V. Matters of mitigation.

Youth and inexperience.

Inexperience is not, of course, strictly speaking, a defense to the wrongful retention of a client's funds. "Even an inexperienced person, at the time of admission as a member of the legal profession, ought to know it is wrong to appropriate to his own use moneys belonging to others." People ex rel. Colorado Bar Asso. v. Waldron (1901) 28 Colo. 249, 64 Pac. 186. See also Re Cohn (1907) 120 App. Div. 378, 105 N. Y. Supp. 84.

But it is customary, in cases of the character under consideration, to make allowances for inexperienced practitioners. Champagne v. Benoit (1911) R. I. —, 78 Atl. 1009.

Thus, where a charge of unlawfully retaining the funds of a client is not accompanied by any unusual state of facts, or aggravating circumstances, but is apparently due to insolvency, and there are no charges of other misconduct, a temporary suspension will, as a rule, be deemed a sufficient discipline. Re Greenberg (1911) 146 App. Div. 945, 131 N. Y. Supp. 531; Re Lash (1912) 150 App. Div. 467, 135 N. Y. Supp. 370; Re Buchlor (1913) 155 App. Div. 246, 140 N. Y. Supp. 324.

"In applying to his own use moneys received from his client for a specific purpose, the respondent has been guilty of a breach of trust which cannot be overlooked by this court, irrespective of the injury wrought to the client in an individual case. In view, however, of the respondent's few years at the bar, his moderate demands upon Yabroudi, and the latter's unreasonable attitude throughout his relationship with the respondent, we are disposed to accept the recommendation of the learned official referee that moderate discipline will serve the ends of justice. The respondent should be, and hereby is, censured for his misconduct." Re Pollock (1917) 178 App. Div. 577, 165 N. Y. Supp. 631.

In the case of Re Herbst (1913) 158 App. Div. 601, 143 N. Y. Supp. 890, a suspension for two years was imposed, in view of the youth and inexperience of the attorney, "with the distinct intimation, however, that the

excuse of youth and inexperience will not be received in the future as an excuse for misappropriation of moneys received by an attorney to be held by him for the use of his client."

However, in the later case of Re Karliner (1914) 163 App. Div. 881, 147 N. Y. Supp. 563, the youth and inexperience of the accused attorney were referred to by the same court as a reason for leniency in a case involving no actual intent to defraud.

In the case of Re Lichtenberg (1915) 169 App. Div. 505, 155 N. Y. Supp. 482, it was said: "We are urged to view his dereliction with lenient eyes because of his youth and inexperience; but these do not excuse flat dishonesty. The respondent's extraordinary idea that conversion of trust funds is excused if the converter was or believed he was able at will to raise the amount necessary to replace the sums converted argues as strongly as does the offenses with which he is charged, and of which he has been proven to be guilty, that he is an unfit person to remain a member of a profession in which scrupulous honesty is of prime importance. The respondent is accordingly disbarred."

In the case of Re Eisenberg (1916) 173 App. Div. 598, 160 N. Y. Supp. 143, youth, inexperience, and mental worry were considered as mitigation, and one year's suspension imposed on a showing of two instances of retaining for personal use funds collected for a client.

Where a young and inexperienced attorney retained funds belonging to a firm, with the consent of a member of the firm who shared in the money misappropriated, suspension for one year was deemed adequate. Re Rich (1913) 158 App. Div. 473, 143 N. Y. Supp. 623.

That an attorney was young and inexperienced and in need of money to use in the care of sick relatives, and that he frankly admitted his misconduct, and did not seek to uphold it by false statements, has been said to be sufficient to warrant the court in mitigating the penalty to suspension for six months. Re Greenberg (1911) 146 App. Div. 945, 131 N. Y. Supp. 531.

Where an attorney's failure to pay over money collected for his client arose from an exaggerated idea of the value of his services, general business inexperience, and want of appreciation of his responsibility as an attorney, it was held that suspension only would be ordered, subject to reinstatement on proof of having paid to the client the sum due him. Champagne v. Benoit (1911) — R. I. - 78 Atl. 1009. .

Old age.

Where an attorney was seventy-one years of age, and was seriously ill during the time an amount due his client remained unpaid, and such payment was made after the commencement of proceedings for disbarment, a severe reprimand was deemed to be a sufficient discipline. Re Tracy

(1912) 150 App. Div. 913, 135 N. Y. Supp. 29. See also Re O'Brian (1921) 197 App. Div. 50, 188 N. Y. Supp. 506. Poverty.

It has been said that poverty or financial distress will not mitigate the offense of an attorney who converts money collected for a client and states falsely to the client that he has not received it. People ex rel. Chicago Bar Asso. v. Kwasigroch (1920) 296 III. 542, 130 N. E. 344; People ex rel. Chicago Bar Asso. V. Grusd (1925) 318 III. 44, 148 N. E. 860; Re Hyman (1919) 186 App. Div. 263, 174 N. Y. Supp. 306; Re Earley (1919) 188 App. Div. 532, 177 N. Y. Supp. 347; Re McEveety (1922) 202 App. Div. 79, 195 N. Y. Supp. 345; Re Warren (1915) 49 Okla. 87, 151 Pac. 619.

It has been held that the fact that the respondent's credit had become greatly damaged by the depreciation of certain securities which he had deposited with a bank as collateral, about the time he received the money in question, does not constitute a defense to disbarment proceedings; the court saying that "the question of his credit at the bank is entirely immaterial, for he needed no credit to pay over to his client the money received for it." People ex rel. Healy v. Pattison (1909) 241 Ill. 89, 89 N. E. 254. In several cases the fact that the

failure of an attorney to pay money promptly to his client was due to poverty has been referred to as indicating that there was no intent to defraud, and as being an extenuating circumstance. Re Greenberg (1911) 146 App. Div. 945, 131 N. Y. Supp. 531; Re Kisselburgh (1912) 153 App. Div. 884, 137 N. Y. Supp. 1060; Re Menzell (1922) 203 App. Div. 515, 196 N. Y. Supp. 834.

In the case of Re Coleman (1917) 178 App. Div. 580, 165 N. Y. Supp. 685, it was said in a second proceeding against an attorney: "Respondent has made a moving appeal for clemency. He asserts that, although overwhelmed by disaster incident to his former suspension, with a large number of judgments piled up against him, he has refrained from taking advantage of the bankruptcy statute, but has earnestly worked to reduce his indebtedness, and has paid off a considerable part thereof, and will eventually pay in full. He further shows that his suspension, which was for six months, has, by the institution of this proceeding, been now extended for a year and four months, and that he has suffered a severe punishment. We are impressed with his apparent sincerity, and are of opinion that he has learned his lesson. We think that there was no dishonest intention to convert his client's money in this last case, because he had an acknowledged equity in 40 per cent of the amount in the hands of the chamberlain, available immediately upon the confirmation of the referee's report. He improperly used the money intrusted to him for a specific purpose; but, under all the circumstances, we think a further suspension of six months, which will make two years in all, will be adequate."

Previous good character.

Previous good character, frank and courteous conduct in the course of the disbarment proceeding, and change in the collection methods which led to an intermingling of clients' money with the attorney's own, have been considered as mitigating circumstances. Re Lampke (1915) 165 App. Div. 899, 149 N. Y. Supp. 622.

People ex rel. Colorado Bar Asso. v. Essington (1904) 32 Colo. 168, 75 Pac. 394, was a proceeding to disbar an attorney for the misappropriation of money placed in the hands of the firm of which he was a member. While the other evidence was not convincing to the court, it was held that the admissions made by the attorney, both on the trial of his partner, who was disbarred, and on his own trial, were sufficient to warrant his disbarment. These admissions were in effect that he had participated in the use of a small portion of the money. The court, however, after ordering his name stricken from the roll, and after reviewing his service as a lawyer, which antedated the Civil War, and noting that he had served more than four years in the Union Army, and naming the witnesses who testified to his good reputation, said: "While we cannot exonerate him, the promptings of mercy impel us to extend to him our judicial clemency, and we therefore order that he be reinstated as a member of the bar."

In the case of Re O'Brian (1921) 197 App. Div. 50, 188 N. Y. Supp. 506, an attorney seventy years of age, of previous good repute, was suspended for one year on proof of retention of his client's funds and concealment of the receipt thereof.

In the case of Re Lunke (1919) 56 Mont. 226, 182 Pac. 126, an attorney who retained part of the proceeds of a collection and misled his client as to having received it was, in view of his previous good character, punished only by a short suspension.

Intoxication or insanity.

In the case of Re Evans (1913) 94 S. C. 414, 78 S. E. 227, wherein it appeared that the misconduct of an attorney in retaining money collected was due to inebriety, the court suspended him from practice, with leave to apply for reinstatement at the end of two years on proof of reformation.

But in the case of Re Webb (1916) 37 S. D. 509, 159 N. W. 107, the court ordered disbarment notwithstanding a plea in mitigation to the effect "that the various acts so charged arose out of serious reverses and misfortunes in

the personal and business affairs of the accused, by reason of which he became addicted to the use of intoxicants to such extent that his affairs were neglected and became entangled and confused; records were lost, and proper accounts of his collections and remittances were not, in some instances, maintained; that he became burdened with financial demands, and clients for whom he had collected money were crowding him for remittances when he was without funds; and that, while respondent's professional conduct was not proper, he avers for more than a year last past he has reformed and has not been remiss in his professional deportment, and that, so far as he is able, and as speedily, will discharge and pay off any just demand of the character in the accusations mentioned."

So, in People ex rel. Illinois State Bar Asso. v. Tracey (1924) 314 Ill. 434, 145 N. E. 665, disbarment for failure to pay over money collected for his clients was ordered notwithstanding proof of the habitual intoxication of the attorney.

Where the respondent in disbarment proceedings alleged that he retained the money in question by reason of his negligence and carelessness caused by the disease of alcoholism with which he was then afflicted, and that when he was under the influence of strong drink, "he had no will of his own, and was powerless to resist the temptation to drink alcoholic beverages," the court refused to consider these facts as even a mitigating circumstance in the case, it appearing that during the time that he alleged himself to be a habitual drunkard he was a district attorney in the state and also a county attorney and was engaged in the general practice of law. People ex rel. Colorado Bar Asso. v. Webster (1903) 31 Colo. 43, 71 Pac. 1116.

In Kennedy's Disbarment (1896) 178 Pa. 232, 35 Atl. 995, the respondent having been disbarred on charges of embezzlement, including forgery, set up on appeal the plea of insanity and the fact that after having been indicted on the identical charges on

which he was disbarred the jury had found a verdict of not guilty on the ground of insanity, and that he had been committed by the trial court to a hospital for the insane, from which hospital he had been duly discharged as cured. Notwithstanding this defense the court refused either to modify or reverse the decree of disbarment. In considering the defense of insanity, it appears that both the court below and the appellate court were of the opinion that the proof of insanity was, at best, of a weak and unsatisfactory nature and insufficient as an available defense.

Absence of fraudulent intent.

The fact that the misappropriation was without fraudulent intent, the attorney expecting to be able to repay from other funds, has been considered in mitigation, and the attorney merely censured. Re Kisselburgh (1912) 153 App. Div. 884, 137 N. Y. Supp. 1060.

In the case of Re Evans (1915) 169 App. Div. 502, 155 N. Y. Supp. 491, the fact that it was not shown that an attorney retaining money collected for his client intended to misappropriate it permanently was held to be sufficient to mitigate the penalty from disbarment to suspension.

In People ex rel. Ludens v. Harris (1916) 273 III. 413, 112 N. E. 978, the findings were stated as follows: "The facts proven lead inevitably to the conclusion that respondent purposely and falsely and repeatedly led his clients to believe that no moneys had been collected on their claims, when, in fact, he had collected and appropriated the same to his own use, and in some instances had to borrow money to pay them their money when they learned the true facts and made demands for immediate payment. It was his duty as an attorney at law to pay all moneys collected for his clients, less his proper charges for collecting the same, promptly and without unreasonable delay. The conduct of respondent cannot be explained away as unintentional and as the result of a loose and slipshod' business method, 'in that he failed to keep books or any accurate record and trusted to his memory with respect to

the details,' as found by the commissioner." In imposing a penalty of two years' suspension, the court said: "The matter of settlement and full payment by respondent of all said. moneys collected by him after knowledge of his clients of such collections, and further demands by them, cannot be considered by us as sufficient justification for the fraud and deceit practised by him upon his clients after making such collections. The evidence, however, when considered as a whole, does not seem to warrant the conclusion that the respondent intended to keep the said moneys of his clients and deprive them of them absolutely, and we are therefore disposed to consider that fact and the matter of settlement and payment as entitling him to some favorable consideration in entering judgment against him."

Restitution.

Re

It has been said that restitution of money converted by an attorney is not even a mitigating circumstance. Hyman (1919) 186 App. Div. 263, 174 N. Y. Supp. 307; Re Earley (1919) 188 App. Div. 532, 177 N. Y. Supp. 347. On the other hand, it has been referred to with other circumstances as a matter of mitigation. People ex rel. Ludens v. Harris (1916) 273 III. 413, 112 N. E. 978; Re Tracy (1912) 150 App. Div. 913, 135 N. Y. Supp. 29.

So, in the case of Re Jewell (1921) 60 Mont. 602, 201 Pac. 266, a suspension for sixty days was imposed, the attorney having made restitution.

It is to be noticed in this connection that, though no special mention was made of restitution as a matter of mitigation, in almost every case in which the courts have shown leniency to an attorney who converted his client's funds, the fact of restitution by him has appeared, and it may be said to be almost a sine qua non to clemency, though it does not insure the granting thereof.

Smallness of amount involved.

The smallness of the amount involved is not a mitigating circumstance. Re Stern (1907) 120 App. Div. 375, 105 N. Y. Supp. 199, wherein it was said: "Litigants who seek the

inferior courts are peculiarly at the mercy of their attorneys. Their interests are often of greater proportional importance to them than those of litigants who seek higher tribunals. The only contact with the courts of justice which a very large proportion of the population ever has is with the minor courts of criminal and civil jurisdiction. It is of great concern to the community that such contact should result in respect for the courts and confidence in the administration of the law. It is of the utmost importance that honor and fair dealing should be the invariable rule of members of the profession. It is especially so when dealing with the poor and helpless. Amounts involved are of no consequence. The standard which this court requires of its officers is not to be measured in dollars and cents. An attorney who betrays his trust, who deceives his client, not only disgraces himself, but discredits in the minds of those cognizant of his acts the whole administration of justice."