In re Disciplinary Proceedings Against Harvey

539 N.W.2d 453, 197 Wis. 2d 121, 1995 Wisc. LEXIS 116
CourtWisconsin Supreme Court
DecidedNovember 14, 1995
DocketNo. 93-3110-D
StatusPublished
Cited by1 cases

This text of 539 N.W.2d 453 (In re Disciplinary Proceedings Against Harvey) is published on Counsel Stack Legal Research, covering Wisconsin Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re Disciplinary Proceedings Against Harvey, 539 N.W.2d 453, 197 Wis. 2d 121, 1995 Wisc. LEXIS 116 (Wis. 1995).

Opinion

PER CURIAM.

Attorney Walter L. Harvey appealed from the referee's conclusion that he engaged in conduct involving dishonesty, deceit and misrepresentation by using a power of attorney given to him by an elderly relative to convert to his own use more than $140,000 of the relative's assets, conversions that were not intended, known, authorized or ratified by her. Attorney Harvey also appealed from the referee's recommendation that his license to practice law in Wisconsin be revoked as discipline for that misconduct.

We determine that the referee properly concluded that Attorney Harvey engaged in dishonesty, deceit and misrepresentation in this matter, as that conclusion is supported by facts based on testimony and documentary evidence presented at a lengthy disciplinary hearing. Attorney Harvey has failed to establish that the facts found by the referee that support the conclusion regarding his misconduct are clearly erroneous.

We further determine that the recommended license revocation is the appropriate discipline to impose for Attorney Harvey's misconduct. He abused the fiduciary position he assumed on behalf of his relative for his own financial benefit and violated the trust she had placed in him to act in her best interests. The [123]*123egregious nature and extent of his misconduct renders Attorney Harvey unfit to be licensed by this court to represent others in the legal system.

Attorney Harvey was admitted to practice law in Wisconsin in 1962 and practiced in Madison. In 1987, he relocated to Arizona, where he currently resides. He has not been the subject of a prior disciplinary proceeding. The facts found by the referee, Attorney Jean DiMotto, concern Attorney Harvey's use of a power of attorney to take more than $140,000 of a relative's assets during the six months preceding her death.

From 1959 to 1987, Attorney Harvey developed and maintained a close relationship with Elyda Morphy, a first cousin of his mother. Ms. Morphy, the widow of the former director of the University of Wisconsin band, executed a will in 1968 in which she made two specific bequests — $1000 to a church and $25,000 to Attorney Harvey — and gave the residue of her estate to the University of Wisconsin Foundation to establish a fund in her late husband's name to provide scholarships to University of Wisconsin music students. Her will named First Wisconsin National Bank as personal representative and a codicil she executed in 1976 did not substantially alter the disposition of her estate.

In December, 1980, Ms. Morphy, then 85 years old, entered a nursing home and let Attorney Harvey and his wife and daughter have whatever furniture and personal possessions she did not take with her. The nursing home required a guaranty of all expenses she might incur and Attorney Harvey signed as guarantor, but throughout her nine-year residence there, Ms. Morphy paid all of those expenses. Nursing home staff described Ms. Morphy as very intelligent, independent, careful with her assets and income, and private and [124]*124precise, particularly in respect to her financial matters. Three months after entering the nursing home, Ms. Morphy had her personal attorney, Myron Stevens, prepare and she executed a power of attorney appointing Walter Harvey her attorney in fact, a power Attorney Harvey never used.

In 1984, Attorney Stevens discussed with Ms. Morphy who should have charge of her estate in the event she became incapacitated and she specified the bank she had named personal representative in her will. Attorney Stevens then suggested that her attorney in fact be given specific authorization to create a revocable living trust for her in the event of her incapacity, and he drafted such a provision in a new, durable power of attorney naming Attorney Harvey, which Ms. Morphy executed in March, 1984. Attorney Stevens sent Attorney Harvey a copy of that new power, indicating to him the purpose for it. Attorney Harvey never used that power.

Ms. Morphy executed a third power of attorney in March, 1987, on the advice of her attorney when she told him she had discarded the 1984 power. Her attorney advised her that she needed a power of attorney in force so that if she ever became incapacitated, Attorney Harvey could enter into a living trust for her with the bank. The 1987 power did not differ substantially from its predecessor.

At the same time he advised her to execute a new power of attorney, Attorney Stevens suggested that Ms. Morphy execute a codicil to her will specifically giving her furniture and furnishings, personal effects and remaining tangible personal property to Attorney Harvey and he drafted a codicil to accomplish that. Ms. Morphy declined to execute that codicil because she believed it was unnecessary, as she already had made [125]*125arrangements with Attorney Harvey to dispose of those items. Attorney Stevens then sent the new power of attorney to Attorney Harvey, explaining the reason for it in a cover letter. He also sent him a copy of the unexecuted codicil and set forth his reason for advising Ms. Morphy to sign it and her reason for not doing so.

Over the following two years, Attorney Harvey did not visit Ms. Morphy and did not use the power of attorney. When he learned in mid-February, 1989, from a social worker at the nursing home that Ms. Morphy's physical condition had deteriorated, Attorney Harvey telephoned Attorney Stevens, who told him the 1987 power of attorney remained in effect, First Wisconsin National Bank continued to be the executor named in Ms. Morphy's will and the bequests to himself and to the University of Wisconsin Foundation remained unchanged. The following month, Attorney Harvey and his wife visited Ms. Morphy and during that visit, Ms. Morphy told him words to the effect, "There is plenty in there for you and [your wife]. Go on and use it." The referee found that Ms. Morphy's statement referred to the specific bequest to him in her will, not to her funds while she was alive.

Shortly after that visit, Attorney Harvey met with Attorney Stevens and discussed using the power of attorney to obtain bank authorization for him to sign checks on Ms. Morphy's accounts and to gain access to her safe deposit box. He also discussed making funeral arrangements, locating Ms. Morphy's heirs and arranging for the nursing home to dispose of her personal possessions. The referee found that Attorney Harvey did not discuss his being appointed personal representative of Ms. Morphy's estate and Attorney Stevens its attorney.

[126]*126Immediately following that meeting, Attorney Harvey had his name added on Ms. Morphy's savings and checking accounts, inventoried the contents of her safe deposit box and moved them to a new box in the name of himself and his wife. A few days later he requested and received from Attorney Stevens a copy of Ms. Morphy's tax returns for the preceding three years, which listed her annuities, stocks and certificates of deposit and her earnings from them.

Attorney Harvey first used Ms. Morphy's power of attorney on March 29, 1989, to liquidate her money market account at an investment company. Following his return to Arizona, he received a check from the company payable to Ms. Morphy and himself as her attorney in fact in the amount of $34,866.96. He cashed that check and used the proceeds for personal purposes.

Attorney Harvey again visited Ms. Morphy in late April, 1989, as her condition had worsened. She was for the most part bedridden and described as forgetful and occasionally confused.

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Related

Lucareli v. Lucareli
2000 WI App 133 (Court of Appeals of Wisconsin, 2000)

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539 N.W.2d 453, 197 Wis. 2d 121, 1995 Wisc. LEXIS 116, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-disciplinary-proceedings-against-harvey-wis-1995.