In re Disbarment of McDonald
| Decision Date | 09 December 1938 |
| Docket Number | 30,755 |
| Citation | 282 N.W. 677,204 Minn. 61 |
| Parties | IN RE DISBARMENT OF ROBERT J. McDONALD |
| Court | Minnesota Supreme Court |
Rehearing Denied March 31, 1939, Reported at: 204 Minn. 61 at 72.
Proceeding for the disbarment of Robert J. McDonald, an attorney at law. The matter was referred to the Honorable Byron R. Wilson, one of the judges of the seventh judicial district, to hear and report the evidence and make findings of fact. Judgment of disbarment ordered, with privilege to respondent, upon proper showing, to apply for reinstatement after expiration of three years from entry of judgment.
Attorney and client -- disbarment proceeding -- absence of attorney at hearing on charges.
1. Where an attorney accused of misconduct purposely absents himself at the hearing before the referee so as to prevent the prosecutor of the charges from calling him for cross-examination under the statute, the court will assume that those who secured personal injury cases for him were authorized by him to do what was done to secure them.
Attorney and client -- disbarment proceeding -- conclusiveness of findings of referee.
2. Where a case has been settled, the findings of the referee in a disbarment proceeding are not conclusive, and the petitioner or prosecutor may challenge the same as contrary to the preponderance of the evidence.
Attorney and client -- disbarment proceeding -- findings of referee vacated.
3. The findings of the referee herein are vacated and the charges against respondent determined by the court upon the settled case.
Attorney and client -- disbarment proceeding -- solicitation of personal injury cases -- reception of evidence.
4. The charges against respondent being a systematic and organized solicitation of personal injury cases, it is proper to receive and consider respondent's practice in that respect from its inception, regardless of the two-year limitation in the code and regardless of the Greathouse decision, in order to ascertain his attitude respecting such conduct and the likelihood of his continuing doing what he deems his right to do.
Attorney and client -- disbarment proceeding -- proof of guilt.
5. In considering the charges the court has in mind the rule that proof of guilt must be cogent and compelling before discipline or disbarment be adjudged. Also that isolated cases of solicitation do not call for discipline.
Attorney and client -- disbarment proceeding -- evidence.
6. The court finds upon evidence that is deemed convincing that since the Greathouse decision respondent has by means of employes, furnished with photostatic copies of checks and with newspaper clippings of accounts of large sums obtained by respondent for clients who employed respondent to settle or try personal injury cases, sought out persons who have sustained personal injuries for the purpose of inducing them to sign contracts employing respondent as attorney. And as a conclusion of law judgment of disbarment must be entered.
Charles E. Houston, David L. Morse, R. B. Reavill, and Oscar G Haugland, for State Board of Law Examiners.
Mortimer H. Boutelle, Thomas W. McMeekin, Roger Dell, Richard N. Gardner, and William H. DeParcq, for respondent.
In this disciplinary proceeding the court is confronted with a record of nearly 3,000 typewritten pages, by the findings of the referee of 74 printed pages, and briefs of 800 pages. It is not possible in an opinion to deal with this mass of material exhaustively or satisfactorily.
The petitioner, the State Board of Law Examiners, charges the respondent, Robert J. McDonald, licensed to practice law in this state in 1920, of professional misconduct in maintaining a system or organized plan for soliciting personal injury cases arising in this and other states, and therein has employed lawyers and laymen who have been provided with newspaper clippings of accounts of large verdicts secured by respondent for his clients, and photostatic copies of checks and drafts received in settlement of cases and in payment of verdicts or judgments rendered after trials, and, as an inducement to being employed, respondent has advanced to needy clients large sums of money, all contrary to the rules of conduct for lawyers enunciated by this court and contrary to the canons of ethics adopted by the American Bar Association and the Minnesota Bar Association. Neither in the petition nor before the referee was respondent charged with misconduct in court, or with unfairness to opposing counsel, or with sharp practices in the trial or settlement of cases, or with taking any undue advantage of his clients, or with any incompetency or lack of skill or diligence in business intrusted to him. It was unavoidable that the evidence taken and reported upon such a charge should take a wide range. The findings treat each case testified to separately, except where on motion of respondent all the evidence taken was stricken, and then ends up with this paragraph:
"(33) Your referee finds that respondent herein has not solicited professional employment, and is firmly convinced that the charges contained in this petition are wholly without merit and that it should result in a dismissal and a complete exoneration of the respondent."
Before considering the merits of the accusation and the points of law presented, we take occasion to disapprove of the procedure adopted by respondent and his counsel. Each day while petitioner was adducing its proof respondent, called by petitioner for cross-examination under the statute, was absent. This his counsel announced was advisedly done. Likewise his brother Donald, a layman employed in the office, who secured or attempted to secure for respondent many of the cases herein involved, was absent until respondent offered his proof. When respondent did appear to testify in defense, petitioner was denied the privilege of cross-examining him under the statute and was restricted in its cross-examination to matters testified to on direct. While petitioner was offering its proof, with respondent and his brother absent, it was sometimes very difficult to establish that the one who procured the case for respondent was authorized by him to so do, and the record contains page upon page of technical objections and lengthy arguments, wherein each of the five eminent attorneys who, in behalf of the respondent, took part in the trial was heard. When the testimony was concluded and the referee had ruled on some matters held in reserve, he requested each side to present him with such findings as seemed appropriate, in order to assist him in formulating his. No trace of the contentions of petitioner is discerned in those filed by the referee.
We consider proceedings instituted by the State Board of Law Examiners to discipline attorneys in a different light from an ordinary action at law. It is a proceeding sui generis. In Matter of Richards, 333 Mo. 907, 916, 63 S.W.2d 672. Attorneys are licensed by the court. The court is charged with the responsibility of revoking or temporarily suspending this license whenever the licensee departs from what is generally considered by the courts and the profession as proper and honorable conduct. The State Board of Law Examiners is a body established by law to aid the court in admitting to practice only those deemed fit, and which has been delegated by the court to investigate complaints of misconduct made against attorneys, to warn and admonish them where misconduct appears, and to bring them before the court when warnings are not heeded. 1 Mason Minn. St. 1927, § 5685. It seems to us that when an attorney is formally accused by the board of wrongdoing he owes it to the court as well as to himself to aid rather than to thwart a full and fair investigation of the charges. Purposely absenting himself at the hearing so as to escape being called for cross-examination under the statute we regard as indefensible in this proceeding, and shall assume until otherwise convinced by the evidence that those who solicited the cases referred to, in the evidence reported, were authorized by respondent to do what they did in his behalf.
The petitioner challenges the entire findings as being contrary to the great preponderance of the evidence. Respondent contends that the findings, being in his favor, should be sustained if there is any evidence reasonably supporting the same, particularly invoking 2 Mason Minn. St. 1927, § 9319, which provides: "If the reference be to report facts, the report shall have the effect of a special verdict." Distinction is to be made between special findings and special verdicts. 6 Dunnell, Minn. Dig. (2 ed. & Supp.) § 9801. This distinction may not be of much aid here. The referee was appointed in virtue of 1 Mason Minn St. 1927, § 5697(2), relating to the removal or suspension of attorneys, which provides that a referee so appointed "shall have all the powers of a referee under Section 7823, General Statutes 1913" (§ 9319 present code). Section 5697(2) also provides: "The referee shall report the evidence, and if directed by the Supreme Court shall make findings thereon." This statute does not say what effect is to be given to the findings. Rule 24, however, adopted by this court May 15, 1933, provides that the referee so appointed shall "report the evidence" and "shall make findings of fact which shall be conclusive, unless a case shall be settled in accordance with and within the time limited in 2 Mason Minn. St. 1927, §§ 9328 and 9329." The point of petitioner seems well taken that only where a referee is appointed by virtue of § 9317 his findings of fact have the effect of a special verdict as provided in § 9319. In this proceeding petitioner had a case settled and is in position to assail the findings as...
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