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OFFICE DISCIPLINARY COUNSEL v. BOYD H. WALKER (07/06/76)

decided: July 6, 1976.

OFFICE OF DISCIPLINARY COUNSEL
v.
BOYD H. WALKER, RESPONDENT



COUNSEL

Blank, Rome, Klaus & Comisky, Edwin P. Rome, Norman Perlberger, Philadelphia, for petitioner.

Charles F. Lieberman, Asst. Discp. Counsel, A. B. Zerfoss, Chief Discp. Counsel, Harrisburg, for Board.

Jones, C. J., and Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ.

Author: Roberts

[ 469 Pa. Page 434]

OPINION OF THE COURT

This is a direct review*fn1 of a recommendation of the Disciplinary Board of the Supreme Court of Pennsylvania that respondent Boyd H. Walker be publicly censured by this Court for professional misconduct occurring during the administration of the estate of Rosa H. Henninger.

The essential facts of this case are undisputed. Rosa H. Henninger (Henninger), an 85 year old woman, executed a will and a revocable inter vivos trust in June of 1966. The will, executed on June 1, 1966, named Henninger's three nephews and a niece as residuary legatees and nominated the First National Bank of Allentown as executor and trustee under the will. The revocable trust, executed on June 16, 1966, placed all of Henninger's assets in the care of First National, the trustee. Henninger

[ 469 Pa. Page 435]

    contacted respondent on July 7, 1966. Respondent reviewed the trust agreement and advised Henninger to revoke it. At her direction, he prepared a letter revoking the trust, hand delivering it to First National. First National, over objection, insisted on filing an accounting with the orphans' court before releasing the assets of the trust. An accounting was filed and the assets were released on February 6, 1967. In the adjudication approving First National's accounting, the orphans' court stated:

"[W]e are of the opinion that in light of all of the surrounding circumstances the trustee was eminently correct in insisting upon filing an account and making distribution pursuant to an order of this court. . . . In fact, we may state that in all good conscience the trustee should not even have been importuned in the first instance to do other than it has done.

". . . Moreover, it is strongly recommended that serious consideration be given to this discussion [of counsel's obligations to the court when he finds himself representing a client who has become incompetent] by counsel who may in the future represent this settlor. While, on the basis of the court's preliminary inquiry, it has been concluded that the settlor presently still possesses sufficient capacity to manage her own affairs, the record contains a number of indications which suggest that such may not be the case for much longer. It, therefore, behooves counsel to act responsibly and conscientiously in fulfilling his obligation of loyalty to the court and to the client toward the end that the best interests of the latter, and her interests alone, will be served promptly and faithfully. This very certainly includes taking steps to procure the appointment of a guardian for her estate at the very first showing that she is no longer capable of handling her own affairs or is likely to dissipate her assets or become the victim of designing persons."

[ 469 Pa. Page 436]

Respondent also drafted another will for Henninger. This will, executed on July 15, 1966, named two of Henninger's nephews and the niece as residuary legatees and named respondent and his father as co-executors. The third nephew, Walter Hunsicker, was given a specific bequest of $10,000 under this will. A codicil to the second will, executed January 25, 1967, revoked the $10,000 bequest to Walter. Finally, a third will, prepared by respondent and executed by Henninger on August 13, 1968, when she was 88 years old, designated ...


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