.

Factors in this case which led Mr. Briggs

andRespondent to believe that they could

well prevail upon this tate of the law

were (1) that Bobby Ritchey, the

Marks' office, had benefitted more from

this will than any other person, going from

a $2,000.00 specific bequest to a 92 acre

i individual who had taken decedent to

farm (2) the pattern of the previous

wills she had drafted had always been to

create an educational trust, even before

she had met Mr. Briggs but no educational

trust was left in the 1977 will (3) the

church and the cemetery had _ received

modest specific bequests before, but

nothing in scope like the residue of the

estate (4) Dr. Wagoner had already

provided testimony that from February 3,

1977 to May 26, 1977, that wie 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.

36. Attorney Ives never significantly

participated in the guardianship case. He

commenced active participation in the

disciplinary matter for Mr. Briggs, but

after a period of time it became clear

that counsel in Indianapolis would be

better placed to pursue that matter so

that Mr. Briggs had retained Attorney

James Stewart to represent him in the

disciplinary matter.In the guardianship

case attorney Ives attended a few days of

trial but was not active in the matter and

gradually faded out of it. He had no

involvement at all in the will contest.

Attorney Stewart had no participation

whatsoever in the guardianship case. He

consulted with Mr. Briggs and Respondent

about the advisability of filing the

initial documents commencing the will

contest and, after the guardianship

decision, whether to proceed with it to

trial. His chief considerations appear to

have been the likely impact upon the

pending disciplinary matter. Accordingly,

Respondent became lead counsel at the

guardianship trial and was again lead

counsel in the will contest.

37. In the guardianship case, it was

C 49

clear that Mr. Briggs, her law partner,

would be the chief witness, at least for

his side of the case. Respondent was also

briefly called as a witness. On the other

side, Attorneys Marks and Power were also

called as witnesses and testified

extensively. The matter was a trial to

the Court before Judge Munro. There is no

indication that anyone gave a moments'

thought to the propriety of these

particular attorneys' participation when

they knew they would be witnesses.

38. Trial on the guardianship final

report and the related matters thereto 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

Cc 30

(rehearing denied, transfer denied). His

determinations are here summarized as

follows: (a) the final report was

approved in all respects except for

guardian's fees and attorney fees, all of

which were denied based upon apparent

conflict of interest; (b) all claim by Mr.

Briggs to the $9,000. 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 Mr.

Briggs 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 argument 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 Mr. Briggs was

upheld but no damage had resulted

Cc 31

therefrom; ultimately a $1.00 award was

made on that claim; (e) fees for $25. 00

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.

39. The will contest case was scheduled

to commence in late November, 1980, a

matter of days after Judge Munro's

decision was handed down.40. Mr. Briggs

and Respondent were the attorneys of

record for plaintiff in the will contest;

in all respects Respondent acted as lead

counsel during the trial, knowing that her

partner Mr. Briggs would be a most

signficant witness. The beneficiaries of

the 1977 will were variously represented

by Attorney Huffer, then Attorney Vaughn ,

no one ever explained the trial role of

Attorney Layden; Attorney Marks, the

C 52

attorney for the temporary administrator

described his participation with

defendants as “of counsel"; he was also a

key witness of cours®. The will contest

was tried before a jury.

41. Contemplation of the propriety of

Respondent's participation begins with DR

5-102(A)

If, after undertaking employment in contemplated or

pending litigation, a lawyer learns or it is obvious

that he or a lawyer in his firm ought to be called as

a witness on behalf of his client, he shall withdraw

from the conduct of the trial and his firm; if any,

shall not continue representation in the trial, ex-

cept that he may continue the representation and

he or a lawyer in his firm may testify in the cir-

cumstances enumerated in DR 5-101 (B) (1) through (4).

exception (4) provides:

(4) As to any matter, if refusal would work a sub-

stantial hardship on the client because of the

distinctive value of the lawyer or his firm as

counsel in the particular case.

Respondent has consistently argued that

her participation fit the exception of

(4); no showing of distinctive value was

here made however. The problem here is

that different considerations apply where

the attorney is a witness-advocate as

compared to a litigant-witness-advocate.

The ultimate justification for the

disqualification rule is that the public

might think that the lawyer is distorting

the truth for the sake of his client. A

second rationale is that a lawyer-witness

could vouch for his own credibility in

summation before a jury-- a powerful means

of support. These same concerns

disapper(sic) when the attorney is also an

interested party in the case. Any belief

that his testimony is distorted suddenly

becomes not different than for any other

party; all parties' testimony have to be

examined for self-interest and a litigant

whose occupation is lawyer will be no

different

c . $4

than any other litigant. Also, where

Respondent is doing the arguing, there

need be no concern that Mr. Briggs could

unfairly vouch for his own creditility;

she characterizes the evidence, not he, so

that no first person testimony can be

reinforce. The concerns here are simply

not the same. See International

Electronic Corp. v. Flanzer, (1975) 527 F

2d 1288.

Let's start again. It is central to our

system of justice that a layman can

represent himself; can an individual lose

that right simply because he is a lawyer?

If Mr. Briggs is free to represent himself

as we generally recognize any person

should be, is his partner barred from

representing him? The clear answer under

typical circumstances is "No," a partner

could no more be construed as improving

the credibility of the

litigant-witness-lawyer than he could that

Cc $5

of any other client. Here, however, the

partner is not only the business partner

of the advocatebut is also the spouse, the

marital confidant, the sharer of personal

economic benefit, and for our purposes the

unquestioning supporter and believer in

the litigant-witness-lawyer. Does this

create a problem of improving the

credibility of the attorney's testimony

that is a greater problem than the normal

partner's situation? It is the considered

opinion of this Officer that the problem

is made somewhat different by the marital

relationship since a spouse may well be in

a stronger position to advocate the

credibility of their spouse-business

partner than mere business partners would

be, however this Officer also believes

that any advantage gained by such ability

is usually offset by the apparent

self-interest in such an argument. In the

end here, Respondent's final argument

C 56

cannot be said to mislead a jury where

they are aware of the- relationship, her

argument cannot be more or less strong

that(sic) that of Mr. Briggs arguing

directly.

Accordingly, in the guardianship trial

before ‘Fudge Munro, no misleading or

improper conduct appears to this Officer

by virtue of the Respondent's trying this

cause for Mr. Briggs. With somewhat less

assurance, the same can be said of the

will contest tried to a jury.

42. On October 29, 1980, Respondent had

written a letter to opposing counsel of

record regarding a desire to discuss

settlement of the Will Contest using as a

frame of reference the attorney's fees and

other defense costs which the Smoker

estate would likely expend in all phases

of the litigation. She undertook to

advise Attorney Huffer, one of the

opposing counsel, in her letter that

c.33

Huffer was representing parties with

conflicting interests since he represented

specific legatees as well as residuary

legatee, the latter parties being the

parties ultimately charged for defense

costs. She told Huffer in her letter that

the facts concerning the different

interests of his clients should be

communicated to and clearly understood by

Huffer and the Boards which govern the

residuary legatees.

43. 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 Church and

the Burlington Cemetery Association.

44. On November 8, 1980, Respondent

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 proposed that the

Cc 58

contestants be paid the sum of $29,250.00

by the Smoker Estate, such sum _ being

three-fourths of the attorneys' fees which

she estimated the Smoker Estate woyuld

expend in further defense of the Will

Contest. The settlement offer concluded

with an admonition by Respondent that,

since it was her opinion that Mr. Vaughn

was representing defendants in the Will

Contest who had conflicting 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 Mr. Briggs, that their offer contained

"" nothing new" Respondent felt that

further pre-trial steps were necessary to

assure that the offer was fully conveyed.

45. On November 10, 1980 she telephoned

the Special Judge in the Will Contest,

Robert Leirer Justice, (then a practicing

Cc 59

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 nad 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 the telephone

conference above described between

Respondent and Judge Justice, but Mr.

Briggs was well aware of such conference

and its content.

46. Shortly thereafter, Mr. Briggs

c?

elepnoned Ceyerend Arthur A. 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

> 60

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

wuch Church that had the decision-making

power with respect to the Church's

participation (if any) in the settlement

of the Will Contest. Mr. Briggs asked

Reverend Schenck to come to the Briggs's

law office in Flora and Reverend

Schenck obliged.

47. Reverend Schenck met at the

Brigg's(sic) law office with the

Respondent and Mr. Briggs. Mr. Briggs

advised Reverend Schenck that he wanted to

be certain that a settlement offer he had

made in the Will Contest had _ been

communicated to the Church. He further

told Reverend Schenck that he wanted this

settlement offer presented to the Church

Board but that he cou.ld not present the

C 61

aa

ee

offer himself because the Church's

attorney, James R. Huffer, had forbade

such a presentation. Mr. Briggs further

told Reverend Schenk (sic) that the offer

had to be presented by someone who was not

a member of the Church Board, whereupon

Reverend Schenck advised the Briggses that

he was an ex-officio member of the Board.

Mr. Briggs informed Reverend Schenck that

he had a claim for $17,000.00 for services

performed for Kate Smoker and tnat he

ke dismiss the willcontest if he was

paid $29,000.00. Mr. Briggs 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 settlement offer

to the Board. This entire conversation

>ccurred in Respondent's presence and with

her knowledge, consent and active

GE Reverend Schenck promptly went to see

C 82

Reverend Karstedt at the Burlington United

Methodist Church. Reverend Schenck

informed Reverenc Karstedt that Mr. Briggs

had contacted him about the Will Contest

and that Mr. Briggs wanted the Church to

be aware of his settlement offer and the

amount of the settlement offer of

$29,000.00. Reverend Schenck asked

Reverend Karstedt to see to it that the

settlement offer was conveyed to the

Administrative Board and told Reverend

Karstedt that he had been told by Mr.

Briggs that the Church probably would save

money by accepting the settlement offer

and that such a settlement would be to the

Church's advantage. Reverend 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 rejected the

request conveyed by Reverend Schenck to

C 63

take the matter before the Administrative

Board.

4°. An eleven day trial to a jury of the

Will Contest ensued with Respondent acting

as lead counsel for plaintiffs. After

eight hours of jury deliberation a verdict

against Mr. Briggs was returned,

effectively upholding the 1977 Will.

Judge Justice has indicated that he

believes the issues presented provided a

fair jury question and that he believes he

would not have set aside a verdict for

plaintiffs had that been the decision.

II

UPON VERIFIED COMPLAINT

Upon the issues here presented, this

Officer now concludes as follows:

50. 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.

Si. That Respondent, by assisting Mr.

Briggs to unreasonably delay the

termination of Mrs. Smoker's guardianship

allowed her personal interests to affect

the exercise of her professional judgment

in violation of the Code of Professional

Responsibility.

52. That Respondent had probable cause to

believe that her client, Mr. Briggs, could

prevail in licigation to set aside the

1977 Will and for enforcement of the 1970

Will. Her counseling to him to proceed

with such trial was therefore supportable

under the appropriate criteria and was not

misconduct.

53. That Respondent participated in

unreasonably communicating a_ settlement

offer to another, knowing them to be

represented by counsel in violation of the

Code of Professional Responsibility.

54. That as this Officer understands the

purposes and rationale of D.R. 5-102 (A),

Respondent did not violate the Code by her

participation as counsel on behalf of Mr.

Briggs.

II!

FINDINGS UPON PROCEDURAL

AND CONSTITUTIONAL ISSUES

The Respondent has challenged _ the

procedures of the Indiana Supreme Court

Disciplinary Commision generally and as

applied to this case as violating her

constitutional rights. These issues have

been developed as follows:

A. Did the delay in bringing this

to hearing deprive the Respondent

of her fair opportunity to defend

herself? This has been presented

as (a) because of the death of numerous

witnesses depriving her of the

effective use of the subpoena power

and (b) the generally recognized

prejudice attached to delay arising

from faded memories, lost evidence,

living with the uncertainity of the

result, etc.

B. Was the Respondent denied equal

protection of the law in that she

was selectively prosecuted while

other malfeasors herein were not?

C. Was the Respondent denied due

process and the equal protection of

the laws by having her fact-finding

hearing joined to the fact-finding

hearing in 1078-S-235 wherein the

Respondent was her law partner and

her husband.

D. Was the entire proceeding conducted

to deny her 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?

Upon such issues the Court now makes the

following findings of fact:

55. That 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, attorneys Samuel

Power, and Marks alleging professional

misconduct by the William J. Briggs.

56. That Sheldon Breskow, Executive

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 had occurred; that

he set in motion further investigatory

procedures within the Disciplinary

Commission which included notification to

the Briggses that an investigation was

under way, the issues of the

investigation, and invited by them any

response that they wished to. provide

concerning the investigation; that in

fact, they did present one response which

would be considered the equivalent of a

general denial in regular pleading

practice, that the Executive Secretary's

staff replied that that was not the kind

of response that they were seeking but

they were instead allowed the opportunity

to provide a factual response as_ to

whether any cause should be commenced; the

Respondent did, acting on behalf of Mr.

Briggs, in fact provide a_e substantial

response including submission of vast

C 69

amount of materials on December 5, 1977.

$7. This procedure is the standard

procedure by which grievances are filed

and the Executive Secretary commences and

investigation towards a filing: aside from

the general denial nature of Mr. Briggs

initial response and the request for a

further filing, Mr. Breskow has no

specific recollection of any procedural

irregularities in the initial stages of

the grievance against Mr. Briggs.

Respondent fully participated with Mr.

Briggs through the initial stages of the

entire matter, acting in a capacity of

counsel or co-counsel with him.

58. The grievance against Mr. Briggs

together with results of further

investigation and the response was

presented to the Disciplinary Commission

and, as is 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.

59. That by vote of the Commission on

July 14, 1978, the filing of a

disciplinary action against Respondent

William Briggs was decided and _ was

actually filed before the Supreme Court of

Indiana on October 24, 1978.

60. Representing the Commission, Mr.

Briggs case was first assigned to

Commission attorney David Coppenhaver. He

left the employ of the Commission within a

few months and the case was reassigned to

Commission attorney David Hughes who has

represented the Commission through the

balance of Mr. Briggs' case and throughout

this matter.

Initially representing Mr. Briggs was

Respondent acting in conjunction with Mr.

Briggs. Fairly early in the process,

however, Mr. Briggs obtained the services

of Delphi attorney Thomas Ives to

C 74

represent him in this matter; Ives was

representing Mr. Briggs 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,

she and Mr. Briggs had less than 24 hours

notice of it); as the proceeding developed

it became clear that an attorney located

in Indianapolis would be better placed to

pursue Mr. Briggs representation and

therefore Attorney James Stewart was hired

to represent him. Stewart, together 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 Mr. Briggs at the November,

1983, pre-trial hearing but did not

formally appear for Mr. Briggs until

shortly before trial commenced. No other

attorney ever appeared on behalf of

Respondent although one, Mary Beth Ramey,

obviously gave it serious consideration

and a trial delay was granted from April

24, 1984 to July 12, 1984 so that she

would be able to participate if it could

be arranged. Respondent eventually

represented herself.

61. As to the issue of delay in resolving

this matter, the following appears

pertinent:

(a) A grievance had been filed against

Mr. Briggs resulting in the filing of a

disciplinary -proceeding in October, 1978;

because many of the matters involved in

the grievance remained the subject on

on-going litigation, the Commission

attorney Hughes and Mr. seanant reached an

agreement to forego further proceedings in

Mr. Briggs' disciplinary matter until the

guardianship and Will trials were over.

They ended in December, 1980.

(ob) A voluminous new set of grievances

were filed against Mr. Briggs and also

makang allegations against Respondent

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 on May 19, 1981

that the matter was being assigned to

Attorney Hughes for investigation. It

elicited a response from Respondent and

Mr. Briggs of approximately two volumes.

(c) The investigation was completed

for re-review by the Commission and was

again assigned to members Jeannie Miller

and G. Daniel Kelley. Respondent, with

Mr. Briggs, rquested 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, 1982 read 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. Vaughn,

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. 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 this 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. Vaughn,

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.

August 13, 1982

The matter of R. Alan Brubaker, R.

Adrian Marks, Charles R. Vaughn,

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. Vaughn,

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 ‘Commission

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 Mr. Briggs and a Verified Complaint

for Disciplinary Action against Respondent,

both filings occurring on July 19, 1983.

(d) From September 10, 1982, the date

of approval of further proceedings by the

Commission to July 19, 1983, the date the

Amended Complaint was filed delays

attributable to the Commission occurred,

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

lead to his exhaustion and placement under

doctor's care in November, 1982, (2)

necessity of his filing in January, 1983 of

the Disciplinary 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

mH mH HEHE HEHE HEHEHE EE EE EE

rf

2

difficulties arising from the sheer volume

of the case. Other workload, however,

raises a new policy consideration of the

Commission upon which no direct evidence

was submitted. The staffing of a

disciplinary executive branch can be

undertaken in at least three ways: (1) the

employment of a ful-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 these using either

part-time staff or some stff members of

each origin. Inherent 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 some

trial staff being full time’ salaried

employees and others being part-time;

Hughes is part-time. This Officer cannot

accept the notion that incidental delays

cause 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 therefore more

attuned to the concerns, choices, and

difficulties of practice than would by any

salaried full-time staff. This staffing

method is certainly reasonable and, in the

option of this Officer, is the best choice.

The ten month delay in filing in this

particular circumstance is appropriately

characterized as incidental. Hughes has

provided adequate explanation of his

activities during this time period so as to

show diligent pursuit of refiling.

Particularly in view of the complexity and

voluminous record of the cause, Commission

reassignment to a less burdened staff

Cc 79

member should have been, and -apparently

was, a last resort.

(e) That in July, 1983 the new

complaint against Mr. Briggs was filed as

was the complaint against Respondent. This

Hearing Officer had previously been

appointed to hear Mr. Briggs' matter and

had qualified on March 10, 1982. He

subsequently was named Hearing Officer in

this matter on September 12, 1983 and

qualified on September 21, 1983.

Respondent moved for a Change of Hearing

Officer immediately, citing as cause that

the same Officer was appointed in Mr.

Briggs' case. The Disciplinary Commission

by Attorney Hughes opposed change and the

Supreme Court of Indiana denied a change on

October 6, 1983.

(f) Pre-trial conference was scheduled

for November 3, 1983, but at such

conference Respondent correctly noted that

notice of pre-trial had not been entered in

this cause; Attorney Hughes indicated he

had believed pre-trial conference was for

both cases and came prepared accordingly;

Respondent indicated she was prepared for

pre-trial conference in her case which was

then rescheduled for and held on

December 16, 1983.

At pre-trial, 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,

trial was scheduled for April 24, 1984.

(g) Respondent had moved to allow Mr.

Briggs to enter his appearance for her, a

request that was eventually denied. On

81

March 19, 1984 Respondent moved for

continuance of the trial date to allow Mary

Beth Ramey to appear tee her in this

matter; Mr. Briggs in his cause opposed

continuance; the continuance was granted

and trial was rescheduled for July 12,

1984. At trial she represented herself.

(h) That on June 25, 1984,

co-respondent William Briggs, having

applied for and obtained 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 attorney for the Disciplinary

Commission, and the Supreme Court of

Indiana; that Mr. Briggs notified this

Hearing Officer of this filing in that

cause but that this Hearing Officer was not

C 82

made a party thereto; that as a result of

such filing Judge Kanne of the Northern

District of Indiana stayed proceedings in

his 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.

The Respondent did not join in this filing;

the filing did not delay trial here.

(i) 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

struggles 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 she had ample oportunity to recall and

preserve as much as necessary. Virtually

none of the issues presented in this cause

are in factual dispute although some of the

few disputed matters in Mr. Briggs' case

were witnessed by Respondent who testified

concerning them.

(j) 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.

62. Respondent sought to have Mr. Briggs

enter his appearance for her. In view of

the possibility of a conflict in the

positions of the parties, the Hearing

Officer did not allow the filing of such an

appearance.

At trial however, the Hearing Officer

allowed Respondent, William Briggs’ and

Attorney Rakestraw to freely consult

together throughout the trial of the cause

C 84

for purposes of submission of any question

to witnesses or for other trial purposes.

It should be noted that a great deal of the

evidence presentation undertaken by

Respondent had little or no impact upon her

case, particularly in some of her

cross-examinations; when objections to such

inquiries were raised, Respondent argued

that the evidence sought clearly was

relevant to Mr. Briggs' case and, since she

was being prosecuted as his wife, it must

also effect her case. To the extent that

this response makes any sense, it must be a

reference to the language of paragraph 27

of the Verified Complaint for Disciplinary

Action which commences, "The Respondent's

conduct in this entire matter, as law

partner, spouse, assistant, legal counsel

to Mr. Briggs . . .constitutes a course of

conduct « »« « »«” No discipline here is

being sought because of the marital

relationship; this is no more an action

against Mr. Briggs' wife than it is against

his mother or his next-door neighbor. The

including of the word “spouse” in the

language noted was clearly to suggest that

she had many of the same personal and

particularly financial reasons for acting

as did Mr. Briggs; it did also connote that

her familiarity and intimacy with the

underlying fact pattern was also more

likely than would normally have been the

case with a law associate.

63. Respondent has objected to his cause

being joined for trial with that of Mr.

Briggs. She first suggested that such a

joint hearing was unheard of and was being

undertaken only because she 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 bases its

C 86

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 are 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

atttempt 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 that

C 87

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

chem; 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 violation was

made.

64. 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; she

asked for all evidence that the Commission

might have which was favorable to her.

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 discovery

C 88

a

already undertaken. The Commission, by

Attorney Hughes, provided a response

anyhow, indicating that of evidence

favorable to Respondent, it was all equally

available to, and in fact known by, the

Respondent.

65. Because of the passage of time the

Respondent has objected because of the

death of numerous witnesses that she was

unable to receive a fair trial. As noted

in earlier sections, evidence in this cause

was not substantially in conflict. Only a

few areas of evidentiary conflict arose.

It is doubtful that the evidence of any of

these witnesses could have been other

cumulative.

An exception to this rule would be in

fact have been the testimony Mary Bernice

Smoker. However, as the central client

figure in what was essentially a

guardianship, Will and estate contest, it

is difficult to imagine a method for doing

C 89

4

‘

more to preserve her testimony than was

here undertaken. It should be

parenthetically noted that besides’ the

deposition of Kate Smoker taken = and

admitted into evidence in this cause (taken

November, 1977, in Respondent's presence);

Respondent also conducted herself a lengthy

deposition of Kate Smoker for the

guardianship trial.

Virtually the only other witness who was

referred to often during the testimony as a

person who could have provided helpful

testimony was the Respondent's former

secretary Bertha Wolfe, now retired and

residing in Arizona. Respondent indicated

that she was ill but did not explain the

extent of her illness that apparently led

to her absence. The Respondent left the

impression that her testimony would have

been uniformly favorable about Respondent's

character and professional capacity, but in

other would have, again been cumulative.

66. The Respondent has argued throughout

this matter that other attorney

participants through this cause,

particularly R. Adrian Marks in discussions

with Mary Bernice Smoker at a time she was

under guardianship and before notice of

such discussions waS provided to the

guardian William Briggs, particularly Alan

Brubaker in leaving a business card with

Mary Bernice Smoker at the hospital, and

particularly James Huffer or Charles Vaughn

in representing clients of divergent

interest, should have been investigated by

the Commission.

The Executive Secretary of the

Commission, Sheldon Breskow, described the

circumstances by which he commences. an

investigatic.s, simply stated an

investigation commences with a grievance

being filed and further investigation

follows thereafter; only in rare occasions

of blatant violation does the Commission

QO

91

initiate a grievance or investigation

procedure on its own.

The evidence in this cause reflects that

no grievance was ever filed against any

attorney participant in this action except

the attorneys Briggs; it is the observation

of this Hearing Officer that acts which may

have been acts of misconduct were described

in the evidence of this cause but that no

acts were as significant and of such a

serious nature as those committed by Mr.

Briggs, the Respondent, and as found by

this Court, except as otherwise noted

herein.

67. Respondent objected to being required

to testify in the belief that it violated

her 5th amendment right to remain silent;

before allowing the Commission to call

Respondent as a witness, the Hearing

Officer required that the Commission had

made a case sufficient to withstand a

motion to dismiss prior to the testimony of

C 92

aad eee ouiaiea Decl — ae =.

the Respondent; a comparable determination

of corpus delicti in a criminal proceedings

was consciously followed in order to assure

that the proceeding retained an

accusatorial character and not an

inquisitorial one.

Respondent also objected to the use of

Mr. Briggs' testimony as a witness for the

Commission in view of the long-time

evidentiary rules concerning spousal

testimony; Indiana's statute concerning the

subject is I.C. 34-1-14-5:

The following persons shall not be

competent witnesses:

6. Husband and wife, as to

communications made to each other.

This has never been enforced as a

competency statute but is instead a

privilege statute; it has impact as to

communications only, not acts. Therefore,

the general objection that was made to her

testimony could never be applicable. If

any objection were ever appropriate, it

could only be upon questions relating to

C 93

marital communications.

In fact, this Officer believes all of

the testimony proper and admissible on at

least three separate theories. First, the

Respondent and co-respondent both

voluntarily testified as witnesses; while

the preservation of a record of objection

to testifying is not at present available

to this Officer, their voluntary testimony

on virtually all areas of the case must

have served as a waiver. Second, a proper

remedy would be to limit the consideration

of the testimony given as part of the

Commissioner's case-in-chief as against

that individual only, not as to the other;

in all candor, it is impossible to always

provide the source of much of the

background information, so that parts of it

may have been considered on the factual

settings, but none was determinative on any-

of the acts of misconduct. MThird, but by

far most significant is this Officer's

C 94

}

belief that any such testimony should not

be barred anynow. The activities here

under consideration were the acts of

professional partners, consulting tocether

about professional matters, not about

matters of marital concern. Such business

matters, ostensibly being performed on

behalf of a third person should not be

hidden from scrutiny by this particular

rule. The sole exception to all of the

evidence presented which could be

considered as a private marital

communication would be the setting at home

described by both Respondent and the

co-respondent leading to the telephone

conversation with Kate Smoker that is here

called the "fish story". This testimony

was provided voluntarily.

68. In her attempt to exercise her

subpoena rights in this cause, the

Respondent served with subpoenas to appear

and testify, among other people, the

C $5

Disciplinary Commission members. Upon

Motion to Quash these subpoenas, this

Hearing Officer conditionally granted the

Motion to Quash and indicated that it would

not enforce such subpoenas without some

showing by Respondent that the members had

first hand knowledge of some fact at issue.

Respondent indicated that the chief purpose

of inquiry would be to inquire amongst the

members why they did not seek prosecutions

against the other attorney. participants

here. It is not difficult to further

believe a purpose to have included inquiry

into the considerations that went’ into

their decision to file the complaint herein

and to make particular inquiry of G. Daniel

Kelley and Jeannie Miller as to the nature

of their recommendation to the other

Commission members. These subpoenas were

not enforced. |

69. Similarly the Hearing Officer did not

allow the presentation of evidence of the

discussions at the Commission meetings as

to what factors the members may have been

relying upon in determining to proceed or

to have required attorney Hughes- or

attorney Breskow to produce their materials

or recommendations which would qualify as

attorney work product.

70. Aside from these proceedings,

Respondent knows none of the Commission

members. There is no suggestion that the

Commission or this Hearing Officer are

anything other than independent.

Respondent provided testimony that since

the 1981 grievances were filed however, she

had one unfortunate experience involving

Commission member Jeannie Miller;

Respondent applied for the vacancy in the

Courts of the Northern District of

Indiana's federal system as a Referee; at

an -_ interview by the selection

panel--presumably the Nominating

Commission--Respondent believes Jeannie

C 97

ae

Miller to have revealed that an ongoing

investigation or action was in existence,

thereby effectively destroying her chances

of nomination.

71. That Respondent provided testimony

that this period of time was the most

stressful of these respondents' married

life together, that because of the

pressures caused by the pendency of this

cause that they have come near to a

dissolution of marriage, that Mr. Briggs

has become more withdrawn from his friends,

has withdrawn as County Chairman of the

Carroll County Democratic Party at a time

when Respondent had run for public office

as Circuit Court Judge or as Prosecutor and

narrowly losing on each occasion and was

considering running again. She further

indicated that the parties have had severe

economic loss because of this’ filing

including loss of business, a terrific loss

of income including greatly reduced income

C 98

during the period of this trial and have

had a change in their living pattern

resulting in fewer vacations during this

period of time. Their son, Winston who is

attending law school, possibly chose an out

of state school because of this proceeding.

Additional testimony was’ provided that

cases have been turned down, that there has

been a loss of self confidence by the

respondents, that they have had more

quarrels during the period of time that

this has occurred and that having this case

pending has led to some restraint on their

liberty in the way of limiting their

freedom to travel at certain times.

Evidence as to extensive costs and fees in

this case was also received indicating

payment by co-respondents of approximately

$25,000.00 in defense fees without

computing this present attorney's

(Rakestraw's) fees for the trial.

72. At the pre-trial conference of

Cc 99

November 3, 1983 at Fulton Circuit Court,

this Hearing Officer directed a meeting

outside the Officer's presence for the

parties to discuss possible simplifications

of issues and evidence presentation, and to

consider any possible resolution of the

cause; this Officer believes such a meeting

appropriate in the spirit of Rule 23, Sec.

14 (c), Sec. 11 (d), and Sec. 17. Attorney

Hughes objected to Respondent's

participation in such a meeting because of

what he perceived to be her tendency to

quote as fact statements out of context

made by opposing counsel. ° Evidence of

constitutional infirmity was in fact

presented at trial challenging the

fundamental fairness of these proceedings

alleging that Attorney Hughes (a) attempted

to scare these respondents with stories ow

Owen Crumpacker, a disbarred attorney whose

case David Hughes tried for the Commission,

(b) offered to resolved these two cases

C 100

together with a (apparently unacceptable)

package offer, but would rot discuss them

separately and (c) suggested to Respondent

that she change her name. No contest for

these comments is shown. Evidence from the

other participants in the conference

indicate that Rakestraw and Hughes did have

a brief discussion about Crumpacker's

present circumstances, that mention was

made as to what a proper law office name

would be if one of these two respondent's

received disciplinary suspension ‘for a

time, and that a free-wheeling discussion

on possible agreed resolutions or consent

findings was held. This Officer finds no

error in such conduct’ and, in fact,

believes it to be the kind of meeting

anticipated. If, for some reason, this is

erroneous, there has been no showing of

prejudice flowing to Respondent because of

such an error.

C 101

=

IV

CONCLUSIONS OF LAW

UPON CONSTITUTIONAL ISSUES

Upon the issues raised as constitutional

Or procedural matters, this Officer now

concludes as follows:

736 That the period of time required to

bring this matter to hearing did not

unconstitutionally burden the Respondent.

Delay in completing the filing by Attorney

Hughes was incidental. All further delays

were the direct result of acts of the

Respondent.

74. There is no indication of selective

prosecution. The pro cedural method by

which this Respondent was’ selected for

prosecution and other participants were not

was well explained; it is a neutral method,

reasonably well suited to the efficient

administration of attorney discipline.

75. Joinder of causes for trial with

co-respondent William J. Briggs was not

C 102

made to appear to have caused any prejudice

to the case; it does appear to have been

the most efficient fact-finding method for

all participants.

76. Proceedings before the Disciplinary

Commission and in their prosecution of this

cause are fundamentally fair in that all

necessary elements to due process are

provided for; specifically the Commission

acts (1) as an independent Prosecutor

acting without fear or favor amongst the

bar that it administered, (2) that

proceedings when contested are presented

before an independent tribunal, (3) based

upon specific allegations upon- stated

professional standards, (4) based upon an

independent preliminary investigation in

which Respondent had the right and

opportunity to participate and reply being

aware of the specific charges; and that in

the contested eeeceeding. (5) the

Respondent had for her benefit an

C 103

enforceable subpoena power to present her

witnesses, (6) that she had the right to

confrontation and cross examination of

witnesses against her, (7) that she had the

right to counsel of her choice, (8) that

the trial was presented in due course and

in as reasonably prompt fashion as_ the

special circumstances of this cause would

allow, (9) where the Commission -in an

accusatorial proceeding (10) had the burden

of proof by a "clear and convincing"

evidentiary standard and where (11) a

complete right to review and appeal is

available.

77. In his case, the Rules of Procedure

were applied so as to afford Respondent due

process.

78. Respondert's argument that in some

fashion her treatment in this cause equals

cruel and unusual punishment is without

meaning to this Hearing Officer. While

this Officer is aware of the difficulty

C 104

caused the Respondent by the pendency of

these proceedings, this Officer is not

aware of how this could be construed as a

violation of any Eighth Amendment Right.

Accordingly, no determination of violation

of any Eighth Amendment Right is here made.

79. Numerous other allegations of

procedural or constitutional irregularities

were made. This Officer has sought to

address those of colorable merit; should

any other issues appear requiring further

findings or conclusions, or should any

major issue have been here overlooked, this

Officer will, upon request, seek to address

it.

Ve

ULTIMATE FINDINGS

AND CONCLUSIONS

Now upon these previously set out

findings and conclusion, this Officer now

determines:

80. Respondent, by assisting Mr. Briggs in

unreasonably delaying the termination of

C 105

Mrs. Smoker's guardianship allowed her

personal interests to affect the exercise

of her professional judgment on behalf of

her firm's client and the guardianship

estate in violation of D.R. 5-101(A) of the

Code of Professional Responsibility, that

her actions constituted conduct prejudicial

~

»

to the administration of justice in

\

violation of D.R. 1-102 (A) (1) and (5) of

\

the Code. \

81. That by failing to communicate a

settlement offer through the attorney of

record and instead attempting to

communicate such offer through another, the

Respondent did cause another to communicate

on the subject of the representation with a

party she knew to be represented by a

lawyer in violation of Disciplinary Rule

7-104 (A) (1) of the Code.

82. That evidence presented upon the

allegations that the Will contest cause was

filed in bad faith was not sufficient to

C 106

show by a clear and convincing evidence

standard that she violated the Code.

83. That as this Officer understands the

purposes and rationale of D.R. 5=-102(A),

Respondent was not in violation of the Code

of Professional Responsibility by her acts

of representation of Mr. Briggs in both the

guardianship and Will contest cases.

84. Respondent's conduct in the entire

matter, while having been determined to be

in violation of the Code of Professional

Responsibility as outlined above, does not

rise to such a level that this Officer

considers that she intentionally attempted

to damage the Estate of her client and

therefore the Court makes no further

finding against her.

VI

RECOMMENDATIONS

In making any recommendation or in

imposing sanction, the standard to be

applied involves consideration of the

nature of the violation, the specific acts

C 107

of the Respondent, the Supreme Court's

responsibility to preserve the integrity of

the Bar, and the risk, if any, to which the

public is subjected by permitting the

Respondent to continue in the profession or

be reinstated at some future date.

Resondent's extremely bitter fight in

this case and in the guardianship and Will

contest cases raises serious questions

about whether she has admitted to herself

the professional errors she committed. It

is also apparent that she proceeded without

consideration of the ethical consequences

in her representation of Mr. Briggs in the

trials. The attitude that seemed to

control all of her behavior was a backlash

against the perception of unfairness that

she has of the entire matter. In this she

has shown a far less professional attitude

than can be tolerated.

As to the violations here occuring, the

improper communication was essentially a

C 108

technical violation where, being aware of

the rule and attempting to. skirt it,

Respondent violated it. As to the other,

and more serious, violation she assisted

Mr. Briggs in a thoroughly reprehensible

course of action with Mrs. Smoker and her

property; this is not forgivable. No doubt

she was motivated by feelings sof love and

concern for her husband who was being

defamed and that she felt compelled to

fight for him. Ultimately this may be

considered as a mitigating factor; it

cannot serve as an excuse for failure to

meet the standards set out in the Code

which are, after all, the minimum standards

that we can tolerate within the profession.

Finally, she has established a record of

serving the legal profession in Carroll

County well; while her writing and briefing

style is unusual (a trait for which she has

been punished by the Court of Appeals

attorney fee award) it is clear that this

C 109

case has been an isolated incident of

misconduct and that no significant risk of

further misconduct exists.

Accordingly, this Officer recommends a

public reprimand against Respondent.

SS/Douglas B. Morton

Douglas B. Morton,

Hearing Officer

1-18-85

"py

eg P

ery

a eos

C 110

a re ene

IN THE SUPREME COURT

OF THE

STATE OF INDIANA

IN THE MATTER OF )

)

WILLIAM J. BRIGGS ) CAUSE NO. 1078 S 235

)

)

FLORENCE ANNE BRIGGS) CAUSE NO. 783 S 262

PRESENTATION OF CONSTITUTIONAL ISSUES

AND ERRORS - PETITION FOR HEARING,

ORAL ARGUMENT, AND ORDER OF DETERMINATION

Respondents for their Petition

on Constitutional Issues and Errors allege

and say:

oe These two causes of action are at

present active matters pending on two

separate disciplinary complaints filed

against William J. Briggs and Florence

Anne Briggs, hereinafter called Bill and

Anne, who are husband and wife. They are

residents of and are licensed to practice

law in Indiana.

a. By this pleading Respondents are

again calling to the attention of the

FILED MAY 7, 1984 D-1

Appendix D

hearing officer and the Supreme Court of

Indiana certain constitutional issues and

fundamental errors. These issues and

errors were set out in the Responses (to

the Complaints) which have been on file

Since August i19, 1983, with the hearing

officer, attorneys for the Disciplinary

Commission, and the Supreme Court of

Indiana.

za Respondents request that the

Supreme Court of Indiana conduct a hearing

on said constitutional issues and

fundamental errors. Respondents request

permission to present evidence and oral

argument at said hearing. Respondents

‘further request the Supreme Court of

Indiana to enter an order containing final

determinations as to said constitutional

cu

issues and fundamental errors which are

raised herein. ae Se

ao

4. The Issues raised on this

pleading are attached hereto and are

incorporated herein as if copied in full.

D-2

They are listed on a Summary of Issues

which can be used as an Index.

5. Respondents specifically petition

the S::preme Court of Indiana to conduct

the requested evdidentiary hearing, hold

oral argument and enter the requested

court order containing final

determinations on said issues and errors

prior to and before the trial or hearing

on the merits on the disciplinary

complaints by no later than thirty days

after the date of the filing of this

pleading. This time span is requested so

as to not frustrate the right to utilize

constitutional right and remedies.

Pursuant to R.A.D 23, Sec. 14(a), Book 2,

page 268. Burns Indiana Statutes

Annotated provides that if a respondent

does not answer the complaint, it shall be

taken as denied. In all fairness to

Respondents, they should be entitled to a

reciprocal rule. Accordingly if this

petition is not acted upon as requested

D-3

herein by the Supreme Court of Indiana

within thirty days after it is filed, the

Respondents will treat this matter as if

there had been a hearing and the Petition

has been denied.

6. Each Respondent, Bill and Anne,

had filed a written motion for separation

of trial on his or her respective

complaint. The hearing officer has denied

each of their motions. The Respondents

now renew their motions and request the

Supreme Court of Indiana to grant these

motions. The court is requested to hold a

hearing and permit presentation of

evidence and oral argument on these

motions.

ae Florence Anne Briggs filed on

April 4, 1984 her Motion to Dismiss which

supplemented her original Response to the

Complaint filed against her. This has not

been ruled upon by either the hearing

officer or the Indiana SupremerCourt. The

court is requested to hold a hearing and

D4

!

'

'

permit presentation of evidence and oral

argument on this Motion.

8. Respondents say that there is an

urgent necessity for granting relief, and

that immediate and irreparable injury,

harm, prejudice, loss, and damage will

result to them if relief is not granted to

them immediately. In support of this they

have attached hereto their supporting

Affidavit setting out facts and

extraordinary circumstances which

affidavit is designated as SUPPORTING

AFFIDAVIT SHOWING URGENT NECESSITY FOR

GRANTING RELIEF, which is incorporated

herein as fully as if copied in full.

9. In order to demonstrate the harm

to the Respondents which has been and will

be done to them due to loss of witnesses

because of the prolongation of these

proceedings, Respondents have attached

hereto their Supporting Affidavit setting

out such facts and loss which is

incorporated herein as fully as if copied

D-5

in fuil, which is designated as AFFIDAVIT

RELATIVE TO TESTIMONY OF DECEASED OR

UNAVAILABLE WITNESSES.

10. In order to substantiate certain

facts for the purpose of seeking relief

requested in this petition including the

prayer for summary judgment, Respondents

have attached hereto their Supporting

Affidavit which affidavit is designated as

STATEMENT OF CASE AND CHRONOLOGY OF EVENTS

which is incorporated herein as fully if

copied in full.

PRAYER FOR RELIEF: WHEREFORE, THE

Respondents request the following items of

relief from the Supreme Court of Indiana,

to-wit:

(A) Respondents specifically petition the

Supreme court of Indiana to conduct the

omuested evidentiary hearing, hold oral

argument and enter the requested court

order containing final determinations on

said issues and errors prior to and before

the trial or hearing on the merits on the

D-6

disciplinary complaints by no later than

thirty (30) days after the date of the

filing of this pleading, and

+B) Respondents request that all

allegations of misconduct premised upon

facts, circumstances and events which

occurred before adoption in 1971 of the

Indiana Code of Professional

Responsibility be dismissed and expunged

from the Complaints filed on July 19,

1983, against both Respondents’ because

they violate ex post facto rules against

retroactive operation of the Disciplinary

Rules and due process law provisions.

(Cc) Respondents request that all of the

facts, circumstances and all allegations

of any misconduct which were contained in

the Complaint filed on October 24, 1978,

against William J. Briggs which have been

incorporated into the Amended Complaint

against William J. Briggs and the only

Complaint filed against Florence Anne

Briggs filed July 19, 1983, be dismissed

D-7

and expunged from the complaints filed on

July 19, 1983 on the ground that they are

stale; that the Court order declare that

the materials expunged and allegations

dismissed be with prejudice to the right

to refile same, and the order be a bar to

further prosecution of same.

(D) That the Court determine and enter an

order that the Disciplinary Commission

shall not be permitted to proved any

allegation of misconduct by using the

decision of Judge Robert Munro which was

handed down in November of 1980 in the

Smoker Guardianship case # G-76-14 in the

Carroll Circuit Court, and that’ the

Disciplinary Commission shall not be

permitted to prove any allegation of

misconduct by using the decision of the

Court of Appeals of Indiana handed down on

August 9, 1983, in cause #2-581A150 on the

grounds that Disciplinary Commission

prolonged these proceedings until they

filed an Amended Complaint on July 19,

D-8 r

1983 against William J. Briggs and the

only Complaint against Florence Anne

Briggs which was only 21 days before the

Court of Appeals handed down the above

mentioned decision, and that such

prolongation was to gain an unfair

tactical advantage which is a wrongful

motive--unconstitutional in violation of

fundamental fairness of the Indiana and

U.S. Constitutions and in violation of DR

1-102 (5) engaging in conduct that is

prejudicial to administration of justice.

(E) That the Court find and enter an

ORDER determining that the Disciplinary

Complaints be dismissed as against each of

the Respondents, William J. Briggs and

Florence Anne Briggs, and that the Order

be a bar to any further proceedings

herein, or if this relief be not granted,

then

(F) That the Court treat this pleading as

Complaint for Declaratory Judgment = and

enter judgment in favor of William J.

D-9

Briggs and Florence Anne Briggs

determining their rights so that the

judgment may be used aS a bar to any

further proceedings herein, or if this

relief be not granted, then

(G) That the Court treat this pleading as

a Motion for Summary Judgment and that the

Court make determinations and findings and

enter a judgment in favor of William J.

Briggs and ’ Plereace Anne Briggs, or if

this relief be not granted, then

(H) That the Hearing Officer and the

Court find that the Respondents’ have

already been required to suffer more

punishment than is required and that no

discipline is warranted and that no costs

or expenses of any nature be assessed

against Respondents.

William J. Briggs, Respondent, and

Florence Anne Briggs, Respondent, each now

say under the penalties for perjury that

the matters and facts contained in this

D-10

Response are true to the best of his or

her knowledge and belief.

ss/_ Florence Anne Briggs ss/_ wi

Florence Anne Briggs William J. Briggs

(address and telephone number omitted)

ISSUES PRESENTED

ISSUE la: Denial of Fundamental

Fairness to these Disciplinary

Proceedings. The fundamental fairness of

these proceedings against Bill and Anne

had been destroyed by the Disciplinary

Commission which has by its deliberate

indifference, neglect, or by unreasonable

or deliberate delay prolonged these

proceedings for seven years from grievance

in July of 1977 and complaint filed in

October of 1978. This has caused loss of

witnesses, loss of memory and ability to

recall, and other harmfu’ circumstances

related to passage of time which has

caused irreparable harm to Respondents in

violation of due process rights of

D-11

Respondents as guaranteed by Amendments 5,

and 14 of U.S. Constitution and by Indiana

Constitution in Article 1, Section 12.

ISSUE 1b: Denial of Speedy

Investigation and Speedy Trial.

Respondents have been deprived of their

right to a speedy investigation and a

speedy trial by the Disciplinary

Commission which has by its deliberate

indifference, neglect, or by unreasonable

or deliberate delay prolonged these

proceedings for seven years from the

grievance in July 1977 and complaint filed

in October of 1978. This has caused loss

of witnesses, loss of memory and ability

to recall, and other harmful circumstances

related to passage of time which has

caused irreparable harm to Respondents in

violation of Aritcle 1, Section 12 of the

Indiana Constitution and Amendment 6 of

the U.S. Constitution. By the case of

Klophfer v. North Carolina, 386 U.S. 213,

19 L.Ed.2d 1, 87 S.Ct. 988 (1967) the U.S.

D-12

er. ————— (5 ence Se SS

mH HH HE HH HH Ee HE HE EE FE 8

ee Bd Bad id a — —— — aan — a —

y

Supreme Court held that the 6th Amendment

to the U.s. Constitution standards

governing speedy trial are made

obligations on the States by Amendment 14,

the federal due process clause. The most

recent case on speedy trial rights appears

to be the decision of the Court of Appeals

of Indiana handed down on March 28, 1984,

Scott v. State, 461 N.E.2d 141. The much

discussed federal case of Dickey v. State

of Florida, 398 US 30, 26 L.Ed.2d 26, 90

$.ct. 1564 (1970) set out the federal

standard for review of state procedures

for speedy trial and investigation. The

Barker Case sets out the test. Barker v.

Wingo, (1972) 407 US 514, 33 L Ed 2d 101,

92 S Ct 2182.

ISSUE 2: Violation of Rule against

Retroactive Operation of the Disciplinary

Rules--Lack of Due Process Notice. The

Respondents are being denied protection

from the attempt to cause the Disciplinary

Rules to operate retroactively. This is

D-13

so because the complaints filed against

Bill and Anne contain many allegations

premised upon the conduct committed many

years before 1971. The Disciplinary Rules

were adopted in 1971. The complaints also

charge misconduct committed in 1968 and

1970 because of writing of wills in those

years. The exact rhetorical paragraphs of

both complaints containing these

allegations are set out in the memorandum

for this Issue 2. The complaints do not

designate the violation of any code or any

section thereof which was in effect before

1971. The Respondents are being denied

due process of law because they are

entitled to know in advance of the trial

which code and which section thereof is

being violated. The complaints are

fatally defective by reason of being vague

and uncertain because they do not give

this due process notice. Since the

Respondents are deprived of notice in

advance of the trial, there is fundamental

D-14

unfairness and fundamental error,

Respondents are being denied a fair

opportunity to meet the accusations; they

can not prepare an adequate defense and

can not have a fair trial.

The Constitutional and other

provisions guaranteeing these rights are:

Article 1, Section 24 of the Indiana

Constitution; and Article 1, Section 10,

Clause 1 of the U.S. Constitution.

Amendments 5 and 14 of the v.88.

Constitution protect against lack of

notice and in addition prohibit using or

applying any law retroactively which would

deny notice of the very existence of that

same law. A decision of the Indiana

Supreme Court is a ruling precedent; i.e.

State ex rel, Benjamin v. Criminal Court

of Marion County (1976) 264 Ind 191, 341

NE2d 494 which provides that "A _ rule

changed by the Supreme Court must operate

prospectively and not retroactively." The

Indiana Code of Professional Responsiblity

D-15

is a code adopted by the Supreme Court of

Indiana in the year of 1971 and is found

in Court Rules, Book 2, page 289 et. seq.,

Burns Indiana Statutes Annotated.

ISSUE 3: Denial of Right of Redress

to Private Citizen. Bill and Anne as

citizens have the same rights as other

citizens. Even though they are lawyers,

they have a right not to be set apart into

a separate class of second class citizens

with watered down rights. Aritlce 1, Sec.

a3, Constitution of Indiana; Sec. 1,

Amendment 14, United States Constitution.

Bill and Anne as private citizens have the

same rights as other private citizens for

redress of grievances under Article 1,

Sec. 12, Indiana Constitution and

Amendment 1, United States Constitution.

Bill and Anne are being denied their right

of redress of grievance possessed by

others because the disciplinary complaint

filed against Bill seeks in paragraph

number 39 and other paragraphs to prevent

D-16

him from excercising his right of redress

by charging him with misconduct for

contesting the Will of Smoker. Although

Anne was not a party to that lawsuit, the

disciplinary complaint filed against her

mistakenly charges her in paragraph 26

with like conduct and seeks to prevent her

from using her right of redress. The

disciplinary complaint is seeking to deny

her like priviledges and immunities and,

she is being subjected to the same harm as

Bill. They will be harmed because the

commission is seeking to deprive them of

their license to practice law because they

sought to utilize the same rights’ to

redress possessed by other citizens.

ISSUE 4: Denial of Right of Redress

for Grievnace -- Denial of Right to

Hearing and Determination of

Constitutional Issues Which are

Fundamental Errors. Under Amendment 1 to

the United States Constitution and Article

a; Section 12 of the Indiana Constitution,

D-17

citizens have the right to seek redress of

grievances including timely redress for

fundamental constitutional errors.

Amendments 5 and 14 to the United States

Constitution guarantee due process of law

to all citizens and due process includes

the right to seek redress of grievances.

Bill and Anne have the right of redress

for grievances for Constitutional errors

and/or violations, including timely

redress when it is meaningful and not a

redress delayed until it is meaningless.

Because Bill and Anne have raised the

Constitutiona!? issues and errors in their

Responses filed heretofore on or about

August 19, 1983, almost nine months ago,

and because the Supreme Court of Indiana

has not acted upon them, Bill and Anne

have been denied their right of redress

and they have probable cause for believing

that they will be so denied in the future

at a meaningful time, before the hearing

presently set for July 12, 1984. Many of

D-18

the Constitutional errors raised in the

pleading to which this is attached and

raised in the Reponse filed on or about

August 19, 1983, are fundamental errors

which cannot be eliminated by being

presented as a defense at the trial on the

merits. Since the hearing officer in a

Disciplinary Proceeding in Indiana has the

duty of making written findings of facts

as to whether there has been misconduct

and of making recommendations as_ to

punishment, the word "trial" in the sense

it is used in the Constitutional law for

due process purposes is the hearing before

the hearing officer. If the Supreme Court

of Indiana does not grant Bill and Anne

their request for an evidentiary hearing,

oral arguments and if the Supreme Court of

Indiana fails to enter an order making a

final determination on said issues and

errors prior to and before requiring the

hearing before the hearing officer on the

merits, then the Respondents will be

D-19

denied the Right of Redress of Grievance

for all of the violations of all

Constitutionally protected rights which

are set out in this entire pleading to

which this is attached and they will be

denied the right of redress of grievances

at a time when it is meaningful.

Respondents will be harmed if the Supreme

Court does not hear evidence and oral

argument and make a decision prior to the

trial of this cause because requiring the

Respondents to enter into a trial which

would be Constitutionally void would be

meaningless and because they should have

time to pursue other legal remedies before

trial which will be denied to them if the

Supreme Court of Indiana refuses to make a

timely decision on Constitutional

questions raised herein prior to trial.

ISSUE 5: Arbitrary and Capricious

Application of the Disciplinary Rules--

Lacking Fairness and Unifority of

Application--Discrimination--Denial of

D-20

Equal Protection--Vindictive Prosecution

and Selective Prosecution--Bad Faith--

Harassment. Bill and Anne are entitled to

the same privileges and immunities under

the Disciplinary Rules and to the

advantages of uniformity of application of

the rules and equal protection for denials

of such rights--as other citizens who are

similarly situated, ee all other

persons licensed to practice law in

Indiana. The Indiana Code of Professional

Reponsibility, in its preliminary

statement provides that "7 ee

Disciplinary Rules should be uniformly

applied to all lawyers..." see Book 2,

page 291, Court Rules, Burns’7 Indiana

Statutes Annotated. Equal protection of

the law is guaranteed by Article 1, Sec.

23 of the Indiana Constitution; and by

Sec. 1, Amendment 14 of the United States

Constitution. Bill and Anne are being

denied equal protection because they are

being denied privileges and immunities

D-21

'

Prose

under the Disciplinary Rules which are

being given to prosecuting-grievants

(Marks and Power) who are lawyers and to

attorneys for the Disciplinary

Commission. Supporting facts are set out

in the memorandum for Issue 5. Although

the Disciplinary Commission disciplines

lawyers in Indiana for less harmful

neglect under DR 6-101(a)(3), that same

commission and its attorneys, neglected,

unreasonably delayed, or deliberately

delayed the course of these proceedings

for (7) seven years by way of a complaint

which has been filed since October 1978

based on a grievance filed in July 1977.

Because the Disciplinary Commission has

knowledge of such flagrant disparity in

applications of Disciplinary Rules and of

its own neglect or delay causing these

long extended proceedings, the actions of

the commission in violating Respondents'

constitutional rights can not be excused

on the grounds of oversight or honest

D-22

mistakes, but must be classified as

arbitrary and capricious and made in bad

faith. Their coercive actions in filing a

series of charges show harassment and

vindictive prosecution. Their wrongful

motives demonstrate selective

prosecution. Their lack of fairness and

objectivity indicate failure to seek a

fair and just result which violates DR 1-

102 (A)(5) which is engaging in conduct

which is prejudicial to the administration

of justice. The actions and conduct

described herein have produced

unconstitutional advantages for the

prosecution and have hampered and imparied

the defense to the extent that they will

be denied a fair trial as guaranteed by

due process law under Amendment 5 and 14

of the U.S. Constitution; and Article 1,

Sec. 12, Indiana Constitution. The long

course of these proceedings have subjected

Bill and Anne to cruel and unusual

D-23

punishment which is repugnant to Amendment

8, U.S. Constitution.

FLAGRANT EXAMPLES OF SELECTIVE PROSECUTION

COMPARISON -- AVOIDANCE OF PROSECUTION --

SELECTIVE PROSECUTION

Respondent, Anne, is charged under DR

5-102(A) with serving as a trial lawyer in

the Smoker will contest in which she was

not a witness although her husband, Bill,

was a party and a witness. She is charged

with the same Disciplinary Rule with

misconduct in the Smoker guardianship

case. She did testify in that case but

for very limited purposes. By

comparision, Marks and Power, prosecuting-

grievants, served as lawyers in the very

same Smoker Will contest and Marks

testified extensively as a major witness.

He has admitted this under oath. Power

was privy to most of the facts to which

Marks testified and ought to have

anticipated that he would be called as a

witness in the will contest although he

wasn't. Both served as lawyers for the

D-24

will contest and each received $60.00 per

hour for acting as trial counsel in the

will contest totalling approximately

$31,000. In addition, Marks employed a

trial secretary from his personal abstract

office who received over $4000 for her

services. In the Smoker guardianship

case, both Marks and Powers testified as

wtinesses and both served as trial

counsel. They were paid $4000 by Smoker

before she died and after she died they

received another approximately $48,000.00

as trial lawyers in that case. The most

outrageous disparity in prosecution is

that the Disciplinary Commission

scrupulously avoided charging either Marks

or Powers with a violation under 5-102(A)

but on the other hand selectively

prosecuted Anne for a violation of the

very same disciplinary rule 5-102(A).

Another example of serious lack of

uniformity in prosecution is as follows:

Bill and Anne are charged under DR 7

D-25

-104(A)(1) with communicating on a subject

of representation with the Burlington

Methodist Church. It is alleged that they

knew the Church was represented by a

lawyer. By comparison, Marks and Powers

communicated directly with Smoker and

began representing her, doing work for her

and drafting documents for her when she

was represented by another lawyer and they

knew she was represented by William

Briggs. At the same time, they began

making decisions for her even though they

knew that she was a ward and that her

legal guardian was Bill. They completely

disregarded the directions of EC 7-12 and

immediately the began making decisions for

Smoker for which they should have looked

to Bill, her guardian, or for which they

should have sought court approval. Their

actions show defiance and disrespect for

the Rules. By comparison Bill and Anne

have been charged with violating DR 7-

104(A)(1) and the Disciplinary Commission

D-26

has scrupulously avoided charging Marks

and Powers with the same violation under

the same Disciplinary Rule.

As Murray Schwartz states at page 76

of Lawyers and the Legal Profession, Cases

and Materials, Bobbs~-Merrill Pub., 1979,

"often the enforcement of the disciplinary

codes is discriminatory."

ISSUE 6: Right to Subpoena Witnesses

is of no Effect if They are not

Available. Under Admission and Discipline

Rule 23 of the Indiana Rules of Court

Section 14(b) and (d) the Respondent shall

have the right to attend the hearing in

person, to be represented by counsel and

to produce evidence and witnesses in his

own behalf as in civil proceedings. Trial

Rule 45 of the Indiana Rules of Trial

Procedure gives the right of subpoena

power. Under Amendment 6 to the U.S.

Constitution, a defendant is entitled to

compulsory process to obtain witnesses.

Bill and Anne cannot obtain witnesses if

D-27

they are dead, disabled or if their

whereabouts are unknown. They cannot

obtain meaningful testimony in their

behalf if their witnesses suffer from loss

of memory or other disabilities that do

not permit them to competently testify.

Bill and Anne will be harmed in the

hearing on the Disciplinary matters

because even though they have the right of

subpoena and compulsory process, the right

is meaningless and a mockery if they

cannot subpoena dead, disabled,

whereabouts unknown witnesses, or

witnesses who have lost their competency

to testify and/or their memories during

the long extended period involving this

case, and, therefore, they are harmed by

being denied a fundamentally fair hearing

and a meaningful opportunity to be heard.

ISSUE 7: Cruel and Unusual

Punishment -- Excessive Punishment.

Prohibitions have been placed on

cruel and unusual punishment by Amendment

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8 to the United States Constitution and by

Article 1, Section 16 of the Indiana

Constitution. Cruel and unusual

punishment may be established by

"deliberate indifference" according to

Estelle v. Gamble, (1976) 429 U.S. 97, 97

$.ct. 285, 50 L.Ed 2a 251. This

deliberate indifference leads to the

unnecessary infliction of pain and other

suffering. The Respondents have been in

terrorem for at the most 7 years and at

the least 3 1/2 years with the loss of

their licenses to- practice law which

produces a traumatic experience leading to

mental suffering, pain, anguish, anxi

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