In re Disbarment of Evans

• Decision Date: 15 September 1900
• Citation: 22 Utah 366,62 P. 913
• Parties: In Re DISBARMENT OF EVANS & ROGERS ON THE RELATION OF THOMAS NELSON
• Court: Utah Supreme Court

62 P. 913

22 Utah 366

In Re DISBARMENT OF EVANS & ROGERS ON THE RELATION OF THOMAS NELSON

Supreme Court of Utah

September 15, 1900

Original application in this court for the disbarment of Evans & Rogers, attorneys practicing before this court, upon a charge of champerty. Judgment requiring that Evans & Rogers pay over to the clerk of this court for the use and benefit of the widow and minor children of one Nelson a certain sum found to be due said parties, and that unless such payment was made within 60 days each of said parties be permanently disbarred as attorneys of this court.

Hon. A C. Bishop, Atty. General, and Wm. A. Lee, Deputy Atty General, for the State. Andrew Howat, Esq., of counsel.

David Evans, Esq., and O. W. Powers, Esq., for respondents.

BASKIN J. MINER, J., BARTCH, C. J., concurring.

OPINION

BASKIN, J.

STATEMENT OF FACTS.

Hon. P. L. Williams, an attorney at law, having filed and presented an information verified by the oath of Thomas Nelson, charging David Evans and Lindsay R. Rogers, attorneys of this court, and partners in the practice of law, with having violated their duties as counselors and attorneys of this court, and moved that the said Evans & Rogers be cited to appear to show cause why they should not be disbarred, and their names stricken from the roll of attorneys, or be otherwise punished according to law, this court, on May 23d, 1900, granted said motion.

Evans & Rogers in obedience to the citation appeared and interposed a general demurrer, which was overruled. They also filed an answer.

Though the information of Thomas Nelson is in the form of an affidavit, it contains all of the elements and meets all the requirements of an information as prescribed by Secs. 122, 123-124 of the Rev. Statutes.

The matter was referred to D. H. Twomey, Esq,, an attorney and councilor of this court to take and report the testimony with findings of fact, which he accordingly did. The facts found by him are as follows:

"FINDINGS OF FACTS."

1. "That on and prior to January, 1892, David Evans and Lindsay R. Rogers were copartners in the practice of law at Ogden, Utah, and continued as such copartners, from said time until long after entering into the contract, of date December 2, 1892, which is attached to the information herein and marked 'Exhibit A.'"

2. "That on, or about, January 21, 1892, one Charles A. Nelson was killed while traveling on the Southern Pacific Railway, at Truckee, California."

3. "That the said Charles A. Nelson left surviving him his widow, Nellie Nelson, and two minor children. He also left two brothers, Alfred H. Nelson and Thomas Nelson surviving him, the latter being a partner in business with the said Charles A. Nelson, at the time of his death."

4. "That after the death of the said Charles A. Nelson, his widow, Nellie Nelson, placed in the hands of said Alfred H. Nelson, who was a practicing attorney at Ogden, Utah, for prosecution, her claim for damages against the Southern Pacific Railway Company, for causing the death of her husband, with authority to employ counsel to prosecute said claim."

5. "That the said Alfred H. Nelson employed Evans & Rogers to prosecute said claim against said Railway Company, and the said Evans & Rogers and Alfred H. Nelson agreed to prosecute an action against the Southern Pacific Railway Company to recover damages from it, on account of the death of Charles A. Nelson, for a contingent fee of one-half of the amount recovered."

6. "That Evans & Rogers and Alfred H. Nelson entered into a contract, by the terms of which Evans & Rogers were to receive and retain two-thirds of the one-half of the amount recovered against the Southern Pacific Railway Company, and the said Alfred H. Nelson was to receive the one-third of the one-half of the amount recovered of said company, which amount Evans & Rogers agreed to pay him for his services in said case, including the production of witnesses for the prosecution."

7. "That thereafter, Alfred H. Nelson, in contemplation of bringing suit against said railway company, was appointed administrator of the estate of Charles A. Nelson, deceased."

8. "That afterwards the contract, bearing date December 2, 1892, marked 'Exhibit A,' which is in words and figures as follows:

'OGDEN, UTAH, Dec. 2d, 1893.

'We the undersigned agree to give Thomas Nelson one-third of one-half of any amounts which may be collected, whether on compromise or otherwise, in the case of Alfred H. Nelson, as administrator of the estate of Charles A. Nelson, deceased, v. Southern Pacific Ry. Co., in consideration of said Thomas Nelson furnishing witnesses necessary to prosecute said case.

'EVANS & ROGERS.'

Was entered into by and between Evans & Rogers and Thomas Nelson, which was substituted for the prior contract between Evans & Rogers and Alfred H. Nelson. That at the time of entering into said contract, most of the witnesses and the facts to which they would testify were known to the attorneys."

9. "That Thomas Nelson attended as a witness at the trial of the case of Alfred H. Nelson, administrator of the estate of Charles A. Nelson, deceased, v. The Southern Pacific Railway Company, and procured the attendance of one Pascall, at one of the trials of said cause and also the attendance of one Saunders, who was plaintiff in a case against the same company in an action for damages for injuries growing out of the same accident in which Charles A. Nelson lost his life."

10. "That a judgment was recovered by Alfred H. Nelson, administrator, against the Southern Pacific Railway Company, for the sum of ten thousand dollars, with accrued interest, the amount of which was paid to Evans & Rogers as attorneys for said plaintiff, one-half of which was paid to the widow of Charles A. Nelson, the said Evans & Rogers retaining the other half."

11. "That after the Southern Pacific Railway Company paid the amount of said judgment, with interest and costs to Evans & Rogers, Thomas Nelson demanded from. Evans & Rogers, under the contract, 'Exhibit A,' one-third of the one-half of the amount of said judgment, which the said Evans & Rogers refused to pay on the ground that the said Thomas Nelson had not performed his part of the contract."

12. "That after Evans & Rogers refused to pay Thomas Nelson the portion of the fee mentioned in 'Exhibit A,' Nelson employed Mr. Parley L. Williams, an attorney of this court, to bring an action in his favor against Evans & Rogers on said contract, 'Exhibit A,' for one-third of one-half of the amount recovered from the Southern Pacific Railway Company in favor of Alfred H. Nelson, administrator of the estate of Charles A. Nelson, deceased. That the said Williams, in pursuance of said employment commenced said action against Evans & Rogers."

13. "That Evans & Rogers employed one A. G. Horne, an attorney at law residing and practicing in Ogden, Utah, to represent them in said action. That Horne interposed a demurrer to the plaintiff's complaint therein, on the ground that the complaint did not state facts sufficient to constitute a cause of action, which demurrer was sustained by the court. The plaintiff, Thomas Nelson, then filed an amended complaint, to which Mr. Horne, as attorney for Evans & Rogers, the defendants, interposed a general demurrer, which was sustained."

14. "There was no allegation in either the original or amended complaint in the case of Thomas Nelson v. Evans & Rogers, that the said Thomas Nelson was a brother of Charles A. Nelson, deceased."

15. "That shortly after the demurrer to the amended complaint, in the case of Thomas Nelson v. Evans & Rogers, was sustained by the district court and before an appeal was taken to the Supreme Court of this state, Mr. Rogers proposed to Mr. Williams, plaintiff's attorney, that the judgment on the demurrer should be vacated and defendant would withdraw and answer on the merits. This was followed by a stipulation in writing signed by Mr. Rogers and delivered to Mr. Williams, which stipulation was introduced in evidence and marked defendants' 'Exhibit 2.' Evans desired to unite in the stipulation."

16. "I further find from the evidence that at the time the contract between Evans & Rogers and Thomas Nelson, marked 'Exhibit A,' was entered into, the parties thereto did not regard it unprofessional or contrary to public policy, or immoral."

17. "That these disbarment proceedings were instituted by Thomas Nelson in the hope that he, by so doing, would force Evans & Rogers to pay him the money which he claims to be due him under the contract, 'Exhibit A.'"

"Respectfully submitted,

"D. H. TWOMEY,

"Dated June 20, 1900." "Special Master."

These findings are within the issues and all are supported by the evidence, except the 16th, but do not cover the whole ground.

The following additional facts appear from the record in evidence:

1. That while the ground of the demurrer to the complaint in the action of Thomas Nelson v. Evans & Rogers to recover on the contract set out in the 8th finding as Exhibit "A," was that the complaint did not state a cause of action, both in the court below, and on the appeal in this court, the only reason assigned, at the hearing upon the demurrer, was that said contract was champertous and illegal as between the parties thereto, and that this court sustained the demurrer and affirmed the judgment solely on that ground.

2. As testified to by David Evans, one of the respondents, the ten thousand dollars recovered from the railroad company was not paid to the administrator of Charles A. Nelson, deceased, but to Evans & Rogers, and was afterwards distributed in the absence of the administrator from the state, under an order of the Second Judicial District Court, made in the Matter of the Estate of ...