In re Fenn

Decision Date04 April 1939
Docket NumberNo. 24830.,24830.
Citation128 S.W.2d 657
PartiesIn re FENN.
CourtMissouri Court of Appeals

Bert F. Fenn, of St. Louis, pro se.

PER CURIAM.

This is an original proceeding in this court upon an information filed with leave of court by the Advisory Committee to the General Chairman of the Bar Committees of Missouri, charging Bert F. Fenn, an attorney residing and maintaining his office in the City of St. Louis, with certain acts of professional misconduct, and praying the court to hear and make such disposition of the case as the facts of the same may warrant.

It appears that the investigation was initiated before the Circuit Bar Committee for the Eighth Judicial Circuit of Missouri, but that upon the subsequent filing by respondent, Fenn, in the Circuit Court of the City of St. Louis, of an action charging three of the members of said Circuit Bar Committee, along with certain other persons, with slander and conspiracy against him, the case, at the request of said Circuit Bar Committee, was transferred to the Advisory Committee, which thereupon became empowered to sit and act with full powers in lieu of the Circuit Bar Committee before which the case had originated. Rule No. 36, Section 17, Supreme Court of Missouri.

Thereafter a formal hearing was held before the Advisory Committee after due notice to respondent; and at the conclusion of the hearing, having found that there was probable cause to believe that respondent was guilty of the misconduct charged, the Committee prepared and filed in this court an information setting forth in brief form eight separately stated specific acts of professional misconduct charged against him.

A citation notifying respondent of the filing of said charges against him was thereupon issued out of this court and served upon him, in obedience to which he appeared in person and participated in making up the issues, following which the Honorable Charles E. Rendlen, a member of the bar of this court, was duly appointed Special Commissioner with full power and authority to hear the case and report the testimony and evidence taken to the court, together with his findings of fact and conclusions of law.

The Special Commissioner thereupon qualified and heard the case, and in due course filed his report, finding respondent guilty on five of the counts in the information filed against him, but not guilty on the remaining three counts, and recommending that respondent be suspended from the practice of law in the courts of Missouri for a period of one year. Exceptions were thereafter filed to the report both by the informants and by respondent; and following oral arguments, supported by briefs, both upon the exceptions and the merits of the whole case, the cause has been submitted to the court for the entry of such final judgment by the court as its own findings and conclusions may require.

The information filed by informants charged respondent with having been guilty of professional misconduct in the following particulars:

1. That in 1933 and thereafter respondent carried on his law practice in an unethical and unprofessional manner, in that personally, and through agents and runners, he solicited and induced many persons to assert claims or file suits for alleged personal injuries against their employers or former employers and to engage him to represent them in the preparation and prosecution of such claims and suits; that he agreed with such persons to pay the costs and expenses incident to the prosecution of such claims and suits, including the costs and expenses of medical examinations; and that he advanced money and benefits to the persons so engaging him as their attorney, eleven of whom were specifically named.

2. That in 1933 and thereafter respondent carried on his law business in an unethical and unprofessional manner, in that he employed agents and runners as a part and in furtherance of his law business for the purpose of soliciting and inducing persons to engage him as their attorney to make claims and institute suits for and on behalf of such persons against other persons, firms, and corporations, and agreed to pay, and did pay, such runners for their services. That among the agents and runners so employed and used by respondent were Cloid Fahnestock and Noah A. Sparks.

3. That respondent carried on his law business in an unethical and unprofessional manner, in that in the year 1933 and thereafter he agreed to divide fees which he received or expected to receive in the conduct of his law business with persons, including Fahnestock and Sparks, who were not lawyers and were not licensed to practice law.

4. That respondent, prior to the practices above charged, engaged in the unprofessional and unethical practice of law, in that, by his own admissions in testimony given under oath in the case of Adolph Kirschner v. Bert F. Fenn in the Circuit Court of the City of St. Louis, he did, as a matter of common practice in numerous suits mentioned in said testimony, finance and pay doctors' bills and other expenses of litigation out of his contingent fees received in such litigation.

5. That from and after 1933 respondent, in the conduct of his law business, and in the prosecution of claims and suits of various kinds for personal injuries, had, directly and through others, unethically, unlawfully, and dishonorably encouraged divers persons, including litigants and his own clients, to give false testimony in the prosecution of such claims and suits. Two specific instances of such misconduct were charged, the one in connection with the suit of Gladys Sanders v. S. S. Kresge Company in the Circuit Court of the City of St. Louis, and the other in interviewing a prospective client, Gaston L. Eaton, in the presence of other clients and witnesses.

6. That respondent, by the commission of acts involving moral turpitude, had rendered himself unfit to practice law under license from the Supreme Court of Missouri, in that (a) on or about July 6, 1925, in an application for a marriage license made in Niagara Falls, New York, which application was sworn and subscribed to by respondent, he had falsely, willfully, and intentionally misstated his place of residence and misrepresented that he had been granted a divorce in the previous year in the state of Missouri; and (b) that at the September, 1929, term of the District Court of the United States for the Eastern Division of the Eastern Judicial District of Missouri, the grand jury had returned an indictment charging respondent with having feloniously mailed certain nonmailable matter (a contraceptive) in the United States mails, to which charge respondent entered a plea of nolo contendere, and was thereupon sentenced and fined by the court.

7. That respondent, on June 7, 1930, was convicted in said federal court, upon his plea of nolo contendere, of a criminal offense involving moral turpitude, to wit, the offense referred to supra in subdivision (b) of Count 6 of the information.

8. That respondent, in violation of the rules of the Supreme Court of Missouri, and in violation of his duty as an attorney to aid and assist in the investigation of complaints and charges against any attorney licensed to practice in the state of Missouri, did unprofessionally, unethically, and without proper inquiry, file a suit for slander and conspiracy in the Circuit Court of the City of St. Louis against certain members of the Bar Committee for the Eighth Judicial Circuit of Missouri, which suit was based upon acts performed by said persons in the exercise of their official duties as members of the Bar Committee in the investigation of complaints and charges against respondent. That at divers times and occasions pending the investigation of such charges and complaints against respondent by the said Bar Committee, he willfully and without reasonable cause charged the members of the Committee with unethical conduct.

In his answer, after making certain admissions relative to his own status and that of informants, respondent proceeded to set up the following purported defenses to the charges made against him in each of the counts of the information:

1. After denying both generally and specifically the several charges of unprofessional and unethical conduct contained in Count 1 of the information, respondent alleged that in 1933 he was representing one Mary E. Kennon and others in claims or suits growing out of a certain automobile accident; that Mary E. Kennon was at the time residing and conducting a store in Esther, Missouri, in a locality or district in which many miners and employees of the National Lead Company resided; that many of such miners and employees were frequent and familiar customers and visitors at the store; that when respondent and his wife called upon Mary E. Kennon at her store in connection with the settlement of her case, a number of those persons who happened to be loitering around the store at the time, acting wholly upon their own initiative, and without solicitation on the part of respondent, approached and spoke to him with reference to claims or suits which might arise in their behalf from the conditions of their employment; and that upon the basis of the statements and representations made to him by such persons, and solely at their solicitation, he accepted employment as their attorney to represent them in the prosecution of their claims or suits.

Respondent further averred that upon his explaining to such persons as his clients that medical and X-ray examinations would be necessary to support their suits, the clients expressed a desire to...

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6 cases
  • Heirich, In re
    • United States
    • Illinois Supreme Court
    • June 15, 1956
    ...is credible to the conclusion that he is guilty.' 'See also Fish v. State Bar of California, 214 Cal. 215, 4 P.2d 937; In re Fenn, 235 Mo.App. 24, 128 S.W.2d 657. I am of the opinion that all of the evidence in the record, coupled with the failure of respondent to testify, leads to the conc......
  • Sheiner v. State
    • United States
    • Florida Supreme Court
    • July 29, 1955
    ...support this view: In re Wellcome, 23 Mont. 450, 59 P. 445; Fish v. State Bar of California, 214 Cal. 215, 222, 4 P.2d 937; In re Fenn, 235 Mo.App. 24, 128 S.W.2d 657; In re Anastaplo, 3 Ill.2d 471, 121 N.E.2d 826. These cases have been examined and the factual background is different from ......
  • Schulte v. Schulte
    • United States
    • Missouri Court of Appeals
    • May 2, 1939
    ...every unfavorable inference may be drawn from the failure of a litigant to take the witness stand. In our per curiam opinion, In re Bert Fenn, 128 S.W.2d 657, handed down April 4, 1939, and not yet reported [in State Reports], we stressed the unfavorable inferences and implications which co......
  • Mills, In re
    • United States
    • Missouri Supreme Court
    • July 12, 1976
    ...357 Mo. 270, 207 S.W.2d 492, 499(14, 15) (Mo.banc 1948); In re Sparrow, 338 Mo. 203, 90 S.W.2d 401, 404(8) (banc 1935); In re Fenn, 235 Mo.App. 24, 128 S.W.2d 657 (1939). Hence, respondent was not denied rights protected by those provisions of the state and federal constitutions mentioned H......
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