Hurst v. Bar Rules Committee of the State of Arkansas

• Decision Date: 20 October 1941
• Docket Number: 4-6172
• Citation: 155 S.W.2d 697,202 Ark. 1101
• Parties: HURST v. BAR RULES COMMITTEE OF THE STATE OF ARKANSAS
• Court: Arkansas Supreme Court

155 S.W.2d 697

202 Ark. 1101

HURST v. BAR RULES COMMITTEE OF THE STATE OF ARKANSAS

4-6172

Supreme Court of Arkansas

October 20, 1941

Appeal from Washington Circuit Court; J. W. Trimble, Judge; modified and affirmed.

Judgment affirmed.

Jameson & Jameson, for appellant.

John K. Butt, for appellee.

S. M CASEY, Special Justice. GREENHAW, J., disqualified and not participating; SMITH, HUMPHREYS and MEHAFFY, JJ., dissent.

OPINION

S. M. CASEY, Special Justice.

The appellant, George A. Hurst, has appealed from a judgment of the Washington county circuit court, rendered on May 24 1940, finding him guilty of gross, unprofessional and unethical conduct as an attorney at law, and canceling his license to practice law in the courts of this state, and barring him from engaging in the practice of law in this state. This order was effective on the 31st day of May, 1940.

The charge of which he was found guilty was the withholding of funds from a client who was entitled to them.

The present proceeding was begun by filing in the circuit court a complaint by the Bar Rules Committee and the prosecuting attorney of that district. In the complaint it was alleged that appellant and one Kelsey Norman, a practicing attorney of Joplin, Missouri, were employed by one Dora Keen in her capacity as guardian of her two minor children by a former marriage, Clarence Perryman and William Perryman, to bring a suit against the J. H. Phipps Lumber Company in the circuit court of Washington county to recover damages for personal injuries sustained by said minors in or about the plant of said lumber company; that the terms of the agreement made with said attorneys were that they should receive a fee for their services of one-half of all sums recovered, and that it was further understood and agreed by said attorneys, as between themselves, that they should share equally in such fee or compensation. An action was brought by said attorneys against the lumber company which resulted in a verdict and judgment in favor of the guardian, Mrs. Keen, in the sum of $ 1,000; that later said judgment and interest, in the sum of $ 1,030 with the costs of the suit, was paid into the office of the clerk of the circuit court, in October, 1937--the date alleged in the complaint was October 19, but the evidence shows it was paid October 9; that after the judgment was rendered and before it was paid into court, Kelsey Norman elected to waive all claim that he had against the recovery for his services, and to donate the same to said guardian for the benefit of said minors, and thereupon, on August 10, 1937, he did execute an assignment for his share of the recovery to Dora Keen, and said assignment being in the form of a letter addressed and mailed by him to her at her place of residence, and by a similar letter or notice mailed on the same day to appellant, George A. Hurst, at Fayetteville, Arkansas; that notwithstanding said assignment by Kelsey Norman and notice given to George A. Hurst, Hurst did on, or about the 15th of April, 1938, collect and receive from the clerk of the circuit court of Washington county the full sum of $ 515, being one- half of the judgment and interest, and did appropriate the whole thereof to his own use, and has refused to pay to the said Dora Keen, as guardian, the sum of $ 257.50 so donated and assigned to her by the said Kelsey Norman, although such payment had been requested by both Dora Keen and Kelsey Norman; that the Bar Rules Committee, after a full hearing of said matters, including a statement by defendant Hurst, as to his reasons for withholding and appropriating said funds, did find that said alleged reasons furnish no reasonable justification or excuse for such conduct on his part.

To this complaint the defendant made express denial, and objected to the jurisdiction of the court, because he alleged that the court had adjourned at the regular October, 1939, session to a day in advance of the day it elected to try defendant, and hence could not legally convene prior to that day.

The record is somewhat confusing as to just when and how this case was finally tried. The judgment entered recited at the beginning that it came on to be heard on the 2d day of April, and the docket entries show that the hearing was had on that day, and on April 2, the case was set down for fixing punishment April 16. Then, on April 16, the docket entry shows the defendant filed a motion to continue for further hearing, and this motion was granted. The file mark on this motion, according to the transcript, is May 24.

This last motion was granted, and after several short adjournments the case was taken up May 24, and further evidence was taken, beginning on page 135, and continuing to page 252 of the transcript, or more than was taken at the first hearing, April 2. The court denied the motion for new trial, and judgment was entered, as heretofore noted.

Defendant then filed another motion for new trial, on June 20, which was overruled, and from which this appeal is taken.

Defendant objected strenuously to the trial of this cause on April 2, for the reason that, as he claimed, the record showed that the court had adjourned to April 21. A considerable hearing was had on this matter later, and a nunc pro tunc order entered, and this was brought into record after the appeal was filed, through a writ of certiorari. Much argument is made by the appellant, and much testimony was taken regarding this apparent lapse in the term, but, as we view it from a fair consideration of the evidence of the trial judge and the clerk, the court was adjourned from January 15 to April 2, and while the docket entry apparently showed April 21, this was explained by the judge that this was caused by misreading his writing, and that a comma, which had been made long, had been mistaken for a figure one.

In view of the well- known fact that lawyers as a rule are noted for their bad writing, and we presume that judges would not be exempt from this charge, we think this a reasonable explanation, and since it further appears from the whole record that the appellant was given a full hearing, and allowed to introduce all of his evidence before the final judgment was rendered, or at least before the motion for rehearing was finally determined, this was not prejudicial to his rights.

It would be unfortunate if after all the time, efforts, and expense incurred in this trial by both parties, it should be determined or cast out of court because of a technicality such as this, especially, as we say, since it was shown that the defendant was allowed a full and complete hearing.

We might observe here before passing to the merits of the case, that much of this evidence was irrelevant and incompetent, some admittedly so, but we have read it all, and as this appeal comes on de novo, this court considers only such evidence as is competent, yet we have given appellant the benefit of the doubt, and have considered all of it that he introduced, and disregarded that that was introduced over his objections where it was apparently incompetent.

No useful purpose would be served, and it would extend this opinion unduly to abstract all of it, but we have read it carefully and will refer to such portions of it as may be necessary.

Coming now to the merits of the case, it is clear that the decision must depend or rest upon the good faith of the appellant in his claim that the reason that he did not pay the $ 257.50, which was Norman's one-half of the fee in the case of Dora Keen, guardian of her minor children, v. Phipps Lumber Company, was that Norman owed him an amount equal to, or in excess of this sum. The fact that Mrs. Keen received only $ 41.50 as her part after paying the doctors, hospital and nurses fees for her children did not seem to weigh with, or influence appellant as it did the witness Norman, and appellant had no compunctions or qualms of conscience on this score, but justified his conduct in taking the full fee somewhat after the fashion of another in a famous trial, "because it was nominated in the bond," that is, because his contract called for it.

The argument that the contract with the Keens was made in appellant's name, and before Norman was called into the case, as we view it, is not material, because he admits that Norman was entitled to one-half of this fee, and it is not denied that Norman participated in the trial of the case.

Now, after the judgment was rendered, but before it was paid, Norman testified that he wrote a letter to appellant, on August 10, 1937, copy of which appears in the record, in which he advised against an appeal in the cause, and in that letter he said to appellant that in view of the very small verdict rendered, he did not personally feel like accepting any part of the fee, and that his portion of the fee could be turned over to Mrs. Keen, and stated in this letter that he had so written Mrs. Keen.

There is also a copy of the letter that he claimed to have written Mrs. Keen on the same date, August 10, 1937, in which he confirms his letter to appellant, and stated that he did not intend to participate in an appeal of the case, and that he was donating to her his share of the fee, and if the case was settled that she could have Mr. Hurst turn over to her his share of the fee.

Mrs. Keen testified that she received the letter that Norman said he wrote her, but that she had lost it, and that she never showed it to any one.

Mr. Norman is corroborated by his stenographer, who read from her notes, that she had taken such letter by dictation and had transcribed it, though she had no personal knowledge that same had been mailed.

Appellant's contention is that this letter of Norman was written after he had written Norman a letter on ...