Tarver v. Board of Com'rs of Alabama State Bar

• Decision Date: 08 February 1973
• Citation: 290 Ala. 87,274 So.2d 61
• Parties: In re John D. TARVER v. BOARD OF COMMISSIONERS OF ALABAMA STATE BAR. In the Matter of John D. Tarver. SC 20.
• Court: Alabama Supreme Court

Page 61

274 So.2d 61

290 Ala. 87

In re John D. TARVER v. BOARD OF COMMISSIONERS OF ALABAMA STATE BAR.

In the Matter of John D. Tarver.

SC 20.

Supreme Court of Alabama.

Feb. 8, 1973.

Rehearing Denied March 8, 1973.

John D. Tarver, pro se.

William H. Morrow, Jr., Montgomery, for respondent.

PER CURIAM.

Petitioner, John D. Tarver, an attorney, seeks review of a resolution of the Board of Commissioners of the Alabama State Bar adjudging petitioner to be guilty of Charges TWO and THREE of a complaint heretofore brought against him by the Grievance Committee of the Huntsville-Madison County Bar Association. He was found not guilty of Charge ONE. Petitioner was given a suspension from the practice of law for three months and a public reprimand.

Following are the charges as last amended, viz:

'CHARGE ONE

(Violation of Rule 27, Section A)

'The said attorney did heretofore represent Flora S. Hortin and Francis Hortin and filed suits on behalf of his clients in the Circuit Court of the 23rd Judicial Circuit, cases No. 19875 and No. 19876. The said attorney negotiated a settlement of the above described cases on behalf of his clients for the sum of $5000.00. The said attorney agreed with his clients to disburse the proceeds of the settlement as follows: (a) To pay an indebtedness of his clients in the amount of $1107.00 to Dr. Paul H. Gilliam, chiropractic physician, 2608 Oakwood Avenue, N.W., Huntsville, Alabama; (b) to retain one-third as his attorney's fee; and (c) to disburse the balance to his clients. The said attorney negotiated with Dr. Paul H. Gilliam and induced him to reduce his bill from $1107.00 to $907.00. On, to-wit: June 5, 1970, the said attorney caused to be delivered to Dr. Paul H. Gilliam his check in the sum of $907.00. However, in disbursing funds to his clients, the said attorney deducted from two-thirds of $5000.00 the sum of $1107.00, and on to-wit: June 5, 1970, caused to be delivered to his clients his check in the sum of $2226.34.

'The said attorney acted in bad faith or with fraudulent purpose in wilfully failing to pay over money collected by him for his client in the sum of, to-wit: $200.00.

'The Grievance Committee charge that in doing the above described acts the said attorney was guilty of violating or failing to comply with Rule 27, Section A, of the Rules Governing the Conduct of Attorneys in Alabama, said rule providing:

'No person heretofore or hereafter admitted to practice law in Alabama shall:

'27. Misappropriate the funds of his client, either by failing to pay over money collected by him for his client, or by appropriating to his own use funds entrusted to his keeping, provided the circumstances attending the transaction are such as to satisfy the Board that the attorney acted in bad faith or with fraudulent purpose.'

'CHARGE TWO

(Violation of Rule 33, Section A)

'For Charge Two the Grievance Committee adopts all of the averments of the first paragraph of Charge One, and allege that the above described disbursements of money were made without advising his clients that the payment to Dr. Gilliam was in the amount of $907.00 rather than $1107.00.

'The Grievance Committee charge that in doing the above described acts the said attorney was guilty of violating or failing to comply with Rule 33, Section A, of the Rules Governing the Conduct of Attorneys in Alabama, said rule providing:

'No person heretofore or hereafter admitted to practice law in Alabama shall:

'33. Be guilty of deceit or wilful misconduct in his profession.'

'CHARGE THREE

(Violation of Rule 36, Section A)

'For Charge Three the Grievance Committee adopts all of the averments of Charges One and Two, and allege that the said attorney being guilty of a violation of Rule 27, Section A, and/or Rule 33, Section A, of Rules Governing the Conduct of Attorneys in Alabama, is guilty of conduct unbecoming an attorney at law.

'The Grievance Committee charge that in doing the above described acts the said attorney was guilty of violating or failing to comply with Rule 36, Section A, of the Rules Governing the Conduct of Attorneys in Alabama, said rule providing:

'36. No person licensed to practice law in the courts of the State of Alabama shall be guilty of any conduct unbecoming an attorney at law."

The circumstances out of which these charges arose, as stated in the 'STATEMENT OF THE FACTS' in petitioner's brief, are:

'The complaint filed by the Grievance Committee of the Huntsville-Madison County Bar Association before the Board of Commissioners of the Alabama State Bar contained three charges to the effect that Petitioner was employed by a woman and her husband in two cases that he filed arising out of the wife's accident, that he received certain monies as their attorney and that he failed to pay over to the clients, a certain portion (of) monies collected by him for and on behalf of the clients. Charge One of the complaint alleged in substance that the petitioners conduct in this regard was in violation of Rule 27, Section A, of the Amended Rules Governing the conduct of Attorneys in Alabama, 239 Ala. XXIII, et seq., 272 Ala. XXI, XXII, while Charge Two alleged that the Petitioner's conduct was a violation of Rule 33, Section A of the Rules, supra and Charge Three alleged that such conduct was a violation of Rule 36, Section A. of the Rules, supra.

'At the evidentiary hearing, the Grievance Committee's first witness was Mrs. Flora Hortin who employed Petitioner to represent her and her husband to recover damages for injuries sustained by her as a result of an accident in December, 1968. She testified that she received a call from petitioner with regard to settling her case and subsequently received a $2,226.34 check accompanied by a release to be signed by her and her husband. She testified that the attorney's check was negotiated but she refused to sign the release for the petitioner. Her testimony further revealed that she had been treated by a chiropractor regarding her injuries, Dr. Paul Gilliam. Mrs. Hortin stated that she had a conversation with Petitioner regarding court costs in her case but could not remember how costs were mentioned. She testified that she had no conversation with petitioner regarding the Chiropractor's bill but that she had found out soon after getting the check that his bill was $1107.00 but that Petitioner had gotten the doctor to reduce his bill by $200.00 and the doctor was paid $907.00 by Petitioner.

'Dr. Paul Gilliam was called next by the Grievance Committee and testified that he reduced his bill by $200.00 at the request of Petitioner. The Chiropractor stated he had seen Mrs. Hortin over 100 times and had started seeing her some time before the accident when he was treating her for a degenerative disease of Osteoarthritis. He stated that he failed to send the original bill to the Petitioner and probably advised him of the amount in a telephone conversation. He Stated that he and Mrs. Hortin were good friends and he did not mind reducing his bill. He testified that a portion of the $1107.00 bill was due because of his treating Mrs. Hortin for a disease which was unrelated to the accident and that he thought Mr. Tarver told him that Mrs. Hortin was not aware of the reduction when Petitioner got him to reduce his bill.

'Petitioner offered his own testimony to the effect that he had represented the Hortins in a claim for damages, had filed suit and negotiated with an adjustor who offered $5,000 to settle which was accepted by Mrs. Hortin in a telephone conversation. Petitioner stated that he didn't tell Mrs. Hortin about the reduction because he didn't want to hurt her feelings by bluntly telling her that Tarver thought she had been taken advantage of in that the amount of the bill was so high, and he was waiting to think of a tactful way to put it. Petitioner stated he advised Mr. Hortin that she would receive about $150.00 additional after court costs were paid which was in the settlement terms. Petitioner paid the Court Costs of $56.00 and delivered a check to Hon. Bill Morrow for $200.00 plus $12.00 interest which he delivered to Mr. and Mrs. Hortin.'

Petitioner's 'STATEMENT OF THE FACTS' suffers from several omissions, particularly as to the dates of various acts mentioned. To better understand the facts, the following dates are supplied, as well as certain other relevant facts.

The auto accident in which the Hortins were injured occurred December 23, 1968. In March or April, 1969, petitioner was employed as their attorney. There was no written contract of employment.

Petitioner advised the Hortins by telephone of the settlement offer of $5,000, and they accepted it. About a week before the checks were written on June 5, 1970, petitioner advised the Hortins by telephone that he had received the settlement check of $5,000. He particularly called to have them come by and sign releases.

Both petitioner and Mrs. Hortin appear to have known that the amount of Dr. Gilliam's bill was $1107 before the settlement was effected. It seems to have been understood between them that Dr. Gilliam's bill was to be paid our of the proceeds of the settlement.

The testimony of petitioner is unclear as to whether or not, at the time of the second telephone conversation, he had already negotiated the $200 reduction in Dr. Gilliam's bill. If not, it appears that he effected this reduction the same day he talked to Mrs. Hortin.

On June 5, 1970, petitioner drew checks on his trust account to Dr. Gilliam for $907, to the Hortins for $2,226.34, and the balance (including the $200 reduction in Dr. Gilliam's bill) to himself. The bank record of his trust account is shown to have been exhausted when these checks were paid, except for the small remainder of $1.02. In petitioner's testimony, he appears to maintain that the $200 never left his trust account.

After Mrs. Hortin received her check, she called petitioner and reminded him that he had told her he would send a list of...