Matter of Lowther

611 S.W.2d 1, 1981 Mo. LEXIS 426

• Court: Supreme Court of Missouri
• Decided: January 13, 1981
• Docket: 60716
• Status: Published

Opinions

PER CURIAM.

This is an original disciplinary proceeding instituted by the Advisory Committee of The Missouri Bar against respondent. The Advisory Committee found probable cause that respondent was guilty of professional misconduct and filed an information in three counts in this Court. After answer, we appointed Hon. David A. McMullan, a retired circuit judge, as special master. During the hearing before Judge McMullan the third count of the information was withdrawn with prejudice. After the hearing, the special master filed his findings of fact and conclusions of law in which he found respondent guilty of professional misconduct on both counts and recommended that respondent’s license be suspended for a period of one year.

There has been an enormous amount of work put into his case by the Advisory Committee, its attorneys, the attorneys for respondent, and our special master. The hearing before Judge McMullan lasted for six days. The transcript contains over 1300 pages. There are over 150 exhibits. As Judge McMullan says in his report, “It is an example of the concern the members of the legal profession have for maintaining high professional ethics and, at the same time, the great value they place upon the privilege to practice law and the necessity for protecting that privilege.”

Count I alleges that in December 1968; respondent used his position as an attorney for Founders of American Investment Corporation to obtain one-fifth of 2% of certain mining interests as a condition precedent to the corporation’s guaranteeing certain loans. The primary basis for the charge is that respondent drafted and prepared for his clients an agreement containing paragraph 8¹ and that respondent had a monetary interest in the agreement.

Count II alleges that between 1972 and 1974, respondent, a partner in the law firm of Miller, Fairman, Sanford, Carr and Lowther, deposited to his own account increases in retainers paid by two corporate clients of the firm.

In disciplinary proceedings such as this, guilt must be established by a preponderance of the evidence. In re Weiner, 547 S.W.2d 459, 561 (Mo. banc 1977); Matter of Duncan, 541 S.W.2d 564, 569 (Mo. banc 1976).

I

The matter before the Court illustrates the inherent danger of becoming personally involved with the affairs of clients, self dealing with clients, and of “taking a piece of the action”. The attorney, with his superior knowledge and education, can pursue this course only at his peril. It is an area wrought with pitfalls and traps and the Court is without choice other than to hold the attorney to the highest of standards under such circumstances.

The findings of the special master and his recommendations are set forth in full as appendix A to this opinion. The Court finds that the record below sustains the findings of fact as set forth by the special master.

At oral argument before this Court, counsel for respondent stated with commendable candor: “If the analysis of the Court stops at the four corners of paragraph 8, then Mr. Lowther would stand indicted”, and then proceeded to ask that we view numerous other circumstances to determine what respondent intended by the drafting of paragraph 8. Courts have always been reluctant to permit parties to vary the terms or explain the meaning of written agreements by parol evidence.' We have great difficulty in perceiving any sound legal basis for using this type of evidence for the purpose of explaining what an attorney meant by the writing of such a paragraph, especially in an agreement in which he was financially interested. The appearance of professional misconduct can in some instances just as effectively undermine the confidence of the public in the integrity of the attorney and the legal profession as proven misconduct itself.

The duty to explain or justify the actions or conduct of members of the legal profession, or any other profession, is not cast upon this Court, but rather upon the person who would hold himself out to the public as a member of the profession. The charge as made is sustained and the conduct subject to disciplinary action by this Court.

II

We do not at this time deem it necessary to decide the extent to which we might in the future invoke the Rules of Professional Conduct, as our sister state of Colorado has done, People v. Pittam, 194 Colo. 104, 572 P.2d 135 (banc 1977), to determine the standard of conduct applicable to attorneys in the performance of their partnership agreements. The primary purpose of the Code of Professional Responsibility is protection of the public, not the protection of attorneys from attorneys.

The record before us sustains the findings of fact of the special master as to Count II.

We simply note that respondent’s pattern of self dealing was carried over into law firm partnership and to that extent is supportive of our conclusion as reached in Count I above.

“To disbar, it should be clear that [the lawyer] is one who should never be at the bar .... ” In re Sullivan, 494 S.W.2d 329, 334 (Mo. banc 1973). Giving deference to the facts, circumstances and recommendations found by the special master, we do not find that the public would be protected or that the ends of justice would be reached by disbarring respondent. Accordingly, he is suspended indefinitely from the practice of law with leave to apply for reinstatement after a period of one year from the date of this opinion. The costs of these proceedings, are, as well, taxed against him.

DONNELLY, WELLIVER and HIGGINS, JJ., and STOCKARD, Special Judge, . concur. SEILER, J., concurs in result in separate opinion filed. MORGAN, J., dissents in separate dissenting opinion filed. BARDGETT, C. J., dissents and concurs in separate dissenting opinion of MORGAN, J.. RENDLEN, J., not sitting.

APPENDIX A

REPORT OF SPECIAL MASTER

May, 6, 1980

FINDINGS OF FACT

[Count I]

This is a disciplinary procedure instituted by the Advisory Committee of the Missouri Bar Association against GERALD H. LOWTHER who has practiced law in Springfield, Missouri since 1951. The information was filed on April 7, 1978 in the Supreme Court and is in three counts; however, the third count was withdrawn with prejudice during the hearing before the Special Master and, at the end of the evidence, submitted by the Advisory Committee.

The transcript of the testimony is in four volumes, the pages of which are continuously numbered. The charge contained in Count I shall be considered first.

After alleging that the Respondent, while engaged in the practice of law in Springfield, did wrongfully, unethically, unprofessionally and in violation of his duties as a lawyer, engage in and was guilty of professional misconduct, Count I states:

“that in December of 1968, he did use his position as attorney for and director and officer of the FOUNDERS OF AMERICAN INVESTMENT CORPORATION to obtain personal advantage by use of a contract entered into by the corporation, thereby obtaining one-fifth of 2% of certain mining interests as a condition precedent to the corporation guaranteeing certain loans for other parties to the contract, contrary to DR 1-102(A)(4) and (5), DR 5-101(A) and DR 5-104(A), Rule 4 Supreme Court of Missouri.”

In late 1964 or early 1965, Respondent handled the legal work necessary to incorporate FOUNDERS OF AMERICAN INVESTMENT CORPORATION, hereinafter referred to as FOUNDERS. It was organized as a holding company to form affiliated life insurance companies in states other than Missouri.

FOUNDERS was conceived and organized by W.E. “Tiny” Parker (he was its largest stockholder) who acted as its President and Chairman of the Board (T. 65, Pg. 483). He selected all members of the Board and it is conceded by both the attorneys for the Committee and the Respondent that he was a dominant figure in FOUNDERS and a very forceful and dynamic man (T. 108, Pg. 266).

FOUNDERS was a widely held corporation headquartered in Springfield, Missouri. It was estimated that there were about 7,000 stockholders, holding outstanding shares of approximately one million five hundred thousand. It was estimated by “Tiny” Parker that the directors owned about 190,000 or 195,000 shares (T. 817-818). The board members at all times relevant to this inquiry were the Respondent, Gerald H. Lowther, W. E. “Tiny” Parker, Lloyd Parker, Hubert Lay of Houston, Missouri, Gerald Orscheln of Moberly, James H. Carter of Topeka, Kansas, M. W. Crabtree of Chillicothe and Tim Murrell, an attorney, with offices in Topeka, Kansas (T. 985).

Floyd Parker, Pat Crabtree and Hubert Lay were members of the Board of Directors of the MODERN AMERICAN LIFE INSURANCE COMPANY and the other members of the Board of FOUNDERS were involved, either as an agent or investor or employee of the MODERN AMERICAN LIFE INSURANCE COMPANY or were involved in other life insurance companies which had been formed by W. E. “Tiny” Parker.

The legal representation by MODERN AMERICAN and FOUNDERS was divided between Lay, Murrell, and Respondent with Lay and Murrell handling matters relating to securities (T. 985), stock issues, and preparation of prospectus, and Respondent handling litigation matters for both MODERN AMERICAN and FOUNDERS, incorporation and qualification of affiliated companies in other states, and the legal requirements pertaining to the mining claims in which FOUNDERS invested in 1968 (T. 986).

In January of 1968, FOUNDERS became interested in certain mining claims in New Mexico and Arizona. This interest resulted after a Dr. Thomasson of Springfield and a shareholder in FOUNDERS requested that he be allowed an opportunity to speak to the Board about the possibility of investing FOUNDERS’ money in the mining business. “Tiny” Parker extended an invitation to Dr. Thomasson to appear before the Board and he did so on January 30, 1968. The mining interests which were thus called to the attention of the Board of Directors of FOUNDERS were located in New Mexico and Arizona and were owned and controlled by U. S. LIME & MINING CORPORATION, hereinafter referred to as U.S.L.M., and METALS CORPORATION OF AMERICA, hereinafter referred to as M.C.A. A Mr. E. M. Riebold either wholly owned or managed U.S.L.M. and M.C.A. The FOUNDERS Board became acquainted with Mr. Riebold through Dr. Thomasson (T. 766) (R.Ex.10).

After Dr. Thomasson’s presentation, the FOUNDERS retained a William Hayes (who the evidence showed to be a reputable geologist) to investigate the mining interest and to make a recommendation to the Board (T. 998). Dr. Hayes, accompanied by Mr. Lowther, “Tiny” Parker and M. W. Crabtree, made an inspection trip and, on such trip, the group talked with various geologists and mining engineers and made an inspection of the property. Mr. Lowther, the Respondent, conducted his own inspection of the mining claim and learned from Mr. Riebold that a joint venture was being negotiated between Mr. Riebold and Joseph Mueller Corporation of Zurich, Switzerland. It appeared that it was the intention of Joseph Mueller Corporation to provide technological assistance and all financial assistance and Mr. Riebold, as General Manager of U.S.L.M. and M.C.A. was to supply the mining property (T. 1000-05).

The evidence showed that Joseph Mueller Corporation was reputed to have an excellent reputation with an abundance of resources, credit and experience.

Even though Mr. Riebold owned 100% of the U.S.L.M. stock, he had pledged all of the stock to a Mr. Yates as collateral for a loan in excess of $500,000.00. A letter dated November 15, 1967 from the Mueller Corporation showed some concern that Mr. Riebold was not in complete control of the two companies who owned the mining claim. It was considered important for the success of the mining operation that the Mueller Corporation provide the technological assistance and financial assistance in order for the Mueller Corporation to become a joint venture with Mr. Riebold and his two corporations (T. 172,1001) (R.Ex.3).

On March 1,1968, at a special meeting of the Board of Directors of FOUNDERS, a motion was made and carried whereby FOUNDERS would offer to buy all interest of Mr. Harvey Yates in U. S. LIME & MINING CORPORATION for the sum of $250,000.00 and authorized “Tiny” Parker to negotiate with Mike Riebold for the purchase of a 15% interest in land in which the U.S.L.M. had an interest, 15% interest in which METALS CORPORATION OF AMERICA had an interest, a 3% and a 4% interest in holdings of other properties for the sum of $245,000.00, making a total payment by FOUNDERS of $495,000.00. (Stipulation of Facts, Par. 2).

In paragraph 3 of the Stipulation of Facts, it is stated that on March 6, 1968, FOUNDERS OF AMERICA [sic] INVESTMENT entered into an agreement with E. M. Reibold, [sic] U.S.L.M. and M.C.A. Corporation, wherein FOUNDERS agreed to purchase a fifteen (15%) per cent interest in certain holdings of U.S.L.M. Corporation and M.C.A. Corporation for the stated sum of $245,000.00. In addition, $250,000.00 was paid to redeem the stock held by Harvey Yates.

It was stipulated by the parties that, on March 14, 1968 the Board of Directors of FOUNDERS ratified the contract of March 6,1968 and separating Harvey Yates, Jr. of all interest in the U.S.L.M. for the sum of $250,000.00 and the payment of an additional $245,000.00 to U.S.L.M. Corporation and Metals Corporation of America for a 15% interest in certain lands owned or may be in the future acquired, and a 3% and 4% interest in other claims. In addition, W. E. “Tiny” Parker announced that an additional $200,000.00 interest might be available if the Board desired to invest their own personal money, under the same terms and conditions of the March 6, 1968 agreement (CO. Ex. 4) (Stip. Par. 5).

On August 17, 1968 the shareholders of FOUNDERS approved the Board’s action on mining interests in Arizona, New Mexico and Mexico (Stip. Par. 7).

While “Tiny” Parker and Mr. Riebold negotiated the contract of March 6, Mr. Lowther accompanied “Tiny” Parker on the trip and sat in on the negotiations and, hence, was able to prepare the contract dated March 6,1968. The stock held by Mr. Yates as collateral for a loan to Mr. Riebold, which was redeemed by FOUNDERS, was delivered to U.S.L.M. and M.C.A. and “Tiny” Parker personally negotiated this purchase of redemption with Mr. Yates.

At the March 14, 1968 meeting of the Board of FOUNDERS, it was informed that an additional 5% interest in U.S.L.M. and M.C.A. was available but the Board decided that FOUNDERS should make no further investment in these properties. It was then announced by “Tiny” Parker that an additional $200,000.00 interest might be available if the individual members of the Board desired to invest their own personal money. Seven of the eight Board members elected to individually invest in the mining claims after which “Tiny” Parker entered into negotiations with Mr. Riebold as to the terms of their investment (Stip. Par. 5). As a result of these negotiations, the seven individual members of the Board entered into an agreement with Mr. Riebold, U.S.L.M. and M.C.A. dated March 29, 1968 wherein W. E. “Tiny” Parker, Lloyd R. Parker, M. W. Crabtree, Hubert Lay, Gerald H. Lowther, Tim Murrell and James Carter agreed to purchase from Mike Riebold, U. S. LIME & MINING CORPORATION and METALS CORPORATION OF AMERICA a 5% interest in certain mining claims for the sum of $250,000.00, which $250,000.00 was paid in cash by the individuals (Stip. Par. 6).

“Tiny” Parker had urged the individual members of the Board to put their own money in the undertaking and it seemed to be agreed among the members of the Board that it was a good policy to invest their own individual funds in an investment they made for FOUNDERS to show their faith in the decisions that were made (T. 76-77, 777). All of the Board members participated in the purchase of the 5% interest except Mr. Orscheln who told the other members of the Board he was expanding his farm supply store and did not have the capital. (T. 1018). Each of the sevenindi-vidual members paid an equal apiodnt for an undivided 5% interest. They paid $50,-000.00 for each percentage point while FOUNDERS had psdd $33,000.00 for each percentage point (T. 1014, 779, 905). Mr. Lowther drafted the March 29, 1968 agreement and was present during much of the contract negotiations.

It can be said at this point that such purchase by the Board of Directors is not viewed by the Special Master as being improper in arriving at a decision in these proceedings.

On August 17, 1968 the shareholders of FOUNDERS approved the Board’s action mining investments in Arizona, New Mexico and Mexico (Stip. Par. 7).

After FOUNDERS had purchased a 15% interest and after a 5% interest was conveyed to the individual members of the Board, “Tiny” Parker and Mr. Lowther traveled to Phoenix, Arizona on behalf of FOUNDERS to meet with Mr. Riebold and the Joseph Mueller Corporation. Efforts were being made to work out the final details of the joint venture contract between Mr. Riebold and the Mueller Corporation. Although Mr. Lowther was in Phoenix, Arizona at the time and talked with the principals including Joseph Mueller, he did not actually engage in the negotiations. However, he left Phoenix, Arizona with the impression that a joint venture agreement was a foregone conclusion and that only certain details remained to be ironed out. (T. 1053).

Prior to October 16, 1968, negotiations between the Mueller Corporation and Mr. Riebold broke off and it became apparent that a joint venture with Mueller Corporation would not materialize. Mr. Lowther testified that he was at a loss to explain why the Mueller Corporation pulled out of the negotiations (T. 1054).

On October 16, 1968, the FOUNDERS Board met and the minutes of the meeting state in part:

“that it would probably be three years before the mining operations would be developed and, at the present time, some land had been sold providing a cash flow into the company.” (Stip. Par. 8).

Mr. Lowther testified, however, that up until October of 1968, FOUNDERS had realized no cash flow at all out of its investment in the mines (T. P. 1056). Other attempts to develop mining operations were made but such attempts were unsuccessful.

On November 4, 1968 the FOUNDERS Board met and “Tiny” Parker announced that additional money was needed in order to get the mining facilities in New Mexico and Arizona into operation. (Stip. Par. 9). Mr. Riebold and members of his mining engineering staff appeared in person and gave a report and stated there was a need for $460,000.00 (Stip. Par. 9). Mr. Riebold stated that the money would be used to put into operation certain properties located in Old Mexico and that this would produce a substantial cash flow. These properties located in Old Mexico were unrelated to the mining operations located in Arizona and New Mexico in which FOUNDERS and individual Board members had an interest (Pg. 1075).

Mr. Lowther testified that, following the Board meeting, the Board members met informally and decided that they should not loan any more than $200,000.00 to Mr. Rie-bold and his associates (T. 275, 793). Mr. Riebold agreed to pledge all of his interest in the mining operation as security for the loan. (COM. Ex. 12).

At the Board meeting of November 4, 1968, a motion was made, seconded and carried that “Tiny” Parker and Gerald Lowther make a trip to Old Mexico and visit the properties in Arizona and New Mexico and bring back their opinion on the matter. (COM. Ex. 8).

One or two days before Thanksgiving 1968, Mr. Lowther left for Mexico to investigate the mines and, on Thanksgiving Day, “Tiny” Parker and Mr. Crabtree left for Mexico to begin an investigation of the mines (T. P. 1066, 1067).

Mr. Lowther, Mr. Crabtree and “Tiny” Parker did investigate the properties in Mexico in an effort to determine whether an investment in the property was feasible and Mr. Lowther met with Mexican attorneys and with certain engineers to determine whether the leases on the mine were valid. (T. P. 1070,1071). It was about this time that a 2% interest was conveyed by an assignment dated November 27, 1968 from U.S.L.M. to “Tiny” Parker, Lloyd Parker, Gerald Lowther, M. W. Crabtree and Hubert Lay in certain mining properties in Grand and Sierra Counties in New Mexico and Graham County in Arizona. And also a 2% interest was conveyed by an assignment dated November 27, 1968 from M.C.A. to “Tiny” Parker, Lloyd Parker, Gerald Lowther, M. W. Crabtree and Hubert Lay in certain mining properties in Sierra, Hi-dalgo and Catron Counties in New Mexico and Graham and Greenlee Counties in Arizona (Stip. P. 10, 11).

The group that investigated the property in Old Mexico felt that it had a “lot of potential” because the price of silver was fair and the minimum wage was $2.00 a day at the site.

While arrangements for a loan with the Empire Bank of Springfield were made by “Tiny” Parker on November 4, 1968 to the extent that a loan commitment was received, it was not until after the investigation was made by “Tiny” Parker, Mr. Crab-tree and Mr. Lowther that a promissory note payable to the Empire Bank in the sum of $152,000.00 was made on December 3, 1968 signed by FOUNDERS, U.S.L.M. and M.C.A. and E. M. Riebold and Raymond [sic] Rincon. (T. 85, 799, 1066-1067).

On December 4, 1968 an agreement (prepared by Gerald Lowther at the direction of “Tiny” Parker, President of FOUNDERS) was entered into whereby FOUNDERS agreed to guarantee a loan for U.S.L.M. and M.C.A. and Mr. Riebold and Raymond [sic] Rincon and certain corporations incorporated in Mexico which Mr. Riebold controlled or owned. Said loan to be “up to $200,000.00 and executed a promissory note for repayment of said sum.” Paragraph 8 of said agreement stated:

“In consideration of the payment of Ten ($10.00) dollars and other valuable considerations, the receipt and sufficiency whereof is hereby acknowledged, and as consideration for FOUNDERS OF AMERICAN INVESTMENT CORPORATION signing said notes not to exceed an aggregate sum of $200,000.00. It is agreed that E. M. Riebold and United States Lime and Mining Corporation and Metals Corporation of America will convey and assign to W. E. Parker, Lloyd R. Parker, M. W. Crabtree, Hubert Lay and Gerald H. Lowther a two (2%) per cent interest in and to all properties now owned or hereafter acquired and in any properties or assets to which an interest is secured or maintained, legal or equitable, by E. M. Riebold, United States Lime and Mining Corporation or Metals Corporation of America. It is understood and agreed that the two (2%) per cent interest carries with it additional interest in the Norenci [sic] Deal and the Klondike [sic] Deal referred to in the original contract with FOUNDERS and the United States Lime and Mining Corporation and Metals Corporation of America and where they bought a fifteen (15%) per cent interest and received four (4%) per cent of the Klondike [sic] Deal and three (3%) per cent of the Norenci [sic] Deal that their interest in Norenci [sic] and Klondike [sic] are increased proportionately. E. M. Rie-bold, United States Lime and Mining Corporation and Metals Corporation of America shall immediately execute the necessary documents to convey the above mentioned two (2%) per cent interest and FOUNDERS OF AMERICA [sic] INVESTMENT CORPORATION shall be under no obligation to arrange for the borrowing of the $200,000.00 mentioned herein, or any part thereof, until these deeds, assignments, and conveyances are made and delivered.” (Stip. 14).

On December 10, 1968 at a special meeting of the Board of Directors of FOUNDERS, the minutes reflect that “Tiny” Parker reported the contract dated December 4th, whereby FOUNDERS agreed to sign a note or notes up to $200,000.00 as principal with E. M. Riebold, Rincon, U.S.L.M. and M.C.A. for use in development of mines and mining property. As consideration for executing said note or notes, FOUNDERS would be paid 5% of all sums due from the smelter to the Mexican corporations or any other parties executing the note for a period of five years on certain named properties. “Tiny” Parker also announced that, on December 3, 1968, a note was executed with Mr. Riebold, M.C.A., U.S.L.M. and Rin-con with the Empire Bank of Springfield, A motion to approve said action was made, seconded and passed. (Stip. P. 15).

The stipulation further shows that, on December 19, certain assignments were recorded and that, on February 28, a note was executed by the parties in the sum of $20,-000.00 and on May 22, 1969 a note in the sum of $28,000.00 was executed pursuant to the agreement of December 4.

The investment in the mining interest was a complete loss to both FOUNDERS and the individual members who purchased an interest. Mr. Lowther testified that over and above his initial investment to purchase “5% interest, he lost between $66,-000.00 and $67,000.00 through his involvement with the New Mexico and Mexican mines.” (T. 1100).

The Advisory Committee contends: (Com. B. p. 29)

1. that, prior to the execution of the March 29 contract, Mr. Riebold never promised to convey free of charge an additional 2% interest.

2. that no consideration was paid by the individuals for the 2% interest.

3. that any oral promise made by Mr. Riebold prior to the March 29th contract was unenforceable, and

4. that Mr. Lowther did use FOUNDERS’ assets to obtain a one-fifth undivided interest in 2% of certain mining interests.

Respondent contends the Board members had the assurance of Mr. Riebold that, if a joint venture was not consummated with Joseph Mueller within six months, an additional 2% interest would be conveyed to them so the individuals would be paying the same price per point as did the corporation.

The March 29, 1968 agreement for the purchase of the 5% by the individual Board members (COM. Ex. 5) was reduced to writing by Respondent pursuant to “Tiny” Parker and Mr. Riebold’s relation of the terms and the only consideration recited therein is as follows:

“For the consideration of ten ($10.00) dollars and other valuable considerations, receipt and sufficiency whereof is hereby acknowledged, parties of the second part give, etc.”

There is no reference to any prior oral promise of Riebold to equalize the cost of investment of the individuals with that of FOUNDERS in the event the Mueller joint venture failed to materialize within six months.

Mr. Lowther, the Respondent, testified that prior to the seven board members contracting to purchase an interest in the mining operations, he became concerned that the seven individuals were paying more for their percentage point interest than FOUNDERS and, therefore, he asked “Tiny” Parker and Mr. Riebold why the individuals should make such an investment at a price that was $17,000.00 a point more than FOUNDERS had paid. According to Mr. Lowther’s testimony, Mr. Riebold stated that (Abstract p. 1039):

“We’re going to get our money back in six months because the Mueller deal is going to be completed. They are going to pay an entrance fee. Everything will be fine and, if we don’t I’ll convey you another 2% and then that will bring your cost down to about what FOUNDERS paid for their interest.”

However, the contract contained no language which obligates Mr. Riebold to convey another 2% interest without an additional payment of $100,000.00. It does grant the seven individuals an option to purchase an additional 2% interest in the assets of Riebold, U.S.L.M. and M.C.A.

“Tiny” Parker testified by deposition with reference to the promise of Mr. Rie-bold (T. pp. 780, 781) as follows:

“We was also told by Riebold on the way back to the airport at the time that contract was executed that he was working on a deal on the Commonwealth claims and he pointed to them right over there on the Santa Rita above the Kennicot Pit there, which was impressive and he was working on a deal to sell a group interest in these claims for $8,000,000.00 and he said ‘we will all have our money back when I sell this claim and we will be home free and I will guarantee I will have it done within six months.’ Again, on page 782, he said ‘we would all have our money back within six months or he would make it up to us in some manner by issuing us some additional interest and he would guarantee it, it would happen in six months. If it did not, he would treat us right. This is the words he told us.”

“Tiny” Parker testified the he kept pressing Mr. Riebold for the 2% conveyance after the six months elapsed and Mr. Riebold would say, “Don’t worry, I will take care of it, I will take care of you boys.”

“Tiny” Parker, as well as Respondent, testified that the two per cent conveyance had nothing to do with the granting of the loan.

The deposition of Mr. Riebold was read in evidence and his testimony is contradictory and incredible with reference to whether the promise was made, the nature of the promise and uncertain as to whether or not influence or pressure was exerted upon him to make the assignment of the additional 2% interest to the individual members of the Board in order to obtain the $200,000.00 loan. At one point (T. pp. 608-609), when “Tiny” Parker and Mr. Riebold were negotiating and having an argument about the price of $50,000.00 and “Tiny” Parker was pressing him for additional stock he stated:

“I do not remember just exactly how I did that but I do know I sold them 5% and I do know that they came by another 2%. As to how that happened, I don’t know but my negotiation was completely with “Tiny” Parker ...”

At another point (pp. 613-614), Mr. Riebold testified, referring to his negotiations with “Tiny” Parker, that:

“he (Parker) wanted some more interest in our corporation for the deal that the officers of the company put up. He wanted to fatten his position to where they were [not] injured. Now, I don’t remember just exactly what I said or how I said it or what I did or anything else, but I do know that that is what we agreed on and I do know that Mr. Mueller did not close the deal and I do know that I gave them the 2% under the same circumstances — I do know that.”

At transcript pages 613-614, Mr. Riebold was asked the following question:

“And your promise, as I understand, was that if the Mueller deal did not close in six months, you would give these individuals another 2% so as to more equitably distribute their cost in the investment. Is that correct?

Answer: “We had a general understanding at that time that I would fatten their position if we didn’t do something.”

As to whether the conveyance of a 2% interest was influenced by the fear he would not obtain the loan, Mr. Riebold testified (Abstract p. 6531) as follows:

“because even though he (Parker) didn’t say it, and he may not have meant it, but you have to understand my position and I, in no way, want to cast any reflections against anyone because that is going to get us nowhere. I needed the money, as I told you before. Mr. Parker was a tough negotiator, and I knew that I had to deliver that 2% one way or the other, and I felt that I probably had better deliver it but that was from ‘Tiny’ Parker.”

And as to the question (Abstract p. 654):

“Question: So, you just wanted to be sure that you got the loan and you made the assignment to get it?

Answer: I think that would be an honest statement.”

While there is no direct evidence that anyone said to Mr. Riebold “if you don’t convey to us the 2% you will not get the loan”, it is apparent Mr. Riebold ‘got the message.’

Mr. Ira Liddell Long, who was secretary of the U.S.L.M. and M.C.A., testified by deposition (Tr. 892) that he signed the agreement dated March 6,1968 as secretary of the two corporations. He further testified that he did not assist Mr. Riebold in any respect in negotiating the agreements. He became acquainted with a man named W. E. “Tiny” Parker and Pat Crabtree and Gerald Lowther and Hubert Lay and he heard about the 2% promise. But he heard no statement by Mr. Riebold to any of the members of the Board and his testimony is based solely upon what Mr. Riebold told him and he could not remember when the promise was supposed to have been made. (Tr. p. 918).

Ellis B. Harrington testified that he was a graduate engineer and worked at one time for M.C.A. and U.S.L.M., first as a consultant, then as an engineer and became a corporation officer for a time in 1968. He further testified that he was “not in on any” of the negotiations and he heard no conversation between Parker or Lowther or Riebold.

Hubert E. Lay (Tr. 64), an attorney, was a member of the Board of Directors of FOUNDERS and participated in the purchase of a 5% interest. Therefore, he would be one of the individuals for whom the alleged promise was made and yet he testified that no one ever told him that there was going to be an additional interest conveyed to them by Mr. Riebold. No one discussed it in his presence.

The testimony of Marian Wilson Crabtree (Tr. 299), given before the Advisory Committee of the Missouri Bar, was read in evidence and he stated that he had paid between $35,000.00 and $42,000.00 for an (interest in the mining operation but he received no evidence, nor did he know of, nor did he ever hear discussed, a promise to convey an additional 2% upon any condition.

Taking into consideration all the testimony and the evidence presented, the Special Master finds that no promise was made by Mr. Riebold to “Tiny” Parker and Gerald Lowther to convey an additional 2% to the individual members of the Board and any promise that might have been made, as contended by Respondent, would not be enforceable.

Under Mr. Lowther⅛ own testimony, the promise was not clear and definite. It was contingent upon “the Mueller deal being completed and getting our money back in six months.” Certainly, if such alleged promise was made and was a consideration in the individual Board members’ agreement to purchase a 5% interest, it should have been so stated in such agreement. The fact FOUNDERS got an interest for less than $50,000.00 is no valid reason for the promise not being included in the agreement. The testimony of Respondent himself was to the effect that there were many who knew of it. Mr. Crabtree and Mr. Lay, who participated in the purchase of the 5% interest, testified that they never heard of any such promise to convey an additional 2%. Mr. Carter and Mr. Murrell were not named as grantees in the 2% conveyance although they would have been entitled to be so named with the other grantees in the conveyance.

There is no evidence that Mr. Riebold’s alleged promise to convey 2% to the individual members of the Board was ever mentioned at a stockholders meeting at any time.

Respondent contends that the members of the Board who purchased 5% interest paid $50,000.00 a point whereas FOUNDERS paid about $33,000.00 a point and the alleged promise was made to “equalize” the cost of the Board members with the cost to the FOUNDERS. As the Committee brief points out, FOUNDERS invested $495,-000.00 in the mining interests which “increased the chances for a profit as a result of Mueller’s involvement.”

The assignment of a 2% interest is dated November 27, 1968 — six days before the date of the agreement by FOUNDERS to borrow up to $200,000.00 by signing notes as principal with Riebold, Rincon, U.S.L.M. and M.C.A. The conveyance was also made after the Board of Directors had authorized Mr. Lowther, “Tiny” Parker and Mr. Crab-tree to investigate the mining interests and prospects and, when Mr. Riebold badly needed the money, if any progress at all was to be made.

The agreement of December 4, 1968 wherein FOUNDERS agreed to borrow up to $200,000.00 specifically states that as part of the “consideration for FOUNDERS OF AMERICA [sic] INVESTMENT CORPORATION signing said notes,[”] ... [“]is agreed that Riebold and his companies will convey and assign to the five named members of the Board of Directors the 2% interest.” It is further stated that FOUNDERS “shall be under no obligation to arrange the borrowing[”] ... until the deed, assignment and conveyance is made and delivered. This language is clear, emphatic and unambiguous.

The Respondent’s explanation that “Tiny” Parker wanted it in there “so that somewhere along the line, if we ever have to enforce it (the alleged additional 2% promise), why we’d have some acknowl-edgement from Mr. Riebold that that is his agreement” is not a valid reason for its inclusion. Mr. Lowther was the lawyer, not “Tiny” Parker.

While at the time the oral promise was alleged to have been made Mr. Lowther may not have been negotiating for and in behalf of FOUNDERS, yet he did not lose his role as counsel for FOUNDERS.

It is in evidence that the Board reported to the stockholders their investment in the mines but there is no showing that the stockholders were informed of any agreement that the members would obtain an additional 2%. It is also in evidence that the 2% which was so valued at the time, was conveyed to only five — omitting two persons who should have benefitted.

The Special Master finds that Mr. Riebold did give general assurances of bounteous returns and to relieve any indecision of Mr. Parker and Mr. Lowther, made statements such as “you will all have your money back in six months”, “I will treat you right”, “everything will be fine” but one cannot raise such “sales talk” to definite, dependable, enforceable promises.

Mr. Parker testified they were oversold (Abs. p. 779) and we find that such statements were part of the “selling”. As time went on and expectations of big returns diminished, then faded, the sales talk of Mr. Riebold became promises of definite action.

Gerald Lowther, as a member of the Bar, is held to a higher degree of open and fair dealings in matters in which his client is involved than a layman and Respondent’s emphasis on “Tiny” Parker’s domineering and forceful manner does not excuse Mr. Lowther’s conduct.

When Mr. Lowther purchased an interest in the mines, his acquisition was not necessarily in conflict with FOUNDERS but, at the time Mr. Riebold was persuading FOUNDERS to obtain a loan, “Tiny” Parker and Mr. Lowther were persuading Mr. Riebold for a conveyance of a 2% interest and Respondent placed himself in a conflicting position.

It should also be pointed out that the conveyance of 2% by Mr. Riebold, M.C.A. and U.S.L.M. reduced the assets of Riebold, M.C.A. and U.S.L.M. by such amount and the latter three agreed to hold Mr. Lowther’s client, FOUNDERS, harmless.

Taking into consideration all the evidence in the case, Mr. Lowther’s handling of the legal affairs of FOUNDERS from its inception, his familiarity with all the phases of FOUNDERS involvement in the mining interests with Riebold and others, the desperate urgency of Riebold and his group for additional and substantial financing, the negotiatiations [sic] and provisions in the making of the loan of $200,000.00, the drafting of the loan agreement by Respondent relieving FOUNDERS from any obligation to make the loan unless the 2% interest was conveyed to the individual stockholders, the relationship of the parties, Mr. Lowther’s personal interest and resulting personal benefit, the sequence and timing of events, Respondent’s knowledge of the need of written agreements all lead to but one reasonable conclusion of the issue ... that he did use his position as attorney for and director of FOUNDERS to obtain personal advantage by use of the loan contract entered into by the corporation, thereby obtaining one-fifth of 2% of certain mining interests by making it appear to Riebold that it was a condition precedent to the corporation guaranteeing certain loans for other parties to the contract. It is further found by the Special Master that such conduct is in violation of the ethics of the legal profession.

COUNT II

STATEMENT OF FACTS

In Count II, the charge against Gerald H. Lowther is that, during the time from March 1968 until June 1,1974, he did fail to report and pay to the firm of Miller, Fair-man, Sanford, Carr and Lowther, of which he was a member, certain retainers which he received from FOUNDERS and MODERN AMERICAN and further did take steps to conceal the fact that such retainers were being paid to him by said clients and retained by him, contrary to his obligation to said firm and contrary to a written partnership agreement entered into in January of 1970.

Gerald Lowther, the Respondent herein, began the practice of law in 1951 in Springfield, Missouri with the law firm of Miller and Fairman. In 1954, he became a member of the firm of John Miller, John Fair-man, William Sanford and John Carr.

There was no written partnership agreement until January 29, 1970 on which date a partnership agreement was executed by J. Weston Miller, William P. Sanford, John F. Carr, Gerald H. Lowther, F. William Joyner, Henry Westbrooke, Jr. and Peter C. Charles.

The partnership agreement consisted of over 30 pages and among many other things, required all retainer fees received by individual partners to be deposited in the firm account (Commitee’s [sic] Exhibit 20, Page 23). A management committee with broad powers was set up which consisted of three members of the firm and, among its powers, was to determine drawing accounts, withdrawals and advancements (page 7). It was authorized to determine many questions that would arise in the division of funds among the partners. For example, a “Bonus Fund” was established which was to be divided “between such partners and in such proportions as the Management Committee may determine at the end of each year.” Considerations to be used by the Committee were set out, such as production of business, a partner’s benefit to the firm, and other reasonable “bases to be considered.” Altogether, four funds were set up: a Capital Fund, a Bonus Fund, a Fixed Income Fund and Incentive Fund.

The “collectible billings of each partner” had a large part in determining a partner’s share. There was also provisions for considering special services to the firm, recommendations of the management committee and . any other partner and overall value to the firm. The evidence shows that the Management Committee did not function as one would anticipate from a reading of the contract. It had few, if any, meetings, made no recommendations as a group, did not determine allocations or, as a Committee, review the billings. The evidence shows that all the partners understood, however, that there was an obligation to pay into the firm, all compensations received for legal work. All members of the firm who testified were cognizant that a partnership agreement existed. Indeed, the very nature of a partnership such as existed here required compensation for legal work to be paid into the firm unless there is a definite and specific understanding otherwise.

Mr. John Miller was the head of the law firm when the Respondent began with the firm of Miller and Fairman. He remained so until the firm was dissolved although, beginning in 1971, Mr. Miller suffered setbacks that hindered his full participation in the firm’s activities. It was agreed between counsel representing the Bar Committee and counsel representing the Respondent that Mr. Miller’s health was such as to prevent him testifying at the hearing before the Special Master.

The Respondent, during the years of 1968 and 1971, received a retainer fee of $600.00 per month from FOUNDERS OF AMERICAN INVESTMENT. At a special meeting of the Board of Directors of FOUNDERS held on January 13,1972, that retainer fee was increased by $250.00 per month making a total retainer fee of $850.00 per month (Committee Exhibit 27, Stipulation of Facts, par. 24). On March 2, 1973, FOUNDERS increased Respondent’s retainer fee by $500.00 a month, making the total retainer’s fee $1,350.00 per month. (COM. Exh. 22, Stip. par. 25).

From January 1,1969 MODERN AMERICAN LIFE INSURANCE COMPANY paid Respondent a retainer’s fee of $600.00 per month until January 1972, when it was increased by $200.00 per month for a total retainer’s fee of $1,000.00 per month and, in September of 1974, this retainer fee was increased $500.00 per month (Stip. pars. 27, 28, 29).

The above increases paid by FOUNDERS and MODERN were separately paid to Respondent and were not paid into the law firm of Miller, Fairman, Sanford, Carr and Lowther (Stip. par. 30). Such increases amounted to a total in excess of $23,000.00 and were kept by Mr. Lowther for his own purposes.

Mr. Lowther’s response to the charge of the Advisory Committee is that he “began to feel dissatisfied about the equities of income distribution and the manner in which the expenses were being handled in the firm.” (Tr. 1127, 1131). Respondent claims that he was paying a disproportionate portion of the expenses of the firm. He testified that, in December of 1971 or in January of 1972, he

“got some facts and figures together on how much of the expense I had been paying as compared to the others, the many contributions that I was making and that I was spending on new billable things that benefitted the firm. And I went in and asked him (Mr. Miller) if I could get an increase in my two retainers and use these to offset my expenses.” (Tr. 1131-1141).

According to Mr. Lowther, he told Mr. Miller

“I had added up the billings that various lawyers had had to show him what I was doing. I told him how much of the expense that I was paying in comparison to the other lawyers. I told him how much time I was spending, serving on the Industrial Development Commission and things of this nature that was unbillable, and participation in politics that brought business into the firm that other lawyers handled and got credit for.

Question: Why did they get credit for it and you didn’t?

Answer: Well, it’s on the breakdown book as to who does the work.” (Tr. 1140-1141).

He testified that

“he (Mr. Miller) gave me permission to go ahead and do this.

Question: To do what?

Answer: To seek an increase in my retainer and use them to offset some of the expenses that I had been out, that bene-fitted the firm.

Question: Did you tell him at that time how much you were going to seek?

Answer: Yes. I believe I told him how much I was going to seek. Now, I didn’t know how much I was going to get and, when asked, ‘why didn’t you tell this to the other members of the firm’, Mr. Lowther responded: T guess for the same reason that, if I wanted to go to the International Association of Insurance Council meeting. I didn’t go ask Pete Charles and I didn’t go ask Bill Joyner. I went to Mr. Miller. If I wanted an adjustment in my drawing account, I went to John Miller. John Miller was smarter than all the rest of us put together. And this was his firm, he was the head man. He was 25 years older than me and, to me, he was the boss.” (Tr. 1144).

He also testified (Tr. 1278)

“The reason I didn’t go to the other partners was the other partners were the problem and Mr. Miller was the one to solve the problem. I was paying more of the expenses than the rest of them put together. They were the problem and Mr. Miller was the logical one for me to go to rather than to go to the people that presented the problem. I wouldn’t get anywhere there. And I assumed Mr. Miller would then communicate it to them.”

Respondent contends that the consent of Mr. Miller to Respondent’s retention of the increase in the retainers was corroborated by Jean Ann Blansit (Tr. 520), a legal secretary who worked for the Miller law firm. Respondent’s brief refers to Mrs. Blansit’s testimony as crucial. Mrs. Blansit testified she began working for the firm of Miller, Fairman, Langford, [sic] Carr and Lowther in 1971 as a receptionist but worked for John Miller when his secretary, Mrs. Woods, left on maternity leave (Tr. 523) and was gone for about six months (Tr. 523). When Mrs. Woods returned, she continued on as a receptionist. She testified she was Mr. Miller’s secretary beginning in February 1972. She testified that Mr. Miller kept a list of the bigger accounts and what attorney was working on them and that Mr. Miller would go over these retainer fees with me (Tr. 528).

“He told me that the fees of MODERN AMERICAN and FOUNDERS were adequate, that he was pleased with what we were getting and what was coming into the firm because all of it was not being used in the firm. That it was fine, we were getting enough. (Tr. 530-531)”

This is stated to have happened at a time when Mr. Miller was restricted to shorter hours in his working because of his physical condition. He had suffered a personal tragedy in 1970 when his son was killed in July of 1970 in Vietnam and, following that (in August) he suffered a stroke. The evidence further established “He suffered a heart attack in June of 1971 and did not return to the office until September of 1971.” Mrs. Blansit’s testimony, in the light of all the other evidence, is of little value, if any, in corroborating testimony that he had Mr. Miller’s permission to keep the increase in the retainer fees above mentioned.

Mr. Peter C. Charles, an attorney who was employed by the firm to help Mr. Miller testified (Tr. 334) that, in the late 1971 and early 1972, partnership decisions were handled by other partners.

Mr. William Joyner, an attorney, (Tr. 676) became a partner in the firm in 1970 and testified that the procedure set out in the Partnership Agreement was not followed. He did testify that he knew of no instance where a member of the firm kept a retainer fee without turning it in to the firm. While he heard rumors that retainer fees were retained by a firm member, the first time he knew about it was at the Bar Committee hearing in November of 1977 (Tr. 710). He further testified the money in the firm that was to be divided at the end of the year was distributed after someone (almost any partner) came up with the figures as the contract provided and in a negotiating session, in one way or another, an agreement was reached. (Tr. 709). Many times this was preceded by various members of the firm checking with one another and after full disclosure (Tr. 706-707). He further testified that Mr. Lowther participated in these discussions and did not reveal that he had withheld part of the retainers he obtained in the increases from FOUNDERS and MODERN AMERICA [sic],

Mr. Peter C. Charles, an attorney (Tr. 334) who was brought into the firm by Mr. Miller, testified that at the end of the year for 1970, the members of the firm had each attorneys’ billings and that a formula for allocation of fees between the partners set out in the contract was generally followed (Tr. 341). He further testified that a final decision as to the allocation was arrived at by all the partners (Tr. 343). He further testified (Tr. 343) that “by 1971 John Miller had had some health problems and had some further ones — and, from that time on, it was pretty much of a negotiating session each year. Mr. Charles further testified that he examined the books of the partnership and found no record of an increase in the retainers given to Mr. Lowther by FOUNDERS and MODERN AMERICAN and that he did not know of such increase until the hearing of the Advisory Committee of the Missouri Bar held on November 30, 1977. (Tr. 345-347).

Mr. William P. Sanford, an attorney (Tr. 1309), who became associated with the Miller firm in 1947 and became a member in 1960, testified “that there were always differences of opinion as to how [distribution of the net profits for the past year should be divided.] [”] He testified that the “firm partnership agreement [...] set forth a basis for this.” (Tr. 1316). From Mr. Sanford’s testimony, the Management Committee did not assume the responsibility of recommending a division but someone

“started out with the firm income and expenses and what the net was going to be and what the billings of each person might be and then drew up a draft as to what their idea may have been as to what the distribution should be.” (Tr. 1317)

He testified (Tr. 1317)

“we usually had at least three different and maybe four different possible distributions. Without fixing definitely who might propound these, but Mr. Lowther, for instance, and Mr. Charles and Mr. Carr usually had three proposals. And sometimes Mr. Westbrook [sic] would have one. These would be discussed.”

He further testified that

“In 1971, my recollection is we discussed them on several occasions and there didn’t seem to be any agreement and then, as I did then and subsequently, I negotiated the final distribution by going first to one partner and then another and talking to them personally and coming up with a distribution which nobody felt acceptable but everybody felt it was the best that we were going to do.” (Tr. 1317)

He corrected this testimony by stating that he meant the meeting of 1972, which would have to do with the 1971 business year.

He further testified that, in 1973, the meetings which concerned the 1972 distribution presented more difficulties. He stated that Mr. Lowther had his idea and the others had theirs — and it appeared at that time that the firm was about to break up. He spent, he testified, about ten days negotiating between the groups in order to hold the firm together and he came up with a decision; and he further stated that in 1974, in discussing the 1973 distribution, it was “again a repeat.” As he recalled in the 1972 and 1973 meetings, Mr. Miller had very little to say and he did not attend all of the meetings. (Tr. 1318, 1319).

It is true that the written agreement was not followed in many respects. This does not mean, however, that the partners were not obligated to pay into the firm the fees that were earned nor does such failure to follow all or even most of the procedures contained in the agreement destroy the partnership itself or release any and all from other obligations imposed by the contract and that naturally arise from the partnership, as conducted.

The evidence proves that the negotiations over a division of the profits, held soon after each calendar year, were conducted on the premise that each had a statement of income and from what source the income was received as well as a statement of expense. It is also established by the evidence that Mr. Lowther participated in these negotiations. There is no evidence that the fact Mr. Lowther retained for his own personal use a part of the retainer fees was revealed.

Mr. Lowther builds a strong case that, in view of the large per cent of his billings, there was a disproportionate amount of expenses of the firm charged against his billings. His participation in activities that brought business into the firm and that other lawyers in the firm handled and got credit for all, indicated he was bearing a disproportionate share of the expense of the firm. Yet, other considerations may have been advanced by other members of the firm to disprove this claim. The fair method, however, of resolving his difficulty was to bring the matter to the attention of all the partners affected and involved.

His testimony that he obtained Mr. Miller’s consent to personally retain the increases in the retainer fees obtained from FOUNDERS and MODERN AMERICAN is hardly credible for several reasons; Mr. Miller’s reputation for open and fair-dealing; his reputation as a man of-very high principles; as being meticulous makes it highly unlikely that he would consent to such an arrangement. Mr. Miller’s participation in the meeting of the partners of the firm for the purpose of allocating the profits without revealing the retention of fees by Mr. Lowther is contrary to his fine character, to which all of the persons testified. It is unfortunate that he was unable to testify.

In addition, at the time of the alleged consent, Mr. Miller would not know to what he was consenting because, whether or not FOUNDERS and MODERN AMERICAN would consent to a raise in the retainer and, if so, to what amount was unknown either to him or Mr. Lowther. Mr. Miller, though the “head man in the firm” would not have had the authority to so agree in view of the mutual obligations which existed between all the members of the partnership, including Mr. Miller.

The Respondent had a moral and legal obligation to the other members of the firm to report the increase. He did not relieve himself of this obligation by assuming Mr. Miller would do so. Mr. Lowther participated in the negotiations with his partners on several occasions on division of profits, knowing that a basis for the decision was false; to wit, his retention of part of the retainer fees.

The argument advanced that Mr. Miller, on several occasions, consented to a loan or increase in a partner’s drawing account is not a precedent for Mr. Miller’s alleged consent and cannot be accepted as such for loans or increases were placed upon the books and open to all and could be easily adjusted at the annual distribution.

It is the finding of the Special Commissioner that Gerald H. Lowther did, without the authority, knowledge or consent of his partners personally and improperly deposit FOUNDERS and MODERN AMERICAN retainer fees in his own personal account and such fees rightfully belonged to the partnership.

[Conclusions of Law Omitted]

RECOMMENDATION

There has been an enormous amount of work put into this case by the Advisory Committee of the Bar and its attorneys, and by the attorneys for the Respondent. The hearing consumed six full days of testimony and the transcript contains over 1300 pages. There are over 150 exhibits. The case was thoroughly prepared and exceptionally well presented and briefed by attorneys on both sides. It is an example of the concern the members of the legal profession have for maintaining high professional ethics and, at the same time, the great value they place upon the privilege to practice law and the necessity for protecting that privilege.

To use the words contained in the case of In Re Houtchens [Mo.] 555 S.W.2d 24, l.c. 26, speaking of a proper order:

“Resolution of the problem must start from the oft-quoted statement of this court found in In Re Randolph, 347 S.W.2d 91 (Mo.banc) l.c. 109 that: ‘The main purpose of a proceeding of this nature is to make an inquiry into the fitness of an attorney to continue in the practice of law. Its main objective is not to punish the attorney but the protection of the public and the maintenance of the integrity of the profession and of the courts.’ “Whether or not the ‘main objective,’ just noted, can be accomplished in this case short of disbarment has been and is a question of grave concern to us. The practice of law, generally, involves situations wherein ‘stress’ is present and it is imperative that a lawyer have the capacity to deal with the same.”

The Respondent bore an excellent reputation in the community and with the members of both bench and bar. He was active in political, civic and charitable organizations. His former partners who testified apparently bore him no ill will and yet, all of this is no defense to the charges proven in this case. Respondent’s acts of misconduct must be judged in the light of all the facts and circumstances surrounding his violation.

There is no suggestion that Respondent did not work diligently on behalf of FOUNDERS. There is abundant evidence that the members of the law firm of which Respondent was a member experienced great difficulties in division of profits ... all these are mitigating circumstances that should be taken into consideration [People v. Pittam, 194 Colo. 104, 572 P.2d 135 (banc 1977).]

As has so frequently been pointed out, the purpose is not to punish the attorney but to protect the public. We believe the Respondent would be a useful practitioner in the future if given an opportunity. We do not believe that the protection of the public would be served by disbarment in this case. We believe suspension accomplishes the purpose of this disciplinary proceeding.

Accordingly, it is recommended that Respondent’s license to practice law be suspended for a period of one year from the date of the final judgment in this case. We further recommend that the costs be taxed against Respondent.

Respectfully submitted,

S/ David A. McMullan

David A. McMullan

Special Master

I concur.

1 . 8. In consideration of the payment of Ten Dollars ($10.00) and other valuable considerations, the receipt and sufficiency whereof is hereby acknowledged, and as consideration for Founders of American Investment Corporation signing said notes not to exceed an aggregate sum of Two Hundred Thousand Dollars ($200,-000.00), it is agreed that E. M. Riebold and United States Lime and Mining Corporation and Metals Corporation of America will convey and assign to W. E. Parker, Lloyd R. Parker, M. W. Crabtree, Hubert Lay and Gerald H. Lowther, a two per cent (2%) interest in and to all properties now owned or hereafter acquired and in any properties or assets in which an interest is secured or maintained, legal or equitable, by E. M. Riebold, United States Lime and Mining Corporation or Metals Corporation of America. It is understood and agreed that the two per cent (2%) interest carries with it additional interest in the Morenci deal and the Klondyke deal referred to in the original contract with Founders and United States Lime and Mining Corporation and Metals Corporation of America and where they bought a fifteen per cent (15%) interest and received four per cent (4%) of the Klondyke deal and three per cent (3%) of the Morenci deal, that their interest in Morenci and Klondyke are increased proportionately. E. M. Riebold, United States Lime and Mining Corporation and Metals Corporation of America shall immediately execute the necessary documents to convey the above mentioned two per cent (2%) interest and Founders of American Investment Corporation shall be under no obligation to arrange for the borrowing of the $200,000.00 mentioned herein, or any part thereof, until these deeds, assignments and conveyances are made and delivered.