In re Beakley

• Decision Date: 04 December 1940
• Docket Number: C. D. 1007.
• Citation: 107 P.2d 1097,6 Wn.2d 410
• Parties: In re BEAKLEY.
• Court: Washington Supreme Court

107 P.2d 1097

6 Wn.2d 410

In re BEAKLEY.

No. C. D. 1007.

Supreme Court of Washington, En Banc.

December 4, 1940

Proceeding in the matter of the suspension of William A. Beakley, an attorney at law.

Respondent disbarred.

ROBINSON Justice.

This matter comes Before us pursuant to the disciplinary rules and upon the following recommendation:

'To the Honorable Judges of the Above Entitled Court:

'Be It Known that at the meeting of the Board of Governors of Washington State Bar Association held at Seattle, Washington, on the 8th day of June, 1940, all members of the Board being present, the record in the above proceedings was reviewed and it was unanimously resolved (Hugo Metzler not participating) that the Findings of the Trial Committee be approved; that upon said Findings, the Board recommends that Respondent W. A. Beakley be suspended from the practice of law in the state of Washington for the period of one year and thereafter until he shall have repaid to G. W. Franklyn the sum of $1250.00 and shall have paid to Washington State Bar Association the costs expended in these proceedings and hereby taxed in the sum of $164.28.'

After the matter was docketed in this court, the respondent filed a demurrer, and, at the hearing thereafter held, appeared personally and argued both issues of law and issues of fact. His demurrer was based upon several grounds, all of which however, are summarized in his last specification which, in attacking the constitutionality of certain sections of Remington's Revised Statutes, makes the following contention: '5. That the whole act, embraced in Secs. 139-1 to 139-23 [is unconstitutional] for the reason that no provision is made for a trial by jury; No provision for a trial in the Superior Court; No appellate provisions.'

The proceedings against him were not carried on under those sections of the statute, but in accordance with the rules for discipline of attorneys adopted by the board of governors of the state bar association and approved by this court following the enactment of chapter 94, Laws of 1933. These rules succeeded the statutory procedure of which respondent complains and may be found in the supplement to Volume 1, Rem.Rev.Stat. pp. 88-100, and in Volume 193 of our reports at page 87a et seq.

But, considering the respondent's demurrer as attacking the constitutionality of the procedure actually followed in his case, there is no merit in it. The questions raised by the demurrer have long been settled adversely to respondent's contentions in all jurisdictions whose systems of judicial administration are based upon the common law of England. 7 C.J.S., Attorney and Client, p. 728, § 18; 5 Am.Jur. 410, § 249 et seq. Our own reports contain numerous opinions which are in full accord with the principles stated in these texts. As typical examples, see In re Lambuth, 18 Wash. 478, 51 P. 1071; In re Robinson, 48 Wash. 153, 92 P. 929, 15 L.R.A.,N.S., 525, 15 Ann.Cas. 415; and In re Bruen, 102 Wash. 472, 172 P. 1152.

The respondent stoutly contended in this court that, as a matter of fact, he was not guilty of any professional misconduct justifying disciplinary measures. We are, therefore, invited, and indeed compelled, to undertake the unpleasant task of setting out the facts as they are shown in the record.

We have examined the transcript of the evidence and the exhibits attached thereto, in the light of the long written argument filed by respondent, in an effort to show that the evidence does not warrant the findings made by the trial committee and the recommendation by the board of governors. Our conclusion is that the evidence fully supports the findings. It remains to determine what disciplinary measures, if any, the findings warrant and justly require.

Only a summary of the long and detailed findings can be given within the limits of this opinion. As to the first charge of the complaint, the substance of the finding is as follows: In September, 1937, Mrs. Edna Thompson, of Bremerton, believed that she was entitled to receive from two Bremerton theaters the sum of $350, proceeds of a 'bank night.' The theaters refused to make payment. Mrs. Thompson and her husband consulted Mr. Beakley, believing that, as city attorney, he was in a peculiarly good position to enforce Mrs. Thompson's demand. He confirmed that impression. The interview culminated in a written agreement to the effect that Beakley should receive for his services one-half of whatever portion of the $350 he might recover. Pursuant to this contract, Mr. Beakley brought an action. The defendant theaters interposed a general demurrer. The trial judge, after examining the complaint, came to the conclusion that the plaintiffs were suing to recover the proceeds of a lottery, and ruled that the court, for reasons of public policy, would not lend them its assistance.

About a month later, on November 26, 1937, the attorney for the defendant theaters gave his check to Mr. Beakley for the sum of $350. On the face of the check, in the upper left-hand corner, was written, apparently in the handwriting of the maker: 'Settlement Thompson v. Tower & Rialto Theaters.'

Within a few days, Mr. Beakley, without telling his clients that he had settled the case or received anything from the defendants with respect thereto, began to agitate an appeal. The Thompsons discouraged it, not being willing to incur any costs in the matter. On December 9, 1937, Beakley appeared at the Thompson residence. He brought with him a written instrument, captioned in the case and purporting to embody a proposition made by Mrs. Thompson for his acceptance. As finally completed, by filling in the blank stating his compensation and by execution, the instrument read as follows:

'Heretofore, on September 23, 1937, the plaintiff, Edna Thompson, entered into an agreement with W. A. Beakley, as her attorney, to prosecute the above entitled matter to judgment. It was agreed that the said W. A. Beakley would prosecute this matter to judgment for a commission of 50% of what was recovered in the above court. There was no agreement as to costs in that court. This matter was heard in October, 1937, upon demurrer of defendants, and the court held that the agreement, sued upon, was void because the same is a lottery and not enforceable under the laws of this state.

'The said attorney, W. A. Beakley, is desirous of appealing from the decision of the above court to the supreme court and it is hereby mutually agreed, as follows:

'That the first parties are hereby released from all costs and claims for the suit in the above court and from all claim for any cost, of every nature upon appeal and that in consideration of the said attorney, agreeing thereto, he may take same to the supreme court at his own costs and pay all costs therein and hold the above plaintiffs harmless from all costs and expenses in the above court, and instead of the above named division, the said attorney is to have the sum of $200 100/00 if he shall recover same or any part thereof, but no costs or claims shall be paid or assumed by plaintiffs or either of them.

'Edna Thompson

'I hereby accept the above proposition.

'W. A. Beakley

'Atty. for Plfs.'

Evidently, Mrs. Thompson was encouraged to believe that there might still be a settlement of her claim; for it is undisputed that, after the parties made the above agreement, she inquired of the respondent, on several occasions, if he had received any settlement, and on each occasion was told that he had not. Late in January, Mrs. Thompson heard, from what she believed a reliable source, that a settlement had been made. Procuring a friend to accompany her as a witness, she went to Mr. Beakley's office late in January, 1938, in a somewhat belligerent mood, and asked him if that were so. Mr. Beakley assured her that no settlement had been made, but added that he might make some sort of a settlement within three days. In about that length of time, Mrs. Thompson received a letter from Beakley, saying in part: 'I have received $350.00 and have this day handed to their attorney a release in full. The only other amount I could have charged was the $5.00, the receipt of which I showed you the other day when you and your friend were in, but they made an offer of $350.00 without costs and I accepted.'

Enclosed was a check for $172.50, Mr. Beakley having deducted $5 from the amount he had received the previous November Before making the division, a trifling matter, but in violation of the release as to costs in the lower court made in the second contract.

The respondent does not deny; he interprets and explains. He contended Before the trial committee and to the board of governors and Before us that he did not lie to his client when he told her on numerous occasions that he had not received any money for her account. His position was, and is that, as the matter then stood, the law of the case was to the effect that she had no right to the proceeds of a lottery; therefore, no right to the money which he had received from the defendant theaters; therefore, he truthfully said that he had received nothing belonging to her. He further contends that there was no settlement. He says that a legal settlement of an illegal claim is an impossibility. He also contends that, since the trial court held that his client had no legal claim, it not only cannot be concluded that the money was not paid to discharge a claim, but that, in truth and in fact, the money was paid to prevent an appeal of the case. We do not think it necessary to waste effort and space in answering these somewhat rarefied contentions. What the defendant's motives may have been for making the settlement is completely immaterial. It was a settlement none the less, and the respondent so ...