Bar Ass'n of the City of Boston v. Hale, 197 Mass. 423

Bar Ass'n of the City of Boston v. Hale

197 Mass. 423 | Mass. | 1908

Sheldon, J.

At the hearing of this petition for the disbarment of the respondent, the judge found in his favor upon the charge contained in the fourth paragraph of the petition; and this part of the case is now settled in his favor.

The judge found that the respondent did not commit the acts stated in the fifth paragraph, and did not act with the fraudulent intént therein set forth, but that the sum which he charged and retained from the amount received by him as charged in the *435sixth paragraph was excessive and unreasonable. The respondent now contends as to this that there was no evidence in the case to warrant the finding that his charges were excessive or unreasonable, and therefore that his fourth request for rulings should have been given. He also argues that it is now settled by the finding of the judge that the note which Mrs. Brackett gave to him was not obtained by fraud or with fraudulent intent to obtain money to which he was not entitled, and that the validity of that note is established by this finding. These claims may be considered separately.

On a careful review of the testimony, we cannot doubt that there was evidence to warrant the finding that the sum charged by the respondent was excessive and unreasonable. There was evidence that he was employed to obtain for Mrs. Brackett a divorce from her husband, and that he undertook to do so; that the chief difficulty in this lay in the lack of evidence to prove the adultery which it was suspected had been and was being committed; that to obtain this evidence the respondent employed detectives to watch the husband, and that they succeeded, after about a year and a half, in securing evidence of adultery; that he then, by claiming that the father of his client’s husband was liable to her for procuring the alienation from her of her husband’s affections, brought about a settlement with both her husband and his father, by which he secured for her the sum of $7,700 besides certain articles of household furniture and a provision for the support and education of her minor children. He also obtained the divorce which she desired. There was no doubt that her husband was a man of no property, and that she probably could not have collected alimony or expenses from him. It was agreed that the respondent’s disbursements were properly reckoned at $500. For his services he charged the sum of $3,600, being one half part of the net amount of money received by him for her.

There was no doubt testimony on which it might have been found that this charge was not excessive or unreasonable. It was nearly two years from the time of the respondent’s employment until the decree of divorce was obtained,’ and more than two years before that decree was made absolute and the final payment of $6,000 secured. According to the respond-*436.exit’s testimony, much of his time, more than one hundred and fifty full days reckoned at six hours each, had been spent in working upon the matters involved and in interviews with his client and the detectives employed,- many clues had been investigated and much labor performed which had not yielded the hoped for results. The prospect of obtaining a proper compensation for services and a reimbursement of money expended depended largely upon the result reached. And attorneys, properly qualified as experts, testified that under the circumstances claimed by the respondent his charges wei-e reasonable, “viewed either from the standpoint of the results obtained or from the standpoint of per diem charges.” If the respondent’s testimony as to all these circumstances of the case were followed, a finding in his favor upon this point might well have been expected.

But right here is the infirmity of the respondent’s position. The judge was not bound to accept his version of the circumstances. He might have found that, acting with due fidelity to his client’s interests, the respondent was not justified in protracting his conferences with the client to such an extent as to consume the time to which he testified. The only litigation actually engaged in was the libel for divorce, and that was uncontested. The demand for alienation of affections never was actually put in suit. The judge well might find, as he did find, that the respondent’s claim that peculiar difficulties in prosecuting the libel for divorce were caused to him by reason of misconduct on her part was wholly without foundation. His conduct before the committee of the Bar Association and what might have been found to be his efforts to stifle the inquiries which resulted in the bringing of this petition might be found to indicate that he wished to avoid investigation of the charge because he did not himself regard it as a fair and reasonable one. It is too plain for discussion that the judge might find a charge of $8,600 for procuring the discovery of evidence of adultery, bringing a libel and obtaining an uncontested decree of divorce, and settling an unlitigated claim for the alienation of the affections of a husband for what was obtained in this case, to be excessive and unreasonable, unless it was justified either .by unusual ability and skill in the respondent or by the fact *437that an unusual amount of labor and responsibility was called, for and actually used. Upon these questions we cannot review the findings of the judge who tried the case.

But the respondent contends that the validity of the note which he took from his client has been established by the finding that it was not obtained by fraud or with any fraudulent intent on his part. He claims that he cannot be punished for unprofessional conduct on the ground that his charges were excessive and unreasonable when those charges have been found to be a matter of contract entered into without fraud. He cites the language used by this court in Boston Bar Association v. Casey, 196 Mass. 100: “ We do not mean to intimate by anything that we have said that Bruce could not legally have agreed with the respondent that he could have the $800 for such services as he might render, however much in excess that sum would be of a reasonable compensation for what was done.” Undoubtedly an agreement fairly made between attorney and client, before that relation is entered into, as to the compensation to be received by the former for the services which it is expected that he will render, is prima facie valid and binds the parties to it. It was of such a supposititious agreement that the language above quoted from Boston Bar Association v. Casey, 196 Mass. 100, was used. But this agreement was made and the note and assignment were executed long after the confidential relation of attorney and client had been created between these parties, while it was still in full existence, before the decree for a divorce had been obtained, and before the absolute right to $6,000 of the money to be realized had accrued. It was one of those agreements between attorney and client which the law views with jealousy, and will enforce only to the extent of reasonable compensation for the services actually rendered. See the cases cited in 4 Cyc. 961 et seq.; 987 et seq. The respondent did not put himself at arm’s length from his client before carrying out this transaction with her; he did not see that she had independent advice, or secure her time to consider this important matter: on the contrary it might have been found that he hastened to complete the transaction against her objection when, by reason of fatigue and excitement, she did not fully comprehend the nature o\f the act. Hill v. Hall, 191 Mass. 253. Even though he acted *438without any specific fraudulent intent, it cannot be said that this was so fair and free a bargain between parties who stood upon an equal footing that the court could not inquire and determine whether the amount charged was excessive and unreasonable.

Accordingly we are of opinion that this finding of the judge was warranted by the evidence, and that the respondent’s fourth request was refused rightly.

The finding of the judge as to the matters charged in the seventh paragraph of the petition may be considered in connection with the respondent’s second and third requests for instructions. Substantially this finding was that the respondent attempted to prevent Mrs. Brackett from proceeding against him by the threat that if she did so he would cause certain misconduct of hers to be made public and would thereby injure her character and reputation ; and it was found by the judge that the respondent used the word “ misconduct ” in the sense of sexual immorality, and that in fact there had been no such misconduct on her part and he had no evidence of it, although he stated to the committee of the Bar Association that he was in possession of such evidence. The respondent contends that this finding was unwarranted by the evidence.

We have read over carefully the evidence upon this issue and are satisfied that it fully warranted the finding made. The judge was not bound to accept the explanation made by the respondent of his conduct in this matter. Without that explanation, there was abundant evidence that his object in what he did was to stifle the investigation of the charges against him by playing upon the natural fears of a woman against whom unfounded charges of sexual immorality were threatened. What he said to the witness Lane and what he said and wrote to Mr. Shattuek and to the committee of the Bar Association tend to support this view. And it was for the judge to determine the sense in which the respondent used the word “ misconduct ” and in which he intended it to be understood. The word was used with reference to divoi’ce proceedings, and on some occasions in speaking to lawyers; and one of the definitions of this word given in the Oxford English Dictionary is “improper conduct; wrong behavior; now often in judicial spec, in the sense of adultery.” And see 27 Cyc. 804. The real meaning intended *439to be conveyed by ambiguous words is a question of fact in actions for libel. Riddell v. Thayer, 127 Mass. 487. Twombley v. Monroe, 136 Mass. 464. Tbe circumstances and connection in which the word was used by the respondent tend strongly to indicate that he intended to be understood as threatening to make a charge of sexual immorality and to support it by evidence in his possession, which in fact he did not have. His refusal before the committee of the Bar Association to answer the question whether he understood, when'the matter came before the court, that Mrs. Brackett was or was not entitled to a divorce, taken in connection with some of his testimony at the trial of this petition, points in the same direction; and it was for the judge at the trial to determine the effect of his explanation of this. We have examined the cases as to the meaning of this word referred to by the respondent, and find nothing in them inconsistent with what has been said. They illustrate the wide range of meaning which the word may have according to the different connections in which it is used. Baldwin v. Foster, 138 Mass. 449, 453. Van Cleaf v. Burns, 118 N. Y. 549. English v. English, 4 Stew. 543. Rea v. Rea, 63 Mich. 257.

We conclude, therefore, that this finding of the judge was warranted, and that the respondent’s third request was rightly refused.

His fifth request was not material, upon the findings of fact made by the court, and need not be considered.

Upon these findings, the respondent’s first request could not have been granted; and the order for his suspension was warranted. It needs no argument and no citation of authority to support this proposition.

Exceptions overruled.