In Re Disbarment of H.H. Dunn

¹ Reported in 217 N.W. 142. Proceeding for the disbarment of H.H. Dunn, a member of the bar of this state residing at Albert Lea. Hearing of the testimony was referred to Honorable Carroll A. Nye, one of the judges of the seventh judicial district, who reported the evidence and his findings. No recommendations were made.

The original accusation of the state board of law examiners made on December 7, 1926, charged Dunn, as attorney for Nellie Mae Sprague, with withholding and retaining and failing to account for certain personal property, including $900 in Liberty bonds, the proceeds of litigation. By an amended accusation dated January 20, 1927, Dunn was charged with failing to remit to one Olson and converting to his own use moneys received on a verdict which he obtained for him. The latter charge is not pressed, and no reason for making it appears.

The accusation necessary to be considered involves a lawsuit in which Mrs. Sprague was the plaintiff and T.V. Knatvold and W.G. Chamberlain as executors of the will of C.M. Hewitt, and the First Baptist Church of Albert Lea, were defendants. The cause of action involved the tracing of funds for 20 years and establishing a trust into which they passed. It is not necessary to go into details. It is enough to say that the litigation involved a very considerable amount of labor and was of uncertain result. Judge Meighen, who tried the case for the defendants, thought the chance of Mrs. Sprague's losing greater than winning by a large percentage, and that Dunn "got a very excellent result" for her.

The case was decided on April 8, 1926. Mrs. Sprague's recovery was $2,350, the full amount asked. Not long thereafter Dunn appropriated the Liberty bonds and interest to his own use, as found by the court, "under the claim that he was entitled to the same in payment of his attorney's fee in said action." He claimed a contingent fee of 40 per cent of the recovery, and the amount of the Liberty bonds was less than the 40 per cent. Mrs. Sprague denied that there was a contingent fee, and the court found that there was none.

Considerable correspondence followed between M.H. Sprague, the son of Mrs. Sprague, and Dunn in the summer of 1926. Sprague was making demands for a settlement. Dunn gave practically no attention to young Sprague. On October 13, 1926, Sprague filed a complaint with the board of law examiners. On October 16, 1926, Dunn mailed the securities other than the bonds to Mrs. Sprague. On October 16, 1926, the secretary of the board of law examiners wrote to Dunn. On October 23, 1926, Dunn answered, explaining the matter in some detail, and saying that he was willing to submit the reasonableness of his fee "to any three lawyers in the southern part of the state, barring only two," or to take the matter up in any reasonable way; and on December 16, 1926, he suggested a hearing with the board and said that after the facts were gone over he was "willing to abide by whatever you say is right."

The act of Dunn in making use of the Liberty bonds in payment of his fee, although they were not sufficient in amount to discharge what he claimed was the fee agreed upon, was wrong. His conduct in this respect is subject to censure. We do not justify it. He should have accounted. The only question is whether his wrong was so serious that disbarment or suspension should result.

During 1926 Mr. Dunn was sick. There is no controversy about it. Judge Nye so finds. He was nervous and excitable and in some financial trouble. But it is true, as Judge Nye says, that he could have done better with Mrs. Sprague than he did. But his state of health is a fact not to be overlooked.

We cannot think him particularly blamable for failing to send the securities to M.H. Sprague. He was not the agent of Mrs. Sprague to receive them. If Dunn had sent the securities to him and he had used or converted them, it is likely that Dunn would have been liable to Mrs. Sprague.

Nobody for a moment thinks, so far as we gather from the record, that Dunn ever had a thought of stealing, or of cheating or defrauding Mrs. Sprague. The evidence is that his reputation as a practitioner for 37 years in southern Minnesota was without criticism. No one disputes it. The opportunity was given. During this time he had been active in counsel and in practice. He may have made enemies. His disposition may have been at times irascible and disagreeable, and it was in 1926. But the outstanding fact is that Dunn had no thought to cheat or to defraud, and has not cheated or defrauded. Mrs. Sprague all the time has been thoroughly satisfied with the work which he did and the result which followed and with the fee he retained. The dispute as to whether the contract was on a contingent basis is not of controlling importance in this proceeding.

There was evidence from members of the bar of southern Minnesota attesting the good character of Mr. Dunn. This ought to be of some weight with us. When these men say that during his long career he has had the reputation of an honest man in his professional calling it ought not to go for nothing with us when we are considering whether he did such wrong as to merit disbarment because of the single act which we have narrated. An isolated wrongful act, and of only such are we given evidence, does not stand on the footing of a series of wrongful acts.

Some time, the date not precisely appearing, about 35 members of the bar of southern Minnesota, including three judges of the district court, petitioned the board and suggested that the proceeding be dismissed. This as we understand it was after Dunn had offered to do anything that might be deemed proper by a committee of members of the bar in the way of settling the controversy. We do not chide them. It was put in evidence rather informally at the trial of this proceeding, but they did not put it in. They did not seek to influence the court in a pending proceeding. That would have been improper. Whether they should make the petition to the board was for them. We have not overlooked In re Stolen, ___ Wis. ___, 214 N.W. 379,216 N.W. 127.

The proceedings for disbarment are dismissed.