Bar Ass'n of City of Boston v. Scott
| Decision Date | 19 May 1911 |
| Parties | BAR ASS'N OF CITY OF BOSTON v. SCOTY. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
Geo D. Burrage, for petitioner.
Jesse M. Gove, Geo. T. Perry, and Grenville S. MacFarland, for respondent.
This is a petition to disbar the respondent, an attorney at law. It alleges in substance that the respondent as attorney for the plaintiff, in an action entitled O'Halloran v. Boston Elevated Ry. Co., which was tried twice in the superior court, after a final verdict had been rendered in favor of the plaintiff, filed six witness certificates as a basis for the taxation of costs, bearing the names of seven witnesses showing attendance for 33 days each, the aggregate amount of which, including travel, was $372.90, which certificates were false to the knowledge of the respondent and were not made in good faith, but were illegal and fraudulent; that in making them out and in instructing witnesses to sign them the respondent acted dishonestly and committed a fraud upon the defendant and the court, and that bye inadvertence counsel for the defendant did not give notice of a desire to be present at the taxation of costs, and execution issued including the above mentioned amount for witness fees; that thereafter a motion was filed to vacate the judgment on account of these fraudulent certificates, which motion was denied for lack of jurisdiction; and that the respondent paid over to the several witnesses a small part only of the amount of witness fees thus collected and fraudulently and dishonestly retained, and converted to his own use the balance thereof. The respondent filed an answer in which he denied all fraudulent or corruptacts, or any violation of his oath of office in this regard, and averred that the witness certificates were truthful and in accordance with the facts.
There was a hearing before a justice of the superior court, who made a finding of facts to the effect the while the case of O'Halloran v. Boston Elev. Ry. Co. was upon the list so that it might have been called for trial, the respondent arranged with the witnesses so that they might be reached by telephone, and while some of them occasionally ran into the respondent's office as they were passing to inquire about the case, no one of them lost any time or pay in their regular employments except on the days when they were actually in court not exceeding five days in the aggregate and that apart from any agreement the respondent could not 'fairly and reasonably [have] called the witnesses for more than eight or nine days at most.' But he made no finding of bad faith on this point.
He further found that whatever was done in holding witnesses for 31 of the days certified to, the respondent did while 'a clear and explicit agreement existed between him' and the attorney for the Boston Elevated Railway Company 'that neither party 'needed to get ready' nor 'keep witnesses around' until notified by the other.' Upon these facts the justice of the superior court found that 'the witnesses' certificates prepared and filed by the respondent 'were false, and were known by the respondent to be false, and were not made in good faith, but were improper, illegal and fraudulent,” and that in his conduct respecting them 'the respondent acted improperly and dishonestly and committed a fraud upon the defendant.' The respondent filed certain requests for rulings, some of which were granted and others refused. After the filing of the findings the respondent excepted to certain parts thereof and filed further requests for rulings and a motion for a new trial. These were all overruled or refused and upon the findings an order of court was entered suspending the respondent from his office of attorney for three years. The respondent excepted and appealed.
1. It is argued that there is a variance between the petition and the findings in that the latter so far as fraudulent conduct is concerned are based wholly upon the agreement between counsel in the O'Halloran Case that parties should not be held for trial and that this specific matter is not alleged in the petition.
The reprehensible conduct charged was the fraudulent collection of excessive witness fees and this was the matter proved. It has been frequently decided that in petitions of this kind the technical nicety of common-law criminal pleading is...
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