In re Lyons

• Decision Date: 01 April 1912
• Citation: 145 S.W. 844
• Parties: In re LYONS.
• Court: Missouri Court of Appeals

145 S.W. 844

In re LYONS.

Kansas City Court of Appeals, Missouri.

April 1, 1912.

1. ATTORNEY AND CLIENT (§ 53)—DISBARMENT—EVIDENCE.

Evidence in a disbarment proceeding held insufficient to show that the respondent, as United States district attorney, had improperly influenced a grand jury to find an indictment.

2. ATTORNEY AND CLIENT (§ 53)—DISBARMENT—EVIDENCE.

Evidence in a disbarment proceeding held insufficient to show misconduct by respondent, as United States district attorney, in failing to return documentary evidence obtained from a person against whom an indictment was pending.

3. INDICTMENT AND INFORMATION (§ 9)— HEARING—CONSTITUTIONAL RIGHT.

The constitutional right of an accused person to a hearing does not entitle him to a hearing by the prosecuting officer, or the grand jury, before an indictment is found.

4. ATTORNEY AND CLIENT (§ 38)—DISBARMENT —GROUNDS.

The failure of the prosecuting officer to give an accused person an opportunity to explain alleged violations of law before presenting them to the grand jury, as promised, is not ground for disbarment, especially where the prosecuting officer did not know that the request for such opportunity to explain was made on behalf of the party afterwards complaining of such failure.

5. CRIMINAL LAW (§ 639)—PROSECUTING ATTORNEY—PARTNER.

Rev. St. 1909, § 1039, prohibiting a partner of any prosecuting or assistant prosecuting attorney from defending any person charged with a misdemeanor or felony whom by law such prosecuting or assistant prosecuting attorney is required to prosecute, applies only to state prosecuting attorneys, and not to United States district attorneys.

6. ATTORNEY AND CLIENT (§ 38)—PRACTICE BY PARTNER.

A partnership between a United States district attorney and an attorney regularly defending persons accused of crime in the United States District Court and dividing the fees with the district attorney, while not forbidden by any statute of this state, would be grossly reprehensible conduct, justifying the disbarment of the district attorney.

7. ATTORNEY AND CLIENT (§ 53)—DISBARMENT —EVIDENCE.

In a disbarment proceeding, evidence held insufficient to show a partnership between respondent, a United States district attorney, and an attorney who had defended persons accused of crime in the United States District Court.

8. ATTORNEY AND CLIENT (§ 38)—DISBARMENT —GROUNDS.

Where no partnership exists between a United States district attorney and an attorney occupying the same office and associated with him in civil business, the fact that, to the knowledge of the district attorney, the other attorney was retained to defend a person accused of crime in the United States district court does not justify the disbarment of the district attorney.

9. ATTORNEY AND CLIENT (§ 53)—DISBARMENT —EVIDENCE.

Evidence in a disbarment proceeding held insufficient to show that the respondent had taken cases away from other lawyers.

10. ATTORNEY AND CLIENT (§ 42)—DISBARMENT —GROUNDS.

While a civil action and a criminal prosecution on the complaint of a recent immigrant to this country were pending in the state courts, a federal officer attempted to serve a writ on the immigrant, in order that she might be deported later, if she became dependent. Having failed to effect service, he notified the United States district attorney, who informed the immigrant's attorney that, if he prevented service of the writ, he would be proceeded against for interference with process. Held, that the district attorney was not guilty of interference with the due course of law in the state courts, justifying his disbarment.

11. ATTORNEY AND CLIENT (§ 38)—DISBARMENT —GROUNDS.

A person accused of violations of the postal laws procured a weak-minded woman, with whom he had illicit relations, to transfer her property to a third person to secure the payment of an exorbitant fee to his lawyer and to indemnify his bondsmen. Her father thereupon brought an action to set aside such transfer and retained as his attorney the United States district attorney. Held, that the district attorney was guilty of no unprofessional conduct in accepting such retainer, and hence would not be disbarred.

12. ATTORNEY AND CLIENT (§ 41)—DISBARMENT —GROUNDS.

A United States district attorney was furnished by a person accused of conducting a fake brokerage business with a list of persons whom he claimed he was authorized to represent. Held, that the district attorney's failure to return this list, after investigation, was not a suppression of evidence, requiring his disbarment, especially where he testified that he was not asked and did not know he was expected to return it.

13. ATTORNEY AND CLIENT (§ 53)—DISBARMENT —EVIDENCE.

Evidence in a disbarment proceeding held insufficient to show that the respondent, a United States district attorney, used his authority as such district attorney to compel the settlement of private matters in which he was interested.

Original proceeding by Ernest D. Martin for the disbarment of Leslie J. Lyons, a licensed and practicing attorney. Proceeding dismissed.

S. J. McWilliams, of Kansas City, for relator. Sebree, Conrad & Wendorff, of Kansas City, for respondent.

ELLISON, J.

On the 19th day of August, 1911, proceedings were instituted in this court by Ernest D. Martin, an attorney at law, as complainant, for the disbarment of Leslie J. Lyons, a licensed and practicing attorney in the courts of this state, based on the following charges as set forth in his abstract: "(1) That said Lyons, while prosecuting attorney for the United States, illegally maintained a secret copartnership with one George L. Davis, an attorney, who accepts employment in defense of criminal cases, brought and prosecuted by said Lyons, contrary to and in violation of section 1039, R. S. of Mo. (2) Disregarding the truth, violating his oath, deceitfully suppressing the facts and recklessly causing investigations of Interstate Railway Company and its officers to be made a matter of public notoriety. * * * (3) Artfully procuring valuable property from the Interstate Railway Company by means of false pretenses, promises, and agreements, and then deceitfully and improperly withholding same from its owner. (4) Maliciously drafting an indictment containing statements which he knew were false and untrue, and unlawfully influencing a federal grand jury to return same as a true bill. (5) Oppressively using the force and power of his official position for personal advantage and private gain; corruptly levying tribute upon, or accepting employment from, persons, corporations, land schemes, lottery organizations, and others in order that they might be protected from annoyance, interference, investigation, or prosecution. (6) Unprofessionally soliciting business, taking cases away from other lawyers, employing methods commonly known in legal parlance as `snitching,' in the following cases, to wit: A. Snitching case No. 45,377, circuit court, Jackson county, Mo., entitled K. C. So. Ry. Co. v. Papolonisis et al., from one Ralph E. Scofield. B. Snitching case No. 52,858, circuit court, Jackson county, Mo., entitled Link v. Baumgardt et al., from one Judge Ed. E. Aleshire. C. Snitching case No. 14,999, district court, Wyandotte county, Kan., entitled Woodcock v. Woodcock, from W. H. McCamish. (7) In the papers in case No. 18,492, district court, Wyandotte county, Kan., entitled Bowers v. Jett et al., said Lyons is charged with being guilty of conspiracy, graft, fraud, and deceit practiced upon his client and other interested parties. (8) Malpractice, deceit, and misdemeanor, interfering with due course of the law, and other crimes in the following cases, to wit: A. Ehlers v. Wolferman, interfering with justice. B. State v. Wolferman, attempting to remove a state witness. C. U. S. v. Ehlers, attempting to deport a female. D. Adams v. Adams, soliciting a bribe. E. U. S. v. Pickerell. F. Arnold v. Cohn et al., malicious interference. G. U. S. v. Colt, suppressing evidence. H. Huckle v. Hendrickson, using government in attempting to enforce settlement of a private claim." These charges were referred to Thomas A. Witten, Esq., of the Kansas City bar, as a commissioner to take the evidence offered by complainant, Martin, and respondent, Lyons, and to report the same to this court without himself stating any conclusion of law or fact. In obedience to such reference, the parties appeared before the commissioner in person and by counsel, and after an extended hearing and much labor by Mr. Witten, he has returned into court more than 900 typewritten pages of evidence, besides a number of exhibits.

Lyons is United States district attorney for the Western district of Missouri, and prior to his appointment by the President to that place was assistant district attorney. It appears that Martin was engaged, with others, in the promotion of a railway from Kansas City, Mo., passing through Kansas, to St. Joseph, Mo., and known as the Interstate Railway Company. Among his associates were two men, Avery and Freundlich. Martin was vice president and general counsel of the company and active, with others, in its management. Officials of the Post Office Department of the federal government seem to have thought proper to investigate the affairs of the company connected with the means used to promote the road, and had post office inspectors to look into its affairs. The result of this was that the evidence obtained by them was placed before a United States grand jury, through Lyons as district attorney. On the 3d of March, 1911, the grand jury returned one indictment against Martin, Avery, and Freundlich, and another against Avery and Freundlich, charging them with using the United States mail for fraudulent purposes in the sale of stock and otherwise obtaining money for the promotion of the railroad.

It appears that, a month or more before the indictment was found, it became known that the Post Office Department was...