162 Mo. App. 688 | Mo. Ct. App. | 1912
On tlie 19th day of Angnst, 1911, proceedings were instituted in this court by Ernest D. Martin, an attorney at law, as complainant, for the disbarment of Leslie J. Lyons, a licensed and practicing attorney in the courts of this state, based on the following charges as set forth in his abstract':
“1. That said Lyons, while prosecuting attorney for the United States, illegally maintained a secret copartnership with one George L. Davis, an attorney, who accepts employment in defense of criminal cases, brought and prosecuted by said Lyons, contrary to and in violation of section 1039, Revised Statutes of Mo.
2. Disregarding the truth, violating his oath, deceitfully suppressing the facts and recklessly causing investigations of Interstate Railway Co. and its officers to be made a matter of public notoriety, . . .
3. Artfully procuring valuable property from promises and agreements, and then deceitfully and improperly withholding same from its owner.
4. Maliciously drafting an indictment containing statements which he knew were false and untrue, and unlawfully influencing a Federal grand jury to return same as true bill
5. Appressively using the force and power of his official position for personal advantage and private
6. Unprofessionally soliciting business, taking cases away from other lawyers, employing methods commonly known in legal parlance as “Snitching,” in the following case, to-wit:
A. Snitching case No. 45377, Circuit Court Jackson Co., Mo., entitled K. C. So. Ry. Co. v. Papolonisis et al., from one Ralph E. Schofield.
B. Snitching case No. 52858, Circuit Court Jackson Co., Mo., entitled Link v. Baumgardt et al., from one Judge Ed. E. Aleshire.
C. Snitching case No. 14999, Dist. Court Wyandotte Co., Kas., entitled Woodcock v. Woodcock, from W. H. McCamish.
7. In the papers in case No. 18492, District Court Wyandotte Co., Kas., entitled Bowers v. Jett et al., said Lyons is charged with being guilty of conspiracy, graft, fraud and deceit practiced upon his client and other interested parties.
8. Malpractice, deceit and misdemeanor, intering with due course of law, and other crimes in the following cases, to-wit:
A. Ehlers v. Wolforman, interfering with justice.
B. State v. Wolferman, attempting to remove a state witness.
C. U. S. v. Ehlers, attempting to deport a female.
D. Adams v. Adams, soliciting a bribe.
E. U. S. v. Pickerill.
P. Arnold v. Cohn et al., malicious interference.
G. U. S. v. Colt, suppressing evidence.
H. Huckle v. Hendrickson, using government in attempting to enforce settlement of' a private claim.”
Lyons is United States District Attorney for the Western District of Missouri, and prior to his appointment by the President to that place, was assistant district attorney. ' It appears that Martin was engaged, with others, in the promotion' of a railway from Kansas City, Missouri, passing through Kansas, to St. Joseph, Missouri, and known as the Interstate Railway Company. Among his associates were two men, Avery and Freundlich. Martin was vice-presilent and general counsel of the company and active, with others, in its management. Officials of the post-office department of the Federal government seem to have thought proper to investigate the affairs of the company connected with the means used to promote the road, and had postoffice inspectors to look into its affairs. The result of this was that the evidence obtained by them was placed before a United States grand jury, through Lyons as district attorney. On the 3rd of March, 1911, the grand jury returned one indictment against Martin, Avery and Freundlich, and another against Avery and Freundlich, charging them with using the United States mail for fraudulent purposes in the sale of stock and otherwise obtaining money for the promotion of the railroad.
It appears that a month or more before the indictment was found, it became known that the post-office department was conducting an investigation with
Martin then alleges that he afterwards was informed that at the time of such employment and prior ■and since then, Davis was Lyons’ “secret partner” in the practice of law and that said partnership “was secretly conducted, each of the parties sharing in the profits and earnings of the firm,” all of which was unknown to the public. That by reason of said partnership and Davis’ employment, Lyons became possessed of facts connected with his defense. That said indictment is a “vicious and unwarranted assault on” him, Martin. That it was procured by Lyons misconstruing and perverting and garbling the evidence and documents obtained from him as already stated and in Lyons refusing to give him ‘ ‘ any opportunity to explain the same, or to give the grand jury an intelligent idea of the matters or things then being investigated. ’ ’
Martin then charges that the grand jury at first refused to find an indictment, whereupon Lyons appeared before them and insisted upon a bill being-found, that “it was necessary for his purposes” and that there would be no hardship in so doing, as, if he was innocent he would be cleared by a trial in court, and thereby persuaded them to find the indictment above mentioned.
Reserving for separate consideration that part of the charge that Lyons and.Davis were partners, and taking up the principal complaint relating to improper and unlawful conduct on the part of Lyons in procuring the indictment against Martin, we find it wholly unsupported by the evidence. Seven members of the grand jury were called as witnesses. None of them testified to an impropriety on Lyons’ part. It seems that Avery, as expressed in evidence, had “fled the jurisdiction of the court” and was under arrest at San Francisco, California, and Lyons told the jury that they should “pass upon it (the indictment) one way or the other at an early date — as soon as possible,” as he could not be held out there any great length of time. These members of the jury had their attention called to Avery doubtless from the circumstances of his being under arrest in a distant state. One of them stated that Lyons said we ought to find an indictment. Pie also stated that Lyons said that the main man was Avery but he wanted Martin as he was in with Avery, and that there was not very much against Martin. But, as we have said, there were two indictments, in one of which Martin was not included and on cross-examination the juror said that Lyons may have been talking about the latter; that he did not remember. The testimony of the jurymen, considered together, leaves no doubt of the propriety of Lyons’ action in the matter. They stated that he did not undertake to influence them, confining himself to placing the evidence before them and retiring when they were considering what action they would take.
The charge of Lyons’ partnership with Davis in the practice of law, to which we have already referred, is based upon the assumption that such partnership was forbidden by the statutes of this state. The different special acts of Lyons and of Davis are set forth at length, including division of fees, and then closes with these words, “and that the said George L. Davis regularly appears before said district court in defense of persons charged with misdemeanors or felonies, all of which is in violation of section 1039 of chapter 10 of the Revised Statutes of Missouri of 1909.” That .statute prohibits any lawyer who is a partner of a prosecuting attorney in this state from “appearing for or defending in any of the courts of this state any person charged with a misdemeanor or
It is apparent that that statute relates alone to partnerships with state prosecutors and that it does not apply to a partnership with a United States district attorney. But we will not, on that account, refuse further consideration of the matter, for though the statute alleged to have been violated does not refer to a Federal district attorney or his partner, the particular specifications of the charge involve grossly reprehensible conduct and dishonesty. That is to say, if Lyons and Davis were secret partners and the latter was regularly defending persons in the United States district court and dividing fees with the former, as charged by Martin, it would justify disbarment from practice on common principles of honesty and morality, regardless ,of affirmative statutory condemnation. “Too much is staked upon the honesty and good conduct of lawyers for courts to wink at flagrant misconduct. They are trusted by the community with the care of their lives, liberty and property, with no other security than personal honor and integrity.” [In re Henderson, 88 Tenn. 531, 539.] “Integrity, as well as skill and learning, is essential to the character of the profession, and it becomes the duty of the bench, as well as of the bar itself, to preserve that character in its highest state, as a means of usefulness, and of answering the true end of a profession so honorable and at the same time so needful.” [Dickens’ Case, 67 Pa. St. 169, 177.] It was said in an address by a noted lawyer before the American Bar Association, in 1910, that “the devil and the lawyer come together into conflict;” and that “This conflict must be waged according to law.”
But notwithstanding the great breadth of the charge, there was no evidence offered to sustain it, save in the single instance of Davis taking part in the
So therefore, in order to sustain this charge, it is necessary that the evidence should show that they were partners when Davis was defending Martin. Now the association of Lyons and D'avis was shown to be a most natural thing. Undisputed evidence discloses that they were natives of the same county and attended school together at the Kansas University, graduating near the same time. They were friends. Lyons came to Kansas City in 1900, and Davis in 1907. Lyons was then assistant United States district attorney, but in partnership with Mr. Finlay in civil business. The firm needed a man and Davis needed employment and Finlay & Lyons, presumably on the latter’s recommendation, took him in at twenty-five dollars per month and afterwards raised it to fifty dollars. That firm dissolved and afterwards, in June, 1910, Lyons was appointed United States district attorney. He had a civil business and realized the necessity of assistance in correspondence, examining authorities, preparing opinions, and sometimes in the trial of his cases. He arranged with D'avis to occupy one of his, Davis’, rooms with his desk, typewriter and stenographer. He paid D'avis for his work and
It was shown that letter heads were gotten out with the separate full names of Lyons and Davis as “Associated Attorneys at Law.” But this was after these proceedings were begun and cannot reasonably be interpreted as an advertisement of á partnership, publicly issued at the time accusations and denials of a partnership were being made. It is not usual for an accused to voluntarily issue public proof of a charge which he, at the same time, is denying. It was explained that the letter heads were for Davis to use in his correspondence concerning business in which his assistance had been engaged by Lyons; and it was shown that each used individual letter heads in the general correspondence of each.
Martin’s attorney testified that a short time after the indictment was found he was sent for by Lyons,
Notwithstanding this disclaimer on the part of the attorney, we are compelled to notice, as hearing-on Martin’s motive, that, according- to his sworn complaint originating this proceeding, and which we have set out in the fore part of this opinion, he allowed Davis to approach him seeking employment.in his defense on the ground of his knowledge of what Lyons thought of the case and of his close friendship and confidential relations with him enabling him, Davis, to get a speedy trial and disposition of the case; and that for those reasons, “relying- upon said representations,” he employed him. Taking- this testimony of the attorney, showing Lyons’ concern, his denial, and his request for an explanation, together with these allegations in the complaint, as well as the conceded fact that no sign of favor was ever granted, and that the prosecution was in no way lessened and has in no way ceased, we think it is a strong circumstance in behalf of Lyons on the issue of partnership.
There being no partnership shown, no impropriety can be charged to Lyons on account of his knowledge that Davis had accepted employment from Martin.
Lyons is next charged with levying tribute upon, or accepting employment from, persons, corporations, land schemes, lottery organizations and others, in order that they might be protected from prosecution. The particular specification concerns a corporation known as the “Oregon L and Company,” owning a vast body of land in the state of Oregon, said to be from three to six miles wide and three hundred miles long. The description and mode of sale of this land is given by its officers, who were called by Martin. It, or a similar company, was organized in 1903, and Governor Hadley was its attorney.
As we understand it the charge is that this company was engaged in an unlawful effort to beguile and cheat investors in land, and so as to be safeguarded against prosecution for its nefarious schemes, its officers employed Lyons as its attorney. The evidence in support shows that written contracts of sale of undivided parts of the whole, of different
Instead of the reason for Lyons’ employment be-’ ing that he was United States district attorney, it appears that at this time he was assistant attorney and that he had been attorney for the president of the company, individually, before its organization and before he was assistant attorney. But in addition to this, it appears from the evidence that Mr. Hadley was the original attorney for the company, prior to his election as Attorney General, and that he had examined into the nature and object of the company’s business and had submitted the matter, with the forms of contract, to the department at Washington, where it was determined to be unobjectionable to the law. The evidence further shows that when Mr. Hadley became Attorney General and retired from the attorney-ship for the company, he recommended Lyons for. his successor.
However, a scheme lawful in itself may be unlawfully carried on and we have gone over the evidence to see if there was anything of that kind in this case. We do not find any. Taking the evidence in the case as our guide to a conclusion, in connection with common knowledge of human nature, there were fewer complaints made of this entire affair representing 14, 000 transactions, with as many different people, than are .ordinarily found in business dealings. So far as the record shows, the parties who organized and
Another charge is “unprofessionally soliciting business and taking cases away from other lawyers.” The specifications under this charge are that he took a case from Mr. Aleshire and Mr. Schofield, attorneys in Kansas City Missouri, and Mr. McCamish, -an attorney in Kansas. The record does not show justification for the accusation in either instance. The first of these cases was Link v. Baumgardt. Mr. Ale-shire was employed by Link and drew the pleadings. He testified that after the suit was instituted Link ásked him if he “could handle the case on a ten per cent contingent fee, and I told him I could not. Later on, Link told me another party was going to handle the case for him. I never talked with Lyons about the ease.” Mr. Aleshire was paid for his services. It further appears that Lyons afterwards prosecuted the case. Link entirely exonerated him from any blame or impropriety. He testified that he consulted Mr. Wagner, who was his friend and was reading law with Lyons. He said, “I told young Wagner that I was looking for an attorney and told him of my trouble and asked him something about the estate he inherited, and he stated that Lyons had handled that and straightened it out for him. I asked him if he thought Lyons would
The next case was a condemnation proceeding against Papolonists (a Greek). The defendant testified through an interpreter that after he had employed Mr. Schofield, he asked one of his countrymen about a lawyer and was recommended to Lyons and that he afterwards got a friend as interpreter and went to Lyons. Lyons asked for the papers and he told him he had left them with some attorney but- did not tell him who, when Lyons said “bring me the papers and I will .look at them.” The case did not ■come to trial and he concluded Lyons was too busy and returned to Mr. Schofield.
The last of these cases is that of Woodcock v. Woodcock, a partition suit in Kansas City, Kansas. It seems there was a mortgage on the premises for a sum sufficient to make the interests of the owners of little value. Mr. McC'amish brought the action for plaintiff. Mrs. Woodcock, the plaintiff, consulted a lawyer in another county, who was an uncle of Lyons. The pecuniary interests being small, he asked Lyons to examine into it. The latter found that he could secure to Mrs. Woodcock a homestead claim for a period of eighteen months and that he could utilize that to her advantage. He got $350 for it. The costs and attorneys’ fees, of fifty dollars, used up $150 of that, and he paid over to Mrs. Woodcock the remainder. There were four lawyers, including Mr. Mc-Camish and Lyons, each getting twelve dollars and fifty cent. There is not the slightest evidence that Lyons took the case from McCamish.
Connected with the last charge is one that in one of the suits in Kansas, connected with the Woodcock partition suit, Lyons was charged with being guilty
The last charge is of “malpractice, deceit, misdemeanor and interference with due course of law.” The first three specifications under this charge relate to the same matter and may be considered together. It appears that Emma Ehlers, a young’ woman lately from Germany, through New York City, accused one Wolferman with criminal conduct with her. There was a prosecution in the state court and a civil suit against him. Wolferman was acquitted in the state case and the civil suit ended in some way which does not appear in evidence — one witness said it was compromised. While these cases were pending, a Federal officer from the Department of Commerce and Labor came to Kansas City to serve a writ upon her. The object stated was to prevent the Statute of Limitations from running in case she became dependent and it was desired to deport her under the Federal law. The officer was prevented from seeing her and he went to Lyons, as a government official, for assistance, Lyons called up her attorney and told him that if he prevented the officer from serving the writ, he would be compelled to proceed against him for interfering with precess. The writ was then served. It was not the purpose to deport her then. It was not shown that Lyons had any interest in the matter, nor is it pre
Specification ££D”, under this charge, called ‘ ‘ solicting a bribe. ’ ’ The evidence showed that Lyons was attorney for the wife in an action brought against her for divorce, and nothing was shown having any tendency to show a bribe was asked.
Specification ££E” is called "United States v. Pickerell.” It appears that Pickerell was charged with sending obscene matter through the mails, and the complaint against Lyons is that he acted unprofessionally in attempting to keep Pickerell’s lawyer from getting a fee for his defense. Pickerell had illicit relations with a Mrs. Tanner, a weak-minded woman (whom her father had put in charge of a servant and placed in a sanitarium), and when he was arrested the lawyer got his brother-in-law, Cohen, to go his bail, and the two procured the woman to convey her property to Cohen by warrantly deed, which her father had given her. At the same time contracts were obtained for an exorbitant fee for the lawyer, including “a percentage of the value of her furniture,” and to compensate and indemnify Cohen for signing’ Pickerell’s bond. This deed, presumably, was to secure these contracts. When the woman’s father learned of this, he undertook to protect his daughter by employing Lyons to bring an action to set aside the deed.
The next charge is that Lyons suppressed evidence in the case of United States v. Colt. It appears that Colt was indicted and convicted in the Federal court for misuse of the mails in connection with what was termed a fake loan or brokerage business. Before the trial, Colt’s mother and his lawyer called on Lyons, representing that Colt was a good faith broker and that it was preposterous to say otherwise. They spoke of numbers of people, in New York City and other places, that he was authorized to represent. Lyons expressed a willingness to investigate and they gave him a list of parties or names, addresses and loans with which Colt was connected. Lyons testified that he turned this over to a secret service officer representing the Department of Justice, for investigation, who reported that he could not find that Colt had any connection with most of them. The paper or list was not returned to Lyons by the officer and consequently was not returned to Colt’s mother or his attorney. Lyons testified that it was a mere list of names on a sheet of paper, and no suggestion was made that he should return it, and that he had no idea .it was expected that he should; and that he never knew they wanted it until one evening during the trial of the case, no notice ever being given him to produce, and that he was called by the defendant as a witness and stated all his connection with the paper and what was on it. There is a total failure to show any thought, or attempt, on Lyons’ part, to suppress evidence, or that there was any impropriety in what he did.
The next and last charge included in Martin’s summary of the charges, relates to “using Government in attempting to enforce settlement of a private claim,” in a trade between Huckel and Hendrickson.
Some of the foregoing charges were of rather indefinite nature too much so under the rule of pleading in such cases (Weeks on Attorneys at Law, sec. 83, p. 176). But the respondent has not made objection on that head and so, in consequence, we have not.
The foregoing i-s a review, as comprehensive as can be made within reasonable limits of an opinion, of the charges quoted at the outset. There were one or more other charges which seem to be abandoned and have not been urged here. The evidence purporting to sustain them contains nothing derogatory to Lyons.
In addition to those, there was one charge of a very serious nature that occupied much of the time of the commissioner and which made up a large part of the record. There was no evidence offered- to sustain it that, under any rule of evidence, could he received against Lyons. Nor was there the slightest proof that he ever knew anything' connected with the subject of the accusation. After making so grave a charge and spending such length of time in endeavoring to sustain it, it was abandoned and withdrawn at the argument.
It cannot escape the attention of any one examining the record, that the moving cause of this effort at disbarment is the fact that Lyons was performing an official duty, as he saw it, in prosecuting the complainant for an alleged violation of the Federal law,
No impeachment of reputation was attempted by the complainant, yet Lyons, exercising his right in that respect, called several leading* citizens as to his life and character. These were his teachers when a boy and young man, members of the bar, in the front rank of the profession, and leading* business men of the city. These did not testify in a mere formal manner. His teacher told of his making his own way and of the excellence of his character, and so did employers. One lawyer who has observed him since he began the practice, stated his reputation as an official and a man was ‘ ‘ as good as could be, so far as I know, and I will add, so far I believe.” Another, who had been a trial judge, had observed him from the bench and in the practice. He said his reputation “is good-excellent,” and he had never heard it questioned. Another ex-circuit judge said of his reputation, officially and otherwise, that “it is very good — the very best.” Another said “I have always considered him a man of high professional ideals — as a citizen I
A business man, president of the commercial club, testified that “I have had a very intimate acquaintance with him. We have been associated in many affairs socially and in church work and matters of that kind quite closely; and in public matters, movements of that class and character. I certainly do know Mr. Lyons’ reputation. I class him as one of our best citizens. I only wish the Lord would send us 100,000 more like him.”
It seems to us apparent that the controlling motive behind this proceeding is not to purify the bar. But that complainant, smarting under a prosecution which he deems unjust, has allowed his feeling of resentment to lead him to an attack on the district attorney. While a prosecutor, Federal or state, should not permit zeal in performance of public duty to lead him into persecution, yet he ought to be allowed a full performance of that duty, unhampered by the embarrassment of disbarment proceedings. Our finding is that the charges are not supported by the evidence, and the proceeding will be dismissed.