In re Heald

IN_RE_HEALD.95-134; 163 Vt 640; 664 A.2d 248

[Filed 25-May-1995]


                               ENTRY ORDER

                      SUPREME COURT DOCKET NO. 95-134

                              MAY TERM, 1995



In re Arthur A. Heald, Esq.            }          Original Jurisdiction
                                       }
                                       }          FROM
                                       }          Professional Conduct Board
                                       }
                                       }          DOCKET NO. 94.59


                     In the above entitled cause the Clerk will enter:

     Pursuant to the recommendation of the Professional Conduct Board
filed March 10, 1995, and approval thereof, it is hereby ordered that
Arthur A. Heald, Esq., be publicly reprimanded and ordered to complete
six hours of training in time management as part of his annual mandatory
continuing legal education for the reasons set forth in the Board's final 
report attached hereto for publication as part of the order of this
Court.  A.O. 9, Rule 8E.





                                   BY THE COURT:

                                   ________________________________________
                                   Frederic W. Allen, Chief Justice

                                   ________________________________________
                                   Ernest W. Gibson III, Associate Justice

                                   ________________________________________
                                   John A. Dooley, Associate Justice

                                   ________________________________________
                                   James L. Morse, Associate Justice

                                   ________________________________________
                                   Denise R. Johnson, Associate Justice
[ ] Publish

[ ] Do Not Publish


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                                    STATE OF VERMONT

                               PROFESSIONAL CONDUCT BOARD


            In re:  PCB File No. 94.59
                   Arthur A. Heald, Esq.--Respondent

                           FINAL REPORT TO THE SUPREME COURT

                                 Decision Number   85

                 This case involves a pattern of neglect by Respondent, of an
estate which he was obligated to administer.  It came  before  us by way of a
stipulation entered into by Bar Counsel and Respondent.  In addition, we
heard oral argument from both parties on February 3, 1995. 

                 We adopt the stipulated facts by reference and  incorporate
them as our own.  Below is a brief summary of those facts as well as our own
conclusions of law. 

                             FACTS 

                 Respondent has been a member of the Vermont Bar for over 40
years.  He is a solo practitioner in St. Albans. 

                 Respondent represented Mrs. Mable Barr who passed away on
November 14, 1992.  In her will she named Mr. Heald  as  executor of her
estate.  She left a small estate, consisting primarily of a small house of
limited value.  She left liquid assets valued at under $1,500. 

                 The liquid assets were insufficient to maintain the  house.
The house needed to be sold quickly to prevent deterioration, risk and
devaluation of it.  There was also a joint savings 

  

account which Mrs. Barr had held with her brother and  which  might have been
used to maintain the house.  However,  upon  Mrs.  Barr's death, her brother
withdrew the entire balance and divided it among the heirs. 

                Immediately upon Mrs. Barr's death, Respondent promptly
accomplished a number of required tasks.  He  obtained  the  consent of the
available interested parties to open a  testate  estate.  He promptly
prepared a Petition to Open and a Motion to Appoint a Special Administrator. 
He arranged to have the property appraised.  He obtained the last known
address of  a  missing  heir. 

                However, for reasons which are not clear to the Board,
Respondent was dilatory in pursuing his obligations in Probate Court.  He did
not file the petition until six weeks  after  it  was executed and did not
file the motion until nearly four months after it was prepared.  He delayed
nearly eight months in notifying the missing heir through publication.  When
he was finally appointed as Special Administrator, he filed  an  inventory
one year after it was due.  After Respondent was appointed executor on
November 3, 1993, he failed to respond -to two  orders from the Probate Court
requesting the accounting and eventually filed it three months after it was
due. 

                 Respondent was also negligent in connection with the sale
and maintenance of the real estate.  Respondent was appointed Special
Administrator on March 10, 1993.  Approximately  one  week later, the home
insurance on the property was canceled for lack of premium payment. 
Respondent received a copy of  the  notice  of 

  

cancellation but did not perform a reasonable inquiry or investigation on the
status of the home insurance.  The  property remained uninsured through
October 20, 1993.(FN3) 

                 In November of 1993, immediately after he had been appointed
as executor, Respondent signed a contract to sell the house  for $55,000. 
The house had been appraised the previous  January  at $41,000.  Closing was
scheduled for January 31, 1994. 

                 The buyers were to apply for a loan through the Farmers'
Home Administration.  FMHA, by statute, must decide on a loan within 30 days
of the date of application.  Respondent  failed  to check on the status of
the loan application until a month and  a half after the scheduled closing
date.  He then learned  that  the buyers had never submitted a loan
application. 

                 Respondent immediately contacted the buyers, who  informed
him that they were no longer interested.  The buyers were essentially
judgment-proof, so that a breach of contract  action was not feasible. 

                 The next month, Respondent listed the property with a  local
realtor.  In the summer of 1994, a potential  purchaser  offered $52,000 for
the property, with the closing costs to be paid  by the estate.  Respondent
did not inform the heirs of  this  offer. He counter-offered with a proposal
of the full asking price, $55,000, and $1,000 toward the closing costs.  No 
agreement  was 

  

reached. 

                 In July 1994, a third potential purchaser offered $50,000
for the property and a purchase and sales agreement was executed. However,
when she was unable to obtain financing, the contract dissolved. 

                 Finally, in late October of 1994, at the request of the
heirs, Respondent contracted to sell the house for a total purchase price of
$41,000, the originally appraised value. 

                             CONCLUSIONS 

                 Respondent neglected his responsibilities to the Mable Barr
estate and to the Probate Court in not, in a  diligent  manner, petitioning
to open the estate; attempting to notify a missing interested party; filing
necessary pleadings,  inventories  and accountings; maintaining the real
property in good repair; maintaining the insurance; and marketing and selling
 the  real property.  This conduct constitutes a violation of DR
6-101(A)(3).(FN2) 

                 Further, a small estate such as this one should not   have
remained in probate for over two years.  The only asset that required
liquidation was a small house.  Respondent's    extreme lack of attention to
the Probate Court's requirements and to the marketing and sale of a small,
isolated asset constitutes conduct prejudicial to the administration of
justice, in violation of DR 

  

1-102(A)(5).(FN3) 

                  As a direct result of Respondent's neglect, the probate
process has been unnecessarily prolonged and the heirs have been denied the
inheritance due to them.  Although there  appears  to have been only limited
financial injury to the heirs there  was the potential for injury to the
estate.  The house remained unsold and uninsured for a very long period, with
the potential for catastrophic injury.  Had Respondent been diligent in his
responsibilities to usher the estate through the probate process and to
market and sell the real property, the potential for injury would have been
substantially reduced. 

                          RECOMMENDED SANCTION 

                  We recommend that the Vermont Supreme Court publicly
reprimand Mr. Heald for his professional misconduct in  this  case. In making
this recommendation, we rely upon Section 4.43 of the ABA Standards for
Imposing Lawyer Sanctions.(FN4) 

                  We find that Respondent acted negligently,, not willfully
or knowingly, in disregarding the duty of diligence which he  owed the estate
and the court.  There are no mitigating  factors  and several aggravating
factors: 

                  1.  Respondent has a prior disciplinary history.  He       
                      was recently admonished by this Board for misconduct 
                      very similar to the instant case.  See In re PCB File 

  

                 No. 93.14, II PCB Reporter 65 (April 1, 1994). 

                 2.  There is a pattern of misconduct; 

                 3.  Respondent has substantial experience in the            
                     practice of law. 


                 Had any real injury resulted from Respondent's misconduct,
we would not hesitate to recommend suspension from the practice of law. 
Given the lack of real injury, we believe that a public reprimand is
appropriate.  However, because Respondent has demonstrated a substantial
failure to comply with court deadlines, we recommend that Respondent be
required to complete 6 hours of training in time management as part of his
annual mandatory Continuing Legal Education. 

                 Dated at Montpelier, Vermont this  3    day of March  1995.

                 PROFESSIONAL CONDUCT BOARD


                 Deborah S. Banse, Chair

                 George Crosby                  Donald Marsh

                 Joseph F. Cahill, Esq.         Karen Miller, Esq.

                 Nancy Corsones, Esq.           J. Garvan Murtha, Esq.


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                              Footnotes

FN1.        The house remained empty through the winter of 1993-94.
            Although the pipes in the house froze because of the lack of
            heating fuel, there was no apparent damage to the property.


FN2.        DR 6-101(A)(3) provides that "[a] lawyer shall not neglect
            a legal matter entrusted to him."


FN3.        DR 1-102(A)(5) provides that "[a] lawyer shall  not  engage
            in conduct that is prejudicial to the administration  of  justice."

FN4.        Section 4.43 provides, in pertinent  part,  "Reprimand  is
            generally appropriate when a lawyer is negligent and does  not  act
            with reasonable diligence in  representing  a  client,  and  causes
            injury or potential injury to a client.