In re Al.

• Decision Date: 23 September 1916
• Docket Number: No. 1961.,1961.
• Citation: 160 P. 391,22 N.M. 252
• Parties: IN RE MARRON ET AL.
• Court: New Mexico Supreme Court

22 N.M. 252

160 P. 391

IN RE MARRON ET AL.

No. 1961.

Supreme Court of New Mexico.

Sept. 23, 1916.Rehearing Denied Oct. 16, 1916.

Syllabus by the Court.

An attorney at law, having in his possession a copy or duplicate of an original contract, the contents of which are material to the determination of the issues in a case, who conceals the same, and replies, when called upon by opposing counsel to produce it, that the contract was not in his possession or custody or under his control, when, as a matter of fact, the said contract is at that time where it had been concealed by him, is guilty of unprofessional conduct and subject to a reprimand therefor.

An attorney at law who offers in evidence on behalf of his client an alleged release as constituting valid and admissible evidence of payment and discharge of the cause of action against his client, and who moves to instruct the jury that said release constitutes a valid and sufficient defense on behalf of his client, when in truth and in fact the said release was not a valid and lawful release, discharge, or satisfaction of the claim, all of which was then well known to the attorney, is guilty of unprofessional conduct in the practice of intentional deceit of the trial court before whom the cause was then pending, and by reason of said conduct is subject to suspension from practice in the courts.

Attorneys at law, accepting employment from one client and in the course of such relations gaining information adverse to the interests of such client, which, after the termination of such employment, is used to secure the employment of such attorneys by the person in such adverse relations to the former client, are guilty of unprofessional conduct, deserving of suspension from practice before the bar in the courts of this state.

Additional Syllabus by Editorial Staff.

That attorneys agreed with their client that they should receive one-half of a recovery for libel, and compromised the action for $1,750, of which they paid the client only $450, is not shown to be unprofessional conduct where the atorneys had expended a large amount of labor on the case, and successfully maintained a cause of action in a companion case, and the client refused to allow the case to go to trial and testified that she was entirely satisfied with the settlement made by the attorneys.

Evidence held insufficient to show unprofessional conduct of attorneys in attempting to procure additional fee from client in divorce case.

Evidence held insufficient to sustain a charge that attorneys extorted an additional fee from a client by threats of criminal proceedings.

That attorneys were shown and approved before publication the body of an article is insufficient to show improper conduct where the comments and heading of the article which constituted the objectionable portion misrepresenting the action of a court were not shown to or approved by the attorneys.

Original proceedings for the disbarment of Owen N. Marron and another. Respondents suspended from practice for one year.

Evidence held insufficient to sustain a charge that attorneys extorted an additional fee from a client by threats of criminal proceedings.

Frank W. Clancy, Atty. Gen., for the State.

A. B. Renehan and E. R. Wright, both of Santa Fé, for respondents.

HANNA, J.

[1] There are nine specifications in the accusation filed against the respondents. The first specification is to the effect that in a certain civil action pending in the district court of Bernalillo county said respondent Francis E. Wood having then and there in his possession a certain copy or duplicate of an original contract, the contents and purport of which were material to the determination of the issues in said cause, concealed the same beneath a blotter in the office of the clerk of said court and when, afterwards, he was requested by counsel for the opposite party to produce his said copy of said contract, he replied in substance that the contract was not in his possession or custody or under his control, when as a matter of fact the said contract was at that time remaining where it had been concealed beneath a blotter in the office of the clerk of the district court.

It is contended by the respondent Francis E. Wood that this copy of the contract was not material to the issues in said cause, and that therefore his conduct was not subject to criticism. It is urged by the Attorney General, however, that regardless of the materiality of the said document in the trial of the issues in said cause, the conduct of the said respondent Francis E. Wood was reprehensible to the same degree as if the said document were material and necessary to the trial of the issues in said cause. With this contention we fully agree. The conduct of the said respondent in concealing the paper from and deceiving the court and opposite counsel by statements bordering upon, if not amounting actually to falsehood, is certainly unbecoming a member of the legal profession.

The court therefore finds that said Francis E. Wood in the particulars hereinbefore mentioned has been guilty of unprofessional conduct requiring punishment at the hands of the court.

It is, therefore, considered, ordered, and adjudged by the court here that said Francis E. Wood, by reason of his said conduct, is deserving of the reprimand of this court.

[2] The second specification of the accusation is to the effect: That the respondent Francis E. Wood, while engaged as counsel for the defendant in the trial of a certain cause before the district court of Bernalillo county in which Ernest Meyers was plaintiff and the Meyers Company, Incorporated, was defendant, offered in evidence on behalf of the defendant a certain alleged release, which was in words and figures as follows:

“Albuquerque, New Mexico, Nov. 1st, 1913.

Whereas, by article 8 of the contract between the Meyers Co. Inc., of Albuquerque, New Mexico, and myself, dated Jany. 1st, 1912, said Company is required to make a certain payment to me in the matter of Alex D. Shaw & Co., of New York, on the happening of certain events therein stated.

Now, therefore, in consideration of the sum of one dollar and other valuable considerations to me in hand, receipt of which is hereby acknowledged, I hereby release said Meyers Co. from any payment to me of the sum of $501.88 or any part thereof mentioned in said Article 8 as a credit to said Alex D. Shaw & Co.

Ernest Meyers.”

That said respondent Francis E. Wood then and there alleged and pretended to the court that the said release constituted valid and admissible evidence of the payment and discharge of the cause of action upon which the plaintiff had brought suit in said court. That said respondent Francis E. Wood moved and requested the court to instruct the jury that said release constituted a valid and sufficient defense on behalf of the defendant in said cause, and that he thereby caused the district judge then presiding in said cause to so instruct the jury, which jury, under the instructions of the court, returned a verdict finding the issues for the defendant. That in truth and in fact the said alleged release was not a valid and lawful release, discharge, or satisfaction of the said defendant from liability to the said Ernest Meyers, and that the said respondent Francis E. Wood then and there well knew the same.

It appears from the evidence that the said release was procured from the plaintiff Ernest Meyers for the purpose of enabling the firm of Alex D. Shaw & Co. of New York City to recover from the Meyers Company the sum of $501.88 which had been placed with the defendant the Meyers Company by the said Ernest Meyers as security against possible liability upon a merchandise account at that time unsettled and disputed. At the time the said release was introduced in evidence it appears from the proofs that the said respondent Francis E. Wood was thoroughly familiar with all of the facts and circumstances surrounding the execution and delivery of the said release, and knew that the same had never been delivered to the Myers Company except for the purposes hereinbefore stated. He also knew at that time that a reassignment of the said claim had been executed by the said Alex D. Shaw & Co. to the said Ernest Meyers, which was intended to supersede and cancel the said alleged release.

In consideration of all the facts and circumstances in regard to this specification, the court finds that the said Francis E. Wood, in so introducing in evidence the said release, was guilty of deliberate and intentional deceit of the district judge before whom the said cause was then being heard, and that his conduct requires punishment.

It is therefore considered, ordered, and adjudged by the court, that said Francis E. Wood, be, and he is hereby, suspended from further practice in the courts of New Mexico as an attorney at law for and during the period of one year from the date hereof.

The third specification in the accusation is to the effect that in a certain cause in the district court of Bernalillo county wherein W. J. Johnson was plaintiff and the New Mexico Fire Brick Company was defendant, the district judge of said court entered a default judgment in favor of the plaintiff, upon the express understanding with the respondent Francis E. Wood, who was attorney for the said plaintiff, that upon application, without any showing of meritorious defense, the said district judge would open said default; that the said district judge shortly thereafter left the state for a vacation; that before leaving the jurisdiction, the said district judge left word with the clerk of the court that he did not desire any other district judge to be called in to hear and determine any application to open the said default which might be filed by the defendant; that thereafter there was filed in said cause a motion by the defendant to vacate the said default judgment; that in the absence of the said district judge, the said re...