In re King

• Decision Date: 01 October 1940
• Citation: 165 Or. 103,105 P.2d 870
• Parties: IN RE KING
• Court: Oregon Supreme Court

165 Or. 103

105 P.2d 870

IN RE KING

Supreme Court of Oregon.

Argued September 17, 1940.

Petitioner disbarred October 1, 1940.

Evidence — Attorney and client

1. On attorney's petition for review of recommendation of board of governors of the state bar that attorney be disbarred, attorney's previous conviction of false swearing, which conviction had been affirmed by supreme court, was within court's judicial knowledge, although conviction was not made basis of any charge in complaint against attorney by state bar.

Attorney and client — Disbarment of attorney

2. The conviction of an attorney for false swearing, which crime involves "moral turpitude", warrants either suspension or permanent disbarment.

Attorney and client — Disbarment of attorney

3. Evidence warranted disbarment of attorney charged with having converted to his own use money belonging to clients.

Attorney and client — Resignation of attorney

4. The resignation of an attorney, without consent of the court, is ineffectual to preclude his disbarment when proceedings therefor were pending at the time of resignation.

Attorney and client — Disbarment — Costs

5. The general statute providing for recovery of costs and disbursements was not applicable to an attorney's proceeding before supreme court for review of recommendation of board of governors of the state bar that attorney be disbarred, since proceeding was not an "appeal" from judgment of a court, and hence costs would not be allowed to either party.

                  Disbarment for failure to account for money of client, note, 43
                A.L.R. 54. See, also, 5 Am. Jur. 423
                  7 C.J.S., Attorney and Client, § 21
                

In Banc.

Proceeding in the matter of a complaint as to the professional conduct of James K. King. On petition of James K. King for review of recommendation of the Board of Governors of the Oregon State Bar that James K. King be disbarred.

DEFENDANT DISBARRED.

James K. King and E.O. Immel, both of Eugene, for petitioner.

Clifford G. Holland, of Portland, for Oregon State Bar.

KELLY, J.

On November 3, 1938, the Oregon State Bar filed a complaint against James K. King, an attorney of this court, charging him with unprofessional conduct. On the 6th and 7th of February, 1939, a trial was had before the Trial Committee at which Mr. King appeared in person and by counsel. There were seventeen alleged causes of complaint. During the course of the trial, the 6th, 7th and 17th causes of complaint were dismissed on motion of the prosecutor of the Oregon State Bar.

The first cause of complaint, in effect, charges defendant with having converted to his own use the approximate sum of $795.62 belonging to Winifred Russell.

The second cause of complaint, in effect, charges defendant with having converted to his own use the sum of $795.62, or a portion thereof, belonging to Vivian Oliver.

These first two causes of complaint are based upon the same transaction. In December, 1937, three sisters, namely, Pearl Satterfield of Junction City, Oregon, Vivian Oliver of Los Angeles and Winifred Russell of Vallejo, California, agreed to sell certain real property held by them as tenants in common, in Eugene, Oregon, to Sol Rosenberg and Rebecca Rosenberg of Eugene, for the sum of $2,500. Mr. Rosenberg paid the sum of $100 to Pearl Satterfield, and deposited the sum of $2,400 with the Lane County Abstract Company under an escrow agreement under which Pearl Satterfield, Vivian Oliver and Winifred Russell also deposited their deed conveying said real property to the Rosenbergs.

The defendant was employed by the three grantors named to receive from said escrow the sum of $2,400 less certain fees, costs and expenses; then forthwith to pay the sum of $10 to Pearl Satterfield and then forthwith to pay to said three grantors in equal shares the sum of money remaining.

On or about the 27th day of December, 1937, the escrow agent paid the approximate sum of $2,396.86 to defendant for repayment to said three grantors, whereupon said defendant paid the sum of $805 to Pearl Satterfield and retained the remaining approximate sum of $1,594.24 which defendant had been instructed forthwith to pay in equal shares to Vivian Oliver and Winifred Russell.

"VII.

"That thereafter and until on or on about the 4th day of February 1938, James K. King failed and refused to pay the said approximate sum of $1,594.24 in equal shares to Vivian Oliver and Winifred Russell, and on said date, the 4th day of February, 1938, after insistent demand on the part of Winifred Russell, James K. King mailed to Winifred Russell his check in the approximate sum of $795.00 drawn on the Eugene Branch of the United States National Bank of Portland in favor of Vivian Oliver, and his check in the same approximate sum drawn on the same bank in favor of Winifred Russell with instructions to Winifred Russell to forward to Vivian Oliver the check last referred to.

"VIII.

"That the said check drawn by James K. King to Winifred Russell as payee was not signed by James K. King when received by Winifred Russell on or about the 6th day of February, 1938, whereupon, Winifred Russell returned said check to James K. King for his signature, but James K. King thereafter failed and refused to sign and return said check to Winifred Russell and failed and refused to pay her the said approximate sum of $795.62, or any part thereof, until on or about April 14, 1938, on which date he remitted the sum of $295.00 to Winifred Russell after repeated and insistent demand, and when he knew his failure and refusal to pay Winifred Russell was under investigation by the Oregon State Bar.

"IX.

"That after the 14th day of April, 1938, and until the 26th day of April, 1938, Winifred Russell made further repeated and insistent demand upon James K. King for payment of the approximate sum of $502.62, being the remaining approximate sum then due her from James K. King, but James K. King failed and refused to pay Winifred Russell the said sum, or any part thereof, until the 2nd day of May, 1938, on which date he paid Winifred Russell the sum of $522.62 from funds borrowed by him, and when he also knew his failure and refusal to pay Winifred Russell was under investigation by the Oregon State Bar.

"X.

"That upon receiving the said approximate sum of $795.62 for repayment to Winifred Russell on or about the 27th day of December 1937, James K. King then and there was acting as attorney and agent for Winifred Russell, and he then and there knew that the said sum was paid to him for payment forthwith to Winifred Russell, and James K. King then and there having said sum in his possession and under his care, then and there, with intent to injure and defraud Winifred Russell, knowingly, wrongfully and feloniously appropriated the said approximate sum of $795.62 to his own use and benefit."

The second cause of complaint realleges by reference the foregoing quoted allegations of the first cause and further alleges:

On or about the 8th day of February, 1938, Vivian Oliver deposited the check drawn to her as payee by defendant as payor in the Seventh and Alvarado Branch of the Citizens National Bank of Los Angeles, to which bank the Eugene Branch of the United States National Bank of Portland returned said check marked, "not sufficient funds" on or about the 12th day of February, 1938.

"III.

"That at the time James K. King issued said check to Vivian Oliver there were not sufficient funds belonging to James K. King on deposit in the Eugene Branch of the United States National Bank at Portland from which said check could be paid, or there being at the time said check was drawn in favor of Vivian Oliver, sufficient funds on deposit from which said check could be paid, James K. King thereafter and before said check was returned to the Eugene Branch of the United States National Bank of Portland, issued other and additional checks which depleted the balance in his account in said bank to the extent that the check issued to Vivian Oliver could not be paid."

The fourth cause of complaint charges:

"II.

"That on or about the 15th day of June 1933, Abbie J. Haskell, then of Eugene, Oregon, now deceased, delivered to James K. King the sum of $1,000.00 in trust for the use and benefit of Alice B. White, then of Eugene, Oregon, now of Portland, Oregon, and on said date, the 15th day of June 1933, James K. King acknowledged to Abbie J. Haskell his receipt of said trust fund and his understanding concerning the manner in which the same was to be deposited and administered.

"III.

"That on or about the 15th day of June, 1933, James K. King deposited the said sum of $1000.00 in the Eugene Branch of the First National Bank of Portland under an account styled James K. King, Trustee.

"IV.

"That during the month of January 1934, Abbie J. Haskell required the said sum of $1000.00 for the use and benefit of Alice B. White, and Abbie J. Haskell thereupon demanded of James K. King that the same be paid over to her, but James K. King failed and refused to pay Abbie J. Haskell the said sum or any part thereof until after further and insistent demand and delay when James K. King paid to Abbie J. Haskell the sum of $500.00 purportedly from said trust fund.

"V.

"That during or about the month of March 1934, James K. King borrowed the sum of $500.00 from Abbie J. Haskell and gave Abbie J. Haskell his promissory note therefor, and during or about the month of May 1934, James K. King borrowed the further sum of $500.00 from Abbie J. Haskell and gave Abbie J. Haskell his receipt therefor, and on or about the 15th day of June 1934, Abbie J. Haskell assigned said note and receipt to Alice B. White and instructed James K. King to pay to Alice B. White the $1000.00 being the total amount of said loans, and the further sum of $400.00 purportedly remaining in trust.

"VI.

"That Abbie J. Haskell died on or about the 23rd day of June 1934, and thereafter Alice B. White demanded payment of the total sum of $1400.00 from James K. King,...