People Ex Rel. Chicago Bar Ass'n v. McCallum , 341 Ill. 578 ( 1930 )

We disagree with the opinion of the court and dissent from its judgment. The commissioner found that the first count of the information, charging the respondent with knowingly prosecuting a fraudulent claim against the Chicago, Burlington and Quincy Railroad Company in the circuit court of Cook county for personal injuries, was not sustained by the evidence, and the majority of the court are of the same opinion. Without concurring in this conclusion and without comment upon this count we shall consider the other two, upon which, in our judgment, the record contains ample evidence to require the disbarment of the respondent.

The second count charged the respondent with presenting to the court affidavits which he knew to be false, for the purpose of inducing the court to advance the case for trial ahead of its regular order on the court calendar. The acts charged in this count and the circumstances under which they occurred are stated in the opinion of the court, and it is said in the opinion that many of the statements in Donahue's affidavit were untrue and known to him to be untrue. It is further said, however, that with respect to the respondent the facts were entirely different, because, it is said, he did not state that the facts alleged in Donahue's affidavit were true but only that he believed them to be true. This affidavit was prepared by James A. McCallum from a form which William Wallace McCallum had in his office for use in support of motions to advance causes for trial. On his way home from the office in the evening James A. McCallum took the affidavit so prepared to Donahue, who signed it, and on the former's return to the office the next morning he went to a notary public and had him sign the jurat. This affidavit in form, although not sworn to, was presented to the court as an affidavit, and the respondent, in the affidavit which he filed, swore that he believed the facts set forth in the instrument signed by Donahue were true. Eliminating for the present purpose the averments concerning the supposed accident and its results, Donahue's physical condition, the dependency of his wife and children upon him and the meritorious character of his cause of action, among the facts alleged in the instrument were, that he, Donahue, was in urgent need of medical care and attention on. account of his critical physical condition; that he had no funds to secure such help; that he had exhausted all means to secure help from his friends and relatives, and that he was at the time confined to his home in a helpless condition. These statements were all material to the question whether the cause should be advanced for an early trial. They were false, and they were known by the respondent, as well as Donahue, to be false. Donahue was not in urgent need of medical care and attention, he had made no effort to secure help from his friends or relatives, and he was not, and had not been, confined to his home. He was living comfortably, if not luxuriously, in a well-appointed hotel and funds to meet all his requirements were advanced to him by the respondent and his brother, and the funds so advanced were to be refunded, with interest at five per cent, together with attorney's fees, out of the money to be recovered from the railroad company. While the respondent did not swear that the alleged facts in Donahue's affidavit were true, he did swear that he believed them to be true. Granting that he believed Donahue's statements in regard to the alleged accident and supposed resulting injury and that he believed his cause of action to be meritorious, still he knew that the statements made for the purpose of inducing the allowance of the motion for an early trial were untrue. These statements were material to the determination of the motion, for without them there would have been no showing for its allowance. Through them the court was informed that a workman had been seriously injured by the negligence of the defendant; that he was totally disabled and confined to his home, with a wife and children dependent upon him; that he was without money or other source of income, and that he had exhausted all means to secure help from his friends and relatives. The affidavits were the only source of information which the court had on the subject, and in reliance upon the false statements they contained the motion was allowed and the cause was advanced for an early hearing. The purpose of these false representations was to deceive the court, for it could not reasonably be expected that any court, if informed of the real situation, would have given precedence to the trial of the cause. No principle of law is more elementary than that perfect candor to the court is the first duty of every attorney at law. Only after it has been made to appear by examination and investigation that an applicant for a license to practice law is honest and possesses a good moral character, as well as the requisite ability, education and knowledge, is the court justified in granting him such a license. By this license he becomes a member of the bar, he practices his profession by virtue of it, and he is subject to discipline and disbarment for conduct inconsistent with his duty to the court or to his client. Every attorney at law is an officer of the court and in every trial owes a duty to the court as well as to his client. Every trial of an issue of fact is an investigation to ascertain the truth of the matter. The court has a right to expect that the attorneys in a case will neither make false representations to nor endeavor to mislead the court. The views of the court with respect to the second count we regard as inconsistent with the facts in the case and the law concerning the relation of an attorney at law to the court. The false averment of Donahue's need of medical care and attention and his lack of funds therefor is passed over with the statement that while the respondent and his brother had advanced money to Donahue for his personal expenses and for assistance to his family, yet they were under no obligation to do so. If the facts had been stated in the affidavit it would have appeared that Donahue was in no need of medical care and attention or of money because these had already been provided for by the respondent and his brother. Moreover, we do not agree with the statement in the opinion that "while technically this room in the Sherman House may not have been Donahue's home, this is a mere technicality." In our opinion the characterization of the substantial difference between the two places as a mere technicality will not suffice, for the false statement was inserted in the affidavit with the specific intention of deceiving the court into believing that Donahue was confined to his home with his wife and two children in dire want, and that he was penniless, without credit and without friends or relatives to whom he could appeal for help, when, in fact, ample provision had been made for his comfortable support in a well known hotel.

The Canons of Professional Ethics adopted by the American Bar Association, the Illinois State Bar Association and the bar associations of most, if not all, of the States, provide that "the conduct of the lawyer before the court and with other lawyers should be characterized by candor and fairness. * * * It is unprofessional and dishonorable to deal other than candidly with the facts in taking the statements of witnesses, in drawing affidavits and other documents and in the presentation of causes. * * * These and all kindred practices are unprofessional and unworthy of an officer of the law charged, as is the lawyer, with the duty of aiding in the administration of justice." While these canons have been voluntarily adopted by the bar associations and have not the obligation of a statute, yet they indicate the standard of professional conduct which these organizations regard as proper for the guidance of their members. We have adopted that standard as a safe guide for professional conduct in the cases to which the canons apply and have said that an attorney may be disciplined by the court for not observing them. (Ringen v. Ranes, 263 Ill. 11; People v.Berezniak, 292 id. 305; Hunter v. Troup, 315 id. 293.) In our judgment the conduct of the respondent in presenting the affidavits was intended to deceive, and did deceive, the court and necessarily influenced the decision upon the motion. His conduct was a violation of the canon quoted and was unethical and unprofessional. The case of People v. Barrios, 237 Ill. 527, is authority for making the rule absolute on the evidence adduced in support of the second count of the information.

The third count is sufficiently set out in the court's opinion, and the charges to which we shall particularly address ourselves are, that the respondent was engaged in the practice of his profession in association and partnership with his brother, James A. McCallum, who was not a lawyer, and divided fees with him, and that they hired solicitors for the purpose of securing clients to employ the respondent as their attorney. In our judgment neither argument nor authority is necessary to show that either of these charges, if sustained by the evidence, requires the disbarment of the respondent. Section 1 of the act in relation to attorneys and counselors declares it to be a misdemeanor punishable by fine or imprisonment, or both, for any person to practice law in this State without having previously obtained a license for that purpose. Any licensed lawyer practicing law in association and partnership with a person not licensed to practice is an accessory to the misdemeanor of the latter, and such an association or partnership can be nothing but an attempt to evade the statute. Section 27 of the Canons of Professional Ethics already mentioned declares that "solicitation of business by circulars or advertisements, or by personal communications or interviews, not warranted by personal relations, is unprofessional." In the opinion of the court it is said in relation to these charges that there was evidence tending to show that prior to November 22, 1924, a relation existed between the respondent and his brother which in law would constitute a partnership, but it is further said that "without going into the evidence in detail, we are of the opinion that it shows that since that time, while J.A. McCallum was connected with the office of respondent, his connection was that of employee and not of a partner." In our view of the evidence it not only tended to show, but clearly established, that before November 22, 1924, the respondent and his brother were partners, and that no substantial practical change was made in the conduct of the business after the Appellate Court for the First District, in Puls v. Chicago andNorthwestern Railroad Co. 233 Ill. App. 625, affirmed the judgment of the circuit court of Cook county on the appeal of the respondent from an order dismissing his intervening petition for an attorney's lien. Instead of being an employee of his brother, James was, after as well as before November 22, 1924, the manager of the business and finances of the partnership; he solicited and secured cases, and directed to a greater extent than the respondent how they should be conducted; he furnished money to support their indigent clients and shared in the profits of the firm. The commissioner found that "the respondent and James A. McCallum were engaged in the practice of the profession of law together in the nature of a law partnership or firm and that they shared the emoluments of such law practice, although said James A. McCallum was not by education, training or experience fitted to be a lawyer, nor was he admitted to practice." Our conclusion from the evidence is in accord with this finding of the commissioner. By the authority of People v. Berezniak, supra, the evidence justifies making the rule absolute, upon the third count.

The charge was made by counsel for the respondent on the hearing before the commissioner, and is often repeated in varied form in their briefs and petitions for rehearing, that the railroad company is the real prosecutor of the present information and that the company is not clean-handed; that the proceeding was instigated and is carried on by the railroad company masked and cloaked as the Chicago Bar Association, and that the prosecution of the information is unfair, vindictive and not in good faith and is conducted to serve the private motives of the grievance committee of the relator. InPeople v. Holt, 279 Ill. 107, the respondent objected that the making of the charges and the proceeding for disbarment were inspired by political animosity and personal malice, but the court said: "If it were true that the charges would not have been made except for personal hostility, it would neither relieve the court from the duty of investigating the charges nor the respondent from disbarment if they were found to be true." The issues presented by the several counts of the information must be determined from the evidence in the case. There is nothing in the record which justifies the charge of personal hostility or the want of good faith on the part of the relator in prosecuting the information against the respondent. The evidence discloses, on the contrary, that the motive which actuated the representatives of the relator in filing and prosecuting the information was to maintain a proper standard of conduct in the practice of law. The relator sought to perform a duty inherently disagreeable, as in all cases of this character, under an abiding appreciation of its obligation to the profession.

In our opinion the judgment of the court should make the rule absolute.