Louisville Bar Ass'n v. Clarke

• Decision Date: 11 June 1937
• Parties: LOUISVILLE BAR ASS'N v. CLARKE.
• Court: Kentucky Court of Appeals

109 S.W.2d 619

270 Ky. 315

LOUISVILLE BAR ASS'N v. CLARKE.

Court of Appeals of Kentucky

June 11, 1937

Rehearing Denied Nov. 19, 1937.

Disbarment proceeding by the Louisville Bar Association against Dudley L. Clarke. The Board of Commissioners of the Kentucky Bar Association recommended the disbarment of the respondent.

Report of bar commissioners confirmed, and disbarment of respondent ordered.

B. M Vincent, Atty. Gen., for complainant.

Dudley L. Clarke, of Louisville, pro se.

RATLIFF Chief Justice.

This proceeding was originally filed in the Jefferson circuit court in December, 1935, by the Louisville Bar Association to disbar, suspend, or otherwise discipline respondent, Dudley L. Clarke, a member of the Kentucky Bar, for unethical conduct in the practice of his profession. The nature of the charges, facts, and history of the case will be more fully hereinafter set out.

Respondent filed his responses to the charges, and after a voluminous amount of evidence was taken the Jefferson circuit court sustained the charges and entered judgment disbarring respondent from the practice of law in this state. Respondent prosecuted an appeal from that judgment to this court, and the judgment was reversed solely upon the ground that the judge of the circuit court should have sustained respondent's motion to vacate the bench. See Clarke v. Com., 259 Ky. 572, 82 S.W.2d 823.

Upon a return of the case to the Jefferson circuit court, the attorneys representing the Bar Association not desiring to prosecute it further in the courts, on the 24th day of January, 1936, an order was entered in the Jefferson circuit court transferring the entire record of the case to the State Bar Association and dismissed the court proceedings without prejudice.

No new evidence was heard before the Board of Bar Commissioners, and by agreement the record of the lower court together with the transcript of all the evidence heard which was used upon the appeal of the case was withdrawn from the office of the clerk of the Court of Appeals and the case was determined by the board upon that record. Upon a review of the record before the full Board of Commissioners of the Kentucky Bar Association held at Frankfort January 24, 1936, the board found that the evidence fully sustained the charges and recommended to the Court of Appeals that respondent, Dudley L. Clarke, be disbarred from the practice of law in this state, and filed the record with the clerk of this court on the 30th day of January, 1936.

Respondent filed motion to quash the rule issued against him and also filed special and general demurrers to the charges on the grounds: (1) That the court has no jurisdiction over respondent or the subject-matter of the case; (2) chapter 3 of the Acts of 1934 (the act creating state-wide Bar Association) is invalid; and (3) the respondent would be deprived of his legal and constitutional rights by virtue of the procedure. These matters have been determined by this court in the trial of previous similar cases and decided adversely to respondent's contentions, and we need not further discuss those questions. A reference to those cases is sufficient. See Commonwealth ex rel. Ward v Harrington, 266 Ky. 41, 98 S.W.2d 53; Commonwealth ex rel. Buckingham et al. v. Ward, 267 Ky. 627, 103 S.W.2d 117; In re Sparks, 267 Ky. 93, 101 S.W.2d 194.

The only question to be determined by this court is whether the evidence is sufficient to sustain the charge and the recommendation of the Board of Bar Commissioners.

A summary of the facts as disclosed by the evidence, the conclusions of the Board of Bar Commissioners, and its reasons therefor, are set out in its report to this court as follows:

"Facts:

"The respondent, during the time referred to in the evidence was practicing law in Louisville, with offices in the Kentucky Home Life Building. Associated with him in this office was a one Raymond C. Arny, a lawyer, and one N. T. Roberts, a notary public. There had also been connected with respondent for more than two years previous to these disclosures, one Robert W. Taylor, who had previously been connected with one Nat R. Davidson, a former resident of Louisville, who had practiced law there until he became involved in the same sort of trouble with which respondent is charged. Davidson, after his operations in this respect came to light, left this state. It is apparent that Taylor had been implicated with Davidson in withdrawals from the receiver's office, and there is a very strong presumption that respondent likewise knew of Davidson's operations and Taylor's connection therewith. However, the court refused to permit any evidence of respondent's connection with Davidson to be brought to light. Except a very strong presumption, there is no concrete proof of this fact in the record, except the avowals which we do not think can be properly considered.

"The receiver of the Jefferson circuit court had in his hands certain funds accrued from remnants of estates and other moneys due litigants in certain cases which had been concluded, except for the payment of the funds due the litigants in these cases. Some of these cases were more than forty years old.

"Through some method not disclosed in the record, Taylor was able to secure a list of the parties to whom the funds in some of these cases belonged, together with the style and number of the action and the amount due each litigant. Soon after Davidson's very timely departure from this state, Taylor came to respondent with a list showing the names of parties to whom funds were payable in the hands of the receiver.

"Upon the information thus obtained, respondent withdrew from the receiver's office in fifty-five cases, about $2300.00. Of that number, four seem to have been regular, although solicited. Fifty-one of the withdrawals were on forged powers of attorney. The arrangement under which Taylor and Respondent operated, provided that they should divide fifty-fifty such commissions as were thus realized.

"Before the powers of attorney were produced to the receiver and the withdrawal made in any of these cases, respondent had prepared contracts to be signed by persons to whom these funds were due. Respondent then delivered these contracts to Taylor for the purpose of obtaining the signature of the person to whom the money was due. These contracts provided that in consideration of respondent disclosing to the client the source of certain funds, respondent should receive as his fee a sum equal to fifty per cent. of such sums as might be collected by respondent.

"After the contracts were signed, the alleged clients were then procured in the same manner to sign and acknowledge powers of attorney, authorizing respondent as attorney for such parties to withdraw the funds due them. The respondent then took these powers of attorney to the receiver. The receiver then gave to respondent a check for the amount due the party whose...