In re Noell
| Decision Date | 16 June 1936 |
| Citation | 96 S.W.2d 213,234 Mo.App. 1162 |
| Parties | IN THE MATTER OF CHARLES P. NOELL |
| Court | Missouri Court of Appeals |
Report of Special Commissioner adopted as opinion of the Court June 30, 1936.
Writ of Certiorari denied November 10, 1936.
Original proceeding in disbarment against Charles P. Noell.
LICENCE OF RESPONDENT ORDERED SUSPENDED FOR TWO YEARS.
Geo. F Wise and Luther Ely Smith for informants.
P. H Cullen for respondent.
No briefs.
--To the St. Louis Court of Appeals:
Pursuant to the appointment made in the above entitled matter by said court on June 5, 1935, the undersigned Bernard H. Dyer, as special commissioner, submits the following report:
This is an original proceeding, instituted in this court, the object of which is to discipline the respondent, Charles P. Noell as an attorney at law and to disbar him from the practice of law in this State.
This proceeding was commenced on the 7th day of February, 1935. On that day, Thomas F. McDonald, Wayne Ely, Grover C. Sibley, Howard G. Cook and Samuel H. Liberman, duly licensed attorneys at law and members of the bar of the City of St. Louis, representing themselves to be the Committee on Grievances of the Bar Association of St. Louis, as informants to the court, filed herein their information, or petition for disbarment.
This petition states that respondent Charles P. Noell is, and at all times mentioned, was, a duly licensed attorney at law, engaged in the practice of his profession as such attorney at law in the courts of this State.
That during the years 1922 to 1925, inclusive, respondent paid large sums of money to persons employed by various corporations for information about persons, injuries sustained by employees of said corporations in order to enable respondent to approach such injured employees to solicit them to employ respondent to bring suits in their behalf against their employers for damages; that respondent did solicit many persons to employ him to file suits against their employers, and as a result of such solicitation, a large number of such employees did so employ respondent, and respondent did file such suits as their attorney; that respondent paid out approximately thirty-five per cent of his gross income for such purposes, and secured business by such payments; that respondent, during said years, paid money to employee of railroad companies to obtain for him private and confidential records from their employers' offices and information from such private and confidential records for the purpose of being used, and was used, by respondent against various railroads; that said information and said records were so obtained without the knowledge or consent of said employers, and that the giving of such information by said employees to respondent was a violation of their duty to their employers, as respondent well knew.
Informants' petition states that the allegations made in the petition are based upon certain proceedings which took place before the United States Board of Tax Appeals, wherein respondent, Charles P. Noell, as petitioner, was appealing for a deduction from his taxable income for the years 1922 to 1925, inclusive, and in which proceedings he had filed a certain sworn petition purporting to set forth the allegations made in informants' petition to disbar, and also testified orally to certain statements as a witness in his own behalf, and caused certain oral statements to be made in his behalf by one Brown as his representative, the said sworn petition and much of said oral statements being set out in the information herein. Upon the basis of these allegations (stated with a good deal of repetition and with much argument as to form), informants charge that respondent, Charles P. Noell, was guilty of a misdemeanor and malpractice in his profession as an attorney at law, and also that he had been guilty of the offense of dividing fees with persons not licensed as attorneys at law. The prayer of informants' petition is that respondent be removed from the practice of law in this State.
Respondent's defense to this petition, or information, as disclosed by his answer, is first, a general denial of the allegations of the information; second, a denial of the legal capacity of informants to institute this proceeding; third, a challenge to the sufficiency of the allegations of the information to constitute grounds for disbarment, a demurrer, as it were, to the petition; fourth, a plea of res adjudicata, in that charges were preferred against respondent in the Circuit Court of St. Louis in 1924, in which substantially the same charges were made and in which respondent was discharged, and he now pleads said judgment as a bar to the prosecution of this petition; fifth, that the acts complained of are so stale and remote in point of time as to constitute laches, and respondent pleads laches as a bar to this action; sixth, that this action is barred by the Statute of Limitations of this State, without making reference to any specific state of limitations; seventh, that at the period of time mentioned in the petition, and at all times since, respondent has in good faith engaged in the practice of law and has not been guilty of any malpractice, fraud or misdemeanor whatsoever in his professional capacity.
Your commissioner takes up these several specified defenses for consideration in the order in which they are stated.
The evidence offered by the petitioners and by respondent was heard by your commissioner, was taken down by a shorthand reporter appointed for that purpose with the consent of both parties, and this evidence was transcribed and has been printed and filed. At the conclusion of the taking of testimony, oral arguments were made, and it was consented and agreed that briefs might be filed later; and time was allowed for that purpose. These briefs have likewise been printed and filed, and the case was submitted to your commissioner for his findings of fact and conclusions of law upon said evidence, arguments and briefs.
As a pleading, informants' petition contains much argument and many conclusions, both as to law and fact, and also sets forth matters of evidence, but even if stripped of such matters, it is the view of your commissioner that the petition charges that respondent paid to unnamed persons in the years 1922-1925, inclusive, substantial sums of money for the purpose of obtaining employment as an attorney at law, and thereby did obtain such employment. Informants charge that money was paid by respondent to employees of railroad employers to furnish to respondent private and confidential information from the records belonging to said employers, this information being for the purpose of enabling respondent, and was used by respondent, to procure employment by such injured employees or their dependents to institute law suits against these same railroad employers. As a witness testifying in his own behalf in this case, respondent denied that he ever used money in such ways. Your commissioner considers that the crux of this case turns upon the solution of the issue of fact thus joined. What does the evidence show in that regard?
Respondent had made his return to the Income Tax Division of the Federal Government showing his taxable income for the years 1922 to 1925, inclusive. Thereafter, the Commissioner of Internal Revenue had determined that there was a deficiency in the amount of said income tax for said years, and had issued deficiency letters accordingly, whereby said commissioner had assessed against respondent deficiencies in taxes as follows:
Respondent appealed from this action by the Commissioner of Internal Revenue to the Board of Tax Appeals. This appeal was in writing, signed by respondent's counsel, and sworn to by respondent himself. A hearing upon this appeal was conducted before the Board of Tax Appeals, at St. Louis, Missouri, on April 14, 1930, at which hearing, the respondent Charles P Noell appeared in his own behalf and was also represented by one James Brown. At this hearing, respondent made statements relative to the issues pending on the Appeal, and after having made such statements, was sworn and testified as a witness in his own behalf. After respondent had testified as a witness, both in chief and upon cross-examination, respondent called upon one James Brown, his said representative to make a statement in his behalf before said Board of Tax Appeals. These statements made by respondent and by Brown, and also the testimony given at this hearing by respondent, were taken by a reporter and a transcript of the whole proceeding was offered by informants in this disbarment case to support the allegations of the information. Upon the testimony thus offered, informants rested their case.
This transcript of proceedings before the Board of Tax Appeals shows that respondent was attempting to prove that he was entitled to certain deductions from his gross income for the years in question on the ground that said deductions were amounts paid out by the taxpayer (respondent) on account of business expense. The Government was contending that the taxpayer was not entitled to these claimed deductions, on the ground that there was no showing made to the effect (within the Federal Income Tax Law) that the claimed payments were necessary business expenses.
In his formal written appeal in this tax matter, signed by counsel for respondent, and admittedly sworn to by respondent respondent makes numerous statements of fact, which, if true, show that respondent had, during the years 1922 to 1925,...
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