15 Haw. 220 | Haw. | 1903
Lead Opinion
OPINION OF THE COURT BY
(Galbraith, J., dissenting.)
On August 4, 1902, tbe Oabu Railway & Land Oo. filed in tbe Circuit Court of tbe First Circuit at Chambers a bill for tbe specific performance of a certain covenant contained in a lease executed February 7, 1895, by J. K. Sumner to 33. F. Dillingham and Mark P. Robinson and subsequently assigned by tbe lessees to tbe Oabu Railway & Land Co. That lease was for ninety-nine years and tbe covenant just mentioned was that Sumner would at any time within tbe term of tbe lease at tbe option and request of tbe lessees or their assigns sell and convey to them for tbe sum of $100,000 all of tbe demised premises, being certain property fronting on Honolulu Harbor,
On September 4, 1902, no judicial proceedings having in the meantime been had in the suit for specific performance other than to grant to the respondents extensions of time to plead, answer or demur, Maria S. Davis, the sister of Sumner, filed in the Circuit Court of the First Circuit a petition for the appointment of a guardian of the person and property of Sumner, alleging in the petition, inter alia, that Sumner “is of unsound mind and has been for several years past and has been and is unable to transact any business or in any way care for and control his property,” and “is an insane person within the meaning of the statute” and “is utterly incapable of and unable to care for and manage” his property. Later in the same day, to wit, at midnight, a bill in equity was filed, entitled “John K. Sumner, by his next friend Maria S. Davis, Plaintiff, v. Oahu Railway & Land Co., a Corporation, and the Right Reverend Gulstan E. Ropert, Bishop of Panopolis, Defendants,” in which it was prayed that the Oahu Railway & Land Co. be restrained from purchasing and the Bishop from conveying any of the property of Sumner and that the lease of February 7, 1895, and the trust deed of September 17, 1898, be set aside and declared null and void. The substantial averments of the bill upon which the prayer for relief was based were that Sumner “is insane and was insane” at the time of the execution
Upon tbe filing of tbe bill Maria S. Davis was appointed next friend of Sumner and authorized to prosecute tbe suit and a temporary injunction was issued as prayed for. On September 19, 1902, Sumner intervened and moved to dismiss tbe bill on tbe ground that be was sane and entirely competent to care for bis property and on -September 24 after a bearing as to -Sumner’s sanity based solely on affidavits tbe motion was granted and tbe bill dismissed. Tbe complainant filed a notice •of appeal.
In tbe guardian case Sumner filed an answer on September 6 denying tbe allegations as to unsoundness of mind and an answer to tbe same effect on September 19. Tbe case thereafter went to trial, testimony as well as written evidence being adduced, but before tbe trial was concluded a consent decree dismissing tbe petition and declaring Sumner compos mentis was, on October 13, 1902, at tbe request of tbe attorneys, or one of them, of Maria S. Davis and those of Sumner, signed. On the same day a deed conveying to tbe Oahu Railway & Land Co. for tbe sum of $110,000 all of tbe land sued for and also tbe reserved portion free from tbe lease was executed by Sumner -and tbe Bishop and joined in by Maria S. Davis, her son R. W. Davis, John S. Ellis, William S. Ellis and Victoria Buffandeau, nee Ellis, and tbe spouses of tbe three Ellises and tbe appeal in tbe injunction suit was withdrawn. Tbe suit for specific performance was likewise discontinued on tbe following day.
On October 27, 1902, Bishop Ropert filed a hill in equity praying for the appointment of a new trustee in his place under the deed of trust of September 17, 1898, and alleging that the sum of $48,000, being the balance of the proceeds of the sale to the Oahu Railway & Land Co. remaining after the payments made according to the terms of the settlement, had been by him paid over to Sumner under the impression that it was Sumner’s property and by Sumner deposited in Bishop & Company’s bank. That proceeding resolved itself finally into a contest between Sumner on the one side and the Ellises on the other as to whether the fund was the property of Sumner free from any trust or was still subject to the trusts declared in the deed of September 17, 1898. Eroni its institution the firm of Magoon & Peters represented Sumner but commencing with the first day of December, 1902, or some day shortly thereafter, and until its termination in favor of Sumner on September 26, 1903, the respondent also appeared for Sumner.
The matter now before us is an information by the Attorney General charging the respondent, a duly licensed attorney of this court, with professional improprieties and malpractice in the proceedings briefly outlined above.
In the information it is alleged that Sumner was a man of upwards of eighty-four years of age, with little or no knowledge of business or the value of money, and by reason of his great age and lack of knowledge, was easily influenced and controlled, and that all of these facts were well known to the respondent.
The second charge is that on or about December 1, 1902, the respondent falsely represented to Sumner an dto one E. W. Davis that he, the respondent, could immediately obtain for Sumner the sum of $48,025 at that time deposited in Bishop- & Co.’s bank, if Sumner would pay him $3,000 for his services in obtaining the money and that respondent knew such representations to be false, that by means of such false representations he persuaded and induced Sumner to give him a promissory note for $3,000 payable on demand and reciting that it was for value received, that no value had then been given for the note, and that Sumner, misled by the respondent’s misrepresentations, believed that the note was necessary to insure the obtaining immediately of the $48,025 and that upon respondent’s failure to obtain the money the note would have no value-
Third charge: that the respondent procured himself to be' appointed as one of the attorneys for Sumner in the case of Ropart v. Sumner and acted as such; that on June 25, 1903, that case was finally decided by the court and that the decree was that the $48,025 be paid to Sumner; that on or about June 26, 1903, the respondent, well knowing Sumner’s weakness and inability to understand financial matters, threatened Sumner that unless the latter should pay him a fee of $2,500 for his services in Ropert v. Sumner, he would sue Sumner on the $3,000 note and would garnishee the $48,025 and further tie up that money; and that by means of such threats and inti-midations and preying upon the fears of Sumner, who, as respondent knew, had great dread of litigation, the respondent extorted from Sumner the sum of $2,000.
1. The allegation that the respondent procured himself to-be retained by Maria S. Davis as her attorney in the guardianship case, is not sustained by the evidence. On the contrary, the testimony of R. W. Davis, the only witness produced and examined by the Attorney General on the subject, is that, at the request of his mother, Maria S. Davis, he sought the respondent and engaged him.
As to the remainder of the first charge we find, the following as facts: A day or two prior to September 4, 1902, Maria S. Davis, the sister of J. K. Sumner, having learned of the institution of the suit for specific performance and that the Ellises had engaged counsel and were to receive some large sum, either $50,000 in all or $25,000 apiece from Sumner out of the proceeds of the land, sent for and employed the respondent to protect her brother and incidentally to represent her. On the 4th of September, at the respondent’s request, Mrs.. Davis and her son went to the office of the respondent and there-the latter, who had already prepared the petition in the guard1
We have found these facts against the denial of the respondent that he ever refused to agree to the settlement or to discontinue the proceedings. His version of the matter is in brief as follows: that at the first interview with Mrs. Davis at which she employed him as her counsel he was informed
The position in which the respondent has placed himself by his own admissions renders it unnecessary, perhaps, to set forth any of the reasons for our accepting as true and relying upon the testimony of R. W. Davis as a whole and more particularly at points where it is in conflict with that of the respondent; and yet, in view of the nature of the case and the serious consequences to the respondent of a finding of guilty, we shall refer, to some extent, to the subject. In the first place, that witness while on the stand impressed us as being truthful. His appearance, attitude and manner of testifying all conduced to that impression. He seemed to be careful not to overstate matters against the respondent and testified without hesitation and without reserve to facts in the respondent’s favor, as, for example, in disproving the charge that respondent had pro
We deem it an aggravating circumstance, whether with reference to the finding based on the testimony of E. W. Davis or Avith reference to one based on the respondent’s own version, that the amount of the fee demanded and obtained AA^as grossly excessive, and this, too, even assuming, AAdiat is not the fact, that the respondent brought and conducted the íavo suits in good faith and for legitimate purposes. The issue upon Avhich the injunction suit Avas disposed of Avas raised by a motion by Sumner to intervene and dismiss the bill and was simply AA’hether Sumner was sane or insane Avitliin the moaning of the statute. No oral evidence Avas taken; the issue Avas decided upon affidavits, one only being filed on behalf of the complainant. The hearing upon the motion occupied but one day, the decision being rendered two days later and the decree filed on the next
2. We find upon the evidence that the respondent did seek to be employed as an attorney for Simmer in the case of Bopert v. Sumner. Respondent denies this, but we believe the evidence of J. A. lUagoon and R. W. Davis on this point to be true. That evidence shows that at some time prior to December 1, 1902, the respondent suggested to Mr. Magoon, who was then Sumner’s attorney, that he, respondent, be retained in the case and asked him to speak to R. W. Davis and did so but no employment resulted from that attempt. Later, on or about November 30tk, the respondent approached R. W. Davis on the street and said to him that the bank had no right to hold that money, that the case was not being properly conducted, that he could get the money out in twenty-four hours and that if it was not out in that time he would sue the bank. R. W. Davis reported the conversation to Sumner with the result that the latter invited respondent to come out to his house to see him about the matter. The respondent did so, on the first of December, a notary also attending at the respondent’s suggestion. The respondent had with him already prepared and at that interview procured the execution of a note readipg, omitting the date and signature, “On demand for value received
3. The decision of this court in the Ropert case, declaring the $48,025 to be the property of Sumner free from any trust, was rendered June 25, 1903. Sumner and R. W. Davis at the time were in Koolau but were promptly notified of the result and asked by Sumner’s attorneys to come at once to Honolulu. In pursuance of that request they went to the house of J. A. Magoon, arriving at about 8 :30 o’clock p. m. and there finding respondent and Magoon. Respondent introduced the subject of his fee.. lie said that he wanted his fee adjusted and settled, that the note was for $3,000 but that he would ask only $2,500. Sumner said that that was too much and that $1,500 would be ample and offered that amount. Respondent said he had worked very hard all through the case, that he ought to have $2,500 and that he woirld not take less. Respondent insisted upon the amount named and Sumner stubbornly declined to pay it. As Mr. Magoon' said on the stand, “there was a good ■deal of talk there that evening. I think Mr. Sumner stayed about half and perhaps three quarters of an hour or may be longer, I don’t know, I know it was a long time, and Mr. Davis and Mr. Sumner were talking about the thing backwards and forwards, Mr. Davis urging it and Mr. Sumner declining to
We are satisfied from the evidence that Sumner’s final consent to pay $2,000 was due solely to the respondent’s manner- and undue insistence and to his threats to “tie up” the money and was reluctantly given in order to avoid the delays and the-annoyance of further litigation. That the respondent at that time well knew that the man he was dealing with was weak-minded and easily influenced, is indisputable. In his answer in this case he specifically admits the truth of the allegation in the information “that the said J. K Sumner was a man of upwards of the age of 84 years with little or no knowledge of business, or the value of money, and by reason of his great age 'and lack of knowledge was easily influenced and controlled, all of which facts were well known to said Geo. A. Davis.” In the decision then just filed, this court, unanimous on that point,.
The respondent contends that the fee of $2,000 was intended to cover future as well as past services. We believe this to be .entirely an after-thought and that at the time the amount of the ,fee was adjusted and paid it was neither the intention nor the understanding of the parties that all or any services to be thereafter rendered by the respondent were being included or paid .in that fee. If future services, what future services '1 In all .«jases then pending in the courts, or in all cases pending or to be instituted relating to Sumner’s sanity, or in all cases relating to the $48,025, or in all cases of whatsoever nature and whensoever brought? There is nothing in the evidence to show any understanding- between Sumner and respondent on these ,-points. It is true that after the respondent'had been paid the ..$2,000, Mr. Magoon asked him, “Does not this include — you will help me out in the guardianship proceedings that are now .-before the court, will you not, Mr. Davis ?” and respondent ..-answered, “Oh, yes, I will, call on me when you want me,” but from the respondent’s own evidence this appears to have been i-due, not to any contract obligation, but to a feeling on the ■respondent’s part that he had already gotten enough out of Sumner. “$2,000 is a great deal of money,” he testified. “In-vdirectly, I have got $4,500 out of the Sumner business, and I .don’t consider that I ought to take any more. Directly and. in
The past services were the futile attempt to collect the check on the bank and the preparation of a declaration for an action, which was not filed, against the hank, those rendered in the Ropert case, in the W. S. Ellis petition for guardianship and perhaps in one or more matters of minor importance, not specified. The services in the Ellis guardianship case consisted simply in resisting a motion for a restraining order. The trial in the Ropert case began on December 17, 1902, and was continued on December 26, 27, 30 and 31, and January 2, 3, 5, 6, 8 and 9 and other proceedings in it were had on December 18, 22 and 29 and January 2 and 3, and 14. The appeal was argued in this court on March 2 and 3, and June 16, and a motion to advance was presented on another day. The pleadings, briefs and other papers filed in the case make up quite a voluminous record, with all of which we are quite familiar. In our opinion the fee of $2,000 was excessive — it is unneces
Still the evidence requires the finding on this charge, and we make it, that the respondent, by means of threats and intimidation and taking advantage of the mental infirmities of Simmer, caused the latter to pay him a fee substantially larger than Sumner was willing to pay. An announcement of an intention to sue to recover the fee or to garnishee the bank or other trustee or debtor to the extent of the amount claimed, might, if it had stood alone, have been proper and excusable but the respondent went much further.
A very brief reference to the credibility of the witness J. A. Magoon in this case is perhaps not out of place as some of the findings made are based, in part at least, upon his testimony. The witness impressed us while testifying as being truthful. • He was not hostile to the respondent; on the contrary he seemed somewhat reluctant to give testimony which might tend to prove the charges. His interest, so far as there was any, would seem to have been against testifying any further than was absolutely necessary. He was not cross-examined or his evidence contradicted in any material respect by the respondent.
That in cases of this nature the court should act with unusual caution both in weighing the evidence and in determining the penalty or order, is fully appreciated. See In re A. S. Humphreys and F. E. Thompson, ante p. 155. The law undoubtedly is that an attorney should not be suspended or disbarred unless the court is clearly satisfied of his guilt. Our findings in this case are made with that rule in mind.
Acts such as the respondent has been found guilty of, on his own admissions and otherwise, cannot be tolerated. They are inconsistent with the principles of justice and honor and
Tbe order of tbe court is that tbe respondent be and he hereby is disbarred and that bis name be stricken from tbe roll of attorneys and counselors of tbe courts of this Territory.
Dissenting Opinion
DISSENTING OPINION OF
I am inclined to concur in one finding made by tbe court,, namely, that tbe respondent, under bis own evidence, is guilty of a misuse of tbe process of tbe court in bringing tbe injunction and guardianship proceedings. Still it is apparent that tbe wrong done thereby is more theoretical than real; that Sumner was annoyed and worried by tbe suits is clear, but as a result of tbe suits be made a generous allowance to bis aged; and helpless sister. This ought to count for something.
I do not think that the evidence justifies the court in differentiating betwéen the motive of the respondent and his client in the commencement of the proceedings, since every step taken therein seems to have been consented to and approved by the •client. Nor does the testimony support the finding that.the respondent was guilty of blackmailing the railroad company by compelling it to pay his fee, although that fee was excessive. The additional $5,000 was paid by the company voluntarily .and was added to and recited in the deed as a part of the consideration for the land. There is much to support the conviction that with this fee added to the agreed consideration the company did not pay the actual value of the land conveyed. The respondent was regularly employed in those cases and was entitled to pay for his services. It seems that his client was not willing to pay his fee from the sum obtained for her but was willing that the railroad company should pay the amount •asked as a fee and that the company voluntarily paid it. These facts fall short of establishing a case of blackmail.
Again the evidence to my mind does not sustain the finding .that the respondent “by means of threats and intimidations and .taking advantage of the mental infirmities of Sumner, caused the latter to pay him an excessive fee.” The fee of $2,000 paid the respondent was possibly excessive but it is not probable that Sumner was intimidated by threats to pay it. The respondent did not take Sumner alone into the privacy of his back office to talk to him about the fee. All of the conversations with Sumner about the fee were in the presence of Sumner’s “leading counsel” and his friend, K. W. Davis, and when the amount w'as agreed on the respondent insisted that it be paid in the presence of the Circuit Judge. This latter fact alone demon-
I can overlook some irregularities in the respondent on' account of his well known idiosyncrasies and his frank and open method of doing business. I fear that the court has not made due allowance for these in’ its opinion. The respondent does battle in the open and not from ambush. This is something in his favor.
The reputation of the respondent for honesty and integrity in the community was testified to by some of the leading members of the bar, one of whom (Hon. E. M. Hatch) was and is the senior counsel of the Oahu Eailway and Land Company, the -corporation that the respondent is found guilty of blackmailing.
Hon. E. P. Dole, former Attorney General of the Territory, testified in part as follows:
“Do you know — have you had frequent occasion to be brought into contact with me in business, professionally and socially? A. I have a great deal. Q. What is my reputation in this community as to fair dealing and honesty, and my professional standing? A. I think it is very good. * * * * Q. And that is your conclusion; what is it based on, Mr. Dole ? A. Well I have known Mr. Davis well for over eight years. I have come in contact with him in one way and another a great deal. His peculiarities have caused him to be widely and generally discussed among the bar and among the laity, which discussions I have heard a great deal, and while his peculiarities have been censured in these discussions, his erratic traits, and he has been accused of doing many things which a man of different temperament would not do, in all I have heard said about him I have never heard an opinion expressed that in his professional course that he was not an honest and upright lawyer. His traits are such that he attracts the attention of the whole communiy and a great deal of discussion concerning him has been had, and if Ee had a reputation for being a dishonest lawyer, I certainly would know it.”
The respondent is deserving of some reproof and punishment from the court for the abuse of legal process but the judgment-announced goes far beyond the demands of justice and is unreasonable and excessive.