In re Cary

• Citation: 177 N.W. 801,146 Minn. 80
• Decision Date: 04 June 1920
• Docket Number: No. 21762.,21762.
• Parties: In re CARY.
• Court: Minnesota Supreme Court

146 Minn. 80

177 N.W. 801

In re CARY.

No. 21762.

Supreme Court of Minnesota.

June 4, 1920.

In the matter of the application of the Secretary of the State Board of Law Examiners for the removal of Francis C. Cary, an attorney at law, to which respondent appealed and entered a plea of not guilty. Heard on evidence taken and reported by one designated therefor by the Supreme Court and on the briefs and arguments thereon presented, and ordered that a formal judgment of disbarment be entered.

Syllabus by the Court

The evidence sustains the charges that the accused attorney at law willfully made false and fraudulent representations to a legislative committee with reference to his pecuniary interest in certain bills then being considered by the committee, and also that he obtained from the beneficiaries named in said bills agreements to pay such exorbitant compensation for the services he was to render in securing their passage as to show him guilty of dishonesty and bad faith towards his clients.

Misconduct indicative of moral unfitness for the profession, whether it be professional or nonprofessional, justifies dismissal, as well as exclusion from the bar. J. D. Sullivan, of St. Cloud, and Vernon C. Pidgeon, of Minneapolis, for appellant.

C. D. O'Brien, of St. Paul, for respondent.

PER CURIAM.

The secretary of the state board of law examiners presented a petition to this court, accusing Francis C. Cary, an attorney at law duly admitted to practice in this state, of unprofessional conduct in this: (1) That during the 1919 general session of the Legislature he appeared before the committee on finance of the Senate, advocating favorable action upon four bills, then under consideration by the committee, appropriating money to certain persons, and falsely and deceitfully represented to the members of said committee that neither he nor any one connected with his law firm had any pecuniary interest in the money to be appropriated, when as a matter of fact he then had an agreement with each of the four beneficiaries in said bills whereby he was to receive one-half of any money appropriated, and that his conduct toward the committee was willfully deceitful and unprofessional. (2) That the compensation exacted from the beneficiaries was so unreasonably large that it amounted to dishonest and unconscionable conduct towards his clients. In response to an order of this court requiring Francis C. Cary to answer the accusations made in the petition, he appeared and entered the plea of not guilty. Thereupon Hon. Frederick N. Dickson was designated to act for the court in the taking such evidence as might be tendered by the parties, and which he deemed material and pertinent to the issues. The evidence thus taken has been reported to us, and the briefs and arguments thereon presented.

1. As to the alleged deception practiced on the Senate committee. The bills referred to in the petition and respondent's connection with them arose in this wise: On October 12, 1918, a frightful forest fire swept over the northeastern part of the state, bringing death, injury, and destitution over a wide range of territory, completely wiping out not only farm structures but villages and even cities. The Minnesota Home Guards were called out by the Governor and did heroic relief work. In this service some of its members met death or were seriously injured. Respondent, a major and acting judge advocate in the Guards, was on duty at Moose Lake when in November, 1918, he came in contact with Mrs. Colles, whose nusband had died while on military duty in this relief service, and he suggested to her that the Legislature might be induced to appropriate money for her relief. He also found another widow, Mrs. Vader, in the same situation; and Martin Larson, a member of the Guards, who had been seriously injured on duty. These three claims, so-called, were among the office files of respondent, when, in January, 1919, one H. H. Rolfe entered the employ of respondent's law firm as a clerk or ‘handy man,’ at a salary or ‘drawing account’ of $100 per month, and extra pay upon any business he might bring the firm. Upon discovering the three claims mentioned in the office files, it occurred to him that one John H. Paulzine, whose son, a member of the Guards, contracted death in the relief service, might likewise be entitled to the state's bounty. Through Rolfe's efforts Paulzine came to the office and made a written agreement with respondent, or his law firm, under which the claim was to be presented to the Legislature and for the services rendered the compensation should be one-half of whatever sum might be appropriated. Unfortunately the copy of the contract given Paulzine was destroyed by him after he thought it had served its purpose. The duplicate retained in the office files was not produced. Respondent's relation with Mrs. Colles and the agreement with her as to fees appears inferentially but clearly from letters written by him. Some of the letters were signed by him with the name of his law firm, others were signed with his own name, appending the letters ‘J. A.,’ standing for ‘Judge Advocate.’ Under date of March 3, 1919, he writes her:

‘I feel that something ought to be done in your case to hurry along information on which we can base a bill through the Legislature. I believe it would be well to make arrangements with a lawyer to undertake this on a commission basis so that he would make it his business to get the bill introduced and push on it until the bill would go through. * * * I have in mind an attorney that we could employ in your behalf who would charge nothing whatever if he doesn't get the bill through, and would charge one-half of whatever was gotten if the bill goes through. I really believe it is the best thing to do and I believe he would get a bill through that would get something for you to help you along. If you feel the same way about it please write me and I will take the matter up with him and try and get it moving.’

On March 15, he wrote, among other matters:

‘We believe you are as deserving as any one could be of getting relief from the state and we want to do all we can to help. We have made arrangements with Henry H. Rolfe, a lawyer who is specializing in this work to handle the claims on a fifty per cent. basis. If he does not succeed he gets no pay, whatever, so that you cannot lose anything if he does get a good allowance for you you will be that much ahead. He has specialized on this work and for that reason it is better to pay him in case you win and we will make arrangements for him to handle it for you with us. He is also a lieutenant in the National Guard and will do everything in his power to get the claim allowed.’

We think this correspondence indicates an employment by respondent, and that Rolfe's name was only used as a subterfuge to make it easier to obtain the coveted fees. Rolfe absolutely denies that the claim was turned over to him, or that he was employed to handle it. In answer to a letter from Capt. Swedberg, the commander of Colles, Vader, and Larson, respondent, under date of March 5, 1919, wrote, signing the name of his law firm to the communication:

‘Answering your letter of March 4, regarding Pvt. Geo. Vader and Corp. Martin Larson, beg to state that the law firm I am connected with will handle these cases for the interested parties to the best of their ability.’

This clearly enough shows that respondent had procured employment from Mrs. Vader and Martin Larson. There was also direct testimony from Mrs. Larson that respondent was employed, and that he made the bargain for one-half of what might be secured as fees for his services. Respondent contends that whatever he did in the premises was gratuitous and as an official assisting members of the Guards or their dependents, and that Rolfe was the attorney who handled the...