Opinion
No. 1632
September 9, 1930
DISBARMENT PROCEEDING from Niobrara County; C.O. BROWN, HARRY P. ILSLEY and SAM M. THOMPSON, Judges, presiding.
For the complainant there was a brief by W.O. Wilson, Attorney General, and R.J. Jackson, Assistant Attorney General, both of Cheyenne, Wyoming, and an oral argument by Mr. Jackson.
Defendant had no lien on the notes and accounts nor on the moneys he had collected. Matter of Lorillard v. Burnard, (N.Y.) 42 Hun. 545; Mass. South. Const. Co. v. Township of Gill's Creek, In re Hart, 148 Fed. 145, 37 C.J. 338; Lehman v. Schmidt, (Cal.) 25 P. 161; Spence v. McMillan, 10 Ala. 583; Thatcher v. Harlan, 7 Del. 178; Hanna v. Phelps, 7 Ind. 29, 63 Am. Dec. 410. It was not necessary to allege fraud and bad faith, in so many words, in the complaint. 3 C.J. 787; State Bank v. State Examiner, 40 Wyo. 321, 31 Cyc. 55. It is not necessary to allege facts within the knowledge of the other party. 31 Cyc. 48, 21 R.C.L. 486. Respondent's acts in this case constituted a suspendable or disbarable offense. Enos v. Keating, 39 Wyo. 217; Sheridan County v. Hanna, 9 Wyo. 368, 6 C.J. 676, Section 1196, W.C.S. 1920, 6 C.J. 591; In re Tinney, 176 N.Y.S. 102; In re Vermilya, 211 N.Y.S. 36; In re Larson, (Minn.) 210 N.W. 865; In re Ericson, (Minn.) 213 N.W. 556, 6 C.J. 718. The right to practice law is a privilege subject to control by the state, and limited to persons of good moral character with special qualifications ascertained and certified as prescribed by law. The right to practice is not "property," nor a "privilege or immunity" within the constitutional meaning of those terms. 6 C.J. 569. A disbarment proceeding is a civil action, its object being to protect the courts, the administration of justice, and the integrity of the legal profession. State v. Priest, 223 N.W. 635; In re Burnette, 85 P. 575; State v. McRae, (Fla.) 38 So. 605; In re Well-come, (Mont.) 58 P. 711; State v. Mosher, (Ia.) 103 N.W. 105; Bradley v. Fisher, 13 Wall. 335. Sec. 1196 C.S. 1920. The evidence sustains the findings and recommendations of the lower court which should be adopted.
For the respondent there was a brief by Kinkead Pearson, of Cheyenne, Wyoming, and oral argument by W.C. Kinkead.
In order to sustain a judgment of disbarment for failure of an attorney to turn over to his client papers and money coming into his hands in the course of his employment, bad faith or fraud must be alleged, and proven. In re Veeder, (N.M.) 66 P. 545; State v. Kent, 22 Minn. 41; Van Etten v. State, (Nebr.) 14 N.W. 289; In re Yeiser, (Nebr.) 192 N.W. 954; People v. Robinson, (Colo.) 75 P. 922; In re Robertson, (S.D.) 132 N.W. 684; Jeffries v. Laurie (C.C.) 27 Fed. 195; Cross v. Ackley, 40 Ia. 493; In re Sherin, (S.D.) 130 N.W. 761, 40 L.R.A. (N.S.) 801, Ann. Cas. 1913D 446; In re Baum, (Ida.) 186 P. 927. An attorney is given a lien for services upon papers and money coming into his hands in the course of his employment. In re Klein, 101 N.Y. 663; Assn. v. Soderquist, 87 N.W. 433, 4885 C.S. The foregoing authorities are applicable to the case at bar as shown by the evidence. Dorshemer v. Hundon, 133 N.W. 496. Disbarment proceedings being penal in nature, and possible results calling for specific allegations of misconduct to justify suspension or disbarment, general allegations of misconduct not supported by specific facts are insufficient. In re Barton, 54 Wis. 379, 381, ex parte; In re Bradley, 74 U.S. 364, 19 L.Ed. 214, 217; People v. Mathews, (Ill.) 85 N.E. 444; Dickinson v. Hodges, 21 Mich. 561, 565; Percy v. State, (Ia.) 3 C.C. 550; People v. Kirke, 95 Am. Dec. 314, 330; Weeks on Attorneys, Sec. 83; In re Cobb, (Cal.) 24 P. 293; In re Baum, (Ida.) 186 P. 927, 931; S.F. Bar Ass'n. v. Sullivan, (Cal.) 198 P. 7; Dickinson v. Duston, 21 Mich. 561, 565, and Ex parte Bradley, supra. A clear preponderance of evidence is essential to justify suspension or disbarment. In re Rewilly, (Okla.) 183 P. 728, 7 A.L.R. 89; State Bar v. Sullivan, (Okla.) 131 P. 703; People v. Baker, (Ill.) 142 N.E. 545, 31 A.L.R. 737, 747; State v. Mathews, (Ill.) 75 N.E. 444; In re Sherin, (S. D). 130 N.W. 761, 40 L.R.A. (N.S.) 801; Ann. Cas. 1913D 446; In re Baum, (Ida.) 186 P. 927; In re Balluss, 28 Mich. 507; In re Attorney, 1 Hun. 321; People v. Shufeldt, 56 Ill. 299; In re Haymond, (Calif.) 53 P. 899; In re Houghton, (Calif.) 8 P. 52, 57. The record in this case shows respondent's conduct to be consistent with innocence, and the recommendation of suspension to be unwarranted, and unreasonably severe.
The State Board of Law Examiners filed a complaint against Edwin L. Brown, respondent, asking that his license to practice as an attorney at law of this state be revoked or suspended. The case was tried before three district judges, who have made findings of fact and recommended that respondent's license to practice as such attorney be suspended for a period of not less than one year.
No good purpose would be subserved in reviewing the case in detail. Briefly, it is charged in the amended petition that C.B. Keller, of Omaha, Nebraska, acting for one Sprengel, Trustee, placed in respondent's hands for collection accounts and notes aggregating upwards of $25,000; that respondent agreed in writing that his collection fee should be at the rate of 15% on the first $300 collected on any item and a lower percentage on amounts above that sum; that respondent collected various sums, occasionally remitted small sums to his client by checks which were protested for non-payment and ultimately paid only after much correspondence; that he collected other amounts, among them an item of $65 which belonged to Sprengel, Trustee, and which respondent refused and still refuses to pay, although demanded from him; that other moneys belonging to Sprengel, Trustee, were collected and not paid, but the items cannot be set out, because unknown to complainants and within the peculiar knowledge of the respondent; that several demands have been made upon respondent to return the uncollected notes and accounts, but that respondent refused and still refuses to do so.
The evidence in the record fully sustains the charges. In fact, it was discovered and shown that a number of items were collected by respondent which were never reported by him, although he was time after time called upon to make reports of the collections made by him. The total amount collected and never paid over was $2167.35, consisting of ten different items and collected at different times. An item of $1050.50 was collected as early as June, 1926, of which his clients had no knowledge until shortly before the trial of this case in October, 1929, and that was also true as to the collection of most of the other items. The respondent tries to excuse his conduct by saying that he had a lien on the amount collected and on the items of collection in his hands by reason of the fact that Keller held out to him that he expected respondent to bring certain suits, which were never brought. Without discussing the point further, the lien mentioned was never claimed until shortly before the trial of this case and we are satisfied that the claim was purely an afterthought and cannot serve as an excuse for respondent's conduct.
It is claimed that evidence of the various items collected but not reported or paid, aside from that of $65, should not have been admitted because no mention thereof is contained in the amended petition. But these items were a part of a general transaction, fully set forth; the various items collected were peculiarly within respondent's knowledge and not within that of complainants, as set forth in the amended petition, and the objection is not, we think, under the circumstances of this case, well taken. 49 C.J. 38, 21 R.C.L. 486. Nor can we hold the amended petition fatally defective on account of the fact, as claimed, that there is no allegation of bad faith on the part of the respondent. No objection of that kind was raised in the lower court. We must, accordingly, construe the amended petition liberally, and so doing, we think that the bad faith of the respondent in connection with the various matters set forth in the amended petition may be reasonably gathered from the allegations thereof.
We think that respondent's conduct cannot be excused and that the evidence clearly and unmistakably shows, aside from other censurable conduct, fraudulent withholding of his client's money, and a suspension from practice before the courts of this state as attorney, for a period of three years, will be ordered.