In re Donaghy

• Citation: 402 Ill. 120,83 N.E.2d 560
• Decision Date: 17 January 1949
• Docket Number: No. 29065.,29065.
• Parties: In re DONAGHY.
• Court: Illinois Supreme Court

402 Ill. 120

83 N.E.2d 560

In re DONAGHY.

No. 29065.

Supreme Court of Illinois.

Nov. 18, 1948.

As Modified on Denial of Rehearing Jan. 17, 1949.

Disbarment proceedings against V. Russell Donaghy, attorney.

Report of commissioners rejected and respondent discharged.

WILSON, J., dissenting.Charles Leviton, of Chicago (James P. Carey, Jr., of Chicago, Amos H. Robillard, of Kankakee, and Albert E. Jenner, Jr., or Chicago, of counsel), amicus curiae.

Vogel & Bunge and David A. Schallman, all of Chicago, for respondent.

CRAMPTON, Justice.

The Board of Governors and the Committee on Grievances of the Chicago Bar Association, pursuant to Rule 59, filed complaints against respondent, an attorney, charging unprofessional conduct in that he solicited personal injury cases, and recommended suspension for a period of three years.

These same cases were consolidated and were before this court in In re Donaghy, 393 Ill. 621, 66 N.E.2d 856. This court there held that respondent had been denied his right to present testimony and that the committee erred in refusing the respondent the opportunity to present the depositions of certain witnesses, and ordered the cause re-referred. Upon conclusion of the hearings on re-reference the committee concurred in the original recommendation. The respondent filed exceptions to the reports.

Many witnesses were interviewed and much testimony taken. The record and abstracts are voluminous and both cases come before us now for a complete review and determination upon the merits. The complaints are several, but narrow down to two, both of the ‘runner’ or ‘ambulance chaser’ type of offense.

The first charges, known as Commissioners case No. 893, were made September 11, 1941, and charged that respondent was guilty of conduct and practices tending to defeat the administration of justice and to bring the courts and legal profession into disrepute by the solicitation and procurement of personal injury claims by the employment of a solicitor, one Albert L. McAfee.

These charges were followed on April 23, 1942, by complaint in Commissioners case No. 959, consisting of three counts alleging solicitation and procurement of legal representation of various personal injury claims. The first and third counts, the commissioners found, were not sustained by the proof and were dismissed.

Count two, known as the Eveland case, involves the claim of one Effie Eveland, a patient at the Swedish Covenant Hospital. In this count respondent is specifically charged with responsibility for the actions of certain hospital authorities, or their employees, in refusing permission to permit the patient to see the injured person's employer, Urow, and one Zeman, an attorney and relative of Urow, brought to the hospital by said Urow, and in threatening removal of the injured employee from the hospital unless she employ the respondent to represent her in her claim for damages.

Membership in the legal profession and engaging in the practice of law is a privilege and not an absolute right (People ex rel. Chicago Bar Ass'n v. Baker, 311 Ill. 66, 142 N.E. 554, 31 A.L.R. 737), and no attorney will be permitted to engage in the conduct of his profession in such a manner as to bring the same into disrepute.

The legal calling is a time-honored profession and the courts owe a duty to protect the public from impositions and improper practices. This duty has repeatedly been declared by this court. People ex rel. Chicago Bar Ass'n v. Lotterman, 353 Ill. 399, 187 N.E. 424;People ex rel. Chicago Bar Ass'n v. Green, 353 Ill. 638, 187 N.E. 811;People ex rel. Chicago Bar Ass's v. Hansen, 316 Ill. 502, 147 N.E. 431. Such duty, and the manner in which it is exercised, must not be despotic, but the charges must be sustained by clear and convincing proof and the misconduct must be shown to have been fraudulent and the result of improper motives, and the proof must show intent. In re Smith, 365 Ill. 11, 5 N.E.2d 227. The courts must not exercise their supervisory control in an arbitrary manner, but must show a legal discretion in the exercise thereof. In re Lasecki, 358 Ill. 69, 192 N.E. 655.

The disbarment of an attorney is the destruction of his professional life, his character, and his livelihood. People ex rel. Chicago Bar Ass'n v. Mall, 354 Ill. 323, 188 N.E. 449;In re Lasecki, 358 Ill. 69, 192 N.E. 655;In re Dunn, 370 Ill. 413, 19 N.E.2d 186. The court should, therefore, disbar in moderation. People ex rel. Chicago Bar Ass'n v. A'Brunswick, 315 Ill. 442, 146 N.E. 483. Likewise, the same considerations obtain in the application of a three-year suspension rule. A removal of an attorney from practice for a period of years entails the complete loss of a clientele with its consequent uphill road of patient waiting to again re-establish himself in the eyes of the public, in the good graces of the courts and his fellow lawyers. In the meantime, his income and livelihood have ceased to exist. The courts, however, should not hesitate to inflict the penalty where the punishment is fully deserved. In re Goodman, 377 Ill. 178, 36 N.E.2d 259.

Respondent first contends and reargues that Rule 59, Ill.Rev.Stat.1947, c. 110, s 259.59, constitutes an illegal delegation of judicial power by this court. We wave this contention aside, as the question has been passed upon several times by this court since the adoption of the rule. In re McCallum, 391 Ill. 400, 64 N.E.2d 310;In re Roth, 398 Ill. 131, 75 N.E.2d 278. In fact, the very issue was decided in this same case. In re Donaghy, 393 Ill. 621, 66 N.E.2d 856. The judicial power and function in this case is being exercised here and now for the first time.

Effie Eveland had been employed for a short time, as a maid, in the home of the Urows. While on an errand for her employer, she was struck by a truck and rendered unconscious on June 22, 1940, and was taken to the Swedish Covenant Hospital. The Urows called at the hospital accompanied by Adrian Zeman, a cousin-in-law and a young lawyer. Complainants charge that after several visits Urow and Zeman were denied admittance to the hospital to see Miss Eveland by persons employed there. One Dahlquist, for many years the financial secretary and business manager of the hospital, with Miss Eveland's knowledge at least, wrote a letter to the patient's father in Wisconsin, advising the father the hospital attorney had been ‘signed.’ This letter was signed by ‘Effie.’ A wire from the father, in response to an inquiry from the hospital, directed the hospital to have the hospital doctor and attorney take charge. Dahlquist called the respondent, who sent an investigator to the hospital. A contract was then signed two days after the accident. Respondent undertook the representation, obtained an adjustment for Miss Eveland, which apparently met with her satisfaction and she so testified. She also testified she understood that unless she retained the hospital doctor and lawyer she would have to be moved to another hospital; she believed it was Dahlquist who made such a representation. Neither Donaghy nor anyone from his office were present at that time. The commissioner ruled on this testimony as follows: ‘It is in for what it is worth. It is not very positive evidence of course.’ The testimony further shows Miss Eveland received $1150 in full settlement of her claim through the efforts of respondent and had authorized a settlement of $1000 if necessary, and that she was as ‘satisfied as I could be’ with the settlement as made and had no complaints about respondent's conduct of the case; that she saw Donaghy at the hospital only once. The father testified he received a wire and replied, instructing the hospital to have the hospital doctor and lawyer take charge.

Dahlquist testified he told respondent ‘Miss Eveland wanted us to get her a representative or attorney.’ Respondent suggested Dahlquist communicate with her parents because respondent mistakenly understood she was under age. Also, Dahlquist wrote the letter to the father at the patient's request. Urow testified he felt he had an obligation to the girl to pay her expenses and that is why he wanted Zeman to represent her. This would indicate a desire to protect his own interest rather than a real concern for the welfare of the maid. Dahlquist's testimony also indicates Miss Eveland's friend, a Miss Neilson, who was present at the hospital on several occasions, influenced to some degree the choice of attorneys in favor of respondent and against Zeman.

Following the settlement of the Eveland matter, Zeman claimed he was entitled to some compensation and he made an application for adjustment of attorney's lien. Settlement was made to him by the owner of the automobile involved for $150. Zeman performed no services for the client. He had no written contract and was taken to the hospital by the relative, Urow. Miss Eveland had never met Zeman before his arrival at the hospital shortly after the accident. The record shows Zeman and Mrs. Urow asked Miss Eveland to retain Zeman.

Respondent's relationship with the hospital dates back over a period of some fifteen years. The original contact was made through one Wentzel, who was a paid investigator of respondent. Some criticism might be made of the initial representation, but we deem it too long ago, outside the scope of this complaint, and a full disclosure concerning this does not appear. However, respondent was approved by the board of the hospital along with three or four other attorneys, all of whom, except respondent, were officially connected with the hospital or were members of the Covenant The hospital authorities continued to recommend respondent along with the others because they felt he was satisfactory, he asked for no reduction in the hospital bills and remitted same to the hospital. Sometimes respondent was recommended at the request of various doctors.

On the surface, the inferences to be drawn from all the testimony in connection with this case,...