In re Marshall

• Decision Date: 04 November 1913
• Citation: 160 S.W. 531,178 Mo. App. 16
• Parties: In re MARSHALL.
• Court: Missouri Court of Appeals

160 S.W. 531

178 Mo. App. 16

In re MARSHALL.

St. Louis Court of Appeals. Missouri.

November 4, 1913.

1. JUDGES (§ 39) — DISQUALIFICATION — DISBARMENT PROCEEDINGS.

The fact that judges of the Court of Appeals were honorary members of the bar association, which instituted a disbarment proceeding, would not disqualify them, where under the by-laws of the association they were not liable for assessments for expenses of the association.

2. ATTORNEY AND CLIENT (§ 36) — DISBARMENT — JURISDICTION — COURT OF APPEALS.

The St. Louis Court of Appeals has jurisdiction to hear charges for the suspension or removal of attorneys for failing to turn over $25 belonging to a client, under Rev. St. 1909, § 951, authorizing the removal or suspension of any attorney who improperly retains his client's money, or who is guilty of any malpractice or misdemeanor in his professional capacity.

3. COURTS (§ 91) — RULE OF DECISION — SUPREME COURT.

The decision of the Supreme Court must be accepted as conclusive by the Court of Appeals.

4. ATTORNEY AND CLIENT (§ 44) — REMOVAL — OFFENSES.

To constitute embezzlement, there must be a felonious intent at the time of the unlawful conversion to appropriate money to one's own use, with a fraudulent intent to deprive the owner thereof, so that the mere improper retention of a client's money, not received with a fraudulent intent to appropriate it, was not embezzlement, but was at most a misdemeanor; and hence the Court of Appeals had power to entertain a disbarment proceeding based on such wrongful retention.

In the matter of the disbarment of John O. Marshall. Judgment of suspension.

Walter H. Saunders, of St. Louis, for the prosecution.

REYNOLDS, P. J.

This is a proceeding to disbar respondent as an attorney and counsellor at law from the practice of his profession in this state. It was instituted in this court by the Grievance Committee of the Bar Association of the City of St. Louis, a corporation duly incorporated under the laws of this state, having for its object, among other things, "to maintain the honor and dignity of the profession of law, * * * and of the administration of justice." The information was filed in our court on September 3, 1911, citation was issued October 3d and duly served upon respondent, who filed his return November 6, 1911. As two of the members of this court, as then constituted, were honorary members of the Bar Association, and a doubt was expressed by them as to whether they were not disqualified for that reason, counsel for the relators and the respondent, in person, filed a written waiver of any objection that might be raised to the judges named sitting in the cause. On November 13th, the parties were heard on the question of the jurisdiction of our court to entertain original proceedings for disbarment of attorneys, briefs subsequently being filed, and on November 20th our court determined that it had jurisdiction in the premises and would proceed to hear the cause. Relators filed a reply to the return or answer of respondent and the court thereupon appointed commissioners to take the testimony and report it, with their conclusions on the facts as well as on the law, together with such recommendations as they might choose to make. George E. Smith and Charles W. Bates, Esquires, were appointed as such commissioners, and one or both of them being members of the Bar Association, counsel for the relators as well as respondent, in person, signed and filed waivers of any objection to these gentlemen on that account. On October 29, 1912, the commissioners filed their report together with a report of the testimony taken before them and the cause was set down for argument before the court for January 15, 1913. At this date it was continued to the March term of the court and subsequently passed to the October term, at which latter term it was submitted on brief by relators and taken as submitted by respondent. While duly notified by personal service or by registered mail of the proceedings of the commissioners and of the proposed proceedings in court, as well as being furnished with a copy of the report of the commissioners, the respondent did not appear before the commissioners in the taking of testimony, nor has he appeared in court in person or by attorney since November 13, 1911. On July 30, 1913, however, the respondent wrote letters both to the clerk of this court and to one of the commissioners, which letters are on file in the case, asking what had been done in the matter of the disbarment proceedings against him, writing that he had left St. Louis, having had an understanding with members of the Bar Association Committee that the proceedings against him were to be dismissed. It is proper to say that there is no evidence, beyond these letters, of any such agreement, and it is specifically denied by counsel for that committee. We state these facts to show beyond any question that respondent has had his "day in court" and was fully cognizant and legally advised of all the proceedings therein.

We have also set out the fact of waiver as to the judges, that we may say of record that the waiver was unnecessary. Such was the ruling of the Supreme Court in Bowman's Case, 67 Mo. 146, repeated by our court in In re Bowman, 7 Mo. App. 569, each court holding that the fact that the judge sitting in the trial of such case was an honorary member of the Bar Association, which Association is the real party prosecutor, was not a disqualification, as under its by-laws he was not liable for assessments for expenses of the Association. That is the situation here with reference to the members of this court, who are also members of the Bar Association of the city of St. Louis and not called on for either dues or assessments.

There are three charges levelled against respondent, in the information exhibited against him, as an attorney and counsellor at law authorized to practice as such in the courts of this state: First, that he, being such attorney and counsellor, improperly retained the money of a client named and never repaid the same until after the attorney for the Grievance Committee of the St. Louis Bar Association, in whose hands the matter had been placed for action, communicated with respondent. Second, that he improperly retained the money of another client and resorted to repeated deceptions for that purpose, writing a number of letters to his client with various excuses for the non-payment of the money, all of which turned out to be false. In this case, as in the former, respondent remitted the money to his client but not until after the matter had been placed in the hands of the attorney for the Grievance Committee of the Bar Association and he had taken up the matter with respondent. Third, that respondent improperly retained $25 belonging to a client named which he has never repaid. The commissioners found that the testimony sustained these charges. They found, however, on the evidence in the case, which as before said, was ex parte, respondent not appearing at the taking of the testimony, although duly notified, that while respondent was guilty of improperly retaining the money of his clients and of deceit in his professional capacity as attorney and counsellor at law, that there was no evidence tending to show that the improper and wrongful acts of respondent were done with any preconceived intention of wrong doing but having improperly used the money of his clients and thereafter improperly retaining it, he was financially unable to repay it as he was bound to do, and resorted to deceit to cover up his inability to repay the money. Their conclusion is that as a matter of law the charges are sufficient to authorize the disbarment of respondent or his suspension from practice as such attorney and counsellor for a definite period of time, but that under the circumstances of the case it would be a harsh judgment to absolutely and permanently disbar respondent from the practice of law in this state. They accordingly recommend that suspension for a period of one year be adjudged against respondent as proper under the facts in the case.

It is clear that under the recent decision of our Supreme Court in State ex rel. Selleck v. Reynolds et al., Judges, not yet officially reported, but see 158 S. W. 671, this court, as a Court of Appeals, has authority to hear, determine and adjudge, in the matter of charges against attorneys, members of the bar of this state for "any felony or infamous crime or improperly retaining his client's money or of any malpractice, deceit, or misdemeanor in his professional capacity" (section 951, R. S. 1909), in an original proceeding such as this now before us. This conclusion was concurred in by all the judges of the Supreme Court save one. It may be said, in passing, that our own court in In re Bowman, supra, as also in State ex rel. Jewett v. Clopton, 15 Mo. App. 589, held likewise.

While citing In re Bowman as in 7 Mo. App. 569, it is not out of place to call attention to the fact that it is not there reported in full, a mere digest of it being given. A full report of the very exhaustive and learned opinion, delivered in it by Judge Bakewell, with the concurrence of Judges Lewis and Hayden, will be found in 8 Central Law Journal, 250. We commend it to those searching the books for light on...