Committee on Professional Ethics & Conduct v. Jacobsen

511 N.W.2d 611, 1994 Iowa Sup. LEXIS 6, 1994 WL 14366
CourtSupreme Court of Iowa
DecidedJanuary 19, 1994
DocketNo. 93-839
StatusPublished
Cited by3 cases

This text of 511 N.W.2d 611 (Committee on Professional Ethics & Conduct v. Jacobsen) is published on Counsel Stack Legal Research, covering Supreme Court of Iowa primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Committee on Professional Ethics & Conduct v. Jacobsen, 511 N.W.2d 611, 1994 Iowa Sup. LEXIS 6, 1994 WL 14366 (iowa 1994).

Opinion

CARTER, Justice.

This is a review by the court, pursuant to Supreme Court Rule 118.10, of the findings and recommendations of the Grievance Commission of this court (the commission) with respect to alleged ethical violations by a [612]*612practicing attorney. The complainant is the Committee on Professional Ethics and Conduct (the committee). The respondent is attorney Jerrold E. Jacobsen of Cedar Falls.

The committee’s complaint was on two counts. The first count asserts that respondent was guilty of professional misconduct in failing to provide a timely accounting of receipts and disbursements in connection with sums that came into his possession upon the termination of two Wyth family trusts created by two deceased clients of respondent’s law firm. The second count concerns respondent’s preparation and recording of a document purporting to be a mortgage on real estate. The committee alleged that in fact no mortgage existed on this property and that the act of recording a mortgage was a “sham” designed to deceive the creditors of respondent’s client. We separately discuss the two counts of the complaint.

I. The Wyth Family Trust Transaction.

Acting as an escrow agent under a written agreement, respondent came into possession of funds distributed on the termination of two family trusts. These trusts had been created by George Wyth and his son Russell Wyth, both of whom were Cedar Falls industrialists. These trusts were to terminate upon the death of Russell’s surviving spouse, Frances. John Ross Wyth (Ross) was the remainderman of the two trusts that had been created by his grandfather and his father. Byron Johnson was the current spouse of Ross’s mother, Frances, the life beneficiary of the trusts.

An April 18,1984 agreement between Ross and Byron Johnson provided that the trust corpus to be distributed upon the death of Ross’s mother, Frances, was to be placed in a newly created inter vivos trust with a corporate trustee. Also to be included in the res of this new trust was the residue of Frances’s estate plus certain assets of her surviving spouse, Byron Johnson. The income from this trust was to be paid to Byron during his lifetime, and upon his death, the percentage of the trust established from the two Wyth family trusts and the residue of Frances’s estate would be distributed to Ross, and the percentage of the trust established from Byron Johnson’s own assets would be distributed equally among his three children.

The April 18, 1984 agreement provided that Northern Trust Company of Chicago or “such other corporate trustee as is acceptable to both parties” was to be the trustee of the new trust. Upon Frances’s death, the corpus to be distributed from the two existing trusts was to be held in escrow by respondent until the new corporate trustee qualified. Frances died on July 10, 1985. The assets of the two Wyth family trusts were not distributed to respondent, as escrow agent, until the following year. An initial transfer of $3000 from the terminated trusts was delivered to respondent on January 15, 1986.1 The balance of the res, totaling approximately $126,000, was delivered to him in March and April of 1986.

For some undisclosed reason, no funds from Frances’s estate and no funds of Byron Johnson were ever delivered to respondent to be included as part of the res of the new inter vivos trust. The total of the funds escrowed with him was thus approximately $129,000. The Northern Trust Company, when approached to serve as trustee, deemed this sum to be too small to meet its requirements for a minimum trust res. A local bank in Cedar Falls was next approached to act as trustee and also declined.

In the face of rejections by two possible corporate trustees, Ross and Byron Johnson requested respondent to initially act as de facto trustee for some unspecified period of time. It was respondent’s testimony that this was to continue until a satisfactory corporate trustee could be located. Ross and Byron asked respondent to invest the es-crowed funds and pay Byron $600 per month, irrespective of actual income earned on the $129,000. Initially, these monthly distributions from the res exceeded the income earned. Later, however, respondent altered the investment of the funds and was able to secure a return sufficient to cover the $600 monthly payments to Byron. Between March 10, 1986, and July 30, 1989, respon[613]*613dent received income from these assets of $27,976 and made distributions to Byron of approximately $26,360. These investments were ultimately delivered to the National Bank of Waterloo, as corporate trustee, in September of 1989, at which time they were valued at $130,364. Except for a $1114 fee paid to respondent, all income from these funds while in respondent’s possession had been paid to Byron Johnson or reinvested.

Commencing in May of 1988, Byron Johnson became dissatisfied with certain aspects of respondent’s handling of these funds. He expected more formality in the form of detailed reporting of investments and expenditures. He also was displeased with respondent’s refusal of his suggestion to use these funds to purchase an undivided one-seventh interest in 320 acres of Grundy County farmland. That request pertained to an interest that Johnson was in the process of losing in a foreclosure action. The remaining six-sevenths of this farmland was owned by his brothers and sisters. Byron appealed to Ross to back his request to purchase this one-seventh interest and make it part of the trust res. Ross sought advice from his uncle, whom he believed to possess sound business judgment. Apparently, the uncle concurred in respondent’s judgment, and Ross informed Byron that he would not support him in the request.

Byron Johnson approached another lawyer, attorney Judith Benson, about respondent’s infrequent accounting. He sought her assistance in having the funds transferred to a bank as corporate trustee. In addition to complaining about the infrequent accounting, Byron continued to press his desires with respect to the Grundy County farmland as a consideration to be explored by attorney Benson in the event a corporate trustee was secured. On May 25,1988, attorney Benson, at Byron’s urging, wrote to Ross, who was a resident of Taufkirehen, Germany. The letter inquired as to whether Ross shared Byron Johnson’s wish to have attorney Benson act to secure a bank as trustee of the funds held by respondent. Sometime in September 1988, Ross answered this inquiry and indicated that he approved of attorney Benson taking the necessary steps to obtain a bank to serve as trustee under the basic terms and conditions of the April 18, 1984 agreement between himself and Byron Johnson.

Commencing with a telephone call on September 30, 1988, and continuing through several written requests during the ensuing eleven months, attorney Benson sought to obtain from respondent information that she deemed essential for any discussion she might have with a prospective corporate trustee. She requested that respondent provide her with copies of trust tax returns, documentation as to the “start up” date of the trust, and any additional written agreement implementing the terms of the April 18, 1984 writing signed by Ross and Byron Johnson.

Sometime in January 1989, respondent gave attorney Benson copies of tax returns he had filed with respect to a purported “John Ross Wyth” trust for the partial year 1986 and the calendar year 1987. These pertained to the income from the funds delivered to respondent from the terminated Wyth family trusts.

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511 N.W.2d 611, 1994 Iowa Sup. LEXIS 6, 1994 WL 14366, Counsel Stack Legal Research, https://law.counselstack.com/opinion/committee-on-professional-ethics-conduct-v-jacobsen-iowa-1994.