Opinion
December 1, 1933.
June 30, 1934.
Attorneys — Discipline — Acts not infamous nor of gross or serious nature — President of trust company also counsel for company as administrator.
1. Discipline for professional misconduct is necessary for the maintenance of the high standard of conduct required of an attorney, and is not limited to acts that are infamous or of a gross or serious nature. [195]
2. The court adopted the recommendation of the hearing masters, approved by the Board of Governance, that respondent be suspended for one year in circumstances where conflicting interests induced conduct by him inconsistent with the single relation of attorney and client. [195-6]
Justices KEPHART, SCHAFFER and MAXEY dissented.
Argued December 1, 1933.
Before FRAZER, C. J., SIMPSON, KEPHART, SCHAFFER, MAXEY, DREW and LINN, JJ.
Appeal, No. 320, Jan. T., 1933, by Fred E. Lewis, from decision of approval of Board of Governance of Pennsylvania Bar, of the recommendation of hearing masters, Board of Governance Docket, No. 27, in matter of Fred E. Lewis v. Board of Governance of the Pennsylvania Bar. Recommendation approved, suspension of one year ordered.
Proceeding for discipline of attorney.
The following is taken from the report of the hearing masters:
"It is apparent from the foregoing findings of fact that the respondent, Fred E. Lewis, used the influence of his position as President of the Dime Savings and Trust Company of Allentown, by threatening that the Trust Company would sell collateral of the petitioner [consisting of stocks and bonds left by decedent, to which petitioner and his brother would become entitled as residuary legatees] pledged as security for loans made to the petitioner and to his brother for the purpose of raising funds to satisfy cash legacies and expenses of administration, to deter the petitioner from filing exceptions to the account of the Trust Company, and in particular to the excessive fee of $5,000 claimed by the respondent; that as a result of such threats the petitioner was coerced and the said account was confirmed by the Court.
"The answer of the respondent denying any attempt to coerce the petitioner and setting up that the suggestion of selling the securities pledged with the Trust Company as collateral for the loans was made, not with the purpose of exercising any pressure upon petitioner, but because of a falling market in securities thus necessitating a call of the loans if the adjudication of the estate were held up for several months pending the disposition of exceptions, is not borne out by the facts produced at the hearing.
"The facts as found show that although the market for the period of July 1 to August 1, 1930 was a fluctuating one, nevertheless at the time the respondent first threatened to call the loans of the petitioner and his brother, the market price of their hypothecated securities had in fact advanced approximately $8,500, and the total loan on that day was approximately $38,000 against a market value of collateral of nearly $89,000; and on August 1st, the date of respondent's second letter to petitioner, the values had diminished about $3,200, but the total market value of the securities pledged was yet $85,747.13, as compared to $80,417, the total market value of such securities on July 1, the date when the loan was made. It is true that subsequent to August 1, 1930, the market took a sharp downward trend but at the time the respondent threatened to call the loans the reason which he has given as inducing such a call did not exist. The market was not at that time a falling market."
Recommendation of hearing masters that respondent be suspended for period of one year approved by Board of Governance. Respondent appealed from decision of approval of Board.
Error assigned, inter alia, was approval of recommendation, quoting record.
Julius M. Rapoport, for appellant.
John Hampton Barnes, for appellee, filed no brief.
Appellant states the only question for review as follows: "Should a lawyer, who has been a respected member of the bar for forty-four years, be suspended for conduct which is neither infamous nor of a gross or serious nature?" To that we limit our consideration.
Discipline for professional misconduct is not limited to acts that are "infamous" or "of a gross or serious nature." It is required for the maintenance of the high standard of conduct undertaken by the oath of admission to the bar, imposed by statute (see title Attorneys and Counsellors, 17 PS 1601 et seq.) and reflected in accepted canons of professional ethics. Section 73 of the Act of April 14, 1834, P. L. 333, 17 PS section 1661, provides "If any attorney at law shall misbehave himself in his office of attorney, he shall be liable to suspension, removal from office, or to such other penalties as have hitherto been allowed in such cases by the laws of this Commonwealth."
This proceeding is under Rule 17. Three hearing masters recommended suspension from practice for one year and their recommendation was approved by the Board of Governance. As appellant's statement of the question involved confines our review to whether the suspension was appropriate on the assumption that the conduct complained of was, in his view, not serious, we need not detail the grounds of dispute. It is sufficient to say that it was alleged (and the hearing masters found) that conflicting interests induced conduct by appellant inconsistent with the single relation of attorney and client. This conflict of interest grew out of the facts that appellant was president of Dime Savings and Trust Company; that the trust company was administrator c. t. a. of Blanche Erdman, deceased, (complainant and another having renounced the right to receive letters testamentary and consented to the appointment of the trust company); that appellant also acted as attorney for the trust company in its capacity as administrator c. t. a.; that complainant was one of two residuary legatees; that he, and also the decedent, and consequently the trust company, as the administractor c. t. a., were indebted to the trust company for collateral loans. The record shows an undoubted conflict of interest, with action on behalf of one interest in circumstances in which another interest was left without necessary representation.
A majority of the court is of opinion that the recommendation appealed from should be approved. Accordingly, it is ordered that appellant be suspended from the practice of law for the period of one year from this date.
Justices KEPHART, SCHAFFER and MAXEY dissented.