In re Z

GOODE, J. Proceedings instituted in a court of this State to disbar an attorney at law, are dominated by the statutes in so far as the latter relate to the transgressions with which he is charged. If he is accused of an indictable offense, and that is the basis on which his removal or suspension from practice is sought, but the charge does not allege a conviction, he can only be suspended from practice for six months; if no indictment is found or if one is found but not prosecuted to a trial within that time, the suspension must be discontinued unless the delay was produced by the absence or procurement of the accused. The record of conviction or acquittal of any, indictable offense is conclusive as to the facts in all cases and controls the disposition of the disbarment proceeding. Secs. 4929, 4930, 4931 and 4932, R. S. 1899; State ex rel. v. Gebhardt, 87 Mo. App. 542. Our legislation in reference to disbarment is rather full, indicates a State policy on the subject, and renders precedents from outside jurisdictions to some extent inapplicable. But the power to suspend or remove from practice exists for other causes than indictable offenses. “Any attorney or counsellor at law who shall be guilty of any felony or infamous crime, or improperly retaining his client’s money, or of any malpractice, deceit or misdemeanor in his professional capacity, may be removed or suspended from practice upon charges exhibited and proceedings thereon had as hereinafter provided.” Sec. 4924, R. S. 1899, see, also, sec. 4936; State ex rel. v. Gebhardt, supra; In re Bowman, 7 Mo. App. 569; State ex rel. v. Harber, 129 Mo. 271. The complaint in this case does not charge the respondent with having committed a crime, nor are we convinced by the evidence that he did commit one. Without pausing to consider, then, whether the language of the statute requires that a respondent be charged with an indictable offense [434] in order to bring Mm witMn the provision that be must be indicted and convicted of it before final sentence of suspension or removal can be pronounced against him, or whether it is enough if the facts show he has committed a crime, though not charged with one, we find the evidence establishes .that the respondent has been guilty of malpractice and deceit in his professional capacity. We find this in respect to his obtaining the money from Thomas O. Wengler to compromise his mother’s lawsuit with Johnson and then keeping it. It may not be perfectly clear that he obtained it with the corrupt purpose of appropriating it to his own use, but it is clear that he did after-wards appropriate it and employ various shifts and subterfuges to retain it and at the same time prevent too hostile measures being taken against him. The point is made that he was not attorney for Thomas O. Wengler who furnished the money and therefore was not culpable in his professional capacity. That position is untenable. Leaving out of view the fact that Wengler was attending to the litigation as his mother’s agent, it is beyond doubt that the respondent’s professional character was trusted when Wengler gave him the check. A similar question was raised in re O-, 73 Wis. 602. There the respondent had obtained thirty dollars from a garnishee against whom he was conducting a suit as the attorney for the plaintiff, on the representation that he would pay the money to his client in satisfaction of the claim. Afterwards,,the garnishment was dismissed on account of a defect therein, but the attorney refused to return the money to the garnishee' and converted the same to his own use. Ee made various promises to pay it, but never did. The garnishee in a subsequent case was compelled to pay the debt again to the original plaintiff. The opinion says, “The accused received it (the money) from the garnishee by reason of the confidence reposed in him as an attorney in the case. That [435] confidence was misplaced and by reason of it the garnishee was compelled to pay the money over again. Such professional misconduct is just as reprehensible as though he had used his client’s money without consent and then failed to pay it over when demanded.” The last remark becomes very pertinent when compared with our statute making the improper retention of a client’s money ground for disbarment. Sec. 4924, R. S. 1899. See, also, In re Orwig, 5 Cent. Digest, p. 1471. A New York statute provided for the removal of a solicitor who had been guilty of any deceit, malpractice or misdemeanor; concerning which the Court of Chancery said, “It is not necessary that the deceit should be practiced in a suit which is actually pending in this court; it is sufficient that it is done in his character of solicitor.” In re Peterson, 3 Paige’s Ch. 511. To the same effect are Slemmer v. Wright, 54 Iowa 164, and State ex rel. v. Burr, 19 Neb. 593. It was as an attorney and counsellor at law who represented professionally his mother, that Thomas O. Wengler reposed confidence in the respondent and placed funds in his hands for a definite purpose; the respondent abused the trust and fell from his high estate by keeping the money. Such misconduct plainly comes within the letter and spirit of the statute last cited. The words “misdemeanor in his professional capacity” are not technically used, but mean simply professional misbehavior. In re Bowman, 7 Mo. App. 567. Eespondent may be proceeded against for his misconduct in this court. Sec. 4925, R. S. 1899; In re Whitehead, 28 Ch. Div. 614; People v. Green, 7 Colo. 237; Ex parte Brown, 1 How. (Miss.) 303; In re Bowman, supra. The document which was prepared with a view to the adjustment of the differences between the respondent and the Wenglers, looking, perhaps, to a dismissal of this prosecution constitutes no defense. It may be, as suggested, that the main purpose of the informant in instituting the proceeding to disbar [436] was to coerce the respondent into paying him and his mother money. Be that as it may, issues were made up, the case went to trial and evidence was taken and is before the court which convinces us, beyond a reasonable doubt, that the respondent is guilty of misconduct so reprehensible and dishonest that it amounts to a statutory cause for suspending him from the practice of his profession. We can not ignore this proof and dismiss the charges, whatever the motive of the prosecutor may be. Anonymous, 9 L. T. 209. It has often been said that the object of disbarment is not punishment, though the result is of course severely penal. “The courts in such eases exercise their discretion whether a man they have formerly admitted is a proper person to be continued on the roll or not,” said Lord Mansrijeld in Ex parte Brounsall, Cowper 829. This language was approved in Ex parte Wall, 107 U. S. 265. It was said in Ex parte Peterson, 3 Paige’s Ch., supra: “Solicitors, attorneys, and counsellors are admitted to practice and are entitled to special privileges under the laws of the State, for the purpose of enabling them to be useful to their fellow citizens in the ascertainment, prosecution and defense of their legal and equitable rights. And if such officers abuse the trust which has been thus reposed in them, and conduct themselves in such a manner as to become a nuisance rather than a benefit to the community in which they reside, it is the duty of the courts in which they practice to remove them from their office; as well for the protection of the public as to preserve the character of an honorable and useful profession.” The evidence has convinced us that the plaintiff is guilty as charged in the first count of the information, of obtaining eighty-fivé dollars from Thomas O. Wengler in his professional capacity and afterwards dishonestly appropriating the same to his own use. It is a painful duty to have to deprive a man of his [437] means of supporting himself and family for ever so short a time, yet it is not for us to discuss the wisdom of such discipline. The statutes of the State leave no other course open; but we feel impelled to make a judgment of that kind as lenient as we consistently may. It is, therefore, considered and adjudged that respondent Z. be suspended from the practice of his profession as an attorney at law in the courts of this State for a period of six months from this date and that he pay the costs of this action.