# Appendix — Briggs v. Indiana Supreme Court Disciplinary Commission > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385019_0369%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Appendix - **Published:** January 1, 1987 - **Citation:** 484 U.S. 826 ## Text mH mH me He He HE Ee He Ee Ee Ee Fe ES - ») R SkRreme Coumt Is (ned di Cae 4 EI L. b $6 19sg - «en | JUN J2 87 | CLERK oa 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 , . i a 4 Ds @ : : od Sig . 2 eRe “ ws 3 ae 3 : pe IES at . Bak, : ' Ps : Z z + aS ¥ Pee | 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 «« 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 Upo [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385019_0369%3A2. Public record. Not legal advice.