209 P. 486 | Or. | 1922
The Multnomah Bar Association is an organization composed of attorneys at law who reside in Multnomah County and have been admitted to practice law in the courts of this state. Hugh S. Montgomery, Albert B. Eidgway, Bert E. Haney, Eob
The persons composing the grievance committee and the board of chancellors of the Multnomah Bar Association caused to be filed in this court on June 7, 1922, pursuant.to Section 1096, Or. L., an accusation containing six charges against George Estes, a member of the' bar of this state. The accused denied all the charges. The trial was conducted in the presence of all the members of this court sitting in banc, and therefore the court had the benefit of seeing and hearing all the witnesses testify, except the witness J. H. Hobart whose testimony was taken on written interrogatories.
Section 1091, Or. L., is given the following heading in the present Code: “An Attorney may be Disbarred for Unprofessional Conduct.” This section was enacted in 1901, Laws 1901, p. 67, and was entitled: “An Act to Regulate Disbarment Proceedings”; and the body of the act read as follows:
“Section 1. Any member of the bar of this state shall be disbarred by the Supreme Court, upon proper proceedings for that purpose, whenever it shall be made to appear to that court that if he were then applying for admission to the bar his application should be denied because of unprofessional conduct.”
The statute was codified as Section 1066 in Bellinger & Cotton’s Annotated Codes and Statutes of Ore
“that an attorney shall be disbarred when it appears that his general moral character or unfitness is such that, if he were applying for admission, his application would be denied.”
The statute was amended in 1915 so as to read as follows:
“Any member of the bar of this state shall be disbarred by the Supreme Court, upon proper proceedings for that purpose, whenever it shall appear to that court that his conduct has been such that if he were then applying for admission to the bar his application should be denied.” Chapter 259, Laws 1915; Section 1091, Or. L.
It is- plain that the heading given to the section in its original form in the Bellinger and Cotton and in the Lord compilations is not an appropriate heading for the statute in its amended and present form. Under the law as it now is any member of the bar of this state “shall be disbarred” whenever it shall appear that his conduct has been such that “if he were then applying for admission to the bar his application should be denied.” It is provided by Section 1077, subdivision 2, Or. L., that an applicant for admission must show that he is a person of good moral character. This court has said:
“The immorality that rejects an applicant is ground upon which to disbar.” In re Crum, 103 Or. 296 (204 Pac. 948.) We quote from 6 C. J. 584:
The ultimate purpose of a disbarment proceeding is
“to ascertain whether the accused is worthy of confidence and possessed of that good moral character which is a condition precedent to the privilege of practicing law and of continuing in the practice thereof.” In re Thresher, 33 Mont. 441 (84 Pac. 786, 114 Am. St. Rep. 834, 18 Ann. Cas. 845).
For convenience the six charges may be designated' respectively as the Willoughby, Hansen, Schrump, Baird, Meyers and the Roberts charge.
The Willoughby Charge.
John and Anna Willoughby were husband and wife, and he owned and drove a taxicab. John Willoughby died November 7, 1918. On November 15, 1918, Anna Willoughby gave to George Estes a general power of attorney. Under date of December 27, 1918, Anna
Estes acted as attorney for John and Anna Willoughby through a period of several years beginning with 1915, and during that period he received from the Willoughbys and from other persons for the Willoughbys moneys aggregating several thousand dollars; and during the same period he disbursed several thousand dollars. At the trial it was said by Estes that Anna Willoughby is the sole heir of John Willoughby; and hence no attempt is made to ascertain the amount of money received or disbursed in behalf of John Willoughby or his estate as distinguished from moneys received or disbursed in behalf of Anna Willoughby' alone. At the trial which was begun on July 10th and concluded on July 12, 1922, a detailed statement of account designated “Willoughby bill of particulars” was received in evidence; and this bill of particulars purports to be a detailed statement showing the transactions beginning with 1915. We do not in this proceeding attempt to pass upon the propriety or reasonableness of any of the items
According to the testimony of the attorney for the Trust Company the Kerslake mortgages were satisfied of record November 25, 1920, by George Estes as attorney in fact for Anna Willoughby, notwithstanding the power of attorney had been revoked December 27, 1918. Estes claimed that he did not know of the revocation of the power of attorney until about one month before the trial. According to the bill of particulars submitted by Estes, $217 was paid on the principal of one of the Kerslake notes on October 10, 1917, and the balance due on such note as well as the whole of the principal due on the other Kerslake note,
Possibly before and certainly about the time of the execution of the declaration of trust dated March 10, 1919, the trustee made a demand upon Estes for an accounting. The defendant delayed and postponed the preparation and submission of a statement of the account. The record contains a statement dated January 2, 1920, and one dated December 31, 1920. The first of these two statements purports to cover a period beginning with May 10, 1917, and ending with January 1, 1920, showing a balance of $299.85 due Anna Willoughby. The second statement purports to cover a period beginning with May 10, 1917, and ending December 30, 1920, with a balance of $74.75 due George Estes. Neither one of these two statements mentioned the payments made on the Kerslake notes on October 10, 1917, and April 10, 1918. According to the bill of particulars Estes paid Anna Willoughby $900 in installments of $100 each between April 1, 1919, and November 10, 1919, and in May, 1922, he paid $500.- If the defendant had rendered a complete statement of the account within a reasonable time after the demand for an accounting, it would have shown a considerable balance in favor of Anna Willoughby; but instead of rendering a statement with reasonable promptness thé defendant delayed and-procrastinated and at the end of the year rendered an incomplete statement, and still a year later submitted another incomplete statement. The payment of the nine installments between April 1, 1919, and November 10,1919, together with $500 paid by bim in
The Hansen Charge.
The defendant received from R. L. Sabin trustee for the W. H. Wallingford Co., on August 1, 1921, $326.64; September 3, 1921, $653.28; February 28, 1922, $130.65; making a total of $1,110.57. The defendant claims that when he was employed to sue the W. H. Wallingford Co. he took the case upon a contingent fee basis and that it was agreed that he was to receive 50 per cent of the . amount recovered if the full amount sued for was recovered, or if less was recovered he was to have the first 30 per cent collected. A judgment for $3,266.49 was obtained against the W. H. Wallingford Co. and 30 per cent of that
Lenon testified that when the written agreement was made he asked the defendant when he could make payment and the latter said he would have the
The defendant says that he prepared and mailed under date of September 6, 1921, a statement showing that he was entitled to $979.20 as being 30 per cent of the judgment against W. H. Wallingford Co., that he had collected $326.64 on August 1, 1921, and $653.28 on September 5, 1921, and that he had paid Hansen $200 on September 6, 1921. A carbon copy of the alleged statement is in evidence and purports to show that it was addressed to Hansen at 7312 — 54 Avenue S. E. Portland, Oregon, as his home address. Hansen says that he never received the statement and that he never lived at the address mentioned. Posted on the file envelope or cover used by the defendant is the business card of Hansen. This card indicates that Hansen was a representative of the Grill Piston
On March 23, 1922, Hansen addressed a letter to the defendant saying:
“I called at your office today according to appointment, but could not see you. I do not propose to be put off in this way. You have my money, and I hereby demand payment before Saturday noon, March 25, 1922.”
The next day the defendant mailed to Hansen a letter saying, among other things:
“You state that you called at my office today, (March 23) according to appointment and could not see me. You had no appointment with me on March 23. You called at my office on Monday and I told you that I would get around to your statement and business affairs with this office by the end of the week. * * I will prepare and mail you a statement of all business transactions in this office on your behalf which you will receive about the middle of the coming week. If you do not care to wait that long, you may resort to any means that pleases you.”
The defendant failed to render a statement. Notwithstanding the defendant contends that it was agreed when he was employed to sue the W. H. Walingford Co., he was to receive 50 per cent if the full amount was recovered and 30 per cent if less than the full amount was recovered, and notwithstanding the payment of $200 and $50 “on account” to Hansen, the defendant claims that he signed the writing of April 6,1922, in order to settle the matter and that he made the $200 and $50 payments merely as a concession. We are not impressed with the explanation offered by the defendant. The evidence constrains us
The Schrump Charge.
The defendant was employed by F. D. Schrump to act as his attorney in conducting a voluntary bankruptcy proceeding. Schrump claims that the defendant advised him to file a voluntary petition in bankruptcy so as to protect against then existing indebtedness any property he might inherit in the future; but the defendant asserts that he advised against filing the petition. However, it is conceded by all that it was agreed that the defendant would attend to the bankruptcy proceeding for $145 and out of that
It appears that a judgment amounting, with interest, attorney’s fees and costs, to more than $3,000 had been obtained against R. E.. Bondurant and others, that Schrump claimed an interest in the judgment, and that the defendant claimed and had filed a lien upon the judgment for his attorney’s fees. Under date of June 13, 1921, an agreement was signed by the defendant, Schrump and others, whereby Schrump agreed that there'was due the defendant as attorney’s fees, the sum of $790.85 and that the defendant “has lien on the said judgment for said amount as a balance due him * # ” On August 2, 1921, $500 was paid to the defendant on the Bondurant judgment, and on October 26th, following, $300 was received by the defendant on that judgment.
It appears that an agreement was made whereby the Bondurant judgment was to be settled for less than the face of the judgment, and Schrump insists that as a part of the settlement the defendant agreed to accept $400 in full for his attorney’s fees, and that payment was effected by the defendant retaining $250 due on the first Bondurant payment and $150 due on the second Bondurant payment. The defendant contends that he had a lien on the collections made by him but at the earnest request of Schrump and as a mere favor he handed over to Schrump $200 on the first collection and that after the second Bondurant payment and at the earnest request of Schrump he
Schrump testified that in November, 1921, he called at the defendant’s office to see about some money' due him. "We understand that the money to which the witness referred was the second Bondurant payment. A check was made out for Schrump for $125 but he says that the check was a few dollars short of the amount due. On this occasion the bankruptcy matter was discussed and the defendant agreed to attend to the proceeding for $145. Schrump says that he told the defendant to keep the check and that he would get the difference and pay it to the defendant. The defendant admits that Schrump “turned the cheek back and asked him to put him through bankruptcy. ’ ’ The office manager, under date of December 1, 1921, or probably when the petition and schedules were signed, gave to Schrump a receipt for $145 “being settlement in full for costs, disbursements and attorney’s fees in bankruptcy proceeding.” The defendant testified that Schrump paid no money on this receipt and, subject to qualification, this is an accurate statement; because Schrump did not “get the difference” until January 9, 1922, when he appears to have paid $16.25 and received a receipt which was signed by the office manager and contains the following recital:
“To make up deficit in the amount due this office under receipt given him Dec. 1, 1921, for $145.00 as settlement for costs, disbursements and attorney’s fees in his bankruptcy proceedings.”
The defendant claims to have rendered a statement which he says is now an account stated. This statement charges the defendant with $790.85 as attorney’s fees in the Bondurant case, $145 as the charge in the bankruptcy proceeding, and other items, amounting in
It is plain that the defendant did not deliberately refrain from filing the bankruptcy papers in order to appropriate the $145. The failure to file the papers resulted from the oversight in not having Schrump sign the oaths. The defendant naturally supposed the papers had been filed and we do not think that he knew that the papers had not been filed until so informed by Schrump after Schrump had gone to the clerk’s office. The defendant is not charged with negligence because of the failure to file the papers but he is charged with misappropriating and converting $145 to his own use. If the defendant agreed to accept $400 in full for his attorney’s fee in the Bondurant case he ought to have paid the $145 to Schrump when Schrump demanded the money. The evidence affords ample room for controversy as to whether or not the defendant agreed to accept $400 in full payment. If, however, the defendant did not so agree the case is different. The evidence does not show that the defendant converted the $145 to his own use.
The Baird Charge.
In 1914 Emma Gf. Robinson, to secure a note for $2,800, gave to Ricey A. Baird a mortgage on a section of land in Klamath County. The defendant admits that in December, 1917, and in January, 1918, Ricey A. Baird deposited with him $603.06 for the payment of taxes on lands in Harney, Lake and Klamath Counties. The taxes on the Lake and Harney County lands appear to have been paid, leaving $251.37 to be applied on the Klamath County lands. Emma Gf. Robinson had not paid all the taxes due on the land covered by her mortgage. The defendant says that he wrote to the sheriff of Klamath County inquiring as to the amount of taxes due on the mortgaged land and stating that he was in a position to pay the taxes, but that the sheriff answered by stating that a large area, including the mortgaged premises, was in litigation and that he could not accept any money for taxes until the litigation was settled. The defendant says that he sent for an abstract of record relative to the title, and that on October 22, 1919, he received the abstract and also a letter from
The Meyers Charge.
The defendant borrowed $3,000 from Mrs. Lucille Gillette, now Meyers, and under date of April 30, 1920, gave to her his promissory note for $3,000 payable sixty days after date with interest at 8 per cent per annum, the interest payable at the maturity of the note. Mrs. Meyers says that she told the defendant that the money belonged to her parents, and in this respect she is corroborated by Earl Riley. It is claimed by Mrs. Meyers that she learned that the defendant wanted to borrow $3,000 and that she interviewed the defendant at his office with reference to the matter. She says that the defendant told her that he could secure the loan by a concrete building, or by an interest owned by him in the Lumbermen’s Building’, which interest he says amounted to more than $3,000, or by an attorney’s fee due him from the Gibson Mining Syndicates. The truth is that the defendant did not own any interest in the Lumbermen’s Building. The defendant, as a witness, attempted to explain his representations concerning the Lumbermen’s Building by saying that he told Mrs. Meyers that he was negotiating with a number of his friends who proposed to take over the building. But the fact remains that he had no interest in the building and yet was talking about securing the loan with something he did not have. The talk about the Lumbermen’s Building is instructive because it tends to reveal the attitude of the defendant during the transac
“The contract between the Gibson Mining • Syndicates and Geo. Estes, Attorney at Law, for legal services, embraces advice, counsel, and legal work necessary * * for the purpose of protecting the interests of the Portland and Spokane Syndicates of stockholders in the Gibson Mining Company, Inc. * *
“These mining claims are extremely valuable and the professional services being performed by me involve a la.rg*e amount of legal counsel and advice, together with many lawsuits and legal proceedings of different kinds pursued in Oregon, Washington and the Province of British Columbia # * .
“Under the terms of the contract between myself and the syndicates, there is due, or to become due to Mr. Estes, sums of money greatly in excess of the amount assigned herein for legal services and expenses not yet computed in behalf of the syndicates of stockholders as aforesaid.”
Attached to the statement and dated April 30, 1920, is a written assignment to Mrs. Meyers of his claim against the Gibson Mining Syndicate for attorney’s services and legal expenses. The assignment was “given as collateral security” for the note made on that date. Attached to the statement and assignment is an affidavit in which the defendant swore that the statement
“of attorney’s services and legal expenses due me from the Gibson Mining Syndicate, composed'of the gentlemen named in said statement are true and that the said sums of money so set out in said statement are now due and payable to me under my contract with them, and that the same -is a good and subsisting obligation in every respect.”
The truth is that about August 8, 1919, the defendant was employed by the Portland Syndicate of the
The defendant has sued J. C. Roberts for $2,500 and he has sued the syndicate for $25,000 for services alleged to have been performed. If the truth is as claimed by tfie syndicate nothing was due the defendant when he borrowed the money from Mrs. Meyers and in that event his representations to her were false. If the defendant was to receive $2,500 as a retainer and in addition was to be paid the reasonable value of his services, nevertheless the defendant knew at the very time he borrowed the money that the amount of the additional fees, if any, which he would ultimately receive was problematical and speculative. The defendant was not frank and straightforward in his dealing with Mrs. Meyers. The circumstances did
The Roberts Charge.
“For value received I hereby assign the within certificate of stock and the shares therein represented to Walter M. Seward being as collateral security and I hereby guarantee to Walter M. Seward, his heirs, executors, administrators and assigns, that in case said stock or any portion thereof is resorted to for the purpose of satisfying the original debt or any portion thereof, for which this stock is deposited as collateral security, that the said stock shall realize sufficient to pay all claims Walter M. Seward may have by reason of the Ten Thousand Dollar note signed D. K. and Minnie M. May, given to the said Walter M. Seward this date not being paid in full or any portion thereof.”
In May, 1918, W. M. Seward loaned $10,000 to D. K. May and Minnie M. May, his wife. The Mays were stockholders in the Gibson Mining Co., Ltd., which owns a group of mines in British Columbia. May and his wife borrowed the money to use in developing the mines. J. C. Boberts was also interested in this mining company. The loan was evidenced by a note signed by the Mays, and, as security for the note, they assigned to Seward 50,000 shares of stock in the mining company. Seward required additional security before agreeing to make the loan; and so Boberts agreed to turn over as additional security stock in the Peters & Boberts Furniture Co. Boberts says that it was understood that the stock turned over by him
It is claimed that Roberts turned over to the defendant for Seward seven stock certificates representing 80 shares of stock in the Peters & Roberts Furniture Company. Only six certificates, representing a total of 79 shares, áre in evidence. These six certificates are as follows: No. 45 for 20 shares; No. 47 for 10 shares; No. 49 for 10 shares; No. 56 for 24 shares; No. 57 for 14 shares; and No. 65 for 1 share. Certificate No. 38 for 1 share was not offered as evidence. It is conceded that the genuine signature of J. C. Roberts appears, upon the back of each of the six certificates received in evidence; but it appears that Roberts wrote his name thereon long prior to the Seward loan and for another purpose. The guaranty set forth in the accusation and quoted herein is typewritten on the back of each of the three certificates numbered 45, 47 and 49 and above the signature of J. C. Roberts. There was just room enough for writing the guaranty above the signature on the back of certificates 45 and 47, and there was hardly sufficient space for the guaranty to be typed' on the back of certificate No. 49 as the typewritten matter runs over a part of the signature. As to the remaining three certificates in evidence there is not sufficient space above Roberts’ signature for the writing of the guaranty.
The defendant says that the guaranty was placed upon the back of the three certificates with the authority of Roberts. The defendant explained that he wrote a form which was approved by Roberts, who
Roberts insists that he did not authorize the typing of the guaranty on the certificates, and that he first gained knowledge of the guaranty after Seward’s death. Roberts says that after learning of the existence of the guaranty on the back of each of the three certificates he went to defendant’s office; that the defendant said that he did not know anything about the matter on the back of the certificates and that the defendant tried to lead him to believe that Seward did it; that the defendant looked up his letter files and gave Roberts a letter written by Seward to the defendant under date of May 10, 1918, and told Roberts to make whatever use of it he could. It appears that the judgment against the Mays has been settled, so that the guaranty on the certificates did Roberts no actual damage.
The defendant gives a different explanation of the delivery of the Seward letter' to Roberts. It is claimed by the defendant that when the May loan was negotiated Seward called for a financial. statement concerning the furniture company in order that he might be advised of the value of the stock to be delivered by Roberts as security. The defendant claims that after Seward’s death Roberts came to him and expressed a fear of being sued by Brice saying that
The defendant explained the appearance of the guaranty on the three certificates and the absence of its appearance on the others by saying that the certificates bearing the guaranty were the first ones delivered and that they were the largest. The defendant is in part mistaken. Certificate No. 56 was larger than either of' the three bearing the guaranty, and certificate No. 57 represented more stock than two of the certificates bearing the guaranty. Seward in his letter of May 10th says:
“That they [the Roberts stock] amount to approximately $12,000, according to his [Roberts] valuation. ’ ’
Some of Seward’s reasons for writing the letter of May 10th appear from the following excerpt taken from it:
“At the time we completed the D. E. May and J. C. Roberts transaction a few days ago I was in a hurry to see my physician and did not go carefully into those papers which I had entrusted to your judgment.
“In looking over these papers later I notice that the agreement with Mr. Roberts specified that he is to put up stock in the Peters & Roberts Company, of the par value of $40,000. My understanding of the value
“ * * The original agreement which I had with Mr. Roberts was to the effect that he would personally secure the above-mentioned $10,000 in consideration of my turning over the stock involved to him, providing I did not care to purchase it at the expiration of one” year. The only reason therefore, as I understand it, that yon agree with Mr. Roberts for him to share in the profits of this stock was in consideration of his furnishing material and absolute security to me for the money advanced to Mr. May.
“This being the case, I think that both you and Mr. Roberts will agree that the security furnished, namely, forty shares in Peters & Roberts Co., is not adequate security for the amount advanced. I think it very doubtful if one could realize at the expiration of two years five thousand dollars actual cash in this security together with accrued interest and court costs, etc., providing it went through process of court.”
If Roberts agreed to guarantee, one is naturally prompted to ask: "Why did Roberts not sign one paper guaranteeing all the certificates? If Roberts agreed to guarantee the stock at all why was the guaranty not placed on all the certificates instead of on three only? Something has been said also concerning the fact that on the three certificates bearing the guaranty there was sufficient space for typing the guaranty but that there was not sufficient space on the other three certificates received in evidence. In February, 1921, the defendant commenced an action against Roberts to recover $2,500. A month later he sued the Portland Syndicate of the Gibson Mining Company Ltd., for $25,000 for services rendered as attorney in connection with the mining property. There was considerable evidence relating to the defendant’s conduct in handling the litigation for the
We cannot bnt be mindful of the seriousness of this charge. It is to be regretted that sufficient evidence could not have been submitted to demonstrate the truth whatever it may be. We do not think that the evidence is sufficient to sustain the charge that the defendant fraudulently wrote the assignment on the hack of the certificates.
We acquit the defendant of three of the charges specified in the accusation; but it is our conclusion that the evidence sufficiently supports the other specified charges, and because of such conclusion, we are constrained to order that tbe defendant be disbarred.
Defendant Disbarred.