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In Re Barrick

OPINION FILED NOVEMBER 13, 1981.

IN RE WILLIAM HENRY BARRICK, ATTORNEY, RESPONDENT.


Disciplinary proceeding.

MR. JUSTICE SIMON DELIVERED THE OPINION OF THE COURT:

A will which the respondent, William Henry Barrick, drafted in July 1974 for a client, Mrs. Josephine Caster, who died 7 months later, included a lifetime annuity for the respondent of $12,000 per year, the amount he had been receiving as an annual retainer from Mrs. Caster. The actuarial value of the bequest was 4 1/2% of the estate. The Administrator of the Attorney Registration and Disciplinary Commission filed a complaint charging that, because of the bequest to himself, the respondent, in preparing the will, engaged in conduct tending to bring the legal profession into disrepute and violating Disciplinary Rule 5-101(A) of the Illinois Code of Professional Responsibility (1977). The hearing panel concluded that the respondent's conduct was "calculated to diminish the integrity of the legal profession, and deliver it into disrepute and ignominy while suffering the administration of justice to suspicion and reproach." It recommended suspension for 6 months and until further order of the court.

Before the Review Board, the Administrator conceded that it was unnecessary for the suspension to continue "until further order of the court" and requested the deletion of that provision from the recommendation. The Review Board issued a brief order without explanation recommending dismissal of the complaint. This court then granted leave to the Administrator to file exceptions to the recommendation of the Review Board.

The respondent has been a member of the Illinois bar for 43 years, practicing mostly in Rockford. Louis Caster, the husband of Josephine Caster, was a successful Rockford businessman, a man of substantial wealth and one of Barrick's clients. He died in 1960.

The Casters' closest friends were Clint Maslen and his wife, who were also from Rockford. Maslen commenced working for Mr. Caster in 1936 as office manager of a bakery Caster owned. They continued as close associates until Caster's death. Over the years Caster and Maslen formed many business enterprises together, and Maslen functioned as business manager for Caster and his enterprises. After Caster's death, Maslen continued in the same role as manager of Mrs. Caster's affairs. Prior to his death Louis Caster told Maslen "that Mr. Barrick had done much work for him and in his opinion was a very acceptable attorney." Also before his death, Caster informally told the judge in charge of Winnebago County probate matters "that probably William H. Barrick would be settling their estates [Mr. and Mrs. Caster's], since he utilized him for some of his law business and was impressed with the utmost confidentiality with which Mr. Barrick handled his affairs."

When Caster died, Mrs. Caster picked the respondent to probate his will. She selected him from a list of Rockford attorneys that Maslen submitted to her. After that, the respondent represented Mrs. Caster and because of this representation met with her frequently.

The evidence is not contradicted, as the Commission offered no testimony except to call the respondent himself as an adverse witness under section 60 of the Civil Practice Act (Ill. Rev. Stat. 1977, ch. 110, par. 60). The unrebutted testimony of the respondent and Maslen established that the suggestion that the respondent be included as a legatee in her will originated with Mrs. Caster. When Mrs. Caster and Maslen were discussing changes in her will which Barrick advised her were needed because of changes in the revenue code, she told Maslen she wanted to remember the respondent in her new will. She said she wanted him to receive annually the yearly amount he was receiving as a retainer. When Maslen communicated Mrs. Caster's wish to the respondent, who had made no effort to be named in the will, Barrick replied that it would be unusual for him to draft the will and also be named as a legatee. If Mrs. Caster insisted upon a legacy for him, Barrick said, it would be best for her to select another lawyer to draft her new will. When Maslen passed on this advice, Mrs. Caster said she did not want another lawyer because she did not want her business aired to the world. She was adamant about having the respondent prepare her new will in the way she wanted it drawn. Maslen reported Mrs. Caster's decision to the respondent and told him she wanted the respondent to figure out a way he would be able to draft the will as she wanted it done.

At two later meetings with Barrick, Mrs. Caster refused to change her mind, rejecting Barrick's suggestions that another lawyer draft, or at least review, the will. Mrs. Caster said that she did not want anyone else to know her business or to have it discussed by other lawyers and accountants. She feared that some charitable organizations in Rockford might, if other lawyers were brought in, learn that they had been omitted or what amount they had been left. She was concerned that the omitted organizations would importune her to include them while others might seek to persuade her to be more generous toward them. When the respondent suggested to Mrs. Caster that it would be better for him not to be included in her new will, she responded she did not want to run any chance that the respondent would not get something from her estate after all he had done for her.

The respondent testified, when questioned by the Administrator's attorney, that they had considered having a codicil to the will drafted by an independent attorney providing for the legacy for the respondent. However, he pointed out that, because of the manner in which the will was drafted, a person preparing such a codicil would have to see the will itself in order to be satisfied that the codicil would not defeat the tax benefits the respondent sought to achieve for Mrs. Caster. This, of course, would expose the nature of the charitable bequests and the identity of the organizations receiving them to additional persons.

To satisfy Barrick, Mrs. Caster arranged to have three employees of a Rockford bank, who were unknown to Barrick, witness the will. The signing took place at Mrs. Caster's residence. Before the execution, the respondent explained to the three witnesses that he and Maslen were both beneficiaries under the will. He offered to excuse himself and Maslen from the room so that the witnesses could ask Mrs. Caster any questions they had. Mrs. Caster responded to this suggestion by observing that such precautions were unnecessary, and, according to respondent, she said, "I will have none of that monkey business. I know what I am doing. You don't have to be doing anything like that. These men have done more for me than anybody else and they deserve what I am doing for them."

The Illinois State Bar Association Code of Professional Responsibility was the code generally followed in attorney disciplinary proceedings in Illinois at the time the will was prepared. (See In re Taylor (1977), 66 Ill.2d 567, 571, stating that the canons contained in the Code are a safe guide for professional conduct, and an attorney can be disciplined for not observing them.) The hearing panel acknowledged in its report that there is no precise printed rule in the Code prohibiting a lawyer-draftsman from including himself as a beneficiary in a will drawn for his client. However, the complaint alleges that the respondent's conduct violated Disciplinary Rule DR 5-101(A) of the Code, which was in effect when the respondent drafted the will. It provided:

"DR 5-101(A)

(a) Except with the consent of his client after full disclosure, a lawyer shall not accept employment if the exercise of his professional judgment on behalf of his client will be or reasonably may be affected by his own financial, business, property, or personal interests."

The Administrator has not explained how the respondent's professional judgment might have been affected by his own interest. However, when an attorney drafts a will naming himself as a beneficiary, the potential for abuse in the clash of roles is serious enough that the attorney must be deemed to suffer from a conflict of interest, and some effect must be presumed possible. Moreover, what the respondent did looks bad. Few wills satisfy everyone, and the natural tendency of those disgruntled with their own shares to suppose undue influence and ...


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