In re Mason

• Decision Date: 16 June 1947
• Docket Number: No. 20723.,20723.
• Citation: 203 S.W.2d 750
• Parties: In re MASON.
• Court: Missouri Court of Appeals

203 S.W.2d 750

In re MASON.

No. 20723.

Kansas City Court of Appeals. Missouri.

June 16, 1947.

"Not to be published in State Reports."

Original disbarment proceeding by the members of the Sixth Judicial Bar Committee against Richard W. Mason.

Decision in accordance with opinion.

Donald H. Latshaw and Charles E. McCoy, both of Kansas City, for informants.

Charles H. Mayer, of St. Joseph, for respondent.

SPERRY, Commissioner.

This is a disbarment proceeding, instituted by the members of the Sixth Judicial Circuit Bar Committee, informants, against Richard W. Mason, respondent, a member of the bar at St. Joseph, Missouri. Information was filed in this court October 2, 1945, and the Honorable Oak Hunter, a member of the bar of this court, was duly appointed to act as special commissioner herein, to hear, transcribe, and return to us all evidence offered by informants and respondent on the charges, together with his findings of fact and conclusions of law thereon.

Pursuant to such appointment and authority the commissioner heard evidence, in St. Joseph, on August 12 and 13, 1946, and has filed a transcript thereof, consisting of 497 typewritten pages, and a number of exhibits. Included in the transcript is the evidence heard by the bar committee prior to the filing of information which transcript was admitted in evidence.

The commissioner has filed his report consisting of 35 typewritten pages, wherein the charges contained in the information are set out, and the evidence and the law applicable thereto fully analyzed and discussed. He recommends that respondent be discharged on all counts.

Informants excepted to the findings, report and recommendations of the commissioner and have filed a brief herein. Respondent has filed a short statement in lieu of brief.

We are required to make our own findings of fact and conclusions of law, and to render judgment thereon, in this kind of case. The findings and conclusions of the special commissioner are not binding on us, but they are advisory and helpful. In re Parkinson, 344 Mo. 715, 128 S.W.2d 1023, loc. cit. 1037.

The report of the special commissioner, regarding the evidence heard with respect to the charges, and the law applicable thereto, is painstaking and accurate. Each section of said report will be quoted herein and will be followed by our findings and judgment thereon.

The following is quoted from the report:

"Respondent is a man 38 years of age, married, having a wife and three children. He has lived in the City of St. Joseph, Missouri, for the past 34 years. He was admitted to the bar in 1931, and since then has been practicing his profession in St. Joseph, Missouri.

"Law in Disbarment Proceedings.

"The law in Missouri in disbarment proceedings is well defined. The rules of our Supreme Court lay down a code of ethics governing Missouri lawyers, and the decision of the Missouri courts in recent years have interpreted and clarified such rules.

"An attorney is an officer of the court. He must possess good, moral character to be admitted to the practice, and must continue to possess such character after his admission, and his conduct must conform to a high standard of ethics. The purpose of a disbarment proceeding is not to punish, but to protect the courts and remove from the profession, a person whose misconduct has proved him unfit to be intrusted with the duties and responsibilities of the office of an attorney, and thus to protect the public and those charged with the administration of justice. Leimer v. Hulse, 352 Mo. 451, 178 S.W.2d 335, 339.

"This court, In re Williams, 233 Mo.App. 1174, 128 S.W.2d 1098, at page 1106 said:

"`The power to disbar or suspend "is not an arbitrary and despotic one to be exercised at the pleasure of the court or because of passion, prejudice, or personal hostility, it is rather one to be used with moderation and caution, in the exercise of a sound judicial discretion, and only in a clear case, for the most weighty reasons, and upon a clear legal proof." 7 C.J.S., Attorney and Client § 18, pages 729, 730.'

"It is both a right and duty of the court to purge its officers of an unworthy member. Re Keenan, 287 Mass. 577, 192 N.E. 65 . The consequences of disbarment are so severe, both in degrading the attorney in the eyes of the community, and in depriving him of his means of livelihood, that courts generally take that step, only when the misconduct of the attorney, may properly be characterized as gross. 5 Am.Jur. 413.

"Our Supreme Court says, that the power to disbar should be exercised in all instances with great care (In re Conrad , 105 S.W.2d 1, 13). The Springfield Court of Appeals says, it should be exercised with the greatest caution, and only in extreme cases (In re Gardner , 119 S.W.2d 50, 61).

"The interests of the attorney must in every case be weighed in the balance, against the rights of the public; and the court should endeavor to guard and protect both, with fairness and impartiality. People v. MacCabe, 18 Colo. 186, 32 P. 280, 19 L.R.A. 231, 36 Am.St.Rep. 270.

"While some decisions hold, that a bad or fraudulent motive must be shown, to require the disbarment of an attorney, although the acts charged against him are proved to have been committed, yet they should be construed with reference to the charges made in those cases, since there are also cases, in which disbarment has been ordered without particular reference to the motive, which inspired the reprehensible conduct complained of. 5 Am.Jur. 418.

"The rule laid down in some cases is, that the wrongdoing must have been intentional, in order to constitute cause for the disbarment of an attorney; that not only must the act itself be proved to have been committed, but the bad or fraudulent motive for the commission thereof must also be established, either from the act itself or from proof of other circumstances, and that unless this is done disbarment is not authorized; but this is not true in all jurisdictions. 7 C.J.S. [Attorney and Client, § 19, p.] 734.

"All proper intendments are in favor of the attorney, and reasonable doubts or conflicts in the evidence should be resolved in his favor; but where the charges remain unexplained by the attorney, they must be taken as true. The testimony of the attorney, must be accepted as true, unless outweighed by other facts and circumstances presented by the evidence, and evidence bearing the earmarks of private spite, should be accepted with extreme caution, and scrutinized most carefully. 7 C.J.S. [Attorney and Client, § 33, p.] 785.

"The authorities are conflicting as to the amount of proof necessary to sustain the charges in a disbarment proceeding. * * * in describing the amount of proof required, the courts use such phrases as `clear and convincing evidence,' `clearly established,' `satisfy the court to a reasonable certainty,' `clear preponderance of evidence' `clear and satisfactory legal proof,' and the like; not only with regard to the acts charged, but also with regard to fraudulent or dishonest motives. 7 C.J.S. [Attorney and Client, § 33, p.] 784.

"In re Warden, 347 Mo. 196, 146 S.W.2d 874, at page 886, our Supreme Court held in a disbarment proceeding, that the amount of proof necessary to sustain the charge is the preponderance or greater weight of the credible evidence, and not proof of guilt beyond a reasonable doubt as required in criminal cases.

"Evidence of good moral character is admissible, as it tends to prove innocence.

"The attorney may introduce evidence, which tends to show his previous good reputation; not in order to justify or excuse the offense, but to support his evidence, in denial of the charge, and to mitigate the gravity and consequences of the offense. 5 Am.Jur. 438.

"Where an attorney by his conduct has built up a reputation for honesty and fair dealing, when his integrity as a lawyer is assailed, such reputation is a circumstance strongly tending to prove his innocence. People v. McCallum, 341 Ill. 578, 173 N.E. 827.

"With these principles of law in mind as controlling, in deciding this case, your Commissioner will now proceed to consider and discuss the evidence and law applicable thereto.

"Count I.

"The information is in eight counts, the first of which is general in character, and the remaining seven charge specific acts of professional misconduct.

"Count I charges the respondent with a violation of Section 4.47 of Rule 4 of the Supreme Court of Missouri, in that he willfully, knowingly and unlawfully acted against the interests of the public; that intending to bring the profession of the law and the courts into disrepute, he has been guilty of professional misconduct, — in fixing, charging, securing judgment for, and collecting (and in attempting so to do) unlawful attorney's fees in certain actions filed by him as plaintiff or attorney for plaintiff; that he has illegally, oppressively and knowingly attempted the collection of, and collected, such fees; that he has unlawfully used and abused the process of the courts in and about such collections and attempted collections. This Count concludes with these words, — `all as more particularly hereinafter set out.'

"The information in the remaining seven counts, makes specific charges of professional misconduct against the respondent. It will be noted that Count I is general in character and simply charges misconduct, with respect to unlawful attorney's fees in certain actions, filed by respondent as plaintiff, or as attorney for plaintiff in such actions.

"Count II.

"Count II charges that respondent, as administrator of the estate of Albert C. Torrey, deceased, filed in the Court of R. E. L. Utz, Justice of the Peace of Center Township, Buchanan County, Missouri, ten cases, to recover for said estate unpaid balances due for medical treatment of defendants; that he sought to secure unlawful attorney's fees for himself in each of said cases; that in filing such cases for said purpose and having...