Commonwealth v. Roe

• Decision Date: 08 October 1908
• Citation: 112 S.W. 683
• Parties: COMMONWEALTH v. ROE.
• Court: Kentucky Court of Appeals

112 S.W. 683

COMMONWEALTH v. ROE.

Court of Appeals of Kentucky.

October 8, 1908

Appeal from Circuit Court, Jefferson County, Common Pleas Branch Third Division.

"To be officially reported."

Proceedings by the commonwealth for the disbarment of C. C. Roe, a practicing attorney. From a judgment of dismissal, the commonwealth appeals. Reversed, with directions.

James Breathitt, Atty. Gen., Tom B. McGregor, Asst. Atty. Gen., J M. Huffaker, W. O. Harris, A. Scott Bullitt, and Alex P Humphrey, Jr., for the Commonwealth.

Austin E. Walsh, Coruth, Chatterson & Blitz, and Walsh & Walsh, for appellee.

CARROLL J.

The purpose of this proceeding was to disbar the appellee, a practicing attorney at law in the city of Louisville. The information filed against him by the commonwealth's attorney of the district, in the name of the commonwealth, was as follows: "Commonwealth of Kentucky, v. C. C. Roe. Joseph M. Huffaker, commonwealth's attorney of the Thirteenth judicial district of the commonwealth of Kentucky, who, in the name of and by the authority of the commonwealth of Kentucky, prosecutes in its behalf, in his own person comes into the Jefferson circuit court, common pleas, First division, and tenders the affidavits of Charles L. Gray and Charles Peebles, and makes the same a part of this information, and informs the court that C. C. Roe, of the county of Jefferson and commonwealth of Kentucky, a member of the bar of said court, while a member of said bar and in his capacity as a practicing attorney at law, within the jurisdiction of said court, committed the following acts of unprofessional misconduct and was guilty of the following immoral and illegal practices, to-wit: Then follows in detail the charge that Roe collected for one Gray the sum of $150, one-half of which he was entitled to retain as a fee; that, although payment was frequently demanded, he failed and refused to pay to Gray the amount to which he was entitled. Wherefore, the said commonwealth's attorney charges that, by the commission of the acts aforesaid, the said C. C. Roe has shown himself to be a person devoid of honesty, probity, and good demeanor, and is totally unfit to be an attorney at law and a member of the bar of said court." In another paragraph, containing the same technical averments, it was charged that as the attorney for one Mary Glover he collected $250, and failed to pay any part thereof until long after the same was due, although payment was frequently demanded. Upon the filing of this information, accompanied by affidavits made by the persons for whom the money was collected, a rule was issued against Roe to show cause why his authority as an attorney to practice and be an officer of the court should not be revoked.

Upon hearing the proceeding, the court dismissed it upon the face of the papers, upon the ground that it should have been instituted and prosecuted in the name of the persons for whom it was charged Roe had collected the money, and not in the name of the commonwealth. In reaching this conclusion the lower court followed the opinion of this court in Wilson v. Popham, 91 Ky. 327, 15 S.W. 859. In that case there was a motion in the name of Popham against H. T. Wilson, an attorney, to show cause, if any he had, why he should not pay over to him by certain day money he had collected as his attorney. The proceeding was instituted under section 104 of the Kentucky Statutes of 1903 reading as follows: "If any attorney at law shall collect the money of his client and, on demand, wrongfully neglect or refuse to pay over the same, the circuit court of the county in which the money may be collected shall, after notifying the attorney to show cause against the same, suspend him from practicing in any court for twelve months, and until the money shall be paid. Before any such motion shall be entertained, a demand of the money shall be made of such attorney in the county of his residence, and no such proceeding shall take place unless it is commenced within two years next after the collection of the money." Wilson moved the court to quash the rule, because the proceeding against him should have been in the name of the commonwealth in place of Popham. In answer to this objection, the court said: "This proceeding is, however, under a statute which relates to but one act of an attorney. It embraces a single act of misconduct, and that is one where there is always a person immediately and directly interested. It is true the public are incidentally interested, and, therefore, the Legislature, upon the idea likely that otherwise it may not be properly prosecuted, has provided that the attorney for the commonwealth shall attend to the proceeding. The statute does not say in whose name it shall be carried on, and, in view of the fact that there is always a person directly interested in the proceeding, it seems to us it should be prosecuted in his or her name. Under the statute, this person must take the preliminary steps necessary to its institution. He only can demand payment of the money, and as he is immediately interested, and knows whether there is ground for the proceeding, he should, in case it be unfounded, be responsible for the costs to the attorney. He is therefore the proper party to the proceeding, because, if he can, without proper ground, act in the name of the commonwealth, then there can be no judgment for costs to the attorney, and he is remediless, although another was immediately interested and directly instrumental in putting the proceeding upon foot. The motion to quash the proceeding was therefore properly overruled." The radical difference between the procedure in the Wilson Case and in this one is that there the proceeding was instituted by the individual wronged, and it was sought to punish Wilson under and by virtue of the statute, while here the proceeding is not by the injured client or under the statute, but is in the name of the commonwealth for an offense that shows the attorney unfit to practice his profession. It is true the offense committed by Wilson and Roe was the same, but it does not follow from this that there is only one method by which the offender may be punished, and that the one adopted in the Wilson Case. The statute in question only describes one offense for which an attorney may be suspended from...