Royal, In re, 37848

• Decision Date: 26 November 1963
• Docket Number: No. 37848,37848
• Citation: 29 Ill.2d 458,194 N.E.2d 242
• Parties: In re William J. ROYAL, Attorney, Respondent.
• Court: Illinois Supreme Court

Page 242

194 N.E.2d 242

29 Ill.2d 458

In re William J. ROYAL, Attorney, Respondent.

No. 37848

Supreme Court of Illinois.

Nov. 26, 1963.

J. R. Christianson, Chicago, amicus curiae.

John R. Fielding, Chicago, for respondent.

HERSHEY, Justice.

The Committee on Grievances of the Chicago Bar Association, acting as commissioners of this court under Rule 59, Ill.Rev.Stat.1959, c. 110, § 101.59, have filed a report recommending that respondent, William J. Royal, be suspended from the practice of law in this State for the period of one year. The committee found that on two occasions the respondent had converted the funds of clients to his own use. Respondent, who was admitted to the practice of law in 1951, has filed exceptions to the commissioners' report.

A 5-count complaint was filed against the respondent on February 19, 1962. Count I charged in effect that the respondent converted to his own use funds in the amount of $25,528.75 paid to him by the purchaser of certain property in Westmont, Illinois. In the transaction, respondent represented the seller of the property. The only testimony offered by the complainant in support of this count was the testimony of the respondent called as an adverse witness under section 60 of the Civil Practice Act, Ill.Rev.Stat.1959, c. 110, § 60. The respondent was examined at length and over his objection. At the conclusion of such testimony, the commissioners found that the allegations were not proved by clear and convincing evidence and this count was dismissed.

The respondent contends that, although it has been held that section 60 of the Civil Practice Act, is applicable to disbarment proceedings (In re Eaton, 14 Ill.2d 338, 152 N.E.2d 850) it was improper for him to be examined adversely under that section in the absence of some prior showing of a prima facie case against him. Count I of the complaint was dismissed and the respondent is actually in no position to raise this question. However, because all of the facts in cases of this nature are often known only to the attorney, this question apparently does come up frequently and the amicus curiae has requested that we comment upon it.

We have held that the ultimate responsibility for disciplining attorneys as officers of the court rests on this court and that technical objections as to practice and procedures before its commissioners will not be allowed. (In re Sanitary District Attorneys, 351 Ill. 206, 184 N.E. 332.) In the foregoing case we stated that 'An information in a case such as this is a direct call upon an attorney by the court that he speak. The choice of silence is not open to him if he is to remain an officer of the court.' (351 Ill. at p. 256, 184 N.E. at p. 352.) An attorney whose conduct has been questioned must, therefore, appear for examination under oath, and must submit for examination whatever records are in his possession relevant to the inquiry. If, from his testimony alone, his conduct clearly requires discipline, there is no question but that discipline should be imposed. See, In the Matter of Cohen, 9 A.D.2d 436, 195 N.Y.S.2d 990; and, as to the operation of section 60 in other civil cases, Kapraun v. Kapraun, 12 Ill.2d 348, 146 N.E.2d 7.

Count II of the complaint concerned the relationship of the respondent with his client, Jasper A. Malito, in the settlement of a claim for personal injuries and the disposition of the funds received in the settlement. The complaint charged that the respondent converted to his own use the sum of $1,476 received from such settlement.

Jasper Malito retained the respondent to represent him in a claim for personal injuries sometime in January of 1960. This claim was settled on November 24, 1960. A draft for $2200 was issued by the insurance company payable to Jasper Malito and the respondent on November 28, 1960. Sometime in November respondent obtained from Malito a power of attorney authorizing him to sign releases, drafts and other papers pertaining to the settlement of the claim. Pursuant to the power of attorney, the respondent endorsed the $2200 check, cashed it, and retained all of the proceeds. It is admitted that, at the time of the receipt and the cashing of the check, respondent did not notify Malito of the settlement and collection of the proceeds thereof.

Malito and the respondent disagree as to what happened during the next few months. Malito states that after signing the power of attorney he called the respondent in December, January, February, March, and April, and each time was told his case was still pending. He also testified that in April he telephoned the insurance company and was told that his case had been settled and a check issued on November 28, that he then telephoned the respondent, informing him of this fact and davising him that he planned to make a complaint to the Chicago Bar Association. He further testified that the respondent then said he would pay the money due in May of 1961, some six months after its receipt. At that time respondent paid Malito $300 and gave him a post-dated check for $962.50, after deducting fees, expenses and doctor bills. The check when presented was dishonored due to a lack of funds in respondent's trust account. In the second week of June it was replaced by a check on respondent's personal account which was honored by respondent's bank.

Respondent testified he talked to Malito only once or twice from November to May and did not advise him his case was settled until February or March when he also told him he would arrange for a settlement sometime in March, and that settlement was finally made in accordance with Malito's testimony.

The respondent seeks to explain the delay by testifying he was attempting to secure a reduction in the doctor's bill; that he had been mixed up for several months due to certain illnesses in his family. He seeks to refute the claim of conversion by stating that he didn't remember what he did with the proceeds of the $2200; that most of it was in currency money orders which he either carried with him or kept at home in a drawer.

The respondent admitted however that 'it would have been a simple thing for me to have endorsed one...