FOR THE RESPONDENT
FOR THE INDIANA SUPREME COURT
DISCIPLINARY COMMISSION
Martin E. Risacher Donald R. Lundberg,
Executive Secretary
Church, Church Hittle & Antrim Robert
C. Shook, Staff Attorney
938 Conner Street
115 West Washington
Street, Suite 1060
P.O. Box 10 Indianapolis,
IN 46204
Noblesville, IN 46060
IN THE
SUPREME COURT OF INDIANA
IN THE MATTER OF )
) Case No. 48S00-9511-DI-1264
ROBERT W. MILLER )
_____________________________________________________________
DISCIPLINARY ACTION
_____________________________________________________________
June 13, 2000
Per Curiam
Attorney Robert W. Miller, while serving as an attorney and personal representative of
two estates, paid to himself estate funds without justification for doing so and
retained legal fees which he should have turned over to his law firm.
Today we approve a conditional agreement between the Disciplinary Commission and respondent
Miller which calls for the respondent’s suspension from the practice of law for
this professional misconduct.
See footnote
During relevant times, the respondent was the senior partner in a law firm
in Anderson, Indiana. Under count I of the verified complaint underlying this
action, the Commission and the respondent agree that on August 1, 1988, the
respondent was appointed personal representative and attorney for an estate pending in the
Madison Superior Court. Between September 1988 and August 1993, the respondent wrote
111 checks totaling $148,925 from the estate payable to himself. The checks
were for varying amounts and were not in sequential order. Of the
$148,925, only $80,000 could be identified as attorney fees and executor fees.
While the respondent, as attorney and personal representative of the estate, had authority
to pay himself fees pursuant to Ind. Code 29-1-7.5-3, he breached his fiduciary
duty to the estate by paying himself $68,925 more than the identifiable executor
and attorney fees.See footnote The respondent later reimbursed the heirs to the estate
$104,720.68, thereby reducing his total fees to $44,205.
We find that the respondent engaged in conduct prejudicial to the administration of
justice in violation of Ind. Professional Conduct Rule 8.4(d) by taking for himself
estate funds in excess of identifiable attorney fees or executor fees.See footnote
As to count II, we find that the Madison Superior Court appointed the
respondent personal representative of a supervised estate. Between March 7, 1994 and May
24, 1994, the respondent wrote to himself a total of 15 checks totaling
$16,500 drawn on estate funds. The respondent did not obtain the necessary
court approval for the expenditure of the $16,500 or inform the principal heir
of the expenditure until July 18, 1994. On July 8, 1994, the
respondent submitted a
Petition for Allowance of Fees to Attorney requesting approval of
$6,270 in attorney fees and $3,135 as his executor’s fees. The Madison
Superior Court approved total fees of $9,405 that same day.
On July 11, 1994, the respondent paid the estate $11,992.12 by personal check.
Approximately one week later, the respondent paid the estate an additional $4,741.80
by personal check. On October 21, 1994, the respondent filed the final
account for the estate which did not reflect the $16,500 in checks written
to the respondent or the total repayment of $16,733.92, although it did list
the difference of $233.92 as “Miscellaneous Interest” paid to the estate.
The respondent was obligated to seek the court’s approval before paying himself any
fees from the estate.
See footnote We find that the respondent violated Prof.Cond.R. 3.4(c) by
knowingly disobeying that obligation by paying himself $16,500 without first obtaining court approval.See footnote
We find further that the respondent violated Prof.Cond.R. 8.4(b) by committing a
criminal act that reflects adversely on his honesty, trustworthiness, or fitness as a
lawyer in other respects in that the payment of $16,500 to himself with
no legitimate basis for doing so constituted wrongful conversion of estate funds.
We further find the respondent violated Prof.Cond. 8.4(c) as he engaged in
conduct involving dishonesty, fraud, deceit, or misrepresentation. Finally, we find that the
respondent’s actions were prejudicial to the administration of justice and, therefore, violated Prof.Cond.R.
8.4(d).
As to count III, we find that the respondent’s law firm adopted a
policy requiring each partner to deposit all fees generated by each partner into
the firm’s operating account. The respondent earned $2,600 as partial fees for
legal work the respondent performed for a trust for which he served as
trustee. In violation of the firm’s policy, the respondent failed to deposit
the $2,600 into the firm’s operating account.
We find that the respondent’s retention of the $2,600 constitutes a criminal act,
conversion, which reflects adversely on his honesty, trustworthiness or fitness as a lawyer
in other respects, in violation of Prof.Cond.R. 8.4(b). His wrongful retention of
funds also involved dishonesty, fraud, deceit or misrepresentation, and thus violated Prof.Cond.R. 8.4(c).
We also find that his conduct was prejudicial to the administration of
justice and violated Prof.Cond.R. 8.4(d).
Having found misconduct, we must now determine an appropriate sanction. In making
that assessment, we consider the nature of the misconduct, the lawyer’s state of
mind which underlies the misconduct, actual or potential injury flowing from the misconduct,
the duty of this Court to preserve the integrity of the profession, the
risk to the public in allowing the respondent to continue in practice, and
any mitigating or aggravating factors.
Matter of Lehman, 690 N.E.2d 696 (Ind.
1997). The Commission and the respondent have agreed upon a suspension from
the practice of law for a period of not less than twelve months.
The respondent and the Commission offer several mitigating circumstances. They note that
this is the first disciplinary proceeding brought against the respondent in his 40
years of legal practice. They point out that, at the time of
the misconduct, the respondent was experiencing great emotional strain due to his commitments
as a foster (and later adoptive) parent of three emotionally handicapped children, one
of whom suffered from leukemia. Also during that time, the respondent
was the primary care giver for his elderly and ill parents.
We also note the respondent’s refund of legal fees to the heirs to
the estate under count I.
While we recognize the personal difficulties the respondent faced, as well as his
refund of legal fees and funds taken without justification, those factors do not
excuse the respondent’s misconduct. While entrusted with the care of two
estates, the respondent helped himself to significant sums of estate funds without justification
for doing so. In effect, he used his position of trust to
exact a personal pecuniary benefit at the expense of the rightful owners of
the property. Later, he intentionally omitted salient facts from a final estate
accounting to cover up his wrongful conduct. Even the respondent’s own
legal partners became the victims of the respondent’s dishonesty when the respondent chose
to retain legal fees he received rather than share those fees with his
partners according to their agreement. In all, the respondent’s actions reflect
a disturbing pattern of deception with regard to his clients, his partners, and
at least one court – actions which personal hardship cannot justify. His
actions diminish the public’s trust in the legal profession and the judicial system.
An attorney’s misappropriation of funds while serving in a fiduciary capacity is a
serious matter warranting severe sanction. See, e.g., Matter of Hill, 655 N.E.2d
343 (Ind. 1995) (disbarment for misappropriating estate funds); Matter of Levy, 637 N.E.2d
795 (Ind. 1994) (two-year suspension for misappropriating estate funds). We are persuaded
that a suspension for a period of not less than twelve months here
adequately addresses the respondent’s misconduct. This is in large part due to
our policy favoring agreed resolution of disciplinary matters and the numerous mitigating factors
in this case, most particularly the respondent’s 40 years of otherwise unblemished legal
practice. We have reached a similar conclusion in an analogous case where
such mitigating factors were present. Matter of Woolbert, 672 N.E.2d 412 (Ind.
1997) (one-year suspension where respondent withdrew $80,000 from a supervised estate without court
approval where mitigating factors present).
Accordingly, the respondent, Robert W. Miller, is hereby suspended from the practice of
law for a period of not less than twelve (12) months, beginning June
28, 2000, at the conclusion of which he shall be eligible to petition
for reinstatement pursuant to Admis.Disc.R. 23(4).
The Clerk of this Court is directed to provide notice of
this order in accordance with Admis.Disc.R. 23(3)(d) and to provide the Clerk of
the United States Court of Appeals for the Seventh Circuit, the Clerk of
each of the United States District Courts in this state, and the Clerk
of each of the United States Bankruptcy Courts in this state with the
last known address of the respondent as reflected in the records of the
Clerk.
Costs of this proceeding are assessed against the respondent.
Sullivan, Boehm, and Rucker, JJ., concur.
Shepard, C.J., concurs only because the case is submitted as an agreement, believing
that the penalty is otherwise insufficient.
Dickson, J., dissents, believing the sanction insufficient.
Footnote:
The respondent was admitted to the practice of law in Indiana in
1956 and thus is subject to this Court’s disciplinary jurisdiction.
Footnote:
2 The Commission and the respondent agree that the fact that the respondent
acted as both personal representative and attorney for the estate negates a finding
that he “converted” estate funds because his use of the funds was not
“unauthorized” as that term is defined by the statutory definition of “conversion.”
Despite that justification, we note that we find no violation of Prof.Cond.R.
8.4(b), which prohibits lawyers from engaging in criminal acts which reflect adversely on
their honesty, trustworthiness, or fitness as a lawyer in other respects, only because
such a violation was not charged.
Footnote:
Prof.Cond.R. 8.4 provides in relevant part:
It is professional misconduct for a lawyer to: . . .
(b) commit a criminal act that reflects adversely
on the lawyer’s honesty, trustworthiness or fitness
as a lawyer in other respects;
(c) engage in conduct involving dishonesty, fraud,
deceit or misrepresentation;
(d) engage in conduct that is prejudicial to
the administration of justice . . .
Footnote:
Ind. Code 29-1-10-13 provides, among other things, that an attorney performing services
for the estate shall have such compensation as the court shall deem just
and reasonable. The statute further provides that “(s)uch compensation may be allowed
at the final settlement; but at any time during administration a personal representative
or his attorney may apply to the court for an allowance upon the
compensation of the personal representative and upon attorney’s fees.”
Footnote:
Prof.Cond.R. 3.4 provides in relevant part:
A lawyer shall not:
(c) knowingly disobey an obligation under the rules
of a tribunal except for an open refusal based on an
assertion that no valid obligation exists . . . .