196 P.2d 257 | Colo. | 1948
LORAINE GOOD KENT as petitioner filed in this court complaint charging unprofessional conduct on the part of respondent Denious in connection with his services as attorney and trustee, and prayed for his disbarment. The matter was referred for hearing to the Honorable H. E. Munson, district judge of the thirteenth judicial district, and upon his death, it was reassigned to the Honorable John M. Meikle, district judge of the fourth judicial district, with instructions to conduct a full hearing and make report of his findings to this court. Hearing of the issues required some seventeen days of testimony and consideration of voluminous records, and thereafter the referee made full and careful analysis of the evidence with report thereof to this court, finding all the issues in favor of respondent. Thereto petitioner filed objections, supported by briefs and oral argument, and these are now before us for consideration. No abstract of the testimony has been presented so it has been necessary to study the entire record without that assistance. A comprehensive review of the 1200 pages of testimony and many exhibits received in the proceeding would serve no purpose. Consequently, we shall make only brief summary.
This proceeding arose out of a long continued relationship of respondent as attorney and business adviser to petitioner and her predecessors. Upon the admission of respondent Denious to the bar in 1902, among the clients of the office where he was employed who came to him for advice, was John Good, a successful brewer of Denver. Good subsequently united his business with that of one Burghardt under the name of the Tivoli-Union *345 Brewery and the operating, sales, and investment activities of the company were later handled through three corporations — the Tivoli Union Company, the Western Products Company, and the Fortuna Company, together herein referred to as the Tivoli companies. Good owned approximately seven-eighths interest in these companies and Burghardt the balance. Until Good's death in 1918, he was in almost daily contact with respondent concerning legal or business matters. Thereafter Burghardt took control of the operation of the brewery, and Good's son, John E. Good, became active trustee of his father's estate and president of the Tivoli companies. Respondent continued as adviser, attorney, and close friend of John E. Good until the death of the latter in 1931, when respondent became successor trustee of his estate, and his elderly widow and petitioner, who had married John E. Good in 1927, became holders of the beneficial interest therein. Burghardt's activities decreased because of age, until his retirement about 1935. Upon the death of the senior Mrs. Good in 1936, petitioner, who thereupon became the sole owner of both the John Good and John E. Good estates, took up her residence in Florida and New York, paid only brief and infrequent visits to Denver, and turned over to respondent the entire burden of management of the brewery, and the investment of the estates which she had inherited.
Title to properties belonging to the estates, other than those of the Tivoli companies, was placed in the name of the Erie Investment Company, a corporation of which petitioner owned and held the entire capital stock, except for shares which were assigned to respondent and his associates to permit their sole management of the properties, and this same procedure was followed as to her interest in the Tivoli companies.
The prohibition period in Colorado from 1916 to 1933 reduced the activities of the Tivoli brewery to the unprofitable making of near beer. Upon return of the brewing business in 1933, there was no surplus in the *346 treasury and the plant required modernizing and renewal, so there were no earnings to permit dividends from 1916 until late 1938. Due to the subsequent general business depression, handling of the other estate investments became difficult: leases were cancelled, loans were in default, mortgages required foreclosure, and income was uncertain. During the period from July 1, 1937, to November 15, 1945, petitioner took from the estate for personal expenditures over $463,000 and there was further paid out for her personal taxes, interest, etc., some $537,000, making a total paid out for her benefit of over $1,000,000, while, her total income for her benefit was approximately $637,000. During each of those years petitioner borrowed money in anticipation of income.
The record contains no charge nor inference that respondent failed in any respect to manage petitioner's business interests and properties and investments with diligence and skill during the difficult years of his control, or that he failed to use sound legal judgment either in directing her diversified business interests or in handling the family litigation arising in connection with her inheritance.
As analyzed by the referee and accepted by counsel, the two "causes of complaint" set out in the petition encompass four specific claims of misconduct on the part of respondent, which, considered in chronological order, are in substance as follows:
(1) That respondent failed and refused fully and correctly to advise petitioner as to the value of her properties and the income therefrom, and that the information furnished her was calculated to lead her to believe that her income was considerably less than it actually was;
(2) That in 1938 respondent advised petitioner that she should purchase the Burghardt interest in the Tivoli companies but that she did not have the money to purchase it, and that respondent would buy the stock for her and let her pay for it when she had the money; that *347 respondent did so purchase the stock, and held it until 1945 and received large dividends thereon, when, in fact, petitioner at all times had the necessary funds or credit to purchase said stock and had she been correctly informed as to its earnings and her ability to purchase it she would have purchased it directly from the Burghardt estate and received the dividends therefrom;
(3) That in May, 1945, petitioner called respondent by telephone asking him forthwith to advance to her the sum of approximately $20,000 from her estate; that respondent advised her that funds were not available for such advancement; that she did not have the necessary credit at the bank; that the only way she could secure the funds in question was to sell him stock in the Tivoli companies at the same price for which the Burghardt stock had been purchased in 1938; that petitioner, relying on his advice, sold respondent said stock at far less than its value; that respondent received large dividends thereon and that petitioner would not have sold said stock had she been properly advised.
(4) That the Tivoli companies held title to two Broadway properties in Denver of a value of not less than $40,000, and that without petitioner's knowledge said properties were transferred by respondent to a corporation solely owned by him for a consideration of $25,000 with the intent of realizing a personal profit thereon to himself.
Concerning the first charge of misconduct as listed above, it is not necessary for us to consider whether or not the mere failure of an attorney to give full information, or the giving of misinformation, to his client is such conduct as to justify disciplinary action regardless of wrongful motive or resultant injury, as insisted by petitioner. In any event this charge becomes an important consideration in determining the subsequent charges of misconduct. No claim is here made in behalf of petitioner that by reason of mental incompetence or youthful inexperience she was imposed upon by respondent. *348 The evidence discloses that petitioner was of mature years, and that she had enjoyed a successful business career prior to her marriage; and it overwhelmingly supports the finding of the referee that through correspondence, monthly profit and loss statements from the brewery, quarterly reports of her personal accounts, and state and federal income tax reports forwarded for her signature, she was kept advised by respondent as to her income and business and financial affairs intrusted to him. The record contains many letters informing petitioner with respect to various properties, recommending action to be taken, and asking for her wishes with regard to them. Her replies indicate, not lack of information, but complete indifference as to her business affairs except as to how she might obtain more money — now for a $35,000 loan to an old friend, now for a trip to Paris, now to pay gambling losses, and now for making further payments on stocks bought on margin on a falling market. When respondent was writing her of leases being forfeited and money having to be raised for taxes and repairs on properties foreclosed, she wrote in connection with demand for money: "It must take all your time to keep me out of trouble. It is really very funny. * * * Where you can get the money is another thing * * * but that is your worry." Petitioner admits that the reports sent her by respondent were promptly destroyed; her memory was so undependable that she was uncertain on the witness stand whether she had taken one or two or three trips to Europe in recent years, and she testified that she was first approached about the purchase of the Burghardt stock a year and a half to two years after Burghardt died, when, in fact, the record contains letters from respondent regarding the purchase beginning within a month after Burghardt's death, and continuing until the stock was actually purchased approximately nine months thereafter. It further appears that she remembers only one report ever received from Tivoli, yet an accountant testified that copies were prepared *349 monthly and placed in an envelope addressed to her, while in her letters to respondent she repeatedly expresses her delight at the statements and, on one occasion, she objected to the charging off of bad accounts by Tivoli for the reason that it resulted in a reduction of dividends.
As to the second charge of misconduct, the evidence discloses that respondent wrote petitioner promptly upon the death of Burghardt in 1936 advising that his one-eighth interest in the brewery would probably be for sale and that it would be advantageous for her to buy this stock and become the sole owner of the brewery, and suggesting that it was good business to keep a cash reserve on hand for such opportunities. Some months later he again urged the importance of her acquiring the stock, but petitioner was eager at the time to obtain advances against future income for a trip to Paris, and for a loan of some $30,000 as a favor to a friend in New York. Respondent wrote that if the sale came up while she was away he would try to purchase the Burghardt stock if he could get it at a reasonable price, and petitioner replied: "Tomorrow I sail. * * * Wilbur, think well before you buy Tivoli stock." Thereafter respondent did purchase the stock and wrote petitioner in substance that he thought it would be better for her to own all of the stock, but if she wanted him to keep part of it he would be willing to do so, that he had used his own money in paying for it because it was not available elsewhere, but that they could adjust that later when petitioner determined how much of it she wanted to purchase. In reply petitioner said on August 17, 1938, "I am very glad you bought the balance of Tivoli stock and we can settle on my visit if you wish to own any or not. Perhaps if you did own some you would work harder * * *." Thus the matter stood until January 30, 1942, when respondent voluntarily wrote petitioner declaring that his purchase of the Burghardt stock was made with the understanding and agreement that at any time petitioner elected to purchase at the price paid he would *350 transfer to her and at any time he elected to sell she would purchase at that price. During all the time of respondent's holding this stock, petitioner had full knowledge of the dividends paid and had regular reports of the financial condition of these companies as well as of her other properties, yet she never took any step or indicated any desire to take over respondent's interest. She chose to spend rather than to conserve her fortune. Only after her break with respondent did petitioner finally exercise the option to purchase which he had voluntarily given her, and this was then accomplished immediately by borrowing the necessary funds and ultimately through sale of other more conservative capital assets. Whether such sale in the high 1945 market brought sufficiently increased price over that obtainable in 1938 to equal the dividends paid to respondent in the meantime, does not appear.
It is charged by petitioner that included in her estate was an overdue note, owed by responsible people, which should have been then collected by respondent and the proceeds used to buy the Burghardt stock. The answer is fourfold: First, that petitioner never authorized the purchase of this stock, but warned respondent to "think well before you buy Tivoli stock," so that the purchase by respondent thereafter might well have been held as at his risk and not hers; second, that immediately after his purchase he recommended that she take it over and she suggested that if he kept it he would work harder; third, that for her protection he made a voluntary declaration of her right to purchase at any time; and fourth, it must be remembered that the Tivoli stock had made no profit for more than sixteen years; it was currently profitable but its future was uncertain, its actual value was unascertainable, and it was a very speculative investment; the purchase of the Burghardt stock was desirable, not as a separate investment, but to protect the large interest she already had therein and the Denious ownership gave her such protection. Not only does the *351 evidence support the referee's finding of respondent's good faith therein, but the correspondence shows zealous care by respondent to protect petitioner in the face of her own complete indifference, by advancing his own money for the purchase of the minority stock in order to prevent its acquisition by outside, and perhaps unfriendly, interests.
As to the third charge of misconduct. In the latter part of April, 1945, petitioner drew three postdated checks to cover losses of approximately $20,000 sustained at a gambling house in Florida and was without funds to meet them. She both wrote and telephoned respondent urging him to sell property or get the money from any source, but not to divulge the purpose for which it was required. In response respondent wrote, in part: "For the purposes you have in mind your Tivoli stock is perhaps the most logical thing you could sell, provided you retain at least 50 per cent of the stock in the company. As you know, I purchased the interest held by Mr. Burghardt in the three associated companies, Tivoli, Western, and Fortuna, and when I refer to Tivoli, I mean the three companies. We made an agreement whereby you agreed to take this stock off my hands at my request at the price paid for it, and I agreed to sell the stock to you at your request at the price I paid for it. I would be willing to buy additional stock to the amount of, say, $20,000 a year on the same basis and with the same agreement that we make funds available to you on which no income taxes would be due, and in the meantime the companies would be in your control, and the stock I purchased would be subject to repurchase by you just the same as the Burghardt stock is now. I would want you to agree not to sell the remainder of your stock to anyone else, and I would agree not to sell my stock to anyone but you. * * * I am not urging or even approving this proposition, because it is contrary to the advice I have heretofore given to you, not to spend principal; but if you insist upon spending principal, then this *352 proposition is as good as anything I can devise. If it appeals to you, please let me know, and I will prepare a formal agreement which I would like to have you submit to your attorney at West Palm Beach, Mr. Cain, with whom you have consulted on other matters." Petitioner telephoned her acceptance; made the sale, with right to repurchase as proposed; received the money; wrote respondent that when she came out in June she would talk things over with him, and, as she testified, "thought one day I would sell a piece of property and buy back the stock." This expedient saved sacrifice of other property at forced sale, saved income tax obligation and enabled petitioner at any time she desired, by conserving income or selling other property, to repurchase the stock. As in the case of the Burghardt stock, any advantage to respondent or loss of dividends to petitioner was contingent upon earnings of the brewery and also upon the desire of petitioner that respondent continue to hold the stock. The evidence supports the finding of the referee that therein respondent was acting primarily in the interest of his client and for what he believed to be her best interests.
As to the fourth charge, the Tivoli companies had made loans on two Broadway properties and later acquired title to them through foreclosure, or by conveyance in lieu of foreclosure. They were carried on the books at slightly less than $10,000 and $15,000 respectively, making a total valuation of $24,120. In July, 1945, respondent took conveyance of these properties to a corporation of which he was the sole owner, paying for them the sum of $25,000. These properties were then worth on the market at least $40,000, and conveyance was made without appraisal or investigation of value and without the knowledge of petitioner, who owned approximately 87 1/2 per cent of the stock of the Tivoli companies. There was testimony that an offer had been submitted to respondent's office of $25,000 for one of these properties alone shortly before his purchase, but *353 respondent testified that the only offer submitted was of $15,000, not $25,000. Respondent and the manager of the brewery both testified to the effect that these companies were not in the real estate business; that it was their policy to dispose of properties acquired through foreclosure as soon as cost could be realized, except for tavern properties; that $25,000 more than covered their cost and that the manager suggested to respondent that they be sold at that price and that respondent purchased at that price with the intent, as declared to the manager, of taking them subject to petitioner's approval. Thereafter, upon petitioner's belated visit to Denver and expressed disapproval of the sale respondent promptly reconveyed.
The question of respondent's intent in taking title to these properties is the all-important question involved in this proceeding. If, as he declares, and as the manager testified he was told, respondent took title subject to petitioner's approval and with intent of obtaining her informed consent thereto, the transaction was still improper, but not venal nor sufficient cause to justify disbarment or suspension in the situation here presented; however, if taken without such intent, it was venal and demonstrated lack of the integrity and honor requisite for one accepting the confidences and assuming the obligations of a member of the bar. After listening to the testimony, seeing and hearing the parties and witnesses, considering the surrounding circumstances and carefully evaluating the evidence as only the trier of facts is in position to do, the referee, who is an experienced trial judge of long and eminent service on the bench, found that in buying these properties, "Mr. Denious acted in good faith and with the intention of fully disclosing the transaction to Mrs. Kent, and if the same did not meet with her approval to cause the properties to be conveyed back to the respective companies."
[1-3] Under customary practice and our rules of *354
procedure (Rule 53 R.C.P. Colo.) we should accept the referee's findings unless clearly erroneous. In re Grorud,
There is apparent from the record a friendship and intimacy and mutual confidence existing between respondent and petitioner far beyond the normal relationship of attorney and client. In their correspondence, business matters are joined with personal and social references. When respondent purchased the Burghardt stock with his own money, without knowing whether or not petitioner desired to own all or any of any of it, he took title, not in his own name but in the name of her company. In the event of his death there would have been no record of his ownership of this $40,000 investment and no assurance to his estate except petitioner's integrity. Yet his confidence was such that he permitted the title so to remain in her company for a long time. In their correspondence she frequently expressed her feeling of obligation to him, and was not at all nigardly with her fortune, as the record eloquently discloses. He had long shouldered the entire burden of handling her *355 extensive interests through the difficult depression years. He might well assume that he would continue in her service and be entitled to further substantial fees. Taking title to the properties here involved at the book value would have had a distinct advantage to him from the standpoint of taxation and might well have been considered by both of them as in recognition of services performed.
It is strenuously urged, that the failure of respondent promptly to write petitioner of his purchase of the property and his failure to mention it in their several meetings after her return to Denver until he was specifically charged with the purchase, demonstrated his bad faith. She had written that she would be in Denver in June and was expected shortly, but her visit was repeatedly postponed and much happened before her arrival. Respondent's former confidential secretary had been employed by another firm of attorneys and while petitioner testified that she had not seen this secretary for three years, and had never written her, it appears that the secretary had twice written petitioner complaining bitterly of respondent. The wife of a Denver attorney without previous acquaintance had called on petitioner in New York City at the suggestion of respondent's former secretary, and had lunch with her. Petitioner received anonymous letters and warnings from other sources — which she declined to reveal — that the Denious family had obtained a controlling interest in her property. She had been visited by a real-estate man from Denver whose conversation caused her some concern about her affairs, and finally, had received a telephone call from some unknown person asking her if she had sold any of her properties to respondent and saying that deeds conveying some of them were on record in Denver. Thereupon she telephoned from New York to the former Denious secretary and straightaway took train for Denver, where she first conferred with the secretary and with Mr. Ireland before visiting or calling respondent. *356 For the first time in twenty years she appeared in his office without writing in advance, and forthwith demanded full report of everything she owned, of all of her income, and of everything that had been sold since 1931. She was tense and hostile from the moment of her arrival and both she and respondent were angry throughout their subsequent conferences. When she asked if he had sold any of her properties, he answered in the negative, explaining afterwards that the properties to which he had taken title were not hers, but those of the Tivoli companies, of which she was not the full owner. When these properties were specifically mentioned, respondent admitted the transfer, but was evasive as to title being in his own company. However, as the referee found, there was no attempt to conceal the transactions, and upon their first being mentioned, respondent immediately offered to and did transfer the property back to the Tivoli companies from which they had been transferred. The referee found that "Mr. Denious' statements and conduct, while tending to show an intent to conceal the true nature of the transaction, may be accounted for by the tenseness of the situation, the charges of unfair dealings which had just been made by Mrs. Kent, the unfair advantage which he believed she was taking of him, and the anger both he and she exhibited, for Mrs. Kent testified, `I couldn't think of anything else. I was so mad I couldn't think of anything else. I left * * * I walked out.'"
[4, 5] It is a well-settled rule, and we have repeatedly held, that judgment of disbarment should only be pronounced on clear and convincing proofs. People exrel. v. Tanquary,
Other than for review of the referee's findings of the four specific claims of misconduct, only two questions are raised by petitioner's assignments and brief, to wit:
[6] First: It is repeatedly charged throughout petitioner's brief that respondent improperly refused to submit records necessary to a full accounting in her behalf. It is elementary that requests for such information, if made in good faith, must have been first presented to the referee, who had full authority to compel its submission, and in cases of the refusal of the referee to order production of the evidence, then objection should have been here interposed to his ruling thereon. In the eighty-one objections made by petitioner to the referee's report, we find not one based on refusal of the referee to require respondent to disclose information or produce records, and in the evidence we find not a single request that the referee require submission of records or other evidence to which petitioner had been refused access. There is no possible merit to this charge.
[7] Second: Petitioner urges error in the refusal of the referee to receive and consider certain tendered evidence involving other alleged transactions in nowise connected with the items of misconduct charged in the petition. This so-called evidence consists of a written offer of proof presented to and rejected by the referee, and a further "Amended offer of proof," presented to this court long after the hearing of the charges against respondent had been completed and the referee had *358 submitted his report thereon. In considering these tenders, it must not be overlooked that they are mere statements of counsel; that there is no proof in the record to substantiate them, and that respondent has had no opportunity to answer them; accordingly we cannot consider the statements in these offers as evidence, but only determine whether the referee erred in rejecting the first offer and whether we should reopen the case to consider the second. If their rejection was not error, then they should not be considered by us for any purpose, any more than we should consider rumors whispered on the street; if rejection was error, then we must either again refer the case for proper testimony in behalf of both parties as to these new charges, or summon the parties before us and ourselves hear what evidence petitioner has to present in support of her new charges and what evidence respondent has to offer in denial. For us now to consider these statements as evidence would be to accept unsworn and hearsay statements without affording opportunity for answer, and so violate the fundamental principles of procedure and of justice.
[8] It may be noted that this ruling of the referee was first challenged by petitioner in her reply brief, and under the usual rule would be considered as waived; further, the evidence tendered in petitioner's offer of proof of similar transactions is so commingled with evidence having no competency, relevancy or similarity to any act charged in the petition as to justify its exclusion by the referee on that ground alone. "When an offer of proof is made, some of which is good and some bad, the court is not required to separate the offer and admit the competent, and reject the incompetent, evidence." DavisCo. v. Jewelry Co.,
[9, 10] Respondent was not called upon to answer or defend against any matters not contained in the charges specifically set out in the petition. The right to be informed in advance of accusations to be made is *359
fundamental in our Anglo-Saxon law. No attempt was made to amend the petition to include other charges than those considered by the referee. Evidence as to these other alleged transactions was tendered to show intent only. The admission of evidence of similar transactions on the issue of fraudulent intent, is based on the inference of such intent in the transaction at issue because of like intent being shown in other similar transactions. Such inference is far from conclusive, and this character of testimony, it has been held, should be admitted by the court with caution. McKay v. Russell,
[11, 12] These other transactions, of which evidence was tendered, occurred, one eleven, and the other six years before the act here charged. In criminal proceedings we have repeatedly held that evidence of similar transactions to be admissible must have occurred within the period of the statute of limitations. Curtis v. People,
[13] It is further urged that respondent invited a complete investigation of all his professional conduct by the allegation in his answer that for more than forty years he had served the members of the Good family faithfully, honestly and loyally; however, it was the referee, not respondent, who had the responsibility of the hearing and who rejected the tendered evidence. He could properly hear and determine only the specific charges contained in the petition before him. In hearing those charges he was required to observe the usual rules as to the reception of evidence, and the question for our determination is not what respondent "invited," but whether the referee erred in rejecting the tendered evidence as applied to the specific charges set out in the petition. *361
[14] Petitioner's attorneys, Messrs. Ireland and Ireland, requested permission personally to prosecute their complaint herein. This request was not granted, but the attorney general was requested by the court to prosecute with the assistance and cooperation of petitioner's attorneys. At the hearing, the latter conducted the examination of every witness in behalf of the court and the participation of the attorney general's office was confined to occasional objection and argument. Counsel for petitioner in such a proceeding first, owe loyalty to their client; their main purpose must be to please her, and their approach is almost necessarily partisan, while in a disbarment proceeding as in a criminal prosecution, the prosecutor should represent the public interest alone and have no responsibility except fairly to discharge his duty therein. Accordingly, we do not commend the instant procedure as a precedent.
[15] In conclusion, we must not be understood as approving the actions of respondent in accepting the conveyance of the Tivoli properties as shown herein. While formally dealing with the Tivoli corporation, respondent was in effect dealing with petitioner herself, and notwithstanding his good faith and his intention of disclosing to petitioner the conveyance of the land and of accepting the same subject to her approval, such conveyance by an attorney or trustee without making full disclosure to the client and obtaining her informed approval before recording or delivering the deed, was unwise and improper. Such conduct exposes the attorney himself to suspicion of fraud and to temptation to avoid candid and unbiased disclosure; it gives him a selfish interest in his client's decision wherein she should have disinterested advice; it deprives her of equal freedom of choice in acceptance or rejection, and in the event of his death might jeopardize her very power of rejection. As was said in a somewhat similar situation: "The relation of attorney and client which here existed required *362
that the defendant before accepting the deed should have used active diligence to see that his client was fully informed of the nature and effect of the transaction proposed and of his own rights and interests in the subject matter involved, and should have seen to it that his client had independent advice in the matter or else should have received from him such advice as he would have been expected to give had the transaction been one between his client and a stranger, and should have seen that his client was so placed as to be enabled to deal with him at arm's length without being swayed by the relation of trust and confidence which existed between them." Webster v. Kelly,
It appearing from a full review of the record that respondent represented petitioner diligently and well, and that the evidence supports the findings of good faith and honest intent in all the transactions challenged in the petition herein; it is ordered that the proceedings be dismissed.
MR. CHIEF JUSTICE BURKE, MR. JUSTICE HILLIARD and MR. JUSTICE ALTER dissent.
