The following is a formal complaint filed against Connersville, Indiana attorney Gary E Smith with the Indiana State Supreme Court Disciplinary Committee in July 2013
COMPLAINT AGAINST GARY E SMITH
RE: Cause # 24CO1-0806-EU-039 Circuit Court of Franklin County
In this document I, Albert Barger wish to detail professional complaints against the attorney responsible for settling my father Howard Barger’s estate, including multiple acts of flatly knowingly saying false things against me in court and various other acts of bad faith that cost me a lot of grief and tens of thousands of dollars. These are things that I think that the Indiana Supreme Court, the bar association and the lawyer hiring public should know about Gary E Smith of Connersville, Indiana.
1) Gary E Smith of Connersville, Indiana in Fayette County will willingly lie under oath in a court of law against paying clients. In July of 2009 I was in court where Gary Smith had come to ask the court to make me turn over my Malibu car with my name on the title. The other two brothers had agreed not to claim the Malibu (which had not been claimed in the original estate inventory. They had bigger fish to fry.) They had Gary Smith put it in writing that the estate had “no further interest” in the car and was working to release the bank lien from the title. Gary Smith signed a letter to this effect on behalf of the estate and sent this letter to me. Unfortunately, I showed up in court that day without this document in hand. Gary E Smith perfectly well knew that he had personally written and signed the “no further interest” letter just a couple of months previous, but he simply denied writing any such letter. I of course reminded him of this before this court date, giving him plenty of time to check his records if he had somehow honestly forgotten this letter. Thus, Gary Smith – in my employ as an heir – directly and knowingly lied to the judge against me. Some of these charges may be reduced to his word against someone else’s. This one however, you can get the July 2009 court transcript against which I can produce the letter with his signature.
July 9, 2009 from Franklin County court recording:
AL: You told me that the estate has, quote, “no further interest” in that car.
GARY SMITH: I didn’t say that at all. Let’s get that straight.
January 28, 2009 letter to Al from Smith Law Office
Enclosed are the duly endorsed certificates of title for two vehicles that are in your name…You should contact the license bureau promptly in order to be timely in the obtaining of the license needed to operate the vehicles and, further, you need to insure both vehicles since they are now titled to you and the estate has no further interest.
(signed) Gary E Smith
Just from listening to this July 2009 hearing again, I noticed at least two other direct lies from Gary Smith in court, notably this utter fabrication regarding the Schwab stock account:
GARY E SMITH: Until today, he wouldn’t even turn it over to us…The petition I was going to file was prepared by my staff. Counsel’s staff has made several attempts to obtain Albert Barger’s signature on the authorization from him transferring the Schwab account. He won’t return our phone calls. That’s the way that works. I’m saying that as an officer of the court.
In fact, I had repeatedly requested that they get me paperwork to sign over the scraps of stock, but Smith only just presented it to me a few minutes before this July hearing. I signed what he offered me originally months earlier in March, but that was only for permission to look at the account. Why didn’t he just let me sign over the account then?
2) Gary E Smith, as the estate attorney supposedly representing the interests of the heirs, did nonetheless with malice aforethought poison the well with Judge Cox against me. According to what he apparently quite proudly explained to Steven Barger (brother and co-heir) at the time, he was in chambers privately working on Judge Cox before our first court date, telling him that I was mentally disturbed, kind of off my beam. This was before he’d even actually met me.
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3) According to Steven Barger’s written and sworn public testimony, Gary Smith insisted to Steven that they couldn’t accept an offer to buy the Malibu from the estate in-kind against his eventual settlement to settle this issue because the estate was in a “financial crisis” and needed the cash to pay the bank. But the bank was only owed $2000, and a few minutes later Mr. Smith was explaining in court that we had sold land pending approval of the court and that he right now had a $20,000 down payment, check in hand. Right there, Gary E Smith of Connersville, Indiana bald face lied to a client in order to sabotage his and my interests.
4) In February 2009, Gary E Smith in supposed support of Steven and Albert Barger’s interest as heirs did instead purposely undermine and sabotage the written agreement by all three heirs in writing it up for us as a court motion. This was absolutely purposefully deceitful treachery. After basically establishing in court that I was pretty well beaten, Mr. Smith arranged a recess for a couple of days to give the heirs a chance to make an agreement amongst ourselves. So then, after court in February 2009, per Steven’s design, the three brothers went directly to The Gold Finch restaurant for a meal and negotiations. Steven took conscientious written notes as I agreed to hand over the stock account, and take a hit for all cash I took out of the account after Howard passed, among other things. Immediately, Steven came home with me and literally stood over my shoulder as I wrote up our carefully detailed agreement as a letter to our estate attorney, Gary Smith. Here’s what we all agreed to. Please write this up as a motion for the court. Michael couldn’t specifically sign in agreement as he had already agreed to sell my home to a buyer, and thus it had to be presented as a “motion in opposition” by the other brothers – written by the estate attorney and thus with the implicit approval of the estate. That was the point of the carefully engineered recess – to give us a minute to make this deal. Turns out that Gary Smith carefully weasel worded what we had agreed to very clearly in writing in order to give him wiggle room to make up whatever him and Michael wanted to later. The main point of this cleverness was carefully leaving out the repeatedly used word “cash” from the phrase “cash withdrawals” in the agreement we sent him, thus as it ultimately turned out in the practice giving him license to charge me $40K to the estate for money that I had lost from my own account in the market crash of 2008. This was pure treachery on Gary E Smith’s part against his own paying clients. Seems like such deceit would be considered prosecutably unprofessional. This specific willful treachery about the “withdrawals” alone cost me some $40K.
5) Gary E Smith for the estate apparently purposely simply ran Howard’s main debt, a $48K bank loan, into default for over a year. Now, the estate held more than twice that value in stock in the bank to which the loan was owed. Indeed, that was the collateral for the loan. The estate purposely put off the obvious point of selling the bank back some of our stock to cover the loan as the bank was pleading, and ran up Lord knows what kind of extra interests and penalties – or the point of even just selling enough stuff from a half million dollar estate to keep making Howard’s $500/month payments. This is totally unacceptable, whether you generously consider it merely gross incompetence or purposeful skullduggery, using this voluntarily defaulted loan as a prime tool to come after my little bit of stuff, due to the “financial crisis” in the estate that Gary E Smith apparently purposely created.
6) Gary E Smith was either unbelievably repeatedly negligently sloppy or incompetent to do basic simple math on even the most important estate paperwork. He filed the first of ultimately three “final” accountings with the court in May 2010 with his math in the document off by $28,000 on the bottom line based on his own figures in that very court filing. By his figuring, I was $21K ahead of my fair share for the sake of the value of the house and because he said so. Thus, he proposed I get my house only subject to a lean of $21K to Michael, and a lien of $21K to Steven. This would be as opposed to the obvious correct answer of splitting $21K three ways, thus making a $7K lean each to the other two brothers. When Steven detailed this math error to the estate, Gary Smith re-submitted the document at court calling for two $14K liens – off by only $14,000 this time! Gary E Smith finally got his own math straight on the third try. This was obviously merely professional incompetence rather than malice, so I must count this as the lesser of his sins – but still absolutely unacceptable and unprofessional.
7) Finally, when I got my first property tax bill in spring of 2012, I found that Smith had transferred the deed to my house with $1000 in back taxes attached. I never agreed to assume back taxes from before I bought the house. I don’t understand how he was even able to make such a transfer without my consent. So on top of everything else, I’m struggling to catch up back taxes.
You could extract probably several more professional complaints against Fayette County attorney Gary E Smith from the full narrative story - which I have endeavored to make scrupulously factual despite the humor elements. However, these main examples hit the high points of Mr. Smith’s malpractice in the Barger estate.
To a certain point, I can appreciate that Smith was nominally being paid to represent the general interest of all the heirs and thus not entirely necessarily MY individual personal interest on some specific issues. But that certainly does not excuse the malice, hostility, dishonesty, outright treachery or pure incompetence of his administration of the estate.
I would appreciate any consideration or relief the courts could grant me. I thank you for your time and consideration.
Albert Barger
July 10, 2013
THE INDIANA SUPREME COURT'S RESPONSE
COMPLAINT AGAINST GARY E SMITH