In thе Matter of the DISCIPLINE OF John M. THEODOSEN, as an Attorney at Law.
No. 13028.
Supreme Court of South Dakota.
Decided March 11, 1981.
Argued Nov. 19, 1980.
“We have repeatedly held, in a long line of cases, that the trial court‘s findings of fact cannot be set aside unless they are clearly erroneous and we are, after a review of all the evidеnce, left with a definite and firm conviction that a mistake has been made.”
Matter of R. H., supra, at 273, quoting from Matter of A. M., 292 N.W.2d 103 (S.D.1980). Upon a review of the record we do not find that the trial court‘s findings are clearly erroneous.
The record discloses that M. N. has not met a majority of the conditions sеt out in the October 2, 1978, order. First, M. N. has utterly failed to maintain a home for herself, let alone one suitable for her children. During the year of abeyance, she did not remain at one residence for longer than four months. The record indicates that during this timе period she resided in Sioux Falls, South Dakota; Bridgeport, Washington; Nicolaus, California; and Chelan, Washington. Even at the time of the December 10, 1979, hearing, M. N. did not possess sufficient facilities in which to house her children; for she was currently residing in a three-room apartment at a motel where she worked. Moreover, M. N. did not present herself for visitations with her children for eight months of this one-year abeyance period. She was unemployed for a substantial amount of the time and when she was emplоyed it was never for any significant length of time. Her contact with Department, as required by the trial court‘s order, usually consisted of a letter informing Department of her current whereabouts; even that contact was sporadic, with one stretch of twelve weeks in which Department did not have any contact with M. N. whatsoever.
We must in fairness state that M. N. does appear to have curbed her consumption of alcohol; however, the trial court did not base its decision on her usage оf alcohol as that is not incorporated into its findings. We hold, in light of the totality of the circumstances and after a careful review of the record, that the findings of the trial court are not clearly erroneous.
All other issues not rendered moot by this opinion are found to be without merit.
Accordingly, the decree of disposition is affirmed.
All the Justices concur.
R. James Zieser, Tyndall, for the Disciplinary Board, South Dakota State Bar Association, for complainant.
Ellsworth E. Evans, Davenport, Evans, Hurwitz & Smith, Sioux Falls, for respondent.
These proceedings were instituted by a complaint alleging that respondent attorney John M. Theоdosen of Garretson, South Dakota, violated
EC 5-5 reads:
A lawyer should not suggest to his client that a gift be made to himself or for his benefit. If a lawyer accepts a gift from his client, he is peculiarly susceptible to the charge that he unduly influenced or over-reached the client. If a client voluntarily offers to make a gift to his lawyer, the lawyer may accept the gift, but before doing so, he should urge that his client secure disinterestеd advice from an independent, competent person who is cognizant of all the circumstances. Other than in exceptional circumstances, a lawyer should insist that an instrument in which his client desires to name him beneficially be preparеd by another lawyer selected by the client.
EC 5-6 states:
A lawyer should not consciously influence a client to name him as executor, trustee, or lawyer in an instrument. In those cases where a client wishes to name his lawyer as such, care should be taken by the lawyer to avoid even the appearance of impropriety.
Pursuant to
The basic charge contained in the cоmplaint springs from the facts set forth in Estate of Nelson, 274 N.W.2d 584 (S.D.1978). The Board specifically found that respondent did unduly influence Wallace A. Nelson under such circumstances as not to avoid the appearance of impropriety. The Board recommended thаt a formal petition be filed with this Court concerning the allegations that respondent violated the Code of Professional Responsibility.
The matter was thereupon referred by this Court to the Honorable Leslie R. Hersrud, a Circuit Judge, to take testimony and submit findings and recommendations pursuant to
While the findings of the referee are not conclusive when presented to this court, they are nevertheless entitled to our careful consideration, since we are mindful that the referee saw and heard the witnesses with all the advantage that is gained from such personal contact. In Re Goodrich, 78 S.D. 8, 98 N.W.2d 125 (1959); In Re Schmidt, 70 S.D. 161, 16 N.W.2d 41 (1944). If such findings are supported by the evidence, they will not be disturbed by the Supreme Court. In Re Jaquith, 79 S.D. 677, 117 N.W.2d 97 (1962); In re Aaberg, 66 S.D. 613, 287 N.W. 506 (1939).
We accordingly adopt the findings of the referee with respect to Canon 5, EC 5-5 and restrict our consideration to Canon 5, EC 5-6 and to the referee‘s recommendation. The facts set forth in Estate of Nelson, supra, which the referee found to be a violation of Canon 5, EC 5-5, arе incorporated by reference and show that on January 24, 1956, decedent executed a “last will and testament,” the third drafted for Wallace Nelson by respondent. Under the terms of that will, the decedent‘s entire estate was granted “to my friend John Thеodosen, his heirs, executors, or administrators, in fee.” Attached to the will was a document entitled “Personal Instructions to John Theodosen, Trustee of the Last Will and Testament of Wallace A. Nelson.” The instructions directed respondent to organizе a charitable corporation and “to turn my said property as you, in your discretion deem best, over unto such charitable corporation.” The instructions further stipulated that the corporation would be administered “in accord with the рersonal instructions I have previously given to you.”
In Estate of Nelson, supra, we found that the facts gave rise to a presumption, and sustained a finding of, undue influence. We also noted that the pre-Theodosen Wills of Wallace Nelson provided for his sister, brother and neрhew and that within four years of Nelson‘s first dealing with respondent, those persons were totally disinherited. We stated that such a pattern demands close judicial scrutiny and indicates an inability by Nelson to resist respondent‘s influence. See also Ekern v. Erickson, 37 S.D. 300, 157 N.W. 1062 (1916). We cоncluded that the only bequest in the will, which was to respondent, was null and void because of undue influence.
As the referee found, all of the Nelson wills drafted by respondent were executed prior to the adoption of the South Dakota Code of Professional Responsibility, which was approved by the South Dakota Supreme Court on July 21, 1970. However, the Nelson will was petitioned for probate by respondent in 1976, subsequent to the adoption of Canon 5, EC 5-6. As we noted in Estate of Nelson, supra, the bequest was in fee to respondent upon his representation that the law required it. The funding of the “charitable corporation” was entirely within the discretion of the attorney, and the “charitable corporation” was chosen, according to respondent, to аvoid court supervision. While respondent, in the petition for probate of the Nelson will, disavowed any personal pecuniary claim as an heir,
Our decision that the conduct of respondent in connection with the Wallace A. Nelson will was an exercise in undue influence was published. We now conclude that the discipline in this matter should consist of a public censure by this court pursuant to
DUNN, MORGAN and HENDERSON, JJ., concur.
WOLLMAN, C. J., dissents.
WOLLMAN, Chief Justice (dissenting).
The formal accusation filed by the Disciplinary Board charged that respondent had violated Canon 5, EC 5-5 and EC 5-6 of thе South Dakota Code of Professional Responsibility by naming himself as sole heir and executor in the will of Wallace A. Nelson. That will, however, was executed in 1956; the Code of Professional Responsibility was adopted in July of 1970.* Although the petition for prоbate of the Nelson will was filed in August of 1976, that petition specifically disavowed any personal pecuniary claim by respondent as an heir, devisee, or legatee of the estate. Accordingly, I would hold that any impropriety by respondеnt in drafting the 1956 Nelson will was adequately dealt with by our decision in Matter of Estate of Nelson, 274 N.W.2d 584 (S.D. 1978).
With respect to the other wills in which respondent was named as executor, co-executor, or trustee, the referee found that the record did not disclose that respondent had сonsciously influenced the testators to name him in those capacities. I accept this finding.
The considerations expressed in Canon 5, EC 5-6 should be clear enough for all to appreciate. The measure of care to be taken by a lawyer to avoid even the appearance of impropriety when acceding to a request to be named as executor, trustee, or attorney may well require the preparation of documentation beyond the usual recital in the instrument itself. Although a client may have the right to ask his or her attorney to serve in a fiduciary capacity, the attorney should not undertake to accept the designation without making a record that will clearly dispel any later suggestion that the motivation for such designation was anything other than the client‘s free, informed, uninfluenced decision.
I would dismiss the proceedings.