15 Haw. 155 | Haw. | 1903
Lead Opinion
OPINION OF THE COURT BY
(Galbraith, J., dissenting.)
This proceeding is an episode of the Sumner litigation, long since become notorious, and more particularly of what is known as the Ropert case in that litigation, recently decided by this court, ante 16. In that case the court was requested by Messrs. Humphreys, Thompson & Watson, attorneys in the case, to investigate the conduct of counsel on both sides, such conduct having been questioned. The court thereupon, with the acquiescence of opposing counsel, Mr. J. A. Magoon and Mr. G. A. Davis, took the usual course of referring the matter to the Attorney General for investigation and such further action as to him should seem advisable. The result was the institution by him -of these proceedings for the disbarment or suspension of the respondents or other dealing with them.
Most of the proceedings in the Sumner litigation are set forth in the decision just mentioned. This is true also of some of the facts and conclusions which are involved in the present case, and for this reason there may be less fullness in the present decision than might otherwise be required.
There.have been two periods in that litigation. The first period covered the years 1895-8 and included cases for the can-celation of a power of attorney and the appointment of a receiver, for the cancelation of certain conveyances and finally for the appointment of a guardian over John K. Sumner as an insane person. .The guardianship case was discontinued upon the execution of a trust deed by Sumner to Bishop Ropert of the Roman Catholic Church, which deed also referred to a will made
The second period of litigation — the one in which we are now chiefly interested — was begun August 4, 1902, by the bringing, of a suit by the railroad company against Sumner and his trustee,' the Bishop, for the specific enforcement of the option. On September 4, 1902, Mrs. Maria S. Davis, Sumner’s sister, brought proceedings for placing him under guardianship and also a suit to cancel the trust deed and the lease and enjoin the execution of the option. All these three suits were settled October 13, 1902, by the discontinuance of the railroad suit,, the withdrawal of the appeal from the decree dismissing the bill in the injunction suit, the entering of a decree dismissing the petition and declaring Sumner sane in the guardianship suit, the execution of.a deed of the property in question, together with a certain small tract which had been reserved in the lease, to the railroad company for $110,000, and by the distribution of that sum as follows: $10,000 each to Sumner’s grandnephews and grand-niece, W. S. Ellis, J. S. Ellis and Mrs. Buf-fandeau, to Maria S. Davis and the Bishop, $10,500 to the various attorneys (one of the attorneys having previously received a retainer of $500), $1,000 to one Cathcart, a friend of Sumner, and $415 for stamps on the deed, leaving $48,025, which Sumner shortly after withdrew for himself. On October 21, 1902, the Bishop brought a suit in form for his discharge as trustee and the appointment of a successor, but the substantial issue in which was between certain of the defendants, namely, Sumner on one side, and the Ellises and Mrs. Buifandeau
The charges against each of these respondents are in general of “professional improprieties, malpractice, deceit and infidelity to his client, and gross misconduct”, and more particularly (in substance, without setting forth the details of the complaint,) that they acted as attorneys for Stunner in the railroad and guardianship cases, and knew that all claims of the Ellises (including Mrs. Buffandeau, née Ellis) to the proceeds of the sale .had been disposed of in the settlement referred to, but that nevertheless soon after such settlement and especially in the Ropert ■ case they acted as attorneys for the Ellises in opposition to the interests of their former client, Sumner. A further charge is made against the respondent Humphreys, to the effect that, ■while acting as such attorney for the Ellises, he proposed to J. A. Magoon, as attorney for Sumner, that he, Magoon, should betray the interests of his client, Sumner, and induce him to submit to a further and extortionate demand on the said funds by the Ellises and that said Humphreys and Magoon should ■ each demand and take an unreasonably large fee therefor, and threatened that unless his proposal was accepted he would prevent by the use of legal process said Sumner from exercising .any control over said funds during the rest of his, Sumner’s, life.
These are grave charges. Considering the nature of proceedings of this character and the possible results to persons who have attained admission and perhaps prominence at the bar only •after years of study and training and experience, and who and' whose families, may be largely dependent for their means of livelihood upon the exercise of their privileges as members of the profession, it goes without saying that the court should act in cases of this kind with unusual caution both in weighing the
The first question naturally is, what were the relations between the respondents and Sumner in the litigation up to the time of the settlement and what in the subsequent proceedings. There is no question as to the latter. The respondents, especially Mr. Humphreys, acting for the Ellises, took active steps the very day after Sumner withdrew the $48,025, to prevent his keeping it ,and in consequence of their action the Bishop brought suit, out of abundant caution, as we believe, to obtain the opinion of the court as to the propriety of his payment of the money to Sumner, and throughout that case the respondents, especially Mr. Humphreys, representing the Ellises, fought against Sum
On the 5th of August, 1902, the day on which service was made on the Bishop in the railroad case, the three Ellises called .at the chambers of the respondent Humphreys, then a Circuit Judge, to ascertain if he would act as attorney in that case. -Judge Humphreys said that he could not, because he was on .-the bench, and recommended to them IVIr. Henry E. Highton, and, they acquiescing, he arranged an interview between them ^and Highton for the next morning at his chambers. At that interview they engaged Highton for a retainer of $500 and a Tee of $2,000 additional. The Ellises were not parties to the •suit, but on the day, the 20th of that month, that their uncle, Mr. Sumner, Avho was a party, arrived from Tahiti, they took •him to Highton and he, Sumner, then confirmed the arrangement they had made with Highton, paying the retainer and •agreeing to ¡Day the fee. Thereafter Mr. Highton acted primarily for Mr. Sumner, but in a more general sense represented "the Ellises also.
While still on the bench, Judge Humphreys told his brother-in-law Mr. Magoon, that he, Humphreys, could come into the .«ase after he left the bench and asked Magoon’s opinion as to
On the 4th of September, Sumner having insisted on a settlement of the railroad case, and having decided upon a disposition of the proceeds of the land that was to be conveyed, including the placing in trust of the greater part of those proceeds for the Ellises, they were all at Highton’s office to arrange the settlement, when W. S. Ellis telephoned for Mr. Humphreys. The latter came and objected to the proposed terms of the trust deed, principally on the grounds that the trustee was not to be under bond and was to receive too large a compensation. The result was that the proposed settlement fell through and was never resurrected. It was at that meeting that Humphreys, Thompson & Watson, who had formed a partnership the day Humphreys left the bench, were retained. There is some dispute as to the nature of the arrangement. According to Humphreys, he came to the meeting as representing W. S. Ellis and was there retained by all three Ellises. During the meeting AY. S. Ellis asked Humphreys what his fee would be, to which the latter replied, “the same as Highton’s.” Apparently comparatively little was said upon the matter. Much seems to have been taken for granted in view of previous understandings and the relations between the parties. Mr. Humphreys says that he was
At that time Sumner and the Ellises were exceedingly friendly. He was then living with Mrs. Buffandeau, who had taken him to her house the day he arrived. She had held his power of attorney for a long time and received from the Bishop for Sumner the latter’s entire net income from the property under the trust. They were constantly the recipients of his bounty — • to a lavish extent. At that meeting he proposed to give them $75,000. He had wanted to adopt them when he was here the year before. They were practically one family. They had engaged Mr. Highton precisely as they had proposed to engage Mr. Humphreys. They did so in a general way and in their own names, as Sumner was not here. But they understood that it was really for Sumner that they were acting, for they took him to Highton the day he arrived and, as they expected, he at once followed their advice, ratified all that they had done, paid the retainer, agreed to pay the fee, and accepted Highton as his attorney, though he had never seen nor heard of him before. As
Now as to the subsequent acts. After that meeting, Highton and Humphreys went together to see the Bishop) and then to the attorneys for the railroad company to see if they could not induce the latter to give a few thousand more than the two thousand five hundred dollars that the conrpany was then willing to give for the tract that had been reserved in the lease. This, of course, in addition to the $100,000 called for in the oprtion for the rest of the property. On returning to his office Mr. Hum-phreys told Mr. Thompson what had occurred.
At the final settlement, the various sums, excepting those paid to Mrs. Davis and her attorneys, were paid by the Bishop on Simmer’s order, contained in a letter specifying the amounts and persons in each instance. In this order Sumner directed the Bishop to pay to Humphreys, Thompson & Watson $2,500. The Bishop paid this amount to Thompson under this order and the latter gave a receipt as follows: “Honolulu, H. I., Oct. 14, 1902. Deceived from Bt. Bev. Gulstan E. Bopert, Trustee John K. Sumner, Twenty-five hundred Dollars, In full fee
There was no doubt that it was understood by all that Humphreys, Thompson & Watson represented the Ellises more particularly and perhaps W. S. Ellis more particularly still, and there is no doubt that Humphreys and Sumner personally felt hostile to each other..' We may concede that they did not consider that their relations with Sumner were fully all that
There was some difference of opinion among the members of this court in the Ropert case as to the bearing of the evidence in regard to the understanding at the time of the settlement upon the question of the revocability of the trust deed. That question is not now involved. There is also much evidence in this case upon that point that was not in that case. We have now to consider merely what the understanding of the parties was at the time of the settlement and more particularly what Sumner’s understanding was, and how far the respondents knew or ought to have known that. The theories of the respondents .as to that understanding, as well as upon some other points, have been so varied and shifting that it is difficult to treat of them in a satisfactory manner. They seem to have two principal theories in regard to the settlement. The one chiefly relied on is that the balance of the money, $48,025, was to remain subject to the trust by express understanding or agreement. The only direct evidence adduced in support of this, in
Respondents rely also on the fact that the Davises were required to sign a release or agreement to release, and that the Ellises were not required to do so. This release now appears to have been suggested by Mr. Humphreys and not by the Ellises. The respondents’ neglect to get releases from the Ellises as well as from the Davises for their client Sumner, is made one
Now, returning to the question as to the understanding at the settlement, the other of the respondents’ two principal theories seems to be that the balance of the money remained subject to the trust as matter of law, because of the absence of an agreement to distribute it. They perhaps go a little further by attempting to maintain that the distribution of a part of the entire fund was a matter of definite contract made with reference to the Ellises’ supposed interests as beneficiaries under the trust, and that the Ellises consented to accede to Sumner’s wish to give Mrs. Davis and the Bishop each $10,000 out of the common fund and to sign the deed to the railroad company in consideration of Sumner’s- consenting to their withdrawing $10,000 apiece from the fund. (They say nothing about the $1,000 given to Sumner’s friend, Cathcart.) The difficulty with this is that it is a mere hypothesis with nothing in the evidence to support it, other than' the fact that, in view of the terms of the trust deed, there was considerable ground on which to have proceeded on such a theory, if the Ellises and their attorneys had attempted to do so. There was no talk whatever of the respective interests of the Ellises and Sumner under the trust. Neither the Ellises nor their attorneys so much as thought of examining the trust deed to see what the
Oahu. Railway & Land Co. ys. John K. Sumner and Bishop of Panopolis.
Guardianship of John II. Sumner, John K. Sumner, by his Next Friend, Maria S.-Davis ys. Oahu Railway & Land Co. and Bishop of Panopolis.
John K. Sumner, Esquire, William S. Ellis, Esquire, John S. Ellis, Esquire, Mrs. Victoria Buffandeau.
My employment in the first case named above was originally for John S. Ellis, William S. Ellis and Victoria Buffandeau, and it was agreed that my fee should be $2,500.00, of which $500.00 constituting the retainer, has been paid. When Mr. John K. Sumner arrived, August 20th, 1902, it was further agreed that I should represent him, as he was and is the owner of the property involved and entitled to the proceeds thereof. I considered, however, that my employment necessarily embraced the other proceeding and suit above mentioned, and that for them no additional charge should be made. The amount to be paid to me, therefore, for the entire litigation, beyond what I have received, is Two Thousand Dollars.
When Judge Humphreys left the Bench, it was further agreed that he, which of course meant the firm of Humphreys, Thompson & Watson, should also be employed specifically in the guardianship case, and that his and their fee should be Two Thousand Five Hundred Dollars. While his and their employment was limited on the record to the guardianship case, it was understood to apply to the entire business, but more directly to the interests of William S. Ellis, John S. Ellis and Mrs. Victoria Buffandeau.
1. In the case of Oahu Railway and Land Co. vs. John K. Sumner and the Bishop of Panopolis, I have kept the time alive to move or plead on behalf of Sumner, and have also thoroughly prepared to file and support a demurrer to the bill of complaint.
2. The case of John K. Sumner, by his next friend, Maria S. Davis, on his motion, has been dismissed, and an appeal from the order taken to the Supreme Court of the Territory of Hawaii. In this case as in the first, I have done a great deal of work.
I wish it to be distinctly understood and acknowledged in writing by you that, at no time, have I recommended any settlement of this litigation. During my entire life, I have been, and I now am, uncompromisingly opposed to submission to illegal exactions. I believe John ID Sumner to be in every respect sane, competent- and capable of managing his own property and attending to his own business, and this litigation, the objective point of which is to take money from him which is ■exclusively his own, in my opinion, is not to be justified in law or fact. Mr. Sumner, like other men, has a plain right to do as he pleases with his property or money, and I absolutely decline, in a professional capacity, to endorse any imoposal which practically denies this right.
But on Thursday, October 9th, 1902, in the presence of the Eight Reverend Gulstan F. Ropert, Bishop of Panopolis,— .myself, Mr. Thompson, the Ellises, Mrs. Victoria Bufiandeau, .and John ID Sumner being in attendance, — it was definitely -agreed that the entire litigation might be settled on'the basis •of $105,000.00, to be paid by the Oahu Railway & Land Co., for the rights of John ID Sumner and his beneficiaries and relatives in the Quarantine Island property, and that of this ¡amount, in addition to the fees above mentioned, Ten Thousand Dollars hould be paid to Mrs. Maria S. Davis. The distribution .of-the remainder, which belongs to Mr. John IE Sumner, was and is to be settled between him, William S. Ellis, John S. Ellis, and Mrs. Victoria Bufiandeau.
I am bound to obey the positive instructions of my clients, -and, on this ground and no other, acting under their direction, will do my best to promote the suggested compromise. I now understand that the Oahu Railway and Land Oo. proposes to pay $110,000.00 for a conveyance from all the parties of their •entire interest in the property in question, of which Five Thousand Dollars is to go to Messrs. George A. Davis and to Magoon -and Lightfoot, attorneys for Maria S. Davis. The distribution of the entire sum of $110,000.00, so far as settled, is to be as Jüollows:
*181 To Messrs. George A. Davis and Messrs. Magoon and Lightfoot .$ 5,000.00"'
To Messrs. Humphreys, Thompson & Watson. 2,500.00-
To myself, embracing the whole litigation, and allowing for retainer paid. . . .'. 2,000.00
To the Bishop of Panopolis. 10,000.00'
This leaves to be divided between John X. Sumner, William S. Ellis, John S. Ellis, and Mrs. Victoria Buffandeau, the sum of Eighty Thousand Eive Hundred Dollars, as they may agree among themselves, Mr. Sumner being the owner of the money. They are to meet at this office at eleven o’clock a. m. tomorrow (Saturday), October 11th, 1902, to. determine on the distribution, which is necessarily dependent upon the payment by the.Oahu Railway & Land Co.
Faithfully yours,
HeNey E. HightoNV
“Honolulu, October 11, 1902.
“Dear sir: — We have read and thoroughly understand your letter to us, dated October 10th, 1902, in reference to the litigation about the Quarantine Island property and all property embraced in the lease and option (so-called) from John X. Sumner to the Oahu Railay and Land Co. The statements in the letter-are, and each of them is, correct, and we add that you have in no way advised the compromise of the litigation, for which we hold ourselves entirely responsible, and request you to act under our instructions and, if possible, to consummate the settlement. Yours truly,
JOHN X. SuMNER,
Victoria S. Bueeahdeau,.
William SuMNer Ellis,
JoiiN S. EllisV-
The next document is the letter from Sumner to the Bishop-on which the latter paid out the money. No question was raised as to Sumner’s right to make the order and no one-suggested that the Ellises should join in the order as co-beneficiaries under the trust. This order shows what the Bishop as well as Sumner and Highton understood. It was drafted by Highton and signed by Sumner. Of the $49,025 expressed"
“Honolulu, T. H., 13tb October, 1902.
"To Tbe Bigbt Reverend
GulstaN E. Ropert,
Bisbop of Banopolis.
Right Reverend Sir: — Out of tbe sum of $94,525 in your bands as my trustee on tbe settlement made with tbe Oabu Railway and Land Company, William S. Ellis, John S. Ellis, Victoria S. Buffandeau, Maria S. Davis, please pay by cheque at once, tbe following amounts, to tbe following persons:
Humphreys, Thompson & Watson.$ 2,500.00
Henry E. Highton. 2,000.00
R. W. Cathc'art. 1,000.00
William S .Ellis. 10,000.00
Victoria S. Buffandeau. 10,000.00
John S. Ellis. 10,000.00
To yourself. 10,000.00
$45,500.00
This will leave in your bands altogether $49,025 subject to my order.
Of tbe sum of $110,000.00 constituting tbe full settlement, $15,275 has already been accounted for — namely, $5,000.00 to Davis and Magoon, attorneys; $10,000.00 to Maria S. Davis, and $475 constituting my proportion of tbe stamps on tbe deed to tbe Oabu Railway and Land Company.
Faithfully yours,
JOHN K. SuMNER.”
Tbe fact that there was an allegation in tbe Bishop’s complaint in tbe Ropert case to tbe effect that it was understood that the balance of tbe money should remain subject to the trust is of little consequence as showing bis previous understanding, as we considered in tbe Ropert case, in which that fact was called to our attention. Tbe complaint was drafted by counsel and, if that allegation was particularly called to tbe Bishop’s attention, be doubtless subscribed to it in reliance oh
The next papers are tbe receipts given by tbe Ellises. These are in Thompson’s writing, except tbe few words printed in tbe form and tbe signature by tbe Ellises: They tend to show wbat Thompson as well as tbe Ellises thought at tbe time. Two are in form as follows, signed by J. S. Ellis and Mrs. Bnffandeau respectively: “Honolulu, H. I., Oct. 14th, 1902. Received from Rt. Rev. G-ulstan Ropert, Trustee John K. Sumner, Ten Thousand Dollars, In full am’t to be paid me under settlement between Oahu Ry. & Land Co. and John K. Sumner, and being am’t directed to be paid by letter of J. K. Sumner, $10,000.” Tbe other, signed by W. S. Ellis, differs only to a slight extent, reading after tbe word “dollars” as follows: “In full settlement between Oahu Ry. & Land Oo. and John K. Sumner, and being directed to be paid me by letter of John K. Sumner.” Tbe fact that all at least except tbe respondents understood that tbe settlement was complete and final and that tbe rest of the money was subject to Sumner’s pleasure, is established.
The question remains as to bow far tbe respondents knew or ought to have known that fact. They claim that they did not know of tbe correspondence between Highton and Sumner and tbe Ellises and did not see Sumner’s letter to tbe Bishop until long afterwards. We believe that they did not see tbe former letters until two months later and there is no evidence that they bad beard of them earlier. Their clients, tbe Ellises, may not bave told them As to tbe letter from Sumner to tbe Bishop, we will assume that Thompson’s statement is true that de did not see it at tbe time, although tbe receipts which be wrote refer to it, and Highton thinks be must bave shown it to him. It is not unlikely that Thompson wrote tbe receipts, as be says, on Higbton’s statement that such a letter would be written, but that does not alter tbe fact that Thompson knew that tbe
In closing the discussion on this branch of the case, already protracted far more than intended, reference must be made to the question of Mr. Highton’s credibility. To judge from their arguments one would suppose that the respondents’ chief defense was abuse of the other side, particularly the Attorney General who is prosecuting at the request of the court and as a result of investigations set in motion by the respondents themselves, and more particularly Mr. Highton and Mr. Magoon. The principal ground for attacking the credibility of these two witnesses seems to be in general that they must both have been moved to perjure themselves by way of revenge against the respondents because of shameful abuse heaped upon them by the respondents. They also endeavor to show that these witnesses falsified in certain particulars. Referring to Mr. Highton alone in connection with branch of the case, we may remark in gen
What should the penalty be ? As stated above, if the relation of attorney and client existed between the respondents and Sumner to its fullest extent, the penalty, by all the authorities, should be disbarment. Where there are mitigating circumstances, it may Avell be only suspension. How fax the courts go will be illustrated by a few cases. In one case an attorney after the expiration of his term of office as attorney and counselor for the city arid county of San Francisco accepted a retainer of $100 from the attorney on the other side, not to accept employment from the city in certain cases. These cases were two of eight hundred cases pending Avhen he took office. IJe kneAV nothing of their facts. They were pending and had been decided against the city in the lower court before he took office. He directed that appeals should be taken in all the cases as a matter of precaution. When he accepted the retainer after he left office, the two cases in question had been decided by the appellate court, affirming the judgments beloAV. When he Avas offered the retainer, he said he had had nothing to do with the cases and knew nothing of them and had not been employed by the city and thought he was in a condition to accept a fee, also that he could do nothing against the city and did not wish, for
In tbe case of Mr; Thompson, after making all due allowances for tbe looseness of tbe relationship of attorney and client between him and Mr. Sumner, and giving him all tbe benefit of doubt that reasonably can be given as to tbe extent of bis knowledge as to tbe understanding of tbe parties, especilly Mr. Sumner, at tbe settlement, and taking into consideration bis comparative youthfulness (though be disclaims any desire for allowances on this account), tbe fact that,- as appears from tbe evidence, be acted to a large extent under Mr. Humphreys’ directions, and tbe good reputation that be has borne in the community, we do not see bow, consistently with our duty under' tbe circumstances, tbe penalty can be less than suspension for one year. In the case of Mr. Humphreys tbe penalty on tbe charges thus far considered should be no less than in tbe case of Mr. Thompson, but a graver charge is made against Mr. Humphreys individually, that of attempting to persuade Mr. Magoon to betray bis client, Mr. Sumner, which will now be considered.
On tbe day after Mr. Sumner, in company .with Mr. Magoon as bis attorney, drew tbe balance of tbe money, $48,025, from the Bishop, Mr. Humphreys called at Mr. Mago on’s office, and the following took place, according to Mr. Magoon’s testimony:
“Mr. Humphreys came into my office and said be wanted to speak to me on a matter of grave importance. I gave him an audience. I think we were closeted alone in tbe room. He told me it was tbe Sumner matter, be said be bad been told that I bad withdrawn or assisted Mr. Sumner in withdrawing money*191 from tlie Bishop and depositing it in the Bank for Mr. Sumner. He gave me a letter which he said he had sent to Bishop & Co. * * * He stated that it was an improper thing for me to have-done, to have withdrawn this money, but he said that he wanted to settle the matter — that he did not — said that he would make an offer of compromise which would be satisfactory to all concerned he thought and his suggestion was — he offered that the Ellises take $30,000 and Mr. Sumner take the rest, $18,025. I told him that was not a fair compromise, in fact wasn’t a compromise at all and that I could not recommend it to my client. Still he said, the old man Sumner was going to Tahiti, he would not want very much money, would spend it all, it would be enough for him. I said I thought not, I didn’t think it fair that the Ellises should take the whole $30,000 and give Sumner $18,025, that didn’t seem to be fair. He said ‘You don’t c-are anything for Sumner, what do you care for Sumner \ Let him go. What do you care, what do we care if we can get Our fees out of him. They will spend the money airy way.’ I still persisted and said I did not think it was right, I did not think Mr. Sumner will agree to it. He said he would agree to it if I would advise it. I said I could not advise it. Finally he said, ‘If this settlement is agreed upon I can charge the Ellises $5,000 for my services,’ and that I might charge $3,000, * * I could get $3,000 out of it and that he could get $5,000; that was we cared for, that was our fees. And I said, no, I could not do it. Then he said, ‘Well, you think it over, you think the matter over and talk it over with Mr. Sumner and let me know/ I said ‘Well, I will do it,’ I would submit the matter to Mr. Sumner anyway. * * * He said that he would bring suit on behalf of the Ellises unless this matter was compromised, bring suit' on behalf of the Elises, bring suit to regain this money, as be had notified Bishop & Co. that' he would do. I said, that was all right, go ahead. He said, ‘And I will see to it that Sumner will never get a dollar of it. I will keep this in Court until after Sumner’s death. He never shall have a dollar of this money. If I am beaten before the Circuit Court, and I don’t think I shall be, I shall take it to the Supreme Court, the Supreme Court of the Territory and if I am beaten there I shall take it to the Supreme Court of the United States. I shall not be beaten by anything. I will keep it in litigation*192 bo long as -Sumner lives.’ I said, ‘Yon cannot do that, take it to the Supreme Court of the United States. There is no federal ■question involved. You cannot take it to the Supreme Court of the United States.’ ‘Oh,’ he said, -‘You can make a federal question in any case. Yon can raise a federal question in any case, pretty nearly in any case yon could get it in, it doesn’t make any difference what it is, whether it is valid or not, yon can take ú to the Supreme Court, and I will see that it is kept in litigation as long as Sumner lives and that he will never get a dollar of it.’ * * * * Before he went away he said I must not say anything about fees, he spoke to me confidentially. ‘We must keep that between ourselves.’ ” .
Afterwards, Mr. Magoon, having seen Mr. Sumner, went, as he testifies,
“to Mr. Humphreys’ office on Bethel street and told him that I came for the purpose of ascertaining whether some reasonable settlement could not be made. I said that the settlement ‘you’ propose is out of the question and he did not let me finish, he stopped me before I finished, saying what I had to say. He said, ‘well now, if you have come for a settlement I want to have you understand that I will not take anything less than $30,000. I will not take $29,999.99. I want $30,000 or nothing.’ I said, ‘Well, if that is the way you feel about it there is absolutely no use for us to talk. I don’t want to waste your .time nor mine,’ and I turned round and left the office without ■any further talk.”
Mr. Humpheys’ version is as follows:
“I then said to these people (the Ellises), arranged with them for getting a $1000 fee for this money. I knew Mr, Sumner’s age, about eighty-five years of age. I said — I was reasoning to myself- — I said, here is $48,000, call it $50,000. .Invested at 6%, would make $3,000, a fair rate of interest on a trust fund, $3,000 per annum. Mr. Sumner’s life expectancy cannot in the nature of things exceed five years. That would leave him $15,000 from the $48,000, $3,000 a year.. $30,000 would go to the Ellises. I thought the $3,000 would be used in effecting a settlement, believing at that time, not having seen the trust deed, that the trust might be terminated. I made the contract on the basis of $30,000 and they paid me •cash, a fee of $1,000. After leaving Bishop & Co. with this*193 letter, I met in front of tbe Post Office, Clinton J. Hutchins. I asked him what would be the expectancy of a man about eighty-four and he said three and a fraction years. I had granted Mr. Sumner five years, not having any table at hand. Mr. Hutchins said it would be three years and a fraction (8-10). I went from there to the recorder’s office and made a pencil copy (of the trust deed) which was afterwards typewritten by my stenographer. Returning from the Recorder’s office I stopped in at Magoon’s and informed him of the letter which I had written to Bishop & Co. He asked me if I had a copy of the letter and I told him that I had and that I would send it to him during the day, which I did. I asked Magoon for the will. He says — I said, ‘This will has been delivered to you, I would like to see it.’ My recollection is that he said it was destroyed. He either said cancelled or destroyed. I might have construed the word Cancelled, thought it convertible with destroyed. He denies that he said it was destroyed, he says he said it was cancelled. Probably that is true. It is more than likely that he used that term and I understood by that that it was destroyed. He then asked if there was a possibility of a settlement. I told him that there was — of Sumner’s life expectancy, of the conversation I had had with Hutchins and my own expression. Well, take it at five years, that would be $15,000. There will be $3,000 left over for chips and whetstones. I did not propose to Mr. Magoon that I would charge $5,000 and he could charge $3,000, nor did I propose to charge my clients $5,000 because I had made a contract which had already been paid, for the services which were contemplated.”
These two versions are flatly contradictory in the parts which are now of chief importance. They cannot be reconciled on any theory of misunderstanding or failure of memory. Which witness should be believed %
So far as interest is concerned Mr. Humphreys has almost as great an interest as it is possible to have to avoid the natural consequences of Mr. Magoon’s testimony. Mr. Magoon’s only interest, so far as can be contended, is to get even with his brother-in-law, by practically ruining him, because of the abuses which the latter has heaped upon him in the Ropert case. The
The respondents in their answer in these proceedings as well as in their testimony take the position that all offers of compromise in the Ropert case came from Sumner’s attorneys, and Mr. Humphreys in his testimony above quoted says that the offer to compromise on the occasion now in question came from Mr. Magoon. As a matter of fact, with the exception of the instance above shown, when Mr. Magoon after he had seen his client at Mr. Humphreys’ request, went to the latter, to see if some reasonable compromise could not be effected, was steadfastly opposed to compromises throughout. This is established beyond a doubt by the witnesses on both sides. Mr. Magoon’s associate, Mr. Davis, apparently was eager to compromise and Mr. Magoon had to resist his importunities as well as those of
The nature of Humphreys’ conversation on the occasion in question, as one of the threats and bluff, is corroborated by his-attitude throughout. In the first place, there is much reason to believe that his proposition to take $30,000 for the Ellises was-not made in the best of faith or as a pfcopostion to be considered on its own merits alone. We need not consider what Mr. Humphreys already knew as to the understanding at the previous settlement. Nor need we more than advert to the fact already mentioned that Mr. Humphreys was later willing to accept $13,000. He attempts to make a plausible case on the basis of Mr. Sumner’s life-expectancy. He does not, however, consider that of the entire $110,000 Sumner had not received a cent, other than the $48,025 then in question, or that $62,000 had already gone, or that the Ellises had already received $30,000. He accused Mr. Magoon of having done an improper-thing and said that he would get into trouble because he had assisted in obtaining the money from the trustee and that without first examining the trust deed, although the trustee as well as Mr. Magoon’s client considered that the latter was entitled, to the money, which, as the court afterwards held, was the fact, and Mr. Magoon had suggested to the trustee that he consult his attorney, Mr. Stanley, before paying over the money. And yet that was just what Mr. Humphreys’ firm had done. They had assisted in taking out $62,000 without looking at the trust:
In tbe next place, Mr. Humphreys’ attitude was one of threat and of harassment of Mr. Magoon throughout. He began with .a tirade against Magoon in tbe answer which be drafted for tbe .Ellises in tbe Kopert case. To use bis own concessions on tbe witness stand, “a great deal of it (tbe answer) is impulsive and immaterial, impertinent matter.” Speaking of a particular portion of tbe answer, be concedes that it “is an abusive statement.” -In-this-connection reference may be made to an allega
Reference may be made to some particular instances showing Mr. Humphrey’s threatening attitude, some of which occurred" outside of the court. Mr. Wundenberg, who is connected with-Mr. Magoon in business, says that on one occasion,
“Mr. Humphreys came to my office and made this remark, something to this effect, that he was tired of talking to Mr. Ma-goon and he addressed himself to me, and, as my recollection*198 goes, it was as regards tbe filing of some instrument in the case with Sumner. He stated that if that was filed he would file an answer that would raise the roof off the Magoon building and part of the Judiciary Building,” and, on cross-examination, he ;says, “it struck me as a threat, if Magoon did certain things, ;you would do certain things.”
Mr. Humphreys says that Mr. Wundenberg’s statement is substantially correct, that the document referred to by him, Humphreys, was the Ellises’ answer in the Bopert case, and that that was the way he felt. Mr. Lightfoot, an attorney associated with Mr. Magoon in practice, testified:
“I had been, I was working in the library and Judge Hum-phreys was also working there, and and having finished our work we began to speak about the Sumner case as it was called, meaning the case of Bopert against Sumner. Mr. Humphreys stated that he did not care particularly how Judge He Bolt should rule in that case, that if it were not for the fact that it would be considered a discourtesy by him towards the court, he would not even argue the case . Mr. Humphreys further stated in very emphatic terms that he was confident that he would win out before the Supreme Court of the Territory of Hawaii and producing a large number of gold coins from his pocket, offered to wager with me that sum against a small sum that he would so win. Mr. Humphreys further stated that in the event he (Humphreys) should be defeated in the appeal— in the appeal to the Supreme Court of the Territory, of Hawaii, in case such an appeal would be taken, he would further appeal to the Supreme Court of the United States of America -and that John K. Sumner would never see — -never live to see ■the end of the litigation.”
Mr. Humphreys does not dispute this, but contends that he was in earnest and felt confident that he would win, and that le, as Mr. Lightfoot also says, mentioned the possible disqualification of two members of this court as a basis on which to raise •a federal question. In 'February, upon Mr. Magoon’s having said to Mr. Humphreys’ partner, Mr. Watson, that he intended to move in this court that the Bopert case be advanced on the «alendar, Mr. Humphreys, referring to the proposed affidavits
Reference will now be made to particular matters upon which this respondent relies to show that Mr. Magoon perjured himself. We have already mentioned his contention that Mr. Ma-goon must have felt revengeful towards him in consequence of his abuse of him. Another point relied on relates to the matter now in question. It is that Mr. Magoon was not jmrticularly impressed at the time of the conversation in question that Mr, Humphreys’ proposition was dishonorable. It may be that Mr. Magoon’s sense of professional ethics was not of the highest or at least that Mr. Humphreys did not so regard it. If the latter had so regarded it, he would not have thought of making
Cross-examination by Mr. Humphreys:
“Q. I told you I would charge $5,000 ? A. You did. Q. Also that you could charge $3,000 ? A. You did. Q. You looked upon it as unconscionable, did you not ? A. Unfair. Q. Do you look upon it as dishonorable ? A. I did not at the time, I did not think it was dishonorable so far as you were concerned. I did not know what motive was there. Q. You did not show any resentment, did you ? A. I did not. Q. Did you suggest the impropriety of the proposal — that it was an improper proposal for me to make you ? A. I did not * * * Q. I asked you to keep this matter secret ? A. You did. Q. How did that suggestion impress you? A. As to keeping secret? Matter of fact. Q. You say you did not regard it as improper ? Now I suggested that you charge what you considered an unfair fee and that I take for me what you thought an extortionate and unconscienable sum? A. I never said it. Q. I asked you to keep it secret. Was that inconsistent with candor, honor and professional propriety and fidelity to my client and your client ? A. In the first place I could not charge a fee of $3,000 without my client knowing it and you could not charge a fee of $5,000*201 without your clients knowing it and if your clients, if you' wanted to charge them $5,000, as far as I was concerned, I did' not care to keep it secret, but you wanted it kept secret, so I said, nothing. Q. In connection with my asking you to keep it secret it didn’t impress you that I was pursuing a course of dishonesty ? A. I did not give it a thought one way or the other. I should not charge a $3,000 fee for the work I had done. You-said I could do so but that didn’t make any difference to me. Q.. You have testified disparagingly of the proceeding, you have testified on the theory that it is relevant and that it tends to impeach me as a member of the bar. I ask you why you didn’t think so at the time and now think so ? A. I didn’t say I now think so.”
Cross-examination by Mr. Thompson:
“Q. Now, Mr. Magoon, when Judge Humphreys made the proposition to you to settle for $30,000, he to receive a fee of $5,000 and you to receive a fee of $3,00, you regarded the proposition as unconscionable? A. Yes, I did. Q. Just a moment until I get through and we will get along'more rapidly. A. Excuse me, I thought you had finished. Q. And refused’ to accept it and said yesterday that you would not have charged, a fee of $3,000 if you had settled the matter ? A. I did and I say so still. I do think it is absolutely unconscionable and unreasonable to get parties to compromise like that and then charge a fee of $5,000 for it. There was no litigation in court, nothing to do, but simply come up to my office. It was outrageous and besides it would leave Mr. Sumner only $18,000' and I take $3,000. Now, how much fee did you receive in the settlement of Maria S. Davis? A. I received $2,500. ■ Q. What did you do in that settlement ? A. I did nothing in the settlement, but one time I had an interview with you. That is all. How much did Mr. Davis get? A. I don’t know. Yes, I do. I don’t know how much got. I know how much he said he got. Q. How much was it ? A. He was- to get $5,000. He gave me half of his fee. He told me he would. Q. You got one-third of $15,000 ? Mr. Magoon and Mr. Davis meaning the team who worked together, you and Mr. Davis got one-third of’ $15,000 as a fee for it but one-sixth of $18,000 was unscienable ? A. No, in one case it was merely a bluff as I construed it, absolutely, demand, stand-up, hold-up of Mr. Sumner, to pay*202 $18,000 without my reason, right, justice or any equity about it and to charge $5,000 for work of that sort certainly without doing a thing excepting come into my office, I think is unconscionable and outrageous. Q. Didn’t yon say yesterday that yon saw nothing improper in it and did not so regard it ? A. So far as anything criminal I saw nothing improper in it. Q. Then— A. Let me finish. There was nothing you could charge Mr. Humphreys with as criminal, but so far as the proprities, so far as the reasonableness of it, I said yesterday I would not take $3,000 if I had compromised that matter as a fee. Q. Then impropriety with you means only criminalty ? A. Well it might be, I don’t know about that. Q. Didn’t you say yesterday, you .saw nothing improper in it and that you submitted it to your client ? A. In that sense I had to submit it to my client. I said to Mr. Humphreys — as you have — as he came to me there was nothing improper — I said, 'Mr. Humphreys, I would refuse to recommend it to my client.’ He said, you think the matter over and then let — me know. Q. Did you say that yesterday, that you refused to recommend it ? A. I think I did. I think I said so; I am pretty sure of it. Q. But you did say yesterday that there was nothing improper in it and you did not think so. A. What I had reference to in improper proposal in the matter, he made no attempt to pay me any part of his fee. It was in the nature of a threat. He said to me, 'You have been doing an improper thing. You are going to get yourself into trouble here. I am going to bring suit, I am going to expose it.’ I said, 'All right, go ahead.’ That didn’t phase me at all. Then he said he would prolong litigation, we could get nothing out .of it during Mr. Sumner’s life time, I would not get anything. That propostion to compromise. There was a certain thing — I was under obligations to him, he has been to my house any number of times, we were friendly, I had treated him as such, we had been on most intimate terms, I had done everything possible. He said he would get $5,000 if I could' — if I would consent, I would benefit him $5,000 and could get $3,000 myself. I simply said, 'No, I would nót, I could not do it.’ I would rather submit the proposition to Mr. Sumner, but I was sure he would not talk. Q. How Judge Humphreys came to you with a blackmail, a bluff you call it— A. I considered it ,a bluff. It is a proposition to blackmail, but he might have*203 thought that he had a good show. He said, H will beat, beat. You haven’t a show. I am confident I can beat it in the Circuit Court. I will beat you and you’ll never get a dollar of it.’ Q. Hid he threaten to verbally chastise you, didn’t he? A. No, he didn’t. ‘You are going to lose; the matter is coming up,’ he said. Q. The proposition to blackmail your client didn’t offend you ? You saw nothing improper in it ? A. The way I looked at it, there was nothing to blackmail. Q. The way you looked at it? Oh, point of view. I want— A. Here is a man I had been on the most intimate terms with. I didn’t want to consider it in the light of blackmail. He didn’t consider it so. I did. As far as the circumstances I considered it in the light of blackmail.’ Q. Yet you swore yesterday he considered it proper ? A. If he thought it was proper he had that right. Q. Were you swearing to Judge Humphreys’ opinion yesterday or your own? A. I didn’t see anything in his making a proposition if he thinks it right. To him it was all right. As far as the proposition, it was an outrage. Erom his standpoint it might be proper. Erom my standpoint it was .absolutely improper. He didn’t bribe me in any way — didn’t say he would give me a part of his fee. ‘You can charge $3,Q00 in this matter. Sumner will spend the money. You don’t care anything about Sumner. What do we care for him ?’ Q. And all that you did not deem improper and take any offense at? A. How could I take offense at it ?”
There were several collateral matters relied on as tending to show Mr. Magoon’s alleged incredibility. One relates to a certain power of attorney from Sumner to Magoon and a certain deed from Sumner to R. W. Davis — which were drafted in Magoon’s office during the pendency of the Ropert case. The real object in going into this matter apparently was to show that Mr. Magoon had himself acted in an improper manner, and especially that he had attempted a fraud on the court but, that failing, an attempt was made to show that he falsified as to the nature and contents of those instruments. The attempt was to contradict him in those respects by the testimony of the notary public who took the acknowledgments to those instruments. But practically the only difference brought out was
Another matter replied on for the same purpose is a contra-dcition between Mr. Magoon and Mr. Humphreys in regard to a conversation in which one of them called the attention of the other to the fact that a certain affidavit had been filed in one of the Sumner cases some years ago, which, it was claimed,, might be used in Washington to prevent the railroad company from effecting a compromise with the Federal government in regard to the title to the Sumner property involved in the railroad suit. The most that could be contended on this point is that we have merely'Mr. Humphreys’ statement against Mr. Magoon’s, and the fact that they contradicted each other as to that would not show that Mr. Magoon as against Mr. Hum-phreys falsified as to the proposition made to compromise on October 22. But so far as the indications go we are not sure but that they favor Mr. Magoon. There are several alleged points of difference in their statements. One relates to the time when the conversation took place. Mr. Humphreys says that it was August 18, the night of a certain fire'. Mr. Magoon says that it was when Mr. Humphreys spoke to him about going into the case, as to which Mr. Humphreys agrees, but that he does not remember whether the case (the railroad case) was already begun or about to be begun. There is no contradiction there. Another point relates to the place where the conversa-
Mr. Humphreys, on the evidence, is guilty of having attempted to induce Mr. Magoon to betray his client — an aged credulous man easily imposed upon and of whom others, as. Mr. Humphreys knew, had previously taken advantage. In order to accomplish this he urged considerations of personal friendship, resorted to threats, and suggested large booty. “What do wye care for Sumner, yet him go, all we care for is our fees.” There is but, one conclusion — disbarment. As Mr. Justice Brewer said in the passage quoted in the first- part of this opinion: We “cannot tolerate for a moment, neither can
The judgment of the court is that the respondent Frank E. Thompson be and he is hereby suspended from acting as an attorney or counselor at law in the courts of this Territory for the period of one year from this date, and that the respondent A. S. Humphreys be and he is hereby disbarred, and that his name be and it is hereby stricken from the roll of attorneys, and counselors of the courts of this Territory.
Dissenting Opinion
DISSENTING OPINION OF
I am compelled to dissent from many of the findings made- and the judgment pronounced in the foregoing opinion, although I do concur in the finding that the respondents were guilty of professional misconduct and impropriety in appearing-against John K. Sumner in the Ropert suit after having appeared of record for him in the guardianship proceedings. However, I am not convinced that the respondents can be properly charged with turpitude for so doing. It is not found that there was any contractual relation existing between Sumner and the respondents or that the relation of attorney and client existed between them to its “full extent” and the evidence-wholly fails to show that by reason of their connection with the
The difference in opinion between the majority and the minority of the court in this instance is due largely, I believe, to the difference in the conclusions drawn from the evidence. Still I do not consider it necessary to go into a minute analysis of the •voluminious evidence in the record but shall content myself in a .large measure with a statement of the conclusions of fact that I believe should be drawn from the evidence so far as the same .may be considered material to the issue here presented.
It appe'ars that Ilenry E. Highton was retained in the suit of the Railroad Company against the Bishop, as Trustee, and .John II. Sumner for specific performance of the option for the sale of the reef property, by the Ellises, prior to the return of Mr. Sumner to the islands, on August 20, 1902, and that this employment was ratified by Sumner shortly after his arrival; that Mrs. Buffandeau paid Highton $125 on his retainer fee of $500; that the relation of attorney and client did exist between Mr. Highton and the Ellises (and when I refer to the Ellises I mean to include Mrs. Buffandeau); that Mr. Highton advised the Ellises shortly after his employment that the will of John 3L Sumner, referred to in the trust deed to the Bishop, was a part of the deed and that the deed was irrevocable and that the Ellises were beneficiaries under the trust therein created, and had an in-trest in the property and suit; that Mr. Highton afterwards «hanged his mind on the revocability of the deed and concluded that the trust deed was revocable but he did not advise the Ellises ■of this change of mind; that on October 10, 1902, he wrote a letter to Sumner and the Ellises in which there was a rather veiled statement of his changed views relative to the trust deed and .also wrote an answer' to this letter and procured it to be signed
Mr. Highton in whose office the transaction occurred and who was the senior counsel for all parties, neither wrote a letter to himself stating what the understanding of the parties was nor did he enter it in his diary — where, it seems, he keeps a record of his daily business transactions, but testifies that his “impression” is that it was a final settlement and so understood by all parties. He also said “He” (Sumner) “was determined that he would give them $10,000. I remember of one occasion he said, ‘when you have lost your $10,000 1 will have the remainder to give you something to eat.’ ” Sumner says that he understood that he was to be free of the Ellises and the Davises forever afterwards. Against this evidence is the testimony •of every other person present, namely, the Ellises, the respondent Thompson and B. W. Cathcart. And in behalf of Mr. Cathcart I will state that he has no professional reputation to sustain in these proceedings and is apparently a disinterested witness and impressed me, in his manner of testifying, that he wanted only to state the exact truth. These witnesses are supported by the allegation in the sworn petition of Bishop Bopert, the trustee, in the Bopert suit, wherein after reciting the conveyance of the land for the consideration of $110,000 it is alleged “and thereafter by mutual agreement a portion of said sum of money was divided among the said Victoria Ellis Buffandeau, William Sumner Ellis, John S. Ellis and Maria S. Davis, leaving a balance in your petitioner’s hands •of forty-eight thousand ($48,025) dollars, which it was under
It may be pertinent to inquire if this petition does not state the understanding of the parties why did not Hr. Highton in the letter directing the Bishop to pay the several sums agreed upon, also direct the payment of the balance of the money to-Sumner? Why was it necessary for Sumner to employ J. Alfred Magoon to go with him to the Bishop to get the money ? Neither of these questions have been answered to my satisfaction.
Neither the evidence in the record nor “inferences/’ however skillfully deduced from collateral incidents in the case, produces in- my mind a belief that it was the understanding of all of the parties, at the October 13 meeting, that the “rest” of the money in the hands of the Bishop should go to Sumner free from the trust. The evidence rather justifies the inference that this was an afterthought — possibly suggested to Sumner-after the meeting and payment to the other parties.
As to the allegation in Sumner’s answer in the guardianship case that the property was Sumner’s and he could do what he pleased with it and the repetition of that statement in Highton’s-letter, I do not attach any particular importance to either. Neither was a correct statement either of fact or law. At the time the answer was filed and the letter written Sumner did not own the property. It belonged to Bishop Ropert, as trustee, and had been so held since September, 1898, and the deed under which the Bishop held the property was on its face irrevocable. This court said on this question in the In re Humphreys decision ante p. 161, “the deed was prima fade irrevocable and it was only in view of extraneous evidence taken in connection with the terms of the deed that the court was led to its conclusion and as to whether such extraneous evidence was sufficient the court was divided.” So at the time that answer was prepared and the letter written no careful lawyer could have advised that the deed was revocable and that the property
I do not think it necessary in this proceeding either to vindicate the courage of any witness or to defend the prowess of the respondents. This is a side issue that may be properly relegated to the “ring side.” I respectfully decline to act as referee on such a question.
Looking at the facts from the respondents’ view point, and that is the view point the court should assume in passing on the propriety of their conduct in the presence of the court, it is not surprising that the respondents should have shown some feeling towards Henry E. Highton and J. Alfred Magoon. Since from such view point the former had been guilty of gross duplicity towards them and the látter, during the hearing, was firing on them from ambush. Why should not the respondents “shell the wood” for Magoon ? It was J. Alfred Magoon who filed the charges with the Attorney General and who at the hearing, not in the open but “from the side line,” was furnishing the greater part of the evidence introduced in support of the charges, after he had procured from the Attorney General a certificate of the rectitude of his conduct in the Sumner litigation. I do not condemn them, under such trying circumstances, for the acrimony exhibited. Nor do I believe that they abused the privilege of free speech that should be allowed attorneys when defending before the court charges so seriously affecting their personal and professional reputations.
Prima facie, the Ellises were beneficiaries under the trust deed and will of John K. Sumner and had-an interest in the property and any suits affecting it or him. They had a right to employ counsel to protect this interest. They did employ the respondent and the respondents were faithful to their interest throughout the litigation. The serious mistake the respondents made is that they became attorneys of record for John K. Sumner in the guardianship suit and in the Ropert case, a related suit, they were 'against him. This is a position that no lawyer should permit himself to be placed in.
While the individual charge against the respondent, Hum-phreys, and of which the court finds him guilty, namely, of “attempting to pursuade” J. Alfred Magoon to betray his client, John K. Sumner, is a very grave one, I find great difficulty in considering it seriously on account of the character of the evidence by which it is found to be supported.
Judge Cooly said of a disbarment proceeding, “While not strictly a criminal prosecution, it is of that nature, and the punishment, in prohibiting the party following his ordinary occupation, would be severe and highly penal.” (Matter of Hamilton Baluss, an attorney, 28 Mich. 507, 508.)
The Supreme Court of Illinois held that in order to disbar an attorney, “The case must be clear and free from doubt, not only as to the act charged, but as to the motive.” (People v. Harvey, 41 Ill. 277-8.)
It has been held in California that to disbar an attorney is to “deprive him of personal and property rights. Unless we are clearly satisfied of respondent’s guilt we ought not to remove or suspend him from the practice of his profession.” (In re Luce, et al., 23 Pac. (Cal.) 350, 354.)
The only direct evidence in support of the charge is the testimony of the witness J. Alfred Magoon. He is flatly contradicted by the respondent Humphreys. The court finds that the former is sustained by certain collateral incidents and inferences, and that the respondent is discredited in like manner and finds that the charge is sustained. One of the reasons given for believing Magoon and disbelieving Plumphreys is that Ma-goon could easily have made the story “worse.” Again it is found that Magoon had no motive to falsify and that his manner on the stand was such as to indicate that he was only performing an unpleasant duty.
To me, Mr. Magoon, as a witness in tbis case, assumed two different and distinct attitudes, one tbat of the ready and willing witness with a fairly good memory, tbe other tbat of the-baiting and unwilling witness with bad memory.
In order to illustrate these different attitudes I am compelled to quote from tbe transcript, and I hesitate to do tbis for tbe reason tbat I know tbe transcript to be inaccurate in some, respects and it may be in others.
Tbe witness appears in tbe first attitude when testifying t©a conversation with a guest .at bis home some months before.
“But I knew when my attention was first called to it by Mr. Humphreys. It was at my place at Kaalawai, round Diamond Head, where Mr. Humphreys was staying with me. Q. When, was that, in what month ? A. I don’t remember tbe month, it was while be was still on tbe bench. Q. What conversation, was bad between you and Mr. Humphreys at tbat time, Mr» Magoon ? A. He stated to me in talking about tbe matter tbat there were proceedings taken or to be taken and tbat be bad been approached and could be called into tbe case if be wanted to be in it. Q. Representing whom ? On what side or what case, please ? A. Tbe case was to be brought by tbe Oahu Railway & Land Company against Ropert, Trustee, under the deed, of trust to enforce tbe conveyance of tbe property to tbe company under tbe lease. We talked tbe matter over quite generally. He said at that time tbat he knew of a matter which be thought was a good defense to tbe action or would be beneficial-to tbe trustee and tbat was with reference to tbe affidavit which Mr. Dillingham bad signed when tbe lease bad been executed,. Mr. Dillingham signed an affidavit which appears of record and: which I bad forgotten about until be called my attention to it j tbat in getting — having tbe lease — in having tbe option to the-lease call for tbe conveyance of all tbe land when Mr. Sumner-only owned a half of it; Mr. Dillinghom bad filed an affidavit tbat be knew tbat the title was in Mr. Sumner only to balf o£ tbe land and therefore be could not oblige Mr. Sumner to give-*216 him a good deed or good lease to more than half. That recalled the matter to my mind, which I had forgotten, and in talking over the matter I said I didn’t see why he could not take it, take the case. He was about to go off the bench and I told him I did not see what objection there was to his coming into the -case, if he went off the bench, in behalf of Mr. Sumner. He said he did not know as there was any objection to it, that he would be called in the case.”
Also the following:
“George A. Davis, desired me to assist him in the case which was then pending before Judge De Bolt. Upon reeciving that information I telephoned to Mr. Humphreys, because the matters which we had talked about I considered confidential and private and I telephoned him to see if there was any reason why I should not be called into the case. Q. What was this case that you were to be called in ? A. I didn’t know what the ■case was. I was informed that there was a case on trial'affecting Mr. Sumner’s interest, I didn’t know what it was. I was requested to appear, I think it was in the afternoon, about 1:30 I received the message from Mr. Davis, verbal message from Mr. Light-foot, — I had not seen Mr. Davis, — to the effect that I was to be called into the case to assist him. I didn’t know anything about the status of the case at that time. I didn’t want to take it, I didn’t want to take hold of it without referring to Mr. Humphreys to see if there was any objection to my going on. Q. Going on into the case? A. Going on into the case. I telephoned him to know if there was any reason, because of the matters we had talked 'about, against my going into the case. He said he had no objections whatever, that was over the telephone. I came into the court room here and sat beside George A. Davis and he made a request accordingly to enter me as associate counsel with him. That was before Judge Robinson. I declined and said I would only sit there during the afternoon and prompt him as to certain matters within my knowledge and that I would decide whether I would come in the case later. Q. Who was conducting the case on the other side at that time ? A. Mr. Highton and E. E. Thompson were conducting th ecase. Q. What was that case ? A. Next morning I looked at the records and found out that it was the application or effort of Mrs. Maria S. Davis to put Mr. Sumner under guardianship*217 as a person non compos. I didn’t know that until I looked at tbe record next morning.”
The second attitude is illustrated in the evidence of the same witness testifying about a power of attorney executed to himself, at a later date than either of the events above referred to, as follows:
“Q. Had Mr. Sumner at any time executed a power of attorney to you? A. I think that he executed a paper to me about that same time, a little prior to that general power of attorney. Q. Well, what was it ? A. A special power of attorney, authorizing me to do certain things for him. Q. What, for instance? A. I cannot remember. Q. Did it authorize you to sign checks ? A. I don’t remember the contents of the power of attorney. Whatever my action was it was to be approved by some other persons. I didn’t have any power to do anything of my own accord. Q. Who was the person ? A. R. W. Davis. Q. Wallie Davis was a client of yours ? A. I don’t know whether be was particularly. Q. Can you say — can’t you saw whether he was or not, particularly or unparticularly ? A. I don’t know what proceedings he was a client of mine in. A. You can state whether he was a client or not. A. I have done work for him. I have had no retained. When he had things to do he has come to me and to George A. Davis, I don’t know that he was’a client of mine. Q. Have you the power of attorney now ? A. I have not. Q. Can you say what has become of it ? A. It was returned to Mr. Sumner. Q. When ? A. I don’t know. Q. Didn’t you return it to Mr. Sumner after you found out I knew you had it ? A. I don’t know. Q. I ask you whether or not this power of attorney authorized you io sign checks in Sumner’s name ? A. I think not. Q. What did it authorize you to do ? Being the subject you must have some recollection as to its contents. A. I think it was in contemplation of Mr. Sumner going to Tahiti, he left me power to act upon request or approval of Mr. Davis. Q. Did you— act in what matters ? A. In all his matters. Q. Then it was a general power of attorney ? A. No, I could invest his money for him. Q. So that he didn’t desire to take his money to Tahiti, he proposed to leave it here for you to invest ? A. No, he wanted to take some of it and the rest he wanted to leave. <Q. How can you name one single thing you were authorized to do by that power of 'attorney? A. No, I don’t remember*218 any special thing — to attend to his business except — certain of his business, subject to the approval of Mr. Davis. Q. You say certain of his business, you must remember what business it was. A. To invest his money, as I remember. Q. To invest his money you would have to release mortgages, to invest money you would have to foreclose mortgages, let me refresh your memory to that extent; what other power did Sumner in this power of attorney confer upon you other than investing money ? A. I don’t remember, I think collect rents and invest his money. That is all. Q. You have stated you could not recollect anything and you subsequently stated, to uoiiect rents. Can’t you state something further as to the particulars of what it was ? A. I don’t remember. Q. Bring suits ? A. I think so, yes. ■ Q. Defend suits ? A. I think so, yes. Q. Deposit his own money in your name ? A. I don’t remember anything said with reference to that. Q. Was there anything said in the power about the disposition of money after you had collected it? A. I don’t remember. Q. Was your commission fixed? What warrant of attorney ? A. I think so. Q. You think it was? A. Yes. Q. How much? A. I think it was 5% on the gross income. I don’t remember distinctly. The power of attorney was returned. I am giving it to the best of my remembrance. Q. Occurred last October? A. Yes.”
It is absolutely impossible for me to believe the testimony of Mr. Magoon when he swears that he “sat beside Geo. A. Davis,” attorney for the petitioner, for one entire afternoon “and prompted him” and still did not know whether the cause on trial was a suit in equity to restrain the sale of land or an action in probate to declare John K. Sumner non compos mentis, until the “néxt morning” when he looked at the record “and found out that it was the application or effort of Mrs. Maria S. Davis to put Mr. Sumner under guardianship as a person non compos. I didn’t know that until I looked at the record next morning.” In this instance Mr. Magoon either was mistaken as to his knowledge or he swore falsely. In either event his credibility, with me is very much weakened and I cannot feel sure that he is not mistaken or is not falsifying in his story about the respondent “attempting to pursuade” him to betray his client.
Again if Mr. Magoon is to be believed he entertained the proposition made to him by the respondent to the extent of submitting it to this client and the venture was not successful for the reason that the client rejected it. Does this not make J". Alfred Magoon equally guilty with the respondent? Under the law the seducer and the seduced are equally infamous. (In re Cowdery, 69 Cal. 32 and In re Whittemore, id. 67.)
Will justice be done in this case by disbarring the respondent and by giving Magoon a certificate of character for the virtuous indignation he did not show when approached by the tempter ?' Not by the standard announced by the Supreme Court of California in the cases above cited.
In concluding this discussion I feel justified in stating that I would not convict a cat of stealing cream on the evidence offered in support of this individual charge against the respondent, Humphreys, much less pronounce judgment of disbarment against an attorney who has spent the best years of his life in qualifying himself to adorn the profession, who has heretofore borne an honorable name in the community, and who has been entrusted with high judicial position in this Territory by the President of the United States.
It would be useless to state what punishment to me would seem proper under the charge that has been proven against the respondents but I will state that, in my opinion, the judgment of the court against the respondent, Thompson, is unnecessarily severe and that against th erespondent, Humphreys, is not justified by the law or the evidence.