State Bar Grievance Administrator v. McWhorter
This text of 284 N.W.2d 472 (State Bar Grievance Administrator v. McWhorter) is published on Counsel Stack Legal Research, covering Michigan Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.
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On November 4, 1977, the State Bar Grievance Board affirmed and adopted the findings, conclusions, and order of Ingham County Hearing Panel No. 2 filed August 5, 1977. The hearing panel had found the respondent Robert A. McWhorter guilty of misconduct in his dealings with funds belonging to a client and her minor children. The order suspended respondent from practice for a period of 121 days.
The respondent has appealed, contending that the record does not justify his suspension.
I
The respondent represented Bonnie Beach and her minor children in connection with an automobile accident. A settlement was reached with the adverse party as a result of which $9,350, less the respondent’s fee, was awarded to the children. The judgment provided that Ms. Beach would hold the money as next friend for the children until ap[565]*565pointment of a general guardian. Ms. Beach entered into an oral agreement with Mr. McWhorter under which he was to retain the funds for the purposes of investment to assure that when the children reached age 18 they would receive a good return on the money.
Ms. Beach became dissatisfied with the respondent’s ability to document the existence and whereabouts of the money. She filed a request for investigation with the State Bar Grievance Board on August 18, 1975. After receiving notice of the board’s investigation, the respondent returned an amount of money to Ms. Beach in October of 1975 that was approximately 50% greater than the amount he originally agreed to invest. It appears that the respondent replaced this money with his own funds.
On December 21, 1975, Ms. Beach signed an affidavit requesting that the board not proceed further with its investigation. She persisted in that request in her testimony before the hearing panel on June 13, 1977.
The hearing panel’s findings with regard to the charged misconduct were as follows:
"3. That the said hearing panel * * * finds that the respondent did not handle the trust funds with honesty, fidelity and good faith and that as an attorney he should have known that the funds referred to in said paragraph should have been placed either with a guardian or other fiduciary appointed by a proper court and thereafter handled fully in accord with statutes pertaining to the investment of minors’ funds.
"4. The panel further finds that proper books of account and records concerning the administration of the trust funds were not kept by the respondent.
"5. That the respondent failed to disclose or to account to Bonnie Beach any information concerning the investments, the location, or the administration thereof, [566]*566and that he failed to preserve the identity of the separate trust funds for the children of Mrs. Beach.
"6. That the respondent breached the duties which he had as a trustee of the Beach funds in that he failed to preserve the identity of the separate trust funds under his control, and further failed to maintain complete records of trust funds in his possession for the benefit of Bonnie Beach and for the benefit of the minor children. Further, that he failed to render accountings concerning the trust funds although requested by the said Bonnie Beach.”
The panel concluded that these actions constituted violations of Code of Professional Responsibility, DR 1-102(A)(6)1 and DR 9-102(B), subds (2), (3), and (4).2
II
The respondent contends that DR 9-102(B)(2) is inapplicable because there was no specific property which he should have stored in a place of safekeeping. He argues that DR 9-102(B)(4) was not. violated because his client never asked him to pay over the funds. The respondent maintains that the agreement that he had with Ms. Beach did not require him to keep records or give accountings of the funds involved. Thus, he believes that DR 9-[567]*567102(B)(3) is not applicable. Finally, he argues that the record does not reveal conduct on his part adversely reflecting on his fitness to practice law because his conduct was appropriate given the agreement with his client and the relationship between them. He points to his payment of an appropriate amount to his client and her apparent satisfaction, as evidenced by her request that the grievance proceeding be discontinued and his continued representation of her in other legal matters.
Ill
We do not reach the question of whether the evidence supports the findings of misconduct by the respondent. We regard the request by the aggrieved client for discontinuance of the proceedings as dispositive. There are situations in which the withdrawal of a request for investigation need not be honored by the board. Cf. State Bar Grievance Administrator v Jackson, 390 Mich 147, 152; 211 NW2d 38 (1973). In the circumstances of this case, however, we believe that the withdrawal request should have been honored. The withdrawal came early in the investigation. The respondent’s conduct was not of the egregious kind that requires continued proceedings for the protection of the public even in the absence of a continued interest by the aggrieved party. Finally, the client’s withdrawal of the request for investigation several months after the return of the money, her persistence in her desire to stop the proceedings 18 months later at the hearing, and her continued attorney-client relationship with respondent lead us to conclude that the board should have discontinued its investigation.
Accordingly, we reverse the order of the State [568]*568Bar Grievance Board and dismiss the complaint against the respondent.
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284 N.W.2d 472, 405 Mich. 563, 1979 Mich. LEXIS 341, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-bar-grievance-administrator-v-mcwhorter-mich-1979.