157 N.W. 310 | S.D. | 1916
This is an original proceeding seeking the disbarment of one Georgé W. Egan, a duly licensed practitioner at the bar of this count. Our records show that respondent was first admitted to the bar of this court on November 17, 1907, such admission being subject to a condition expressed in the order of admission; that he was disbarred on October 10, 1908; that he sought readmis-sion. on June 22, 1909; that his petition was rejected December 1, 1909; that he again sought readmission on July 9, 1910; that the judgment of disbarment was modified so that he was readmitted on January x, 1911; and1 that the present proceeding was instituted by a petition filed in this court on May 14, 1915. This proceeding is1 now before us upon a motion to affirm the report of the referees and to -enter judgment^ in conformity with the recommendations of such report. W-e d-eem the facts revealed upon the hearings of the original petition for admission, the original, disbarment .proceeding, and -the two applications for reinstatement all material and pertinent to- the consideration of the motion now before us. No- comprehensive statement of such facts -can well be made at this time, as to incorporate them herein would unduly -extend this -opinion. Reference is therefore -made to- the -statements of facts found in- the several opinions of this -court. In re Egan, 22 S. D. 355, 117 N. W. 874; In re Egan, 24 S. D. 301, 123 N. W. 478; In re Egan, 27 S. D. 16, 129 N. W. 365. The three members of this court
“Undoubtedly he has disregarded hi-s duty as an attorney and counselor at law; his duty as. a citizen.. Nevertheless', assuming the good faith, of his present attitude, appreciating the consequences to him of continued exclusion from his chosen profession, possessing .the power to correct the mistake if time shall reveal that one has been -made, and hoping the exercise of clemency may broaden, the petitioner’s charity towards his fellow men, the court concludes., without receding in the slightest degree from either of its former decisions as- to. the fitness of the petitioner to practice law when such, decision was rendered, that he should now be given an opportunity to demonstrate the genuineness of his reformation.”
At the primaries in .1910, and again .in. 1912, respondent sought nomination as a candidate for the office of governor. His experiences before the bar. of this court were thus brought into prominence before the .people of the. whole state. It was prior to and in the 1910. campaign that he made the charges, recorded in In re Egan, 24 S. D. 301, 123 N. W. 478, to the effect that the original disbarment proceeding was of .political origin and the judgment of this court therein prompted by corrupt. political motives. The vote received by him. at such primaries was proof that many .of the people .of 'this, state must.-halve given credence to such charges. At the time the.present proceeding was .instituted it-was commonly reported that he would, again in ,.1916. seek
Unprofessional conduct in .relation to. nine different matters was 'charged against respondent. As to> one of these- matters no evidence was offered in support of the charges. As to' two other ■matters the referees found in favor of respondent, and, inasmuch as the prosecution has not asked that the-sa findings be set aside-, it becomes unnecessary for us- to, .and we therefore do- not, express any opinion! up-o-n the correctness of these particular findings.
A vast .amount of evidence, the transcript -of which comprises some 1,000 pages of typewriting, was1 submitted upon the issues raised on the other charges. We 'have gone1 through such evidence with -great care. While there is an irreconcilable conflict therein upon many matters, amid different findings upon minor matters' — in .some instances favorable and in others unfavorable to respondent — would find! such support a-s to warrant our affirmance thereof if they bad1 been returned, yet the referees had the opportunity of seeing such,' witnesses as appeared -before them, and! their appearance upon the witness stand certainly assisted such referees 'in determining the credit that should be given to
Hatland Charge. On January 28, 29, and 30, 1915, one Jacob Hiatland had a number of interviews with respondent at respondent’s office. Hatland was at that time insane, suffering from a type of ¡insanity known- as melancholia, with delusions;, and he sought to employ respondent to protect him from people whom he could not and did' not name, but who. he imagined were, as- he stated, “after him, talking about him, and trying to get him.” The referees found that at the time of the above-mentioned interviews respondent knew- Hatland was mentally unsound and incompetent to transact -any business connected' with the subject of bis imaginary troubles. Upon said dates respondent induced Hatland to pay to him $275 and to execute to' him a note for $1,000 with a mortgage securing the same upon land owned by Hatland. Soion thereafter Hatland was adjudged incompetent, and a guardian of his person and estate was appointed and qualified. About February 16, 1915, respondent, through a newspaper article, was advised that Hatland had ¡been adjudged incompetent and a guardian appointed. On February 27, 1913, a written notice -and. demand, signed by such guardian, was served on respondent, advising respondent that the signer had' been appointed guardian; charging that respondent had procured such- money, note, and mortgage through fraud; and demanding the payment to such guardian of such money and the return of the note and •mortgage. This notice and demand were ignored by respondent.
Renner Charge. On March 14, 1914, respondent was retained by one Renner to represent Renner in a divorce action them pending against him, and which was brought to recover a divorce, alimony, and custody of a minor child. At the time of such employment, respondent was paid $100 as a retainer fee. On April 4. 1914, respondent received from his client the further sum of $900. At the time of this last payment respondent gave his client a receipt as follows:
“Sioux Falls, S. D., April 4, 1914. Received of Wm. A. Renner $900 for bal. cf retainer in legal matters. If case is won and offending party convicted, $2,000.00 more and- expenses to be paid. Otherwise this is full fee in Renner v. Renner. George W. Egan.”
The “offending party” referred to in the receipt was a man who Renner believed guilty of adultery with his wife. Renner was anxious to convict this party of’ adultery, and was also much concerned -over the custody of the child, being very anxious to have her custody. On May 16, 1914, at a time when respondent knew that his client w'as greatly distressed in mind on account of his anxiety as to the custody of his -daughter, and on account of his belief that a certain man was guilty of adultery with his wife, respondent represented to his- client that h;e would be unable ta perform the services desired by -such client in said action and pay his own expenses unle-s's a further and larger fee should- be paid1; and he demanded a further payment of $4,000, which sum the client then and- there paid, partly in -cash', and partly by note, which note w&s afterwards -paid. At said time respondent gave to -his client a receipt as- follows:
“Sioux Falls, S. D., May 16, 1914. Received of W. A.*170 Renner full for all atty.’s fees and- expenses in Renner v. Renner, part ,p& in cash, pant by note due November i5 1914. Geo. W. Egan, per Sese.”
The divorce action, was tried, and resulted in a judgment against respondent’s client. Soon after respondent’s retainer by Renner respondent was authorized to check against Renner’s (bank account to pay alimony to Mrs. Renner and 'attorney fees to her attorneys. Thereafter respondent, without authority from his client, drew four checks aggregating $120.50. These checks were paid by the bank and charged to Renner’s account. The amount of one; $100, was afterwards repaid Renner by respondent. On December 14, 1914, respondent, further attempting to obtain unprofessionally, dishonestly, 'and without consideration additional money from his said client, forwarded by mail to his client a statement of cash alleged to have been expended by respondent on account of said' action; such statement consisting of 95 items, aggregating $495.63, all of which items, except one, consisting only of date, the charge “To cash expended,” and the amount 'of the charge. Accompanying this statement was a letter 'reading:
“Sioux Falls, South Dakota, December 19, 1914. Hon. W. A. Renner, Wentworth, S. D. — Dear Will: I have asked Mr. Shurtl'eff to make out an itemized statement of the amount of money I have paid out in your case since the case was started, and he has made it out, and inclose ithe same herewith. Now, Bill, I just must have this money, for I have a number of bills 1 must meet, and people are urging me. It is not attorney’s fees, but cash I have paid out for you. I wish you would go up to your bank and borrow the money and send me a check. I have filled out a check for die amount of the bill, and you just sign it and return it to me by return mail in the 'inclosed stamped envelope, and then tell the bank to take care of it. This will be a big favor to me. Thanking you in advance, I am; respectfully George W. Egan. Diet, by G. W. E. but not Read. W. H: S.”
Mbst of the items in said statement were for claimed personal expenses of respondent, and, when Renner objected to paying same, Respondent did not -insist that he pay them. The referees found that respondent -testified falsely 'as to several matters which were- offered by respondent in explanation of his
Perreault Charge. On May 22, 1911, one Perreault employed respondent to represent him in an action to be1 brought against the Wisconsin Granite Company. Such employment was evidenced by a 'Contract -in writing as follows:
“Contract and Agreement.
“Made and entered into this 22d day of May, 1911, by and between Urbain. S. Perreault, party of the first part ,and George W. Egan, .party of the second part, witnesseth: Party of the first part this day employs George W. Egan, party of the second part, to be and appear for him as his attorney and counselor at law, in a suit against the Wisconsin Granite Company, for personal injuries to his left limb .and foot, and turns over to tire said George W. Egan the full and complete control and management of said case, and agrees to follow his- advice -in the conduct of the said trial -or settlement of said suit.
“And1 for the said services .to be well and truly performed by the said George W. Egan, party of the second -part, the party of the first part, Urbain S. Perreault, hereby agrees and by these presents binds himself to pay unto the second1 party, George W. Egan., the following share or per cent, of amount recovered, either by. suit or settlement: .
“George W. Egan is to have one-third of what may be recovered, if a satisfactory, settlement can be-made out of court,*172 ■ and, if «aid case is tried in court, then George W. Egan, instead of ■ one-third, shall have 50% of whatever may be ultimately . recovered.
“George W. Egan is to -pay his- own expenses, and' if no recovery is had, either by suit or settlement, then George W. Egan is to charge no fees, and first party, Urbain S. Perreault, shall be in no wise indebted to George W. Egan.
“George W. Egan on his part agrees to give sufficient time and his best energy and ability to the prosecution of said claim, either by suit or 'settlement.
“Dated at Sioux Falls, S. D., this 22d day of May, 1911.
“Urbain S. Perreault, First Party.
“Geo. W. Egan, Second Party.”
Pursuant to such oomtract, ¡respondent instituted an action in a circut court of this state; such action, on motion by defendant therein, was afterwards transferred to the United States District 'Court, where a demurrer to¡ 'the complaint was sustained, •and later the action dismissed. Subsequently 'and pursuant to the said contract a new action was instituted in the state circuit court, was tried, and resulted- in a verdict anld judgment for plaintiff. Upon appeal to tills court such judgment was affirmed, and on or about November 3, 1913, respondent, as attorney for Perre-ault, received in- ¡satisfaction of such judgment a draft for $2,219.55. ' Tills amount included costs in this and the circuit court, as well as interest on the judgment — the amount of recovery, exclusive oif costs and) interest, being $1,990. Respondent presented to his- client 'a statement of moneys which he claimed to have paid out oar behalf of such client on account of said action, .and' offered! to pay the balance of one-half of the $1,990, and interest. Perreault refused to accept the offer and demanded an itemized! .statement of the account. Perrault wrote respondent several times asking for such itemized statement and for the money due him; and respondent .replied to. the fetters promising to have such statement prepared and sent to Perreault. Finally, under- date- of December 21, 1913, respondent: wrote Perreault as follows:
“I ¡have been away from1 my office for some time, and have had no opportunity to answer your letter until now. I did not like the tone of your 'letter, and, as I have stated before, I have the*173 money here, and any time you want it you can call for it.”
Perreault afterwards employed1 attorneys at Ell< Point, S. D., Perreault's home, to collect what was due him from respondent. These attorneys corresponded with respondent, and finally, almost three months after his ‘Client had first demanded it, respondent sent an itemized statement to the said attorneys. He deposited the balance shown thereby to the credit of Perreault in a Sioux Palls bank, andl sent a 'duplicate deposit slip to his attorneys. Perreault directed the return of the deposit slip, and refused to accept the amount thereof in settlement of his claim. Perreault, through his attorneys, instituted an action against respondent in the district court of Woodbury ociunty, Iowa, to. recover from respondent the amount clamed to be due, $1,058.85. Respondent procurad the dismissal of such action upon the ground that the original notice therein was served upon him- at S'ioux City at a time when he was privileged from, the service of process. Respondent soon thereafter commenced an action against Perreault and his attorneys seeking to. recover damages in the sum of $15,000 claimed to have been suffered by reason of the commencement of Perreault’s action against respondent. This action is now pending. Among the items wrongfully charged against Perreault in the itemized statement furnished was one of $55 for services alleged to have been performed by ene E. E. Pierson in the United States court. At the time such services were rendered Pierson, was a law clerk in respondent’s office. Another item wrongfully charged against Perreault was $180, stated to be ■“for cash advanced while case was pending.” The only money so advanced was one item of $20 which had been repaid prior to the collection of Perreault’s judgment. Twenty-five dollars was charged for “expert fees, for expert evidence, paid by George W. Elgan,” and another $25 for moneys stated toi have been paid “Dr. M. H. Egan, physician’s fees for examination, paid at direction of Perreault.” Twenty-five dollars was paid Dr. Egan as an expert witness; the other charge was wrongful. Ten dollars was charged! far “opinion an case at Elk Point.” No opinion was ever asked for; hut Perreault once had1 a casual conversation with respondent in relation to such case. ' There was a charge of $10 far “special counsel fee's, cash paid by George W. Egan,” 'but which fee was never paid by respondent. Respondent has at all
“That the -said! statement of account, Exhibit 23, was wrongfully and ideliberately padded by the said Egan with the express purpose of wrongfully and fraudulently -withholding from his client, the said Perreault, moneys justly -due him as the proceeds of said judgment.”
And they concluded that respondent’s conduct in relation to the Perreault matter “was dishonest, unprofessional, and fraudulent.”
The ultimate question presented to the court in a disbarment proceeding is:
“Do all the .facts established by the evidence prove to the satisfaction of the court that the respondent i© unfitted to. be an attorney at law?” In re Egan, 36 S. D. 228, 154 N. W. 521.
The referees concluded:
“That the conduct of the respondent, George' W. Egan, as shown by the findings of fact relating to> the Kicklandi, Hatland, Renner, and P'erreault charges, shows the respondent, George W. Egan, to be a person unfit to practice as an attorney at law, andt a judgment canceling 'his license to' practice law in the state of Sou-tlii Dakota should be made and entered in this proceeding.”'
With such conclusion we fully agree. The evidence in this case, even that of respondent himself, discloses that respondent is .possessed - of a consuming .passion to enrich himself at the expense of, and regardless of the rights of, those who, reposing confidence in him, have come to> him as clients. It was this weakness that led to. his previous disbarment. In re Egan, 22 S. D. 355, 117 N. W. 874. If is this: weakness that, even accepting-bis version of -the Hatlandi matter as - true, kept -him -from- seeking out the guardian of Hatland as soon as he learned of -his appointment, and, before any demand was made, voluntarily restoring to
That the facts require a judgment of disbarment is. too clear to justify our extending this opinioto by the citation -of authorities to support such conclusion. If authorities are de-sired, they will be fou-nid -cited in the numerous -ca-seis -hereinbefore mentioned wherein respondent has 'been before this court in matters pertaining to his disbarment. When respondent last sought readm-ls-si-om to practice, h,e -in open co-urt stated that he wanted “a chance to- -come bade. * * * If you give me the right to practice law, you will have no reason to -regret it.” The chance was given, but respondent h-as proven himself unworthy the mercy shown him-; he has given- -to those who- thus trusted him ample cause to feel- that they -committed a 'great wrong to the people of this state when) they the second time placed1 in his hands authority to .act as an officer of the courts of this state. It is with a full realization of all that our -decision means to respondent that we now affirm -the repor-t of the referees and adjudge that respondent’s license be -canceled and his name