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tion); Re Bryans (1925) N. D., immediately, and, if there is any ob204 N. W. 9.

Ohio. State ex rel. Kilbourn V. Hand (1839) 9 Ohio, 42.

Oklahoma.-Re Warren (1915) 49 Okla. 87, 151 Pac. 619; Re Burns (1923) 90 Okla. 1, 215 Pac. 193.

Oregon.-State ex rel. McCourt v. Garland (1915) 77 Or. 92, 150 Pac. 289.

Rhode Island.-Re Holton (1914) 36 R. I. 114, 89 Atl. 242.

South Carolina.-Re Evans (1913) 94 S. C. 414, 78 S. E. 227.

South Dakota.-Re Webb (1916) 37 S. D. 509, 159 N. W. 107; Re Kaas (1917) 39 S. D. 4, 162 N. W. 370. Tennessee.-Davis v. State (1893) 92 Tenn. 634, 23 S. W. 59.

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Washington. Re Gowan (1918) 104 Wash. 166, 176 Pac. 7; Re Martin (1919) 107 Wash. 461, 182 Pac. 579. Wisconsin.-Re O(1889) 73 Wis. 602, 42 N. W. 221.

Canada.-Hands v. Law Soc. (1888) 16 Ont. Rep. 625, affirmed in (1890) 17 Ont. App. Rep. 41; Re Forbes (1896) 2 Terr. L. R. 410.

"Other offenses might be excused, but conversion to his own use of the property of his client is an offense that cannot in any degree be countenanced. Respondent has been guilty of not one, but several such offenses. His conduct has been such that it would be a grave injustice to other members of the profession to permit such as he to continue to hold the license of this court." People ex rel. Black v. Smith (1919) 290 Ill. 241, 9 A.L.R. 183, 124 N. E. 807.

"An attorney occupies a fiduciary relation to his client, and confidence is reposed in him, not on account of his financial responsibility, but because he bears the certificate of this court that he is of good moral character and worthy to be intrusted with the interests, business, and property of those who require his services. If he receives money belonging to a client and there is no obstacle to its immediate payment, the only course consistent with his office is to pay it over

stacle to immediate payment, to regard it as a trust fund, and not appropriate it to his own use." People ex rel. Chicago Bar Asso. v. Kwasigroch (1921) 296 Ill. 542, 130 N. E. 344.

A statute providing that an attorney wrongfully refusing to pay over money collected for a client may be suspended until the money is paid does not exclude the inherent power of the court to disbar for failure to pay over money collected. Com. v. Roe (1908) 129 Ky. 650, 19 L.R.A. (N.S.) 413, 112 S. W. 683.

The Louisiana statute provides that if any attorney at law shall recover any sum of money for his client and shall refuse to pay it over when demanded, without any legal ground for such neglect or refusal, he shall, on conviction, be immediately erased from the lists of attorneys and his license canceled. This statute has been held to contemplate a criminal or quasi criminal withholding of moneys collected, and not such a withholding as is based on an honestly believed legal right. And, in considering the general authority of courts over attorneys, the court declared that the authorities hold that "only questions of good faith and integrity will generally be tried on motion," and that the proceeding looks not to the settlement of a disputed question of debit and credit and the obtaining of an ordinary judgment for money. Butchers' Union S. H. & L. S. L. Co. v. Crescent City L. S. L. & S. H. Co. (1889) 41 La. Ann. 355, 6 So. 508.

But in Pennsylvania a statute requiring disbarment for failure of an attorney to pay over on demand money belonging to his client seems to be regarded as merely declaratory of the inherent power of the court, except that it leaves no discretion as to the penalty. See Re Graffius (1913) 241 Pa. 222, 88 Atl. 429; Wilhelm's Case (1921) 269 Pa. 416, 112 Atl. 560; Dixon v. Minogue (1924) 280 Pa. 128, 124 Atl. 334; Re Gery (1925) Pa., 130 Atl. 307. See, also Ashton Disbarment (1895) 4 Pa. Dist. R. 425.

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III. Application of rule.

Duty to keep client's money separate.

An attorney who collects money for a client should keep the client's money as a trust fund, separate from his own, and should at once remit to the client all that is due to him. People ex rel. Colorado Bar Asso. v. Humbert (1911) 51 Colo. 60, 117 Pac. 139; Re Lampke (1914) (1914) 165 App. Div. 899, 149 N, Y. Supp. 622; Re Dobbs (1916) 173 App. Div. 605, 160 N. Y. Supp. 173; Re Roth (1918) 181 App. Div. 618, 169 N. Y. Supp. 151 (respondent censured).

In the case of Re Maged (1914) 163 App. Div. 880, 147 N. Y. Supp. 562, the court said: "It was his duty to have retained this specific money and repaid it to his client at once. It is misconduct for an attorney to place any money which he has received as his client's money, in such condition that it cannot be paid to his client at any time. His failure to pay the money over at once on his client's demand was most reprehensible. The official referee, however, has exonerated the respondent from any intentional fraud or deceit. The respondent is severely censured for his conduct towards his client." See also Re Karliner (1914) 163 App. Div. 881, 147 N. Y. Supp. 563.

It has been held that the deposit by an attorney of his client's money in his own name, and taking it out for his own use, he being able to replace it at any time, is not such fraudulent conduct as to furnish ground for disbarment. Re Duncan (1902) 64 S. C. 461, 42 S. E. 433. See also People ex rel. Colorado Bar Asso. v. Humbert (Colo.) supra.

Where no intent to appropriate funds is shown, and liability is at all times admitted, the mingling of clients' funds with the attorney's own money and making use of them has been held to deserve no more than censure. Re Cohen (1915) 169 App. Div. 492, 155 N. Y. Supp. 459.

Delay in paying over money collected. To constitute a wrongful retention of money sufficient to warrant disbarment, it seems that some element of

fraud or dishonesty must appear. In other words, mere nonpayment of money by an attorney is insufficient as a ground for disbarment, in the absence of fraud or dishonesty in the retention of the money. Re Campbell (1872) 32 U. C. Q. B. 444. See also People ex rel. Whillis v. Brotherson (1862) 36 Barb. (N. Y.) 662; Re J. B. (1889) 6 Manitoba L. R. 19. Neglect to notify a client of collections, or neglect to pay over immediately moneys collected, is not alone a sufficient ground for disbarment. Veeder (1901) 11 N. M. 43, 66 Pac. 545; Re Condon (1914) 166 Iowa, 265, 147 N. W. 769; Duffin v. Com. (1925) 208 Ky. 452, 271 S. W. 555; People ex rel. Whillis v. Brotherson (1862) 36 Barb. (N. Y.) 662; Re Veeder (1901) 11 N. M. 43, 66 Pac. 545; Guilford v. Sims (1853) 13 C. B. 370, 138 Eng. Reprint, 1242; Re Campbell (U. C.) and Re J. B. (Manitoba) supra.


It should first appear that the sum alleged to be due has been demanded by the client, and that the attorney failed to pay it over on such demand, or within a reasonable time thereafter; and in some states a demand for payment is required by statute. People ex rel. Colorado Bar Asso. v. Keegan (1902) 30 Colo. 71, 69 Pac. 524; People v. Palmer (1871) 61 III. 255; Wilson v. Popham (1891) 91 Ky. 327, 15 S. W. 859; Com. v. Roe (1908) 129 Ky. 650, 19 L.R.A. (N.S.) 413, 112 S. W. 683; State ex rel. Benton v. Baum (1894) 14 Mont. 12, 35 Pac. 108; Association of Bar Chappell (1909) 131 App. Div. 69, 115 N. Y. Supp. 868. See also Evans v. Wade (1925) Ky. —, 278 S. W. 604, infra, this subd. under heading "Conversion of money intrusted to attorney by client."


Thus, in Bar Asso. v. McClellan (1919) 40 Cal. App. 630, 181 Pac. 231, it was held that, while an attorney was guilty of censurable neglect in depositing collected money in the bank and leaving it there two months without notifying his client, there was no such dishonesty as to warrant disbarment.

But it has been held that a demand

is unnecessary where an attorney falsely represents to his client that no collection has been made. People ex rel. Colorado Bar Asso. v. Keegan (Colo.) supra. Compare People ex rel. Colorado Bar Asso. v. Robinson (1904) 32 Colo. 241, 75 Pac. 922, wherein it was held that it was not ground for disbarment for an attorney to state to his client that nothing had been collected on a certain claim, where the amount of the collection was the minimum collection charge.

In the case of Re Washington (1910) 82 Kan. 829, 109 Pac. 700, five years' delay in paying over money which the client did not know had been paid was referred to, with other acts of misconduct, in ordering disbarment.

So, where a client repeatedly calls on her attorney for her money, and he knows the purpose of such calls at the time they are made, there is a sufficient demand, as it is not necessary, unless expressly required by statute, that there should be any formal or written demand. People ex rel. Colorado Bar Asso. v. Keegan (Colo.)


Mere carelessness in keeping records, and delay in reporting collections, are not ground for disbarment. Re Robertson (1911) 28 S. D. 70, 36 L.R.A. (N.S.) 442, 132 N. W. 684.

If money is paid in at an attorney's office during his absence, and he does not learn of it until charges are preferred, he should at once pay it over, but his failure so to do has been held to subject him to censure only. Re Fox (1912) 150 App. Div. 602, 135 N. Y. Supp. 821.

Unreasonable retention or actual conversion of money collected.

Retention by an attorney of money collected by him for an unreasonable length of time, particularly after demand by the client or the institution of proceedings by him to collect, or the use by him of money so collected, is professional misconduct warranting suspension or disbarment.

Thus, in the case of Re MacWilliams (1920) 193 App. Div. 499, 184 N. Y. Supp. 343, an attorney was suspended for converting funds collected

for a client, and failing to pay them over until after disciplinary proceedings were begun.

In People ex rel. Colorado Bar Asso. v. Farnum (1923) 72 Colo. 549, 212 Pac. 825, an attorney who retained money collected by him until suit was brought by the client was disbarred.

In the case of Re McKee (1921) 197 App. Div. 192, 188 N. Y. Supp. 753, an attorney was suspended for two years on proof that he collected money for his client, an administrator, deposited it in his own name, used it in his personal business, and did not repay it until forced to do so.

In the case of Re Eisenberg (1916) 173 App. Div. 598, 160 N. Y. Supp. 143, an attorney who, on receiving money collected for a client, turned it over to another client whose money he had previously collected and appropriated, was suspended for one year.

An attorney who deposits money. received in settlement of a personal injury case, draws it out for his own use, fails to answer letters of his client asking about the case, and does not pay it until complaint has been made to the bar association, should be suspended. Re Levor (1915) 169 App. Div. 642, 155 N. Y. Supp. 427.

An attorney who retained and lost in personal speculation his client's share of money received in settlement of a personal injury case, the money being thereafter repaid under pressure, was in the case of Re Evans (1915) 169 App. Div. 502, 155 N. Y. Supp. 491, suspended for two years.

An attorney who misappropriated money collected for his client, failed to pay it over after an order of the official referee in summary proceedings until contempt proceedings were begun, and made no defense except that the official referee was disqualified because he was a member of the bar association, was disbarred. Jones (1914) 163 App. Div. 880, 147 N. Y. Supp. 583.


In the case of Re Sayer (1911) 146 App. Div. 928, 131 N. Y. Supp. 381, it appeared that an attorney collected $25 for a client, paid $5 four months later, and the balance was ultimately paid by a relative. Suspending him

for six months, the court said: "When an attorney receives money of his client to which the client is entitled, it is serious misconduct for the attorney to apply such money to his own use, although he subsequently is able to repay his client the amount he has appropriated. It is this misconduct of the respondent which we are unable to overlook. The amount misappropriated is not material. It is the fact of the misappropriation that is material, and which requires that we should treat the attempt as serious professional misconduct."

In State v. Breslin (1917) 67 Okla. 125, 169 Pac. 897, an attorney was suspended for six months on proof that he collected $136, converted it to his own use, and did not repay it for about a year.

When an attorney is shown to have retained for two years a large sum collected for a client, and he makes no appearance or explanation, he will be disbarred. Re French (1924) 47 Nev. 469, 225 Pac. 396.

In State ex rel. McCourt v. Garland (1915) 77 Or. 92, 150 Pac. 289, an attorney appointed to act for the state in escheat proceedings, who converted to his own use state funds coming into his hands as a result of the proceeding, was disbarred, the court saying: "A careful reading of all the evidence pertaining to the written charge convinces us beyond a reasonable doubt that the accusation against Mr. Garland is true, and that he is guilty of wilful deceit and misconduct in his profession as an attorney in the escheat proceedings, in failing and neglecting to account for the sum of $627.37, according to the nature of his trust, and converting the same to his own use as alleged in the charge. A portion of the amount collected has been paid for the expenses of the case, and $75 allowed as attorneys' fees therein. The proper administration of justice, the protection of the public, of those who may be clients, and of the courts, and the dignity of the legal profession, demand that he be disbarred from practising as an attorney in any of the courts of the state of Oregon."

In the case of Re Burns (1923) 90 Okla. 1, 215 Pac. 193, a court which in several recent cases had imposed a lesser penalty for a single act of failure to pay over money collected (see State v. Breslin (Okla.) supra; Re Sitton (1918) 72 Okla. 13, 177 Pac. 555; State ex rel. Goode v. Cutlip (1921) 83 Okla. 183, 202 Pac. 782) ordered disbarment where repeated instances of failure to make payment were shown.

In the case of Re Kenney (1913) 155 App. Div. 890, 140 N. Y. Supp. 314, an attorney who misappropriated $30 belonging to a client who was a poor working girl was disbarred.

In the case of Re Smith (1914) 161 App. Div. 638, 146 N. Y. Supp. 906, an attorney who, in settling with an ignorant client the amount of a contingent fee, augmented considerably his share by misleading and improper computation, was suspended for two


In the case of Re Simons (1925) 211 App. Div. 659, 208 N. Y. Supp. 51, an attorney who loaned funds collected for a client to a corporation in which he was interested was suspended for one year. See to the same effect, Re Temple (1885) 33 Minn. 343, 23 N. W. 463; Re Simpson (1900) 9 N. D. 379, 83 N. W. 541.

Where an attorney collects money on a mortgage held by his client before it is due, and reinvests it without authority in a mortgage on his own property, he will be disbarred. Re McKenna (1925) 211 App. Div. 646, 208 N. Y. Supp. 127.

An attorney who, on four occasions, converts money belonging to his client, will be disbarred. Re Makay (1924) 208 App. Div. 44, 203 N. Y. Supp. 15.

An attorney who retains money collected for his client, and, after being discharged by the client, makes further collections, retaining the proceeds, will be disbarred. Re Steinfeld (1923) 204 App. Div. 508, 198 N. Y. Supp. 124.

In the case of Re Tyler (1886) 71 Cal. 353, 12 Pac. 289, 13 Pac. 169, it appeared that the client had recovered a judgment against his attorney

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for moneys collected and retained, and upon examining the attorney in proceedings supplementary to execution had found that he was unable to pay, and had converted to his own use and spent the money of his client. It also appeared that to stay execution the attorney had filed an undertaking, knowing that the sureties thereon were irresponsible and without means. The attorney was suspended for two years and until the judgment mentioned should be paid.

An attorney who disobeys an order requiring him to pay over money withheld from his client will be disbarred. Jeffries v. Laurie (1885; C. C.) 23 Fed. 786; Re Burris (1894) 101 Cal. 624, 36 Pac. 101; People ex rel. Bulkley v. Salomon (1900) 184 Ill. 490, 56 N. E. 815.

In People ex rel. Bulkley v. Salomon (l.) supra, it appeared that the respondent, acting as attorney for his brother, an administrator of an estate, collected and converted nearly $30,000 of money and securities belonging to the estate, used the same for his own benefit, and for three years defied the order of the probate court to pay over the amount to an administrator appointed in place of his brother who had left the state. The conduct of the respondent was characterized by the court as "mal conduct in office" on the part of an attorney at law, and an order was entered disbarring him. It was held, also, that the fact that he was a surety on the bond of his brother did not excuse his conduct.

In People ex rel. Colorado Bar Asso. v. Nicholas (1906) 36 Colo. 42, 84 Pac. 67, a rule to show cause, in a proceeding to disbar under statute, was duly served upon the attorney, together with a copy of the petition and information, and he failed to appear or answer within the time limited by the rule. Default was thereupon entered for such failure, and proof was taken by the petitioner in support of charges that the attorney had collected money for his clients and had refused and neglected to pay over the same after demand and tender of his

fees and expenses, and he was, accordingly, disbarred.

Where an attorney, after collecting money for a client from a debtor, appropriated the same to his own use and failed to notify his client, and the client, through another attorney, brought an action to recover the same claim from the debtor, in which action the attorney who had collected the money appeared as attorney for the debtor and filed a general demurrer, and the cause was thereupon dismissed at the cost of the plaintiff, it was held that good grounds for disbarment were shown. People ex rel. Colorado Bar Asso. v. Webster (1903) 31 Colo. 43, 71 Pac. 1116.

In State ex rel. Benton v. Baum (1894) 14 Mont. 12, 35 Pac. 108, wherein it appeared that the attorney, after receiving a fee for taking an appeal, neglected to do so within the time allowed, and also converted to his own use $23 paid into court for his client on a judgment, the court said, inter alia, that the conversion was, under the Montana statute, sufficient to sustain a judgment of disbarment. See also Re Thresher (1906) 33 Mont. 441, 114 Am. St. Rep. 834, 84 Pac. 876, 8 Ann. Cas. 845.

Concealment or falsehood with respect to money collected.

Where an attorney converts to his own use money collected for his client, and by false statements conceals from the client the fact that the money has been received by him, the fraudulent concealment aggravates the original offense. Bar Asso. v.~ Cantrell (1920) 49 Cal. App. 468, 193 Pac. 598; People ex rel. Colorado Bar Asso. v. Humbert (1920) 69 Colo. 188, 194 Pac. 612; Re Dressler (1916) 173 App. Div. 929, 158 N. Y. Supp. 191; Re Earley (1919) 188 App. Div. 532, 177 N. Y. Supp. 347; Re Martin (1919) 107 Wash. 461, 182 Pac. 579.

"The misrepresentation by an attorney to his client of the amount of collections he has made for his client's account, and the loan of his client's money without authority to a third person, and the conceded conversion of a portion of the client's money, are offenses which cannot be

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