De Parcq v. United States District Court for So. Dist.

• Decision Date: 01 August 1956
• Docket Number: No. 15507.,15507.
• Citation: 235 F.2d 692
• Parties: William H. DE PARCQ, Petitioner, v. The UNITED STATES DISTRICT COURT FOR SOUTHERN DISTRICT OF IOWA and the Honorable William F. Riley, as Judge Thereof, Respondents.
• Court: U.S. Court of Appeals — Eighth Circuit

235 F.2d 692 (1956)

William H. DE PARCQ, Petitioner, v. The UNITED STATES DISTRICT COURT FOR SOUTHERN DISTRICT OF IOWA and the Honorable William F. Riley, as Judge Thereof, Respondents.

No. 15507.

United States Court of Appeals Eighth Circuit.

August 1, 1956.

S. P. Gislason, New Ulm, Minn. (Charles Alan Wright, Austin, Tex., and Donald T. Barbeau, Minneapolis, Minn., on the brief), for petitioner.

Roy L. Stephenson, U. S. Atty., Des Moines, Iowa (Robert J. Spayde and John C. Stevens, Asst. U. S. Attys., Des Moines, Iowa, on the brief), for respondents.

Edward S. White, Jr., Carroll, Iowa (Wendell B. Gibson, Des Moines, Iowa, on the brief), for amicus curiæ Iowa State Bar Ass'n.

Before GARDNER, Chief Judge, and VOGEL and VAN OOSTERHOUT, Circuit Judges.

GARDNER, Chief Judge.

At all times pertinent to the issues here involved William H. DeParcq, petitioner herein, was a lawyer duly admitted to practice by the Supreme Court of the State of Minnesota, maintaining offices for the practice of his profession in the City of Minneapolis, Minnesota, and respondent United States District Court for the Southern District of Iowa is the federal court having jurisdiction in the Southern District of Iowa as provided by United States statute. 28 U.S.C.A. § 95.

On or about the 22nd day of November, 1952, one Clifford J. Dean suffered injuries which he asserted were due to negligence on the part of the Chicago Great Western Railway Company and he desired to bring suit against that company on account of the personal injuries suffered by him. He made inquiries, especially among railway employees, with reference to employing a competent lawyer to represent him in the matter of his claim for damages. The employees of whom he made inquiry recommended William H. DeParcq as a successful lawyer in personal injury actions. A companion of Dean offered to secure an appointment with Mr. DeParcq. Dean was not solicited by or on behalf of DeParcq but at the telephone request of one of Dean's fellow workmen Mr. DeParcq conferred with Dean at his office at Minneapolis and entered into a written contract to represent Dean in the matter of his claim against the Chicago Great Western Railway Company for a contingent fee of one-third of the recovery. The contract was in writing but does not appear in the record and the testimony with reference to it is lacking in detail. Mr. DeParcq caused an investigation to be made concerning the facts. He did not bring action on Dean's claim but forwarded the claim and cause of action to J. Riley McManus, a lawyer duly admitted to practice in the state and federal courts of the State of Iowa, maintaining offices in the City of Des Moines, Iowa, who conducted some legal research and prepared a brief or memorandum of law with respect to the authorities and on the basis of his legal research decided that Dean has a good and meritorious cause of action, and thereafter McManus prepared, without any participation on the part of DeParcq, a complaint and caused same to be filed and suit to be instituted in the United States District Court for the Southern District of Iowa. DeParcq did not sign the complaint and it was not submitted to him but as a matter of professional courtesy McManus placed the name of DeParcq upon the complaint in typewriting as "Of Counsel". DeParcq neither requested his name to appear as "Of Counsel" nor had he any knowledge thereof until long after the complaint had been prepared and filed and suit had been instituted; he was never served with any responsive pleadings or other papers in the cause and had no further connection with the litigation which was conducted solely and exclusively by McManus; he never appeared in the action or conferred with Dean except on the 24th day of September, 1953, and never conducted any settlement negotiations nor took any depositions nor any steps whatsoever with reference to the prosecution of the claim, but he entrusted the handling of the action to McManus and at no time ever intended to try the cause or otherwise appear and participate in the trial or proceedings and never made any request, either written or oral or otherwise, for comity or for leave and permission to participate in the action.

Mr. DeParcq was not a member of the bar of the United States District Court for the Southern District of Iowa, nor was he a member of the bar of the State of Iowa and, in fact, was ineligible to become a member of the bar of the United States District Court for the Southern District of Iowa because by Rule 1 of that court it is provided that "Attorneys who are regularly admitted and licensed to practice before the Supreme Court of Iowa may be admitted to practice in the District upon motion, in open court, of any admitted attorney of the court, after satisfactory showing of good moral character of the applicant, and upon taking the oath, signing the roll of attorneys in the clerk's office, and paying the clerk a fee of two dollars. * * *" There is no provision in the rules of the United States District Court for the Southern District of Iowa by which a lawyer not duly admitted to practice by the Supreme Court of Iowa may be admitted to the bar of the United States District Court for the Southern District of Iowa. Rule 3 of the rules of that court, however, provides:

"Admission to Try Particular Case.

"All attorneys residing outside of the State of Iowa and having civil matters in the court shall associate with them a resident attorney on whom notice may be served and who shall have the authority to act for and on behalf of the client in all matters, including pretrial conferences and the trial of the case. Such resident attorney shall be a member of the bar of the District, shall sign the first pleading filed and continue in the matter unless other qualified resident counsel be substituted. Nonresident attorneys who have so associated with them a resident attorney shall be permitted to participate in a particular case upon satisfactory showing of good moral character.

"Provided further that where the action is one to recover damages for personal injuries sustained in Iowa by one who at the time was a resident of Iowa or the action is one to recover damages for the death of a resident of Iowa resulting from personal injuries sustained in Iowa, the court may on its own motion, or on motion of a member of the bar of either District, before permitting a nonresident attorney to participate in the case, require a satisfactory showing that the connection of the said attorney, or the firm or attorney with which he is associated, was not occasioned or brought about in violation of the standards of conduct specified in Rule 8 hereof. The court as a part of said showing may require the plaintiff and the said attorney to appear and be examined under oath."

Purporting to act pursuant to the authority vested in respondent court by this Rule 3 the court issued an order reading as follows:

"Clifford J. Dean Plaintiff v Chicago, Great Western Railway Company Defendant.

"Order for Hearing on Application Under Rule 3 of the Rules of the United States District Courts for the Northern and Southern Districts of Iowa.

"It is hereby ordered that the 13th day of January, 1956, at 2:00 o\'clock p. m. is hereby fixed as the time, and the Federal Court House at Des Moines, Iowa, is fixed as the place for the making of showings of non-resident attorneys under Rule 3, as amended, of the Local Rules for the United States District Courts for the Northern and Southern Districts of Iowa in cases pending in the Central Division of the Southern District of Iowa.

"It is further ordered that resident and non-resident attorneys now appearing as attorneys for and of counsel for the plaintiff in the above entitled case and the plaintiff shall appear at the time and place fixed above for the purpose of being examined under oath in regard to matters within the scope of said Rule 3, as amended, and that mailing to plaintiff\'s counsel now of record for plaintiff shall constitute notice to appear at the time and place stated above.

"It is further ordered that any examinations shall be conducted either by the United States Attorney for this District, or by one of his Assistants."

In response to this court order plaintiff Clifford J. Dean and his attorney, J. Riley McManus, appeared and were subjected to examination by the Assistant United States District Attorney, particularly with reference to the employment of DeParcq as plaintiff's attorney and his possible participation in the trial of the action. DeParcq was not served personally or otherwise within the Southern District of Iowa and did not personally appear in response to the foregoing order. The court expressed the view that: "He participates by being of counsel and signing the complaint, and I consider him, accordingly, a participant in the case, and I consider that his wilful failure and his refusal — in anticipation of what you say — not to appear here makes him in contempt of this Court." Mr. McManus then testified that: "His name was put on the complaint of counsel by me. He never signed the complaint. He never intended to come down here and take part in the trial of the case if the case was tried. I put his name there as a matter of courtesy to him as he had referred and sent the case down here to me. He sent the case down here to me because he said that he felt if he brought it up there it would be transferred down here anyhow, so he sent the case down here for me to bring it and for me to try it. He has never been down here on it; has never had anything to do with the preparation of briefs or the complaint or any of the pleadings. He has had nothing to do with the case since he forwarded it to me on October 10th, 1953." The court, over the protest of Mr. McManus, announced that it would inquire into the relations between counsel appearing, plaintiff Dean and Mr. DeParcq, and requested the Assistant United States District...