Downs, In re

• Decision Date: 14 January 1963
• Docket Number: No. 48820,48820
• Citation: 363 S.W.2d 679
• Parties: In re Kenneth Joseph DOWNS, an Attorney.
• Court: Missouri Supreme Court

Page 679

363 S.W.2d 679

In re Kenneth Joseph DOWNS, an Attorney.

No. 48820.

Supreme Court of Missouri, En Banc.

Jan. 14, 1963.

Walter M. Clark, Charles C. Allen, Jr., George S. Hecker, St. Louis, special counsel for informants.

Francis M. O'Brien, St. Louis, for respondent.

EAGER, Judge.

An information was filed in this court, by leave, charging Respondent Kenneth Joseph Downs with professional misconduct; the information contains 19 counts. It was filed by the Bar Committee of the Twenty-Second Judicial Circuit after the Committee had first heard evidence informally and later, upon notice and formal hearings, had found probable cause to believe that Respondent was guilty of the misconduct now charged. The Respondent has filed answer admitting various formal matters but denying all misconduct. We appointed the Honorable James Austin Walden, of the Randolph County Bar, as our Special Commissioner; he held hearings in the City of St. Louis for four days and has filed a most complete and thorough report of his findings of fact and conclusions of law. The transcript of the evidence is in excess of 800 pages. Respondent was found guilty of professional misconduct on 12 of the 19 counts and his disbarment has been recommended. Respondent has been represented by counsel both before the Bar Committee and the Commissioner. It will be impossible here to avoid a rather detailed statement of much of the evidence.

Respondent, a graduate of the Law School of St. Louis University, was admitted to the Bar in 1954. During most of 1956, all of 1957 and most of 1958, he occupied a suite of offices in St. Louis with one Milton Fox, another lawyer. At various times there were also others in these offices. Respondent and Fox were not partners; Respondent made certain investigations for Fox at an hourly rate of pay, tried cases for him upon a division of fees, and handled entirely certain miscellaneous matters which came to Fox, such as criminal cases and divorce suits. Respondent also had his own business, which consisted essentially, if not entirely, of personal injury cases. He filed many personal injury suits for clients of Fox, but in so doing he used only his own name on the petitions. He said that this was done at Fox's direction, and the latter confirmed this in his testimony. Respondent and Fox regularly used a printed form of contingent fee contract 3 1/2 by 8 1/2 inches, a little larger than the ordinary check. Since there will be much reference to such contracts, we quote the form as follows: 'I hereby employ _____ as my attorney ___ to represent me in my claim against _____ founded upon _____ sustained by ________ on the ___ day of ___ 19__, by ________ For services I agree to pay you _____ per cent. of the amount collected either by compromise or by suit.

Accepted

________

Attorney ___ at Law

________

________'

In all the contracts involved here the fee was one-third, and only the prospective client signed. In substantially all of these matters Respondent had the claimant write on the back of the contract a statement: 'Referred by ________ at my request,' filling in a name. He said that this was done where the client was Fox's, and at the direction of the latter; that he did it only occasionally on his own business but, with one exception, every contract introduced in evidence here contained such an endorsement. Fox testified that this was done for his protection against charges of solicitation, and in view of a 'witch hunt' which had been prosecuted in St. Louis some 7-8 years previously. One witness testified that Respondent told him that the reason was to enable him to compensate the person referring the case to him.

Five witnesses, three of whom were lawyers, testified that Respondent's reputation for 'truth, honesty and integrity' was good, or very good, or excellent. Such evidence is of no great materiality in a matter of this kind. The first four counts involve Respondent's relations with James B. Herd, then a law student at St. Louis University, and a practicing lawyer since September 1959. Herd testified that about June of 1957 he was told by an instructor that Respondent wanted someone to work for him as a part-time investigator, that he applied for the job, told Respondent that he was a law student, and was employed. He further testified: that Respondent agreed to pay him $2.50 an hour for investigative work, but further agreed to pay him $25 for any 'garden variety' lawsuit that he found and brought in and more for those which were 'attractive'; that Respondent gave him a supply of his business cards, and of the contingent fee contract forms; that his investigative work was irregular, that he worked only when Respondent called him, that he kept his own time and was paid at two-week intervals; he never brought in a lawsuit which he himself discovered; he quit after about six weeks because the Dean of his law school told him (and this was brought out by Respondent's counsel on cross-examination) that he had learned that Mr. Downs 'had made certain untoward propositions' to recent graduates and that 'he suggested that I terminate.' Herd also testified: that he was sent by Respondent at various times to interview specific persons, take statements, and try to get contracts signed; that he did get some contracts; that he did not know those people and was merely given the name and address in each instance, being told what to do; that in certain instances the people 'would indicate to me by their conduct that they had never heard or known of Mr. Downs'; that when the person supposedly referring the matter was mentioned, some said they knew the person but 'on a number of occasions it was source of embarrassment, I wasn't expected, and when the name of Mr. Downs came up and who I was or what I was there for, there was a blank reaction or no reaction by these people'; that all such calls were made at the direction of Downs or his secretary; that on one occasion he was so sent to a hospital to see a colored woman who had had her leg severed, with instructions to get her statement, and determine if she was 'interested in having Mr. Downs represent her,' and that if she was unrepresented and desired counsel, to do everything possible to get a contract signed; that at the same time Downs told him that he represented a trucking concern or owner which was involved; that he found at the hospital that the woman was in no condition to talk; that one of the persons around her told him that the woman already had a lawyer and that there was no truck involved; that he later called the woman's lawyer who became very much irritated and wanted to know Herd's name and whom he was working for; that Downs later admitted that 'there was no truck involved,' and that he did not represent any one involved. He further testified: that on one occasion he was directed by Downs to go and interview a certain person in East St. Louis who was a new client whom Downs had not seen, to get the case signed up, put the people at ease, and because he (Downs) had made an appointment to go himself, to 'tell the people that I was Mr. Downs'; that he went, that the prospective client was expecting Mr. Downs, that he did nothing to dispel the illusion, and that the ultimate result (cross-examination) was that the person 'felt that he had been contacted by Mr. Downs,' which was the 'impression' he, Herd, was trying to give.

Respondent admitted the employment of Herd for investigative work and the payment to him of sums of $75.90 and $19.40. He testified that this work was actually that of his associate Fox which he was farming out; Respondent specifically denied that he sought, through Herd, to influence people to give him personal injury claims, and asserted that the cases where Herd got contracts were Fox's cases; Respondent denied that he ever told or authorized Herd to represent himself as Downs.

The Commissioner found that Counts 1, 2 and 4 were sustained by the evidence and that Count 3 was not; he also concluded that Downs' actions, as thus proven, were violations of the Canon of Ethics as exemplified in Rules 4.28, 4.34 and 4.47 (Count 1), Rules 4.27, 4.28 and 4.47 (Count 2) and 4.22 and 4.47 (Count 4), V.A.M.R. Count 1 charged that Respondent agreed to pay Herd, a layman, for personal injury claims of others which he referred to Respondent. Count 2 charged that he caused Herd, a layman, to seek to influence the bringing of personal injury claimants to Respondent and to procure contracts from them, although such persons had not sought his services. Count 3 charged that he caused Herd to bring such persons to him for employment. Count 4 charged that Respondent authorized and instructed Herd to represent himself falsely and fraudulently as the Respondent to a prospective client. We concur with the findings of our Commissioner, who heard all the evidence, viewed the witnesses and passed upon their credibility; we also find, and from our independent review of the evidence (all of which we have read) that the charges of Counts 1, 2 an 4 have been established. Since Herd was not shown to have actually procured any contracts 'on his own,' the allegations of Count 3 were not established.

Counts 5 and 6 charged that in the summer of 1957 Respondent made proposals to one David S. Hemenway (Count 5) and Gerald D. Morris (Count 6), both recent law graduates who had taken the Bar Examination but were not yet licensed, that they should get jobs as adjusters with a casualty insurance company and refer to him personal injury claimants against the company's insureds (Hemenway and Morris) and solicit the employment of Respondent by insureds of the company where such persons themselves had claims for personal injuries against others (Hemenway); that in return Respondent offered office space and secretarial service to both, the sharing in contingent fees of any insureds who were so referred (Hemenway), and agreed to allow Morris to retain all fees on...