In re Burns

• Decision Date: 02 January 1935
• Docket Number: 6180
• Citation: 55 Idaho 190,40 P.2d 105
• Parties: In re OTTO D. BURNS
• Court: Idaho Supreme Court

40 P.2d 105

55 Idaho 190

In re OTTO D. BURNS

No. 6180

Supreme Court of Idaho

January 2, 1935

ATTORNEY AND CLIENT - DISBARMENT PROCEEDINGS - CONDITIONS PRECEDENT-PRIOR CIVIL ACTION-CRIMINAL PROSECUTIONS-WITHHOLDING CLIENT'S MONEY-SETTLEMENT AS DEFENSE.

1. Attorney could not object to his suspension on ground that committee on discipline, after demurrers had been interposed to original charges for disbarment, and set for hearing, was discharged, and bar commission thereafter took charge of proceedings and made findings and recommendations, where rule of board approved by Supreme Court provided that board could recall any investigation from discipline committee at any stage of proceedings, and no prejudice resulted from such action (I. C. A., sec. 3-301, subd. 5).

2. Attorney could not complain of his suspension from practice on ground that original petition made no mention of certain matter which was partial ground for suspension, where such matter was fully covered by testimony, and attorney had every opportunity to and did present his evidence (I. C. A., sec 3-301, subd. 5).

3. Court in disbarment proceeding may determine whether attorney owes client any money, as against contention that such question must be decided in civil proceeding (I. C. A., sec 3-301, subd. 5).

4. Criminal prosecution held not condition precedent to disbarment (I. C. A., sec. 3-301).

5. Reversal of attorney's conviction because criminal statute under which prosecution was laid was void for uncertainty held not to preclude disbarment proceeding for acts which constituted basis for criminal prosecution (I. C. A., sec. 3-301, subd. 5, sec. 17-1014).

6. Statute providing for disbarment proceeding against attorney for failing to deliver money or other property belonging to client held not void for uncertainty where statute contemplated that there should be settlement and determination in proceeding of whether attorney had retained money or property belonging to client, and, if so, how much (I. C. A., sec. 3-301, subd. 5).

7. In disbarment proceeding against attorney who retained more than amount agreed to by contract with client, evidence held to sustain board's finding that there was no modification of contract, or accord and satisfaction so as to entitle attorney to retain excessive amount (I. C. A., sec. 3-301 subd. 5).

8. In disbarment proceeding against attorney who retained more than amount agreed to by contract with client, alleged existence of accord and satisfaction between attorney and client held no defense (I. C. A., sec. 3-301, subd. 5).

9. Attorney can recover only amount fixed by contract in absence of change in contract, notwithstanding services rendered may be worth more than amount fixed (I. C. A., sec. 3-301, subd 5).

10. Rule holding person in fiduciary capacity to strictest accountability applies to agreements for increased compensation to attorney after confidential relationship is inaugurated (I. C. A., sec. 3-301, subd. 5).

11. Attorney who under conflicting evidence was found by bar commission to have retained whole of sum when at most he was entitled to only one-half thereof was subject to suspension for violation of statute (I. C. A., sec. 3-301, subd. 5).

12. Attorney's suspension for three months was increased to one year by Supreme Court under evidence showing that attorney retained $1,000 more than amount agreed to by contract with client, and that attorney retained all of $40 when he was obliged to pay one-half thereof to another client (I. C. A., sec. 3-301, subd. 5, sec. 3-408).

PETITION of Otto D. Burns for the review of the Order and Findings of the Commissioners of the Idaho State Bar, suspending him for three months. Suspension extended to one year, affirmed.

Order of the Bar Commission affirmed, and judgment of suspension for a year entered.

Ben F. Tweedy and P. E. Stookey, for Petitioner.

In a disbarment proceeding, the court has neither jurisdiction nor right to try issues of fact between an attorney and his client as to whether the attorney owes any money to client or as to what the client owes the attorney, whether such issue is raised by denial, or by plea of payment, or by issues between an attorney and client showing a plea of accord and satisfaction; such issues between an attorney and client must be tried and decided in a proper civil action and not in disbarment proceedings at all. (State v. Burns, 53 Idaho 418, 23 P.2d 731.)

Where there is a dispute over the terms of an agreement as to fees to be paid, the client contending that the attorney's deduction of fees is too large, the question is one of fact, and the attorney does not lose the right to jury trial because he is an officer of the court. (In re Murphy's Estate, 258 Pa. 38, 101 A. 935.)

Paul W. Hyatt and Abe Goff, Prosecuting Committee.

Settlement with client is no defense in disbarment proceeding as court will not permit matters affecting character of its officers to be settled by private arrangement. (People v. Chamberlin, 242 Ill. 260, 89 N.E. 994; 6 C. J. 601.)

Where attorney fails without reason to turn over money collected he should be disbarred. (In re Waddell, 54 Mont. 597, 172 P. 1036; Commonwealth v. Roe, 129 Ky. 650, 112 S.W. 683, 19 L. R. A., N. S., 413, and note.)

GIVENS, J. Budge, C. J., and Morgan, Holden and Wernette, JJ., concur.

OPINION

GIVENS, J.

A petition was filed with the State Bar Commission seeking the disbarment of Otto D. Burns on three counts: One of which, the "Scott matter," will not be considered because the commission found no impropriety therein; the other two involve the following situations:

Burns had been employed by one Wolff to secure a settlement for a claim for damages for alleged malpractice against a Dr. Carssow, concededly on an initial agreement for a fee of ten per cent. After lengthy negotiations a settlement was finally secured, whereupon Burns retained $ 1,000 in cash more than the ten per cent, on his contention that additional work had been done justifying the increased fee.

Wolff contended that there was no agreement for such additional payments and demanded the $ 1,000.

In the "Klans matter," the charge was based upon Burns' contention that he owned one-half of a note, which had been given him by Klans for collection, contrary to Klans' testimony and view of the matter, and Burns' failure to account or turn over to Klans $ 40, which the debtor Madden testifies he had paid Burns, though Burns denied he had received the $ 40.

Disbarment was sought on both counts under subd. 5 of sec. 3-301, I. C. A.:

"An attorney and counselor may be removed, suspended, or reprimanded by the Supreme Court and by the district court for either of the following causes arising after his admission to practice: . . . .

"Failure for ten days after written demand, and payment or tender of the fees and expenses due him from his client to pay over or deliver any money or other property belonging to his client which he shall receive in his office of attorney or counselor in the course of collection or settlement of any claim or demand."

The commission found that Burns had no right to retain and should have repaid the $ 1,000, and should have accounted for the $ 40, and paid at least one-half thereof; and ordered his suspension for three months.

The record was filed herein July 18, 1934, Burns petitioned for review July 23, 1934, and will herein be referred to as the petitioner. He raises two points of procedure: First, that the committee on discipline, after demurrers had been interposed to the original charges for disbarment, and set for hearing, was discharged, and the commission thereafter took charge of the proceedings and made findings and recommendations.

Rule No. 41 of the rules governing conduct of attorneys and discipline, adopted by the board and approved by this court October 19, 1929, provides that the board may recall any investigation from the discipline committee at any stage of the proceedings, and no legal prejudice has been shown, or intimated as resulting from such action, nor has anything been advanced to indicate that the commission was not entirely fair and impartial in thereafter considering the matter.

Petitioner also complains because the original petition made no mention of the $ 40 in the "Klans matter." This subject, however, was fully covered by the testimony and the petitioner had every opportunity to, and did, present his evidence, hence there was no prejudice. (In re Scott, 53 Nev. 24, 292 P. 291, 296.)

The Prosecuting Committee on August 31, 1934, filed a petition for review asking:

" . . . . that the petition for review presented by the accused be granted and that this Court fully review the evidence and all the proceedings taken in this matter."

This petition was filed more than thirty days after the record was filed herein. It is unnecessary, however, to decide whether the Prosecuting Committee could file a petition for review, or whether it was on time, because on petitioner's review we have considered everything that the Prosecuting Committee suggested.

Petitioner contends that the court has neither jurisdiction nor right in a disbarment proceeding to determine whether the attorney owes the client any money, but that such question must be decided in a civil proceeding. While there may be found cases to the contrary, the reasoning of the authorities cited by the Supreme Court of the state of Washington, in State v. Snook, 78 Wash. 671, 139 P. 764, wherein the petitioner's contention is overruled, is persuasively controlling against petitioner's contention:

"In such a proceeding the weight of authority is to the effect that a prior civil action or criminal proceeding, look to the redressing of the injured person's...