In Re the Proceedings for the Disbarment of Kling (1919) · DecisionDepot

In Re the Proceedings for the Disbarment of Kling

Name: California Superior Court Tentative Rulings
Creator: DecisionDepot
License: https://creativecommons.org/licenses/by-nc/4.0/

California Court of Appeal Nov 12, 1919 No. Crim. No. 686.Published

Before: Shaw

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Holding. The court held that an attorney's actions, taken in good faith and without deception under an honest assertion of legal right, do not constitute moral turpitude even if based on a mistaken judgment of the law.

Issues

Whether an attorney's enforcement of a judgment, despite a prior unauthorized settlement by the assignor, constitutes moral turpitude warranting disbarment.

Disposition. reversed

Quotations verified verbatim against the opinion

“Moral turpitude cannot be predicated upon errors of judgment as to the law, or action had and taken in good faith by an attorney, openly and with notice to the adverse party under an honest assertion of legal right”

Synopsis

APPEAL from a judgment of tbe Superior Court of Los Angeles County. Leslie R. Hewitt, Judge.

The facts are stated in the opinion of the court.

[268]

SHAW, J.

This is an appeal by D. G-. Kling from a judgment of the superior court suspending him as an attorney and counselor at law from practicing his profession for a period of one year from March 10, 1919.

[1]

The trial court made no findings of fact, and, conceding that findings in such eases are not essential to the validity of a judgment, nevertheless it is a practice not to be commended.

Want of such findings renders it necessary for us to state at length the facts which we deem established by the evidence. It appears therefrom that appellant and his sister, R. J. Kling, were the proprietors of a collection agency known as the Atlas Law and Adjustment Company; that among their clients was Dr. A. J. Berry, for whom, prior to these proceedings, they had acted in the collection and adjustment of some two thousand different claims and aggregating in amount upward of thirty thousand dollars; that prior to appellant’s admission to the bar, which was in July, 1915, they, when necessary to bring suits upon claims intrusted to them for collection, employed an attorney for such purpose; that on August 15, 1914, Dr. Berry assigned to R. J. Kling, appellant’s sister, and one of the proprietors of the Atlas Law and Adjustment Company, a claim against T. L. Norris and wife, the amount thereof being $173.65, under an agreement that where suit was brought upon claims assigned, the assignee should pay all cost and expense, including attorney’s fees, incident to the bringing of such suit, and receive therefor as full compensation and reimbursement of expense made the sum of fifty per cent of the amount collected in such cases. The attorney to whom the matter was intrusted, in bringing the suit, included as defendants therein with Norris and his wife two other persons, to wit, Clyde Briggs and Augustin Huizar, against whom like claims had been assigned to the plaintiff, R. J. Kling, the total of which claims included in said action was $248.50. Due service was had upon all the defendants and judgment against them jointly taken for said sum. After this judgment was rendered a relative of the Norrises went to Dr. Berry and, as to the Norrises, induced him to accept $60 in full settlement of the judgment and in full payment thereof. This was on March 21, 1916, after appellant had been admitted to the bar, and at which time he,

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as attorney, represented the Atlas Law and Adjustment Company, and also the plaintiff in said action, E. J. Kling. In an effort to collect the judgment he called upon the Norrises, when for the first time he learned of the payment of this $60 to Dr. Berry and the fact of the giving of receipt. Thereupon he called upon the doctor and told him that owing to the fact that the claim had been assigned and judgment obtained thereon by the assignee which had an interest in the judgment, his act in settling the claim was unwarranted, and that while the Norrises were entitled to recover the $60 from him, he would credit the judgment with the sum, which in effect would be equivalent to its return. Kling thereupon caused the judgment against the Norrises to be credited with the sum of $60, charged Dr. Berry with one-half thereof as commission, payment of which was retained out of collections made for and on behalf of Berry, and caused a transcript of the judgment rendered in the justice’s court to be filed with the clerk of the superior court and an execution to be issued thereon and levied upon real estate owned by the Norrises. The amount for which the execution was so issued, however, was not the full amount of the judgment so rendered against the Norrises and their codefendants, Briggs and Huizar, in said action, but for the amount of the claim of Dr. Berry against the Norrises alone, to wit, $173.65, less such amounts as had been theretofore paid upon said claim against them. In other words, notwithstanding the fact that the judgment had been rendered against the Norrises for amounts due by their joint defendants, he only sought to recover from them the amount for which they alone were in fact liable. Of this action in thus levying the execution upon their property and advertising the same for sale, the Norrises had notice, and thereupon employed an attorney who unsuccessfully sought relief in the justice’s court by motion to quash and set aside the execution, and the property was sold under execution. Thereafter the judgment debtors brought a suit in the superior court to quiet title, which action was tried and, after being, held under advisement by the court for some three months, a judgment as prayed for was rendered in favor of the Norrises, from which, pending an appeal therefrom by the defendant in said action, to wit, E. J. Kling, the judgment creditor, a compromise was effected.

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Synopsis

SHAW, J.

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