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In re Metheany

Supreme Court of Arizona

June 19, 1956

In re John A. METHEANY, a Member of the State Bar of Arizona.

Harold L. Jerman, Phoenix, for the State Bar of Arizona.

Scoville & Linton, Phoenix, for respondent.

UDALL, Justice.

Formal charges were filed against respondent, John A. Metheany, a member of the State Bar of Arizona, to the effect that he had advised a client, one Arthur Neckameyer-who was then in serious financial difficulties and contemplating bankruptcy-to leave town and turn certain personal property over to him for the purpose of defeating, delaying and hindering creditors; and that later when other counsel was procured and the idea of bankruptcy abandoned respondent refused to return possession of said property to the complaining witness Neckameyer.

After a full hearing the local administrative committee found respondent had violated the following Canons of Professional Ethics entitled: No. 11, 'Dealing With Trust Property'; No. 29, 'Upholding [80 Ariz. 391] the Honor of the Profession', and No. 32, 'The Lawyer's Duty in Its Last Analysis', and it recommended respondent 'be suspended from the practice of law for a period of six months'. The complete record was then certified to the Board of Governors, before whom respondent and his counsel were given another opportunity to be heard. At the conclusion of this hearing the Board approved the findings of the local administrative committee but disagreed with their recommendation as to a fitting penalty to be meted out by this court. Its recommendation was that 'respondent be reprimanded'. Briefs were filed in this court, and the matter was orally argued and submitted for decision.

All of the matters complained of occurred within a short period of two weeks (July 16 to July 30, 1953). It seems that

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Neckameyer, a stranger, came into respondent's office primarily to have a homestead declaration prepared, as he was then in financial difficulties with his TV and electrical appliance business operations both at Avondale (which was a partnership) and at his separate place of business in Phoenix. Furthermore, he was worried over checks he had issued for which there were insufficient funds on deposit in the bank. There is a sharp disagreement between the parties as to just what was said and done and the reasons for it. However it does appear respondent advised the complaining witness that bankruptcy was the best way out of his difficulties and a schedule in bankruptcy was later prepared by respondent and signed by both Mr. and Mrs. Neckameyer, though ultimately it was not filed with the clerk of the U. S. District Court. It is admitted that Neckameyer delivered to respondent's law office an Olympic television set and a small radio, taken from the Avondale store, of the approximate value of $225; and later respondent took from the Neckameyer home a Norge Home Freezer of the value of $300, in addition to which respondent was paid the sum of $103.50 in cash-the proceeds of an old Dodge truck Neckameyer had sold at respondent's suggestion. When other counsel took over, respondent submitted an itemized statement claiming there was due him the sum of $620 for attorney's fees computed upon the basis of 27 hours of work at the rate of $20 per hour plus $80 for preparation of bankruptcy schedule. Credit was given thereon for the electrical appliances listed above, which he claimed had been given to him as payment on such fees. Neckameyer emphatically denied he had turned such appliances over to respondent to apply on attorney's fee. Furthermore there is testimony that he considered the total charge outrageous, computed upon an erroneous basis, and far in excess of the sums agreed upon between the parties for the handling of specific matters. An effort to settle their difficulties as to the amount of the charge-not the ethics involved-having failed, Neckameyer made a formal written complaint to the State Bar of Arizona, and the proceedings indicated above followed in due course. Incidentally the TV set and home freezer were returned[80 Ariz. 392] to Neckameyer by respondent just prior to the hearing before the Board of Governors.

In view of the disposition we feel constrained to make of this matter, no good purpose would be served in reciting in detail the conflicting versions of the whole affair which were given by the respective parties. Suffice it to say there was a sharp conflict in the evidence, hence as we recently stated in the case of In re Stone, 80 Ariz. 216, 295 P.2d 839, the findings of the local administrative committee, under such circumstances, should be sustained if they are inherently reasonable. This we find them to be by clear and convincing evidence.

Accepting the findings of the Committee as approved by the Board, certainly respondent's conduct in this affair is subject to censure and contrary to the ethical standards of the profession. However, from the record it appears that respondent had not been long in the practice and had opened an office of his own only a short time before this incident. We have decided to follow the recommendation of the Board of Governors rather than that of the Local Administrative Committee, with a warning to respondent that any repetition of conduct unbecoming a member of his profession will result in the imposition of a more severe penalty.

It is our opinion that justice requires that respondent, John A. Metheany, be reprimanded for his unethical conduct, and it is so ordered.

LA PRADE, C. J., and UDALL, PHELPS and WINDES, JJ., concur.

STRUCKMEYER, Justice (dissenting).

I regret that I am unable to concur with the other members of the court in a matter of this kind, but I do not think the evidence is sufficient to sustain the charges. The Local Administrative Committee of District No. 4 preferred two charges against the respondent, John A. Metheany: The first, with the violation of Canon No. 11 of the Canons of Professional Ethics in that respondent:

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'who was then and there representing one Mr. Arthur Neckameyer, as attorney, advised and requested that the said Neckameyer turn over and place in trust with John A. Metheany certain personal property consisting of one Olympic 20 Leatherette TV set, one Admiral Table Model radio, and a Norge 15 1/2 cu. ft. freezer for the express purpose of preventing these articles from falling into the hands of Mr. Neckameyer's creditors.

'That, thereafter, when Mr. Neckameyer requested the return of these articles, the said John A. Metheany refused to return the same * * *';

and, the second, with the violation of Canons 29 and 32:

'In that John A. Metheany advised his client, Mr. Neckameyer, to leave town and turn over certain personal property described in paragraph 1 with the intent [80 Ariz. 393] to, and for the purpose of defeating, delaying and hindering creditors of Mr. Neckameyer,'.

These two charges basically present one question, namely, whether respondent advised and accepted the property described in the first charge in trust with the intention of or for the purpose of defeating, delaying and hindering creditors. The Local Administrative Committee made the following nonspecific finding of fact:

'It is the unanimous concensus of opinion of the Committee that the charges were proved by a preponderance of the evidence at the hearing held on May 8, 1954.'

Presumably, the Committee found that respondent took the property in trust for the purpose of defeating, delaying and ...

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