Pope v. State

• Decision Date: 11 July 1986
• Docket Number: No. 71756,71756
• Citation: 347 S.E.2d 703,179 Ga.App. 739
• Parties: POPE v. The STATE.
• Court: Georgia Court of Appeals

Page 703

347 S.E.2d 703

179 Ga.App. 739

POPE v. The STATE.

No. 71756.

Court of Appeals of Georgia.

July 11, 1986.

Richard D. Phillips, Ludowici, for appellant.

H. Lamar Cole, Dist. Atty., for appellee.

POPE, Judge.

Robert Daniel Pope brings this appeal from his conviction of forgery in the first degree. Held:

Construed most strongly in favor of the State, the evidence of record shows the following: Appellant is an attorney of some four years' experience and is licensed to practice law in this state. In October of 1984 Mr. and Mrs. Johnny Morrison entered into a contingent fee agreement with appellant whereby he was employed to recover damages for pain and suffering, etc., on behalf of the Morrisons' minor daughter, who had been injured when struck by a car. Neither the State nor appellant produced a copy of the employment agreement. The evidence is in considerable dispute as to the amount of time appellant spent working on the case. However, the record does disclose that appellant prepared and filed a claim for $2,500 in medical benefits available under the no-fault provision of the insurance policy of the car's driver. The adjuster for the insurance company testified that there was never any dispute that the $2,500 would be paid to the Morrisons, and that same would be paid upon receipt of proof of the medical bills and a medical report. On November 13, 1984 a check in the amount of $2,500 was delivered by the adjuster to appellant; the check was drawn on the account of the insurance company and made payable to the Morrisons. Either on the same day or one or two days later appellant negotiated the $2,500 check at a local bank; he had a cashier's check in the amount of $1,500 made payable to the Morrisons naming the insurance company as the remitter and retained the balance for himself. Appellant explained his actions by testifying that the Morrisons had recently directed him not to file suit against the insurance company, thereby effectively precluding him from receiving any remuneration under the contingency in the employment agreement. Appellant figured that he had already put 40 hours' work into the case and under the theory of quantum meruit, he was thus entitled to the $1,000. (A police officer investigating the charges against appellant testified that appellant told him that the $1,000 represented the 40% appellant was entitled to under his employment contract with the Morrisons; appellant denied the statement.) However, the letter from appellant to the Morrisons made no mention of his negotiation of the $2,500 check from the insurance company, but rather identified the $1,500 cashier's check as being from the insurance company. There is nothing in the letter explaining the insurance company's purported $1,500 payment. Thereafter, despite repeated attempts to obtain information from appellant, the Morrisons were unable to obtain any explanation regarding the purpose of the $1,500 check; they were simply told to cash it. Also, appellant never told the Morrisons that he had negotiated the $2,500 check from the insurance company and retained $1,000 of that amount in payment for his services.

The bank teller who negotiated the $2,500 check for appellant testified that appellant told her that the Morrisons had endorsed the check. Appellant was also required to endorse the check and did so "as their attorney at law." Appellant denied making the statement to the teller but admitted that he had printed the Morrisons' names on the back of the check. He contends he was authorized to do so pursuant to his employment as the Morrisons' attorney; the Morrisons denied giving appellant any such authority.

1. Appellant's first three enumerations of error relate to the authority of an attorney to endorse a client's name upon a check made payable to the client. " 'As a general rule an attorney can endorse his client's name to negotiable instruments payable to the order of his client only when he has been expressly authorized to do so ... However, the power to make an endorsement has been implied where it is a mere matter of form to enable the attorney to effect the purpose for which he was employed by the client....' Moreover, an attorney having an interest in the collection in the nature of a commission for services in effectuating the collection, has authority to endorse the name of his client to whom the check is made payable, by himself as attorney, in order that he may deduct the commission fees before remittance of the collection to the client.... There can be no forgery where the attorneys have authority to endorse the name of their client on a check payable to the client, by themselves as attorneys." John Bean Mfg. Co. v. Citizens Bank, 60 Ga.App. 615, 617-18, 619, 4 S.E.2d 924 (1939). ¹

The issue of appellant's implied authority to endorse the Morrisons' names on the subject $2,500 check was hotly disputed at trial, and the evidence on this issue was in sharp conflict. Based upon the record here, we cannot state that the evidence demanded a finding on this issue in favor of appellant. Rather, viewing the evidence most strongly to support the verdict, we find that any rational trier of fact could have found appellant guilty of forgery in the first degree beyond a reasonable doubt. See Jones v. State, 141 Ga.App. 17, 232 S.E.2d 365 (1977). Compare Barron v. State, 12 Ga.App. 342(7), 77 S.E. 214 (1913), where the defendant's conviction for forgery was reversed because the instrument defendant executed purported on its face to have been executed by him as agent of the principal, although he had in fact no authority from such principal to execute same. "To constitute forgery, the writing must purport to be the writing of another than the person making it." Id. at 343, 77 S.E. 214. In the case at bar there was evidence of record by which the jury was authorized to find that appellant had falsely indorsed the Morrisons' names on the $2,500 check. The holding in Bailey v. United States, 13 F.2d 325(2) (9th Cir.1926), is also distinguishable from the case at bar. In Bailey, the defendant attorney was still employed as such at the time of the alleged forgery. Here, appellant testified that he negotiated the check because the Morrisons had instructed him to cease his efforts on their behalf under the employment agreement prior to his receipt of the check. It follows that the trial court did not err in denying appellant's motion for directed verdict on the implied authority issue. See generally Humphrey v. State, 252 Ga. 525(1), 314 S.E.2d 436 (1984). Furthermore, in light of the foregoing discussion, we find no ground for reversal in the trial court's charge to the jury on this issue.

2. Appellant also moved for directed verdict on the ground that his negotiation of the $2,500 check and retention of $1,000 from the proceeds was authorized under OCGA § 15-19-14(a): "Attorneys at law shall have a lien on all papers and money of their clients in their possession for services rendered to them. They may retain the papers until the claims are satisfied and may apply the money to the satisfaction of the claims." Our Supreme Court has held that this Code section "must be understood to authorize the application of client funds held by an attorney to the satisfaction of liquidated sums owing to the attorney." (Emphasis supplied.) In the Matter of Kunin, 252 Ga. 310, 311, 313 S.E.2d 697 (1984). A "liquidated claim" is one the amount of which has been agreed upon by the parties involved or is fixed by operation of law. Black's Law Dictionary at 839 (5th ed. 1979). As there was no evidence of record that appellant's claim for attorney fees had been agreed upon or fixed by operation of law, the trial court properly rejected his motion for directed verdict on the ground that he had a valid lien on the $2,500 check under OCGA § 15-19-14(a). It follows that the trial court also properly rejected appellant's numerous requests to charge on this issue.

3. Appellant assigns error to the trial court's overruling his objection to testimony by a State's witness (an attorney) relating to an advisory opinion of the State Disciplinary Board of the State Bar of Georgia. Following the overruling of appellant's objection, the witness was asked if there were any standards governing charges by an attorney on PIP claims. He responded: "[T]here's an advisory opinion from the State Disciplinary Board that's dated January the 20th, 1984, advisory opinion number 37, which states, 'The taking of a contingency fee for the filing of a routine undisputed PIP claim is unreasonable and a violation of directory rule [DR] 2-106(B)(1) and [S]tandard 31(b). A contingency fee arrangement may be proper in unusual cases where the payment of PIP benefits are not assured.' And that specific directory rule from the State Bar of Georgia is under DR2-106, Fees for Legal Services. And under section B of that directory rule which comes ... under Canon which is rule 3-102, 'A lawyer should assist the legal profession in fulfilling its duty to make legal counsel available.' And there, specifically directory rule 2-106, under A, says, 'A lawyer shall not enter into an agreement for, charge or collect an illegal or clearly excessive fee.' Under section B, 'A fee is clearly excessive when after a review of the facts a lawyer of ordinary prudence would be left with a definite firm conviction that the fee is in excess of a reasonable fee.' And then it has certain factors spelled out in the advisory opinion that deals with undisputed PIP claims. It cites section one which is, 'The factor is the time and labor required, the novelty and difficulty of the questions involved and the skill requisite to perform the legal service properly.' " Appellant again objected to this testimony, and the trial court instructed the jury sua sponte that "the evidence is being admitted solely for the purpose of it showing, if it does show, and you're to be the judges of whether or...