Obrázky stránek

overlooked, and which call for discipline." Re Tryon (1924) 209 App. Div. 793, 205 N. Y. Supp. 423 (respondent suspended for one year).

An attorney who retains money collected for his client for an unreasonable time, and in response to inquiry tells the client that it has not been paid, will be disbarred. Peters v. State (1915) 193 Ala. 598, 69 So. 576.

So, an attorney has been suspended for misstating to his client the sum received in settlement, and converting to his own use the balance of the

money received. Re Bryans (1925)

N. D., 204 N. W. 9.

Where a client was shown to have mingled his client's money with his own, refused to account, and made unfounded claims as to disbursements, he was suspended for one year. Re Dobbs (1916) 173 App. Div. 605, 160 N. Y. Supp. 173.

In the case of Re Eberhart (1925)

Minn. —, 205 N. W. 266, an attorney was disbarred on a showing of several instances of retention of client's funds and repeated falsehoods to conceal his defalcation, only a part of the money ever being paid, and that only after proceedings had been brought against him.

In the case of Re Tinney (1919) 187 App. Div. 569, 176 N. Y. Supp. 102, an attorney was disbarred for collecting and retaining costs, when there was no agreement giving them to him, and he falsely stated to his client that they had not been paid.

An attorney employed to make a collection, who obtains from the debtor an assignment of his claim against a third person, collects it, and retains the proceeds, making false statements to his client, will be disbarred. Hyman (1919) 186 App. Div. 263, 174 N. Y. Supp. 306.


In Slemmer v. Wright (1880) 54 Iowa, 164, 6 N. W. 181, wherein the attorney pleaded guilty to a charge of making false statements to his clients in order to retain their money by fraud, the court ordered his suspension for the period of two years, with the privilege of moving for a modification within six months upon show

ing that the claim against him had been paid, and in the case of no such motion for modification being made before the expiration of two years that he should be then disbarred.

In the case of Re Weed (1902) 26 Mont. 507, 68 Pac. 1115, the respondent was suspended for two years, with the privilege of reinstatement at the expiration of that time upon the production of satisfactory evidence of good conduct in the meantime. One charge sustained against the respondent consisted of settling claims for his client on a basis of 75 per cent and 66 per cent, respectively, and turning over 45 per cent of the face value of each demand, while fraudulently representing to his client that the basis of settlement was at 50 per cent, the client on such understanding agreeing to pay him 10 per cent as his fee or commission. Another charge consisted of converting money fraudulently obtained. After the respondent had executed an agreement to sell to one party land of which he was then the owner in fact, and after he had received part payment upon such agreement, he conveyed the land to another party, a mortgagee, after having been threatened with foreclosure. Although he had parted with all title to the land, he still continued to receive payments upon the agreement with the first party, and falsely pretended to be able to deliver title.


of the money, obtained in this manner he had converted to his own use, and a criminal action was barred by the Statute of Limitations.

It has been held that it is ground for disbarring an attorney that in accounting to his client for money collected he retained, without an express contract to justify it, 50 per cent of the amount collected, and gave a false and deceitful account of the amount paid out by him for expenses, knowingly and wilfully representing that amount to be at least three times as much as it was. Baker v. State (1892) 90 Ga. 154, 15 S. E. 788.

Where, besides the wrongful retention or misappropriation, the money is secured by misrepresentation, the general rule obviously applies. Peo

ple ex rel. Cutter v. Ford (1870) 54 Ill. 520. See also Ex parte A. B. (1840) 4 Jur. (Eng.) 630. Obtaining money from his client under false pretenses, in one instance, and converting the same to the attorney's own use, and, in another instance, failure to perform services for which he was paid and which money he also converted to his own use, have been held to furnish grounds for disbarment. Re Mahoe (1871) 3 Haw. 255. Where an attorney, by false representations, induced his client, an administratrix of an estate, to sign a savings bank receipt by which he was enabled to draw the money of the estate from the bank, and after the administratrix discovered the fraud he refused to pay her the money, although the probate court ordered him to do so, he was disbarred. Re Burris (1894) 101 Cal. 624, 36 Pac. 101. And where an attorney fraudulently and unlawfully represented to a client that he was authorized to practise in a district court of the United States, and was able to represent her as her attorney in an action in that court, by means of which misrepresentations he induced his client to pay him a large sum for services which he was not, and knew he was not, in a position to perform, he was disbarred. Re Danford (1910) 157 Cal. 425, 108 Pac. 322.

Where it was found that an attorney obtained possession of money by falsely representing to his client that the money would be deposited to her credit by him, and thereafter appropriated the same, and for six years vigorously contested every effort to compel him to make restitution, and was also guilty of giving false testimony before a referee concerning the same, he was disbarred. Re Cohen (1907) 120 App. Div. 378, 105 N. Y. Supp. 84. And where an attorney obtained the money converted by forging the name of his client to an order, uttering the same and receiving the money thereon, he was disbarred. People ex rel. Colorado Bar Asso. v. Walkey (1899) 26 Colo. 483, 58 Pac. 591. See also Kennedy's Disbarment (1896) 178 Pa. 232, 35 Atl. 995.

It is a further circumstance of ag

gravation, if an attorney who has converted money collected for a client endeavors to justify his retention of it by false testimony given in disciplinary proceedings. Re Feinblatt (1914) 162 App. Div. 896, 146 N. Y. Supp. 304; Re Osgoodby (1915) 169 App. Div. 626, 155 N. Y. Supp. 465.

False statements by an attorney to his client with respect to money collected and retained by him, and false testimony on his hearing on charges preferred against him, require disbarment. Re Smythwick (1920) 193 App. Div. 459, 183 N. Y. Supp. 301. See also Re Steinberg (1920) 193 App. Div. 502, 184 N. Y. Supp. 450.

An attorney who fails to pay over the proceeds of a collection and makes a false statement of facts, supporting it by perjured testimony when called on to account, will be disbarred. Re Levine (1911) 148 App. Div. 297, 132 N. Y. Supp. 124; Re Smith (1911) 148 App. Div. 291, 132 N. Y. Supp. 304.

When an attorney not only retains money collected for a client, but in disbarment proceedings introduces forged documents in an effort to show that he has paid the money, he will be disbarred. Re Spenser (1911) 143 App. Div. 229, 128 N. Y. Supp. 168, affirmed in (1911) 203 N. Y. 613, 96 N. E. 1131.

Conversion of money intrusted to attorney by client.

Where a client intrusts money to his attorney to be used for some specific purpose, such as the payment of costs, the settlement of a claim, or the like, and the attorney converts it to his own use, he is guilty of professional misconduct. People v. Kohn (1915) 59 Colo. 353, 149 Pac. 249; People ex rel. Colorado Bar Asso. v. Furman (1923) 72 Colo. 549, 212 Pac. 825; Re O'Sullivan (1907) 122 App. Div. 527, 107 N. Y. Supp. 462; Re Rockmore (1909) 130 App. Div. 586, 117 N. Y. Supp. 512; Re Weill (1915) 165 App. Div. 675, 150 N. Y. Supp. 802; Re Levien (1915) 165 App. Div. 883, 151 N. Y. Supp. 279; Re Walsh (1917) 177 App. Div. 659, 164 N. Y. Supp. 553; Re Pollock (1917) 178 App. Div. 577, 165 N. Y. Supp. 631; Re Rini (1918) 181 App. Div. 496, 168

N. Y. Supp. 859; Re Flowerman (1918) 181 App. Div. 488, 168 N. Y. Supp. 860; Re McEveety (1922) 202 App. Div. 79, 195 N. Y. Supp. 345; Re Goette (1924) 210 App. Div. 189, 205 N. Y. Supp. 388; Re Enklewitz (1925) 211 App. Div. 268, 207 N. Y. Supp. 596; Re Matthews (1923) 61 Utah, 581, 217 Pac. 250.

Thus, the wrongful retention by an attorney of a fund given to him to pay into court, until a judgment is rendered and capias issued against him, warrants disbarment. People ex rel. Chicago Bar Asso. v. Czarnecki (1915) 268 Ill. 278, 109 N. E. 14.

So, in the case of Re Graffius (1913) 241 Pa. 222, 88 Atl. 429, an attorney was disbarred for converting to his own use money intrusted to him to settle a claim against his client.

An attorney who, being intrusted by a client with $100,000 for expenses of the defense of a criminal case, uses part of it for unlawful purposes, and converts about $39,000 to his own use, will be disbarred. Re Hartridge (1914) 162 App. Div. 877, 146 N. Y. Supp. 421.

An attorney who receives money from his client for investment, and loses it in his personal speculations, will be disbarred. Re Avrutis (1914) 161 App. Div. 549, 146 N. Y. Supp. 741. In State ex rel. Hartman v. Cadwell (1895) 16 Mont. 119, 40 Pac. 176, it appeared that the attorney, while his client was in prison under sentence, and for the purpose of enabling the client to prevent the collection of costs by the county, devised a scheme by which this object was accomplished, and also converted money belonging to the client. The scheme as devised was as follows: At the suggestion of the attorney the client executed to him a mortgage of all the real estate owned by the client, which mortgage purported to secure notes executed by the client amounting to $2,600. The attorney received both the mortgage and notes, and agreed to surrender the same after the object of their execution had been accomplished. For his full services in this transaction, the attorney received a

cash fee. He later failed to return the mortgage and one note amounting to $600, he having assigned the mortgage and sold the note to a bona fide purchaser. The purchaser was a woman client with little education, and at the time of receiving the note and mortgage she understood that she was not making a purchase, but a loan on the property represented by the mortgage. The court said that on account of this corrupt transaction the attorney was not entitled to retain his license.

In People ex rel. Atty. Gen. v. Murphy (1886) 119 Ill. 159, 6 N. E. 488, it appeared that an attorney, by a written contract with his client, agreed to obtain for her a valid foreclosure of a mortgage, his fee, if he succeeded, to be $150. After a decree had been entered for $330 in favor of his client, he failed to pay over any part of the money received, to her or her legal representatives, on the false claim that a larger fee had been consented to by his client subsequent to the written agreement. It also appeared that the attorney obtained payment of the decree by fraudulently attaching to the records of the court a paper purporting to be an assignment of the whole amount to himself. For these acts, together with another charge of malconduct, the attorney was disbarred.

Where an attorney holds funds of his client to be repaid on demand, and fails so to repay, he will be disbarred. Re Ayler (1915) 169 App. Div. 494, 155 N. Y. Supp. 489.

In Re Titus (1892) 66 Hun, 632, 50 N. Y. S. R. 636, 21 N. Y. Supp. 724, an attorney who withdrew money of his client on deposit in court, and converted it to his own use, was disbarred.

An attorney who, being intrusted with a large sum to be used for expenses in proposed litigation, expends but little of it, and retains the remainder, setting up false and unfounded claims thereto, will be disbarred. Re Herrmann (1916) 175 App. Div. 310, 161 N. Y. Supp. 977.

In the case of Re Vermilya (1925) 213 App. Div. 546, 211 N. Y. Supp. 36,

[ocr errors]

an attorney was disbarred for converting trust funds and failing to repay them until forced to do so by summary proceedings.

In the case of Re Zahm (1925) 213 App. Div. 551, 211 N. Y. Supp. 144, an attorney who failed through neglect, but without fraudulent intent, to forward to a nonresident attorney money advanced by the client for expenses, and who became unwarrantably irritated over being urged to pay it, was merely censured, his previous good character being taken into account.

An attorney who, having persuaded his client to invest money collected, fails to return it when the investment profit fails, but on the contrary resists efforts of the client to collect it, should be disbarred. Re Boughton (1920) 192 App. Div. 235, 182 N. Y. Supp. 440.

The failure of an attorney to deposit money with the clerk of court as costs for the purpose of taking an appeal, after obtaining the money from his client for that purpose, whereby the appeal was not perfected and the client was obliged to pay the judgment, costs, and keeper's fees, together with other instances of fraudulent appropriation of money belonging to clients, has been held to warrant disbarment. Re Stern (1907) 120 App. Div. 375, 105 N. Y. Supp. 199.

In the case of Re Newman (1925) 211 App. Div. 654, 208 N. Y. Supp. 140, an attorney who converted money received from a client to be used in paying the client's rent was disbarred.

In the case of Re Brown (1923) 206 App. Div. 111, 200 N. Y. Supp. 661, an attorney who converted money intrusted to him by a client to pay to a building contractor when his work was completed was suspended for six months.

In the case of Re Galland (1924) 208 App. Div. 48, 203 N. Y. Supp. 42, an attorney who retained and converted money intrusted to him to pay fees of a referee and stenographer was suspended for three months.

But it has been held that long delay in paying over money given to the attorney by his client to pay the fees of a referee and stenographer, the 43 A.L.R.-5.

money not being appropriated, but merely held by the attorney, merits only an expression of disapproval. Re Henderson (1911) 146 App. Div. 944, 131 N. Y. Supp. 544.

Money collected by an attorney of his client, within the meaning of a statute providing that if any attorney shall collect the money of his client, and on demand wrongfully refuse to pay the same, the court, after notifying him to show cause against the same, shall suspend him for twelve months and until the money shall be paid, means money collected by an attorney from a third person for the use and benefit of a client, and not money paid by the client to the attorney under a contract by which the attorney agreed to represent the client in certain litigation. Evans v. Wade (1925) Ky., 278 S. W. 604. As a matter of fact the evidence in this case was held to show an agreement by which the attorney was entitled to retain as his fee the money paid to him by his client, and not otherwise used for the latter's benefit. court also observed that an attorney, in any event, is entitled to an opportunity to pay over the money to his client before the institution of a proceeding for suspension.

IV. Matters of defense.



It has been said that no circumstances in which an attorney may be placed will warrant him in appropriating to his personal use the funds of his client, or justify him in falsely stating that such funds are not in his hands. People ex rel. Colorado Bar Asso. v. Betts (1899) 26 Colo. 521, 58 Pac. 1091. See also People ex rel. Carr v. Selig (1898) 25 Colo. 505, 55 Pac. 722; People ex rel. Healy v. Pattison (1909) 241 Ill. 89, 89 N. E. 254; Re O(1889) 73 Wis. 602, 42 N.

W. 221.

An attorney is censurable for failing to pay over to his client such money as may be due the latter, as soon as he learns that it belongs to the client, and it is immaterial that he did not know to whom the money be longed when he first received it. Re

Fox (1912) 150 App. Div. 602, 135 N. Y. Supp. 821.

Unauthorized permission by a corporation officer to an attorney to use a trust fund for his own benefit is no defense to disbarment proceedings based on such misuse. People ex rel. Chicago Bar Asso. V. Czarnecki (1915) 268 Ill. 278, 109 N. E. 14.

Where an attorney receives money from his client, an insurance society, to pay into court, the fact that the society was not organized according to law does not justify him in retaining the money. Ibid.

Where an attorney employed to collect money has no authority to invest it, the fact that he places it on a longterm loan is no excuse for failure to pay it over. Re Gery (1925) - Pa. 130 Atl. 307.

Where a married woman caused disbarment proceedings to be instituted because of her attorney's failure to pay over to her the proceeds of notes placed in the attorney's hands for collection, it was held that disbarment would not be ordered on a showing to the effect that the relator's husband sold and delivered the notes in question to the attorney for an adequate consideration, under circumstances indicating knowledge and consent on the part of the relator. People v. Anderson (1895) 21 Colo. 271, 40 Pac. 568.

Absence of fraudulent intent.

That an attorney at the time of appropriating a client's money to his own use intended to repay it later is no defense in a disbarment proceeding. Bar Asso. v. Cantrell (1920) 49 Cal. App. 468, 193 Pac. 598; Re Coleman (1917) 178 App. Div. 580, 165 N. Y. Supp. 685; Re Kaas (1917) 39 S. D. 4, 162 N. W. 370.

Thus, holding that an attorney expected at the time of appropriating money collected for his client to be able to get money from other sources to repay the client was no defense, the court in Re Kisselburgh (1912) 153 App. Div. 884, 137 N. Y. Supp. 1060, said: "Attorneys must understand that to use their client's money that has come into their hands is not only professional misconduct, but a misap

propriation of money received in a fiduciary capacity, not justified by any expectation of being able to repay the money, or by any necessity of the attorney. The use of a client's money for an attorney's personal benefit is in itself professional misconduct and a misappropriation of trust money which a subsequent restitution does not condone."


The mere fact that money which was wrongfully withheld or misappropriated has been repaid does not, of itself, operate so as to preclude disbarment proceedings; and if it is shown, in connection with such wrongful detention or misappropriation, that the attorney acted in bad faith toward his client, or that the wrong was committed or aided by means of false representations, fraud, deceit, or crime, disbarment may be ordered notwithstanding such payment. People ex rel. Colorado Bar Asso. v. Furman (1923) 72 Colo. 549, 212 Pac. 825; People ex rel. Wayman v. Chamberlain (1909) 242 III. 260, 89 N. E. 994; People ex rel. Ludens v. Harris (1916) 273 III. 413, 112 N. E. 978; People ex rel. Chicago Bar Asso. v. Grusd (1925) 318 Ill. 44, 148 N. E. 860; Re Prinstein (1911) 142 App. Div. 807, 127 N. Y. Supp. 629; Re Pascal (1911) 146 App. Div. 836, 131 N. Y. Supp. 823; Re Smith (1911) 148 App. Div. 291, 132 N. Y. Supp. 304; Re Levine (1911) 148 App. Div. 297, 132 N. Y. Supp. 124; Re MacWilliams (1920) 193 App. Div. 499, 184 N. Y. Supp. 343; State v. Breslin (1917) 67 Okla. 125, 169 Pac. 897. See also Re Radford (1912) 168 Mich. 474, 134 N. W. 472.

In the case of Re Gowan (1918) 104 Wash. 166, 176 Pac. 7, the court said: "The chief consideration is not of a client who has already been offended, but rather, that the exhibition of that wrong discovers the character of the attorney and his unfitness to be trusted; and while the payment of the money fraudulently used releases the attorney from civil liability, it is not a purgation of his offense, nor does it prove that he has become a fit person to remain on the rolls."

« PředchozíPokračovat »