Bar Ass'n v. Casey , 196 Mass. 100 ( 1907 )

Morton, J.

This is a petition to disbar the respondent. The respondent had due notice of the filing of the petition, and after a hearing, at which he was .present and was fully heard, the presiding judge made a finding that the respondent had fraudulently appropriated to his own use a considerable sum of money belonging to his client, and ordered that he be disbarred. The respondent appealed, and the presiding judge reported the case for the determination of the full court upon the question whether the order of disbarment was justified as matter of law. All of the evidence is, in substance, before us and, after a careful examination of it, we are constrained to say that in our opinion there was evidence warranting the finding of the presiding judge, and that the entry of the decree of disbarment was, as matter of law, justified.

The petition alleges amongst other things that the respondent has not observed the requirements of his oath of office and “ has not continued to be and is not of good moral character, and has been guilty of deceit, malpractice and other gross misconduct.”

It sets forth particularly the misappropriation of money belonging to one Bruce, a client of the respondent, as the ground for the petition. Bruce was arrested on a warrant issuing upon a complaint in the Municipal Court of Brighton for open and gross lewdness and was ordered to recognize in the sum of $800 pending consideration of the matter by the grand jury. He retained Richard J. Lane, Esquire, as his attorney and through his assistance the sum of $800 which Bruce had on deposit in the Provident Institution for Savings in Boston was withdrawn- and deposited as security for Bruce’s appearance and Bruce was thereupon released. He was afterwards indicted and the same security was given for his appearance — the money being deposited with the clerk. Subsequently he was defaulted and was ordered to recognize anew in the sum of $1,000, and not being able to recognize was committed to jail. While waiting for trial in the detention room of the Superior Criminal Court another prisoner recommended the respondent to him, and he sent for him and after a consultation the respondent consented to act for him, and Mr. Lane withdrew. Bruce told the respondent about' the $800, and gave him an order for it on the clerk. On presenting the order the respondent found that there was a prior order on file in favor of Mr. Lane. Thereupon the respondent prepared an assignment of the fund from Bruce to himself which was executed and delivered to him by Bruce. The assignment recited that it was “in consideration of services rendered and to be rendered by P. J. Casey as my attorney.” Bruce also at the same time gave to the respondent written authority “ to pay Mr. Lane all money due him, for services as my attorney, and charge the same to me ” and also gave him an order to the clerk in Mr. Lane’s favor. The result was that the clerk paid Mr. Lane $75 for what was due him, and paid over the balance $725 to the respondent. The government had previously waived its right to take advantage of Bruce’s default and have a judgment of forfeiture entered if entitled to it, and the evidence would have warranted a finding, if material, that this was due, in part at least, to the efforts of the respondent. A motion to quash the indictment was filed by the respondent and was overruled and the defendant Bruce excepted. The case came on for trial on agreed facts prepared by the respondent and the district attorney. Various rulings were asked for by the defendant which were refused and exceptions were taken. The case was submitted to the jury without argument on the agreed facts, and they returned a verdict of guilty and the defendant was sentenced to the House of Correction for ten months. Exceptions were filed by the defendant on the same day and a motion by the defendant to stay execution was also filed and allowed. Subsequently, acting on other advice, Bruce discharged the respondent and waived his exceptions and the stay of execution was revoked and the sentence was ordered to take effect forthwith. Bruce had been convicted twice before of similar offences and had been fined; and, according to the respondent’s testimony, was afraid that if found guilty he might be sentenced to the State Prison, and was ready to give up and transfer to the respondent and did give up and transfer to him any claim that he might have to the $800 or any part thereof as compensation for services rendered and to be rendered in his behalf. It appeared, or, at least, there was evidence warranting a finding, that the $800 was all that Bruce had. A demand was made on the respondent on behalf of Bruce by the sheriff for a return of the money, which was refused by the respondent on the ground that the money belonged to him, and that he had received it as his fee under the assignment for services rendered and to be rendered to Bruce. The presiding judge stated in his memorandum of findings that he had “no ground for believing that the respondent did not act for his client with fidelity and reasonable skill until his discharge,” and we see no reason to doubt the correctness of that conclusion. But he found that “ $250 would have been ample compensation for all the services rendered,” and that “ upon all the evidence . . . Bruce authorized the respondent to receive the money from the clerk as his attorney and with the right to hold the money so collected as security for his fees, but the respondent in his interview with the sheriff and by his conduct since that time has indicated sufficiently his intention to appropriate the money to his own use,” and he found, as already observed, that there had been a fraudulent conversion by the respondent of money belonging to his client. In regard to the respondent’s account of the alleged transfer, he found that, so far as it tended to show an absolute transfer of the fund from Bruce to the respondent, it was not true. These findings were warranted, we think, by the evidence. Bruce was a witness at the hearing and, without going into his testimony in detail, it appeared, or could have been found from his account of the matter, that the respondent was to collect the money as his agent or attorney and account for it to him as such. The court could also properly find, as it did, that the respondent’s own account of what took place between Bruce and himself in regard to the settlement with Mr. Lane was inconsistent with an absolute transfer of the fund to him by Bruce. The testimony of the detention officer who witnessed the assignment also tended to show that it was not an absolute transfer and there was nothing in the assignment itself which required a contrary conclusion. It is true that Bruce’s testimony tended to contradict that of the detention officer as to what was said by him to the respondent when the assignment was executed, but the presiding judge may have thought that, in that particular, the testimony of the detention officer was more likely to be conformable to the truth than that of Bruce, The circumstances under which the alleged transfer took place may also have properly disposed the presiding judge to give less credit to the respondent’s account of it than he would otherwise have done. It cannot be said therefore that the findings were not warranted by the evidence. There can be no doubt that the fraudulent misappropriation by the respondent of money belonging to his client constituted a violation of his oath of office, and rendered him guilty of malpractice and justified as matter of law his disbarment. We do not mean to intimate by anything that we have said that Bruce could not legally have agreed with the respondent that he should have the $800 for such services as he might render, however much in excess that sum would be of a reasonable compensation for what was done. But the presiding judge found as a fact that no such agreement was entered into, but that the money was received by the respondent as attorney for Bruce, and that the respondent fraudulently appropriated to his own use his client’s money, and it was on this ground that the disbarment was ordered.

The respondent contends that there was a variance between the allegations of the petition and the proof. No question, however, of variance seems'to have been raised at the hearing, and it was, of course, too late to raise it for the first time at the argument of the exceptions in this court. But while the particulars in respect to the matter relied on were not stated with entire accuracy in all respects, it clearly appears, we think, that the respondent was fully informed as to the substance of the charge against him and had the fullest opportunity to present such facts and evidence bearing upon it as he desired. We discover nothing prejudicial to his rights in the way in which the proceedings were conducted. Boston Bar Association v. Greenhood, 168 Mass. 169. The petition was properly presented by the bar association. The question whether a judgment of absolute removal was required, or whether a less punishment would have met the demands of justice, is not before us.

Order of disbarment affirmed.