Appeal from Jefferson Circuit Court (Common Pleas Branch, First Division).
OPINION OF THE COURT BY JUDGE CARROLL — Reversing.
This is a disbarment proceeding instituted by Judge William H. Field, one of the judges of the Jefferson Circuit Court, against the appellant, Joseph Lenihan, an attorney-at-law. Upon a trial of the case, Lenihan was found guilty, and it was adjudged "that the right, license and authority of the defendant, Joseph Lenihan, to practice as attorney or counsellor-at-law in any of the courts of the Commonwealth of Kentucky, be and the same is hereby revoked and said defendant is now hereby forever disbarred as an attorney or counsellor-at-law in the Commonwealth of Kentucky."
On this appeal by Lenihan from the judgment of disbarment a reversal is asked upon several grounds that will be later noticed; but, before taking them up, the information, accompanying affidavits, and the effect of the evidence heard on the trial, will be set forth, so that the nature of the accusation and the errors assigned for reversal may be well understood.
The information recited that "The Commonwealth of Kentucky, upon information contained in the affidavits of Herbert Semar, Chris Semar, and Mrs. Semar, charges:
"That Joseph Lenihan is and was at the times herein mentioned an attorney-at-law, practicing at the bar of the Jefferson Circuit Court; that Herbert Semar, an infant seventeen years of age, sustained certain injuries on Monday, September 21, 1914, through the falling of some glass from a front window of the establishment of Alex. Hirshberg, at 619 West Market street; that on Tuesday, September 22, 1914, defendant, Joseph Lenihan, visited the home of Herbert Semar and endeavored to secure either for himself or others employment to make a claim or bring suit for Herbert Semar; that the mother of Herbert, Mrs. Semar, declined to employ him and declined to take any action without the knowledge and consent of her husband; that defendant, Lenihan, asked that Herbert Semar be allowed to guide him to the place of employment of the husband, Chris Semar, which Mrs. Semar allowed; that Herbert entered the automobile of defendant and guided him to his father's place of employment, the Peaslee-Gaulbert Warehouse, Fifteenth and Lytle streets; that defendant, Lenihan, asked Chris Semar to allow him to take his son, Herbert
before Hon. Samuel Greene, Judge of the Jefferson County Court, that his injured hand might be examined, to which Chris Semar consented; that Herbert Semar was thereupon taken by defendant, Lenihan, to an office in the Inter-Southern Building, where he was told that it would be necessary to have a guardian appointed for him; when asked whom he desired appointed, he answered that he wanted either his father or his mother named, whereupon he was told by defendant, Lenihan, and a Mr. Greene, who was present, that such an appointment could not be made and that his guardian must be a court official; that he was then instructed that when taken before Judge Greene and asked by him as to whom he desired appointed he should name Mr. Page; that he was taken before Judge Greene, followed the aforesaid instructions, and Robert L. Page was appointed his guardian; that said appointment was secured by defendant, Lenihan, without the knowledge and consent of the parents, or either of them, of Herbert Semar, and against the wishes of Herbert Semar himself, and against the wishes of his parents; that defendant, Lenihan, knew that none of the parties desired to prosecute a claim against Alex. Hirshberg, having been told that the matter was in process of amicable adjustment, and having also been told that if any attorney were needed the parents of Herbert Semar would place the matter in the hands of a certain one whom they knew; that all of the aforesaid acts of defendant, Lenihan, were contrary to his oath and obligations as an attorney of the Jefferson Circuit Court, and against the peace and dignity of the Commonwealth of Kentucky.
"The affidavits of Herbert Semar, Chris Semar, and Mrs. Semar are filed herewith as part hereof. (Sgd.) Wm. H. Field, Judge."
The affidavit of Herbert Semar was as follows: "The affiant, Herbert Semar, states that he is 17 years of age and lives with his parents at 2208 Lytle street, Louisville, Ky.; that on September 21, 1914, he left home to look for work; that at about 10:30 o'clock in the morning he was passing No. 615 W. Market street, the establishment of Alex. Hirshberg, when some glass fell from the front of the building, striking him upon the right hand and injuring him; that on Tuesday, September 22, 1914, at about 9:00 o'clock in the morning, Joseph Lenihan came to his home and endeavored to persuade his mother
to allow him to enter suit; that his mother declined to do anything without the knowledge and consent of her husband, Chris Semar; that with the understanding that affiant was to show said Lenihan where his father was employed, he entered the automobile of said Lenihan and accompanied him to the Peaslee-Gaulbert Warehouse at Fifteenth and Lytle streets; that he heard said Lenihan ask his father if he could take affiant up to let Judge Greene see his hand and talk the matter over with him; that his father consented to this, and he accompanied Lenihan to an office on the fourteenth floor of the Inter-Southern Building; that affiant was told that a guardian would have to be appointed for him, and was asked whom he desired; whereupon he said he desired that his father or mother be named; that both Mr. Lenihan and Mr. Greene told him neither could be appointed, and that his guardian would have to be a court official; that he was then instructed that when taken before Judge Greene and asked by him whom he wanted as guardian he should say that he desired Mr. Page; that he was then taken before Judge Greene by Mr. Greene, and that he followed instructions, and he is advised that Mr. Page was appointed; that affiant did not want any one appointed guardian, but if any one was appointed, he preferred his father or mother."
The affidavit of Chris Semar was as follows:
"Affiant says that J. L. Lenihan, an attorney, called to see this affiant on the 22nd day of September, 1914, at the Peaslee-Gaulbert Co. place of business, and that the said Lenihan told affiant he wanted to take his boy to see Judge Samuel Greene to have a talk with him, and that he had seen the piece of glass fall on the boy's hand, had witnesses to this fact; that Lenihan also told this affiant that his partner, L. D. Greene, was a brother of Judge Greene, the county judge.
"Affiant says that Lenihan did not tell or say anything about having a guardian appointed; affiant says that he told Lenihan it would be all right for him to take the boy to see Judge Greene."
And the affidavit of Mrs. Semar was in the following words: "Affiant, Susie Semar, says she is the wife of Chris Semar and the mother of Herbert Semar. Affiant says that on the 22nd day of September, 1914, J. L. Lenihan, an attorney, called at this affiant's home, 2208 Lytle street, and asked her to let him take up the claim against
Alex. Hirshberg for her son, Herbert Semar; that he had several witnesses to the accident, and wanted her to let the boy go with him to see Mr. Semar; affiant told Lenihan that Mr. Houston Quin was her attorney if she needed an attorney. Affiant says that she consented for Herbert to go with Lenihan to show him (Lenihan) the place where Mr. Semar was employed. Affiant says that Lenihan did not tell or say anything about having a guardian appointed for the boy."
Lenihan, for response to the rule, after a general denial, said that while passing in an automobile the place where the accident happened, he learned the boy's name and where he lived, and on the following day, having occasion to go in the neighborhood of the boy's home for the purpose of looking at some property in which he was interested, he paid a visit to the boy, whom he found there in company with his mother. That during the conversation which ensued with the mother and the boy, he found that, although they were not satisfied with the way in which Hirshberg was acting, they seemed unwilling to take any action against him without consulting the father. That after talking further, Herbert and the respondent visited the father at the place where he was working, and in the course of a talk with him, he expressed the fear that the boy might be badly injured and that something ought to be done; and then respondent offered to take the boy to the office of L. D. Greene for the purpose of taking such steps as might be necessary to protect the rights of the boy. That he told the father if any action was taken or settlement made, it would be necessary to have a guardian appointed, and that as the boy was over fourteen he had the right to select his own guardian; that the father expressed himself as being entirely satisfied that the matter should be left in the hands of Mr. Greene and made no objection to the appointment of a guardian; that thereupon respondent accompanied the boy to the office of Mr. Greene and stated to Greene that the boy had been injured and desired to consult him about his case; that he may have suggested that R. L. Page, the public guardian, be appointed as guardian, but that he did not recollect distinctly about this, and soon after he left the boy in the office with Mr. Greene.
He further said that "at no time did he try to deceive either the father, the mother or the boy as to their
rights in the matter, nor did he conceal anything from them, but frankly and fully informed them as to the boy's legal rights, and would have been satisfied if the boy had selected either parent to act for him, but that neither expressed such a...
