People ex rel. Colorado Bar Ass'n v. Robinson

• Decision Date: 07 March 1904
• Citation: 32 Colo. 241,75 P. 922
• Parties: PEOPLE ex rel. COLORADO BAR ASS'N v. ROBINSON.
• Court: Colorado Supreme Court

75 P. 922

32 Colo. 241

PEOPLE ex rel. COLORADO BAR ASS'N v. ROBINSON.

Supreme Court of Colorado

March 7, 1904

ORIGINAL PROCEEDING for disbarment by the people, on the relation of the Colorado Bar Association, against Ewing Robinson. On rule to show cause. Rule discharged.

George L. Hodges, for relator.

O. E Le Fevre, H. B. Babb, and Morrison & De Soto, for respondent.

PER CURIAM.

Respondent is charged with unprofessional conduct, by an information embracing six counts, as follows: (1) Failure to pay over to Mrs. Buffington the sum of $25. (2) Failing to return her an abstract of title. (3) In raising a note. (4) Failure to pay over to Mr. Ames a sum of money collected for him on an account. (5) The wrongful appropriation of $1,600 belonging to Peter Johnston, and in aiding him to prevent this money from being reached by attachment; the wrongful appropriation of equities in real estate belonging to him; the wrongful foreclosure of a chattel mortgage given by him to respondent and the conversion of certain jewels, whereby the family of Johnston were left destitute; and because of exorbitant and unreasonable fees charged as an attorney for the purpose of absorbing the property in his hands belonging to Johnston. (6) Unprofessional conduct in attempting to establish a liability upon an injunction bond.

1. It appears that, several years prior to the date when the information was filed, respondent had been employed by Mrs Buffington to loan money which she placed in his hands for that purpose. This employment extended over a period of a little more than a year. In the course of this employment he collected interest, and made charges for services rendered and for disbursements on her account. It seems, also, that during part of this time she occupied a house belonging to him, for which she was charged rent. The result was that a dispute seems to have arisen between respondent and his client with respect to some of the items of this account. On his part, he claims that it was fully settled and paid, and there is testimony tending to prove this assertion. After this alleged settlement, it seems that Mrs. Buffington was dissatisfied with some of the items, and returned for the purpose of having the account corrected, and made a demand upon him for certain items which she claimed were improperly charged against her. Respondent appears to have corrected the account, and asserts that he has paid the balance agreed upon at this second settlement. Whether or not the respondent owes Mrs. Buffington $25, or any other sum, as a balance of the account between them, is immaterial in this inquiry. That question is a proper subject of investigation in a civil action, where, as in this instance, it clearly appears that respondent has not been guilty of any fraud or deception toward his client. The fact that an attorney may owe his client a balance of an account growing out of that relation between them will not be entertained as the subject of a proceeding to disbar, when it appears that such balance is the subject of a bona fide dispute.

2. In the course of loaning money for Mrs. Buffington, an abstract of title to property upon which she had made a loan was received by respondent. It is charged that he has appropriated this abstract to his own use. There is testimony tending to prove that all papers belonging to her, including this abstract, were turned over to her. She claims, however, that the abstract was not among such papers but does not appear to have discovered that fact until several months after the date when, according to the testimony, she may have received it. So far as the testimony of this count is concerned, if it is not sufficient to establish that the abstract was returned to Mrs. Buffington as claimed, it certainly fails to show that respondent has appropriated it to his own use, or willfully withholds it from her.

3. By the third count it is charged that respondent raised a note originally for the sum of $65 to read $75.15. The most that can be claimed on this question on the part of relator is that the testimony is conflicting. The testimony of experts, however, who examined the note and made the usual tests, is unequivocally to the effect that it was not changed in any way after it was signed. Certainly, in the face of this testimony, the charge is not proven. It involves the commission of a serious crime, and should be clearly established.

4. Respondent was employed by Mr. Ames to collect an account. He sent it to another attorney at the place where the debtor resided. It appears that $4 was collected on the claim, one-half of which was remitted to the respondent. Later, Mr. Ames made inquiries of the respondent regarding this collection, and was informed by him that the records of his office showed that nothing had been collected. Whether this statement was intentionally false, or an honest mistake, is not altogether clear. Respondent, in explaining the method of keeping a record of collections, and where the entry of the $2 received appeared, tended to prove that he may have been honestly mistaken when he informed Mr. Ames that nothing had been collected. This, however, in the circumstances, is not the material or crucial question. According to the testimony, which is undisputed, respondent was entitled to the full $2, as the minimum charge on account of the collection in question, and Mr. Ames was not defrauded or deceived by the statement made. A misstatement by an attorney which does not defraud the person to whom it is made, or deceive him, to his prejudice, is not sufficient to justify disbarment.

5. The testimony relative to the transactions with Peter Johnston which form the basis of the fifth charge, is quite voluminous, and it can serve no useful purpose to notice it in detail, or to analyze its alleged inconsistencies. Johnston was charged with an offense against the federal laws, and employed respondent to defend him. At the time of this employment, he had $1,600 and...