McGrath v. State Bar

THE COURT.-

— By an order to show cause issued on November 24, 1941, petitioner was charged with professional misconduct. A hearing was scheduled before a local administrative committee of The State Bar on February 3, 1942, and the complaining witnesses, Edna Darambouro and her son-in-law, Dave Greenblat, were subpoenaed to appear. Because of their late arrival at the first hearing they could not be heard. Two continuances were ordered by the committee to enable them to testify, but they failed each time to appear. Petitioner, however, appeared and testified, and upon his stipulation that the appearance of the complaining witnesses was not necessary to establish his defense, the examiner’s request for another continuance was denied and the matter was ordered submitted on March 12, 1942.

The committee made the following findings of fact: Petitioner was employed and paid the sum of $40 by Edna Darambouro to recover possession of real property that she had purchased in May, 1934, from the estate of William F. Hogan, deceased. He filed suit against Marcelle H: Sheldon, the occupant, in September, 1934, but abandoned the action when he learned that R. L. Husted, attorney for the administrator of the Estate of Hogan, had previously instituted a similar action on behalf of petitioner’s client and that judgment had been entered in her favor for possession of the property and for damages for unlawful withholding on October 2, 1934. Husted caused a writ of possession to be issued and execution to be levied against moneys due the judgment debtor as heir of the Estate of Hogan. On November 5, 1934, Patricia Sheldon, the judgment debtor’s daughter, filed a third party claim against the funds held by the sheriff as a result of the execution. On November 13, 1934, petitioner was substituted for Husted as attorney for Edna Darambouro. On October 9, 1935, the sheriff issued and delivered to petitioner a check for $395.76, representing the proceeds of the levy of execution. Petitioner did not report the collection of the judgment to his client. He cashed the check and from- the proceeds paid $60 to the attorney for Marcelle H. Sheldon to reimburse the judgment debtor for an over-execution in that amount. He also paid $100 to the attorney for the third

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party claimant in settlement of her claim. The third party claim had already been denied, without petitioner’s knowledge, by a court order under date of September 30, 1935, and it is uncertain whether Edna Darambouro agreed to the settlement of the claim. On October 17, 1935, petitioner paid $31.17 to Husted as reimbursement for costs advanced by the latter for Edna Darambouro. Petitioner retained the balance of the judgment, $204.59, despite his client’s demands for its remittance. He commingled the balance of the proceeds of the judgment with his own funds and expended it for his own use and benefit. Although he had no agreement with his client fixing the amount of compensation for his services, and although he did not submit a bill for his services, he retained the money as a means of bargaining with his client for the settlement of his claim for legal fees. His offer to remit $100 and retain $104.59 was rejected. He also performed other legal services for the Darambouro family without any agreement by Edna Darambouro to compensate him therefor. These services were rendered in the hope that the family would be induced thereby to concede bis claim to the balance of the proceeds of the judgment in excess of $100.