People Ex Rel. Chicago Bar Ass'n v. McCallum

173 N.E. 827, 341 Ill. 578

• Court: Illinois Supreme Court
• Decided: October 25, 1930
• Docket: No. 17408. Rule discharged.
• Status: Published

Opinions

Mr. Justice Heard

delivered the opinion of the court:

Relator, the Chicago Bar Association, in the name of the People, upon leave granted, filed an information, consisting of three counts, in this court to disbar respondent, William Wallace McCallum, for alleged improper conduct and practices as a lawyer. Respondent answered the information, denying the charges, and the cause was referred to a commissioner to take the evidence and report his conclusions. The commissioner found that the charge in the first count of the information had not been sustained and the charges in the second and third counts had been sustained, and he recommended such disciplinary action as this court might deem proper. Relator filed exceptions to the finding upon the first count and respondent filed exceptions to the findings on the other two counts.

The first count of the information charged respondent with prosecuting in the circuit court of Cook county a fraudulent claim for personal injuries against the Chicago, Burlington and Quincy Railroad Company knowing the same to be fraudulent.

The evidence shows that respondent was admitted to the bar in 1907 and has practiced in Chicago. During the last few years his practice has been confined almost exclusively to personal injury claims against public service corporations, and particularly against railroads in which the injuries occurred in interstate commerce. He maintains an office in which he has a stenographer and several male employees, among whom was his brother, who is not a lawyer. It is charged that the brothers are engaged in the practice of the law; that they and their male employees solicit personal injury cases, make contracts with injured persons and financially sustain their claimants pending trial. Respondent was the attorney in several cases against the Chicago, Burlington and Quincy Railroad Company, which company will be referred to as the railroad company. Some of these cases were tried and others were settled. Attorneys who handled these cases for the railroad company decided to set a trap for respondent.

On the recommendation of certain Minneapolis attorneys, lawyers for the railroad company engaged D. L. Scanlan, who under the name of D. J. Donahue appears in this case. Scanlan and one Perry, a claim agent of the railroad company, put the plan into operation. Scanlan was to work as a switchman for the railroad company, was to be found in an apparently injured condition, and was to be taken to the Mercy Hospital, in Chicago. He was to simulate paralysis of the right arm and leg and was to retain respondent as his attorney. Scanlan, before the alleged injury, was taken by Perry to a physician who had been employed by the railroad company from time to time. This physician instructed Scanlan as to the nature of paralysis and how he should act if paralyzed. Scanlan was then taken to two other physicians and there demonstrated his ability to pretend paralysis. Among them was Dr. Sullivan, of Mercy Hospital, who was later in charge of Scanlan at that hospital. Dr. Sullivan was not informed as to the actual facts but was asked to examine Scanlan and diagnose his case. He tested, him for paralysis by means of electricity and otherwise. He was not certain whether Scanlan was paralyzed or not. Shortly before the happening of the supposed accident Scanlan met Joe Hennessey, who was employed by respondent and was later in the employ of the railroad company. Scanlan was employed by the railroad company as a switchman under the name of Donahue. On November 5, 1924, he purposely took a cotter-key from the pin-lifter of a car, took hold of the pin-lifter and purposely fell to the ground. He bit his lip, and when he was found by the train crew blood was coming from his mouth. He pretended to be partly unconscious, paralyzed on his right side, and was removed to Mercy Hospital. A day or two later he was visited by Hennessey, whether at his request or not does not clearly appear. Hennessey set to work to have the respondent employed to represent Scanlan in his claim for damages. In a day or two Hennessey and the McCallum brothers called at the hospital to see Scanlan. They were informed - by the nurse that the patient could not have visitors and they were requested to leave; On the evening of November 12 Scanlan was moved from Mercy Hospital to St. Luke’s Hospital. On the next day after he was removed a contract was entered into between Scanlan and respondent for the prosecution of his action for damages. Scanlan remained in St. Luke’s Hospital until November 29, when he was removed to the Sheridan Plaza Hotel. Later he was taken to the Parkway Hotel and finally to the Sherman House, where he remained until the case was reached for trial. All of the hospital bills, doctor bills, hotel and other expenses were paid by the McCallums. After Scanlan was removed from Mercy Hospital he was examined by two physicians, both of whom testified on the trial. On November 18 suit was commenced by respondent as attorney for Scanlan. Within a few days summons was served, a declaration was filed and the cause was at issue. On December 9 a motion was made by respondent to advance the case for trial. In support of this motion an affidavit was filed by Scanlan and another by respondent, the substance of which will later be considered. As a result of these affidavits the case was advanced and was finally called for trial on February 11. Scanlan appeared in court in apparently a crippled condition, with his right arm limp and resting against his body, his right leg was dragging and he supported himself with a cane, which he carried in his left hand. Three physicians testified that in their opinion Scanlan was suffering from paralysis of the right side, involving the arm and leg; that such opinions were based on objective symptoms; that they were absolutely certain of their diagnosis, and that they could not have been fooled by Scanlan. One of them testified that in his opinion Scanlan had suffered a fracture at the base of the skull and a fracture of the fourth lumbar vertebra. After the trial had proceeded for two days Scanlan was called as a witness. He was asked whether he had previously been injured, and replied that he had; that several times he had falsely claimed to.be injured, and that he had extorted money from railroads, including over $2000 from the Burlington road. The court called the attorneys and Scanlan into his chambers. Scanlan there stated that he was not crippled, that he had no injuries, and he demonstrated his condition by laying aside his cane, walking as a normal, healthy person and by freely using his right arm and hand. He informed the court that he was in the employ of the railroad company; that his suit was fictitious and was brought for the purpose of entrapping the McCallums. The attorney for the railroad company admitted that Scanlan was in his employ and that he knew all the time that this was a fictitious suit. The court ordered attachments against all of these parties and an exhaustive investigation was started, which lasted about two weeks. At the close of the investigation the court censured the attorneys for the railroad company who had caused the fraud to be perpetrated on the court, but did not impose any punishment for contempt. He held that the McCallums and Scanlan were guilty of contempt, and the McCallums were each fined $250 and Scanlan was sent to jail for one day.

The first count of the information grows out of a scheme to entrap respondent and is therefore subject to grave suspicion. Scanlan, who was the chief actor in the scheme, is a disreputable person, who has been engaged in fraudulent and criminal practices, and, except where he is corroborated, is unworthy of belief. He testified that he revealed to respondent that he was not injured and was feigning paralysis and that respondent agreed to join him in the prosecution of a fraudulent claim against the railroad company. He contradicts himself many times during the course of his testimony and is contradicted on many important points by credible witnesses. Two witnesses testify that they were concealed in a closet in Scanlan’s room at Mercy Hospital on the evening he was moved to St. Luke’s Hospital, and that just before he was removed respondent had a conversation with Scanlan in which they talked about framing a case, and the witnesses could see, through an opening in the door, Scanlan demonstrating to respondent that he was not paralyzed. Respondent, his brother, the hospital employees, and the two men who carried Scanlan out of the hospital to the ambulance, all testify that respondent was not in Scanlan’s room at the time this alleged conversation took place. Respondent’s brother was in the room on this occasion and made the arrangements to move Scanlan from Mercy Hospital to St. Luke’s Hospital.

Scanlan’s feigning of paralysis was so perfect that he succeeded in deceiving several very reputable physicians, among them the head of the medical staff of a high-class hospital, and another physician, who was prominent in civic affairs, was physician for several railroads and had frequently appeared in court for defendants, among them the Burlington Railroad Company.

Several of Chicago’s most reputable lawyers, including John D. Black, former president of the Illinois State Bar Association, whose firm represented the Michigan Central, the Chicago, Indianapolis and Louisville, the Chicago Great Western, the Chicago Junction and the Canadian Pacific railroad companies, and the receivers of the Chicago and Alton Railroad Company, who had known respondent ten or twelve years; Vernon W. Foster, district attorney for the Illinois Central Railroad Company, who had known respondent during all the years of respondent’s practice; Nelson J. Wilcox, an attorney for the Chicago and Northwestern Railroad Company, who had known respondent five or six years; John L. Mclnerney, an attorney representing the Soo Line, who had known respondent since 1914; L. L. Smith, who had represented the Chicago, Indianapolis and Louisville, the Monon and the Grand Trunk railroad companies, and had known respondent for fifteen or sixteen years, and Joseph L. Earlywine, whose firm represented the Elgin, Joliet and Eastern Railway Company and other railroad companies, who had known respondent for twelve years, each of whom had had occasion during their acquaintance with respondent to come in contact with him many times with relation to claims which respondent's clients had against the railroad companies represented by the witnesses, testified that during all their dealings with him they always found him fair, just, frank and ethical, making full disclosure of his client’s case, with the names of witnesses and their residences, with the privilege of communicating with the witnesses and verifying their reports, and that whenever the extent of the injury was in dispute he always permitted a physical examination of his client by the surgeons of the company, when requested. E. A. Vogel, a claim agent of the Chicago, Rock Island and Pacific Railroad Company having charge of the handling of personal injury cases in and around Chicago for that company, gave like testimony with reference to his experience. Where an attorney by his conduct has built up for himself a reputation for honesty and fair dealing, when his integrity as a lawyer is assailed such reputation is a circumstance strongly tending to prove his innocence.

When the evidence in this case is considered in the light of all the circumstances in evidence, taken in connection with respondent’s past record for honesty and fair dealing in the handling of his cases, we are of the opinion that relator has failed to prove respondent guilty of the charge contained in the first count of the information.

The second count of the information alleged that false and fraudulent affidavits, known to be so by respondent, were presented to the circuit court for the purpose of inducing the court to grant an order advancing said cause to trial ahead of its regular place on the calendar. On December 9, 1924, respondent made a motion in the circuit court to advance the case of Donahue against the railroad company out of its regular place on the calendar and for an early trial. In support of this motion two affidavits were presented to the court, one signed and purporting to be sworn to by the plaintiff in the suit, Donahue, and the other purporting to be signed and sworn to by respondent. In Donahue’s affidavit he stated that on November 5, 1924, he was employed by the Chicago, Burlington and Quincy Railroad Company as a switchman in its railroad yards at Chicago; that while so employed on said date he was seriously injured and in consequence of the same was confined in the Mercy Hospital, in the city of Chicago; that he has been informed by his doctor that his back is broken and that he is permanently injured for life and is paralyzed and totally disabled from assisting himself; that at the time of the accident his only means of income and support were his daily wages; that he had no other means upon which to depend to support and maintain himself and family, which consisted of his wife and two small minor children totally dependent upon him; that he is in urgent need of medical care and attention on account of his physical, critical condition; that he has no money and friends to secure such help and that he has exhausted all means in trying to secure help from his friends and relatives; that he is now confined to his home in a helpless condition and unable to seek employment to maintain himself; that he has employed respondent as his attorney; that he has been informed by his attorney that he has a good, meritorious cause of action against the railroad company and believes that he is entitled to an immediate trial of his lawsuit. Respondent in his affidavit said that he was the attorney for Donahue; that he had investigated the facts and the law in connection with the case and believed that Donahue has a good, meritorious cause of action against the railroad company, and that he believed that the facts set forth in Donahue’s affidavit are true and that he is entitled to an immediate trial of the lawsuit, and asked that the cause be set down for trial at an early date. It is claimed by relator that respondent was guilty of misconduct in filing these affidavits, in that he knew that the facts stated therein were not true and that the affidavits were made for the fraudulent purpose of advancing the trial of the cause out of its regular order.

It is true that many of the statements contained in Donahue’s affidavit were untrue and known to him to be untrue. As to respondent, however, the facts are entirely different. Respondent in his affidavit did not state that the facts alleged in Donahue’s affidavit were true but only that he believed them to be true. It is claimed by relator that Donahue’s statement that he was in urgent need of medical care and attention on account of his critical, physical condition and that he had no money and funds therefor and that he had exhausted all means in trying to secure help from his friends and relatives was untrue, and that respondent knew the same to be untrue for the reason that the McCallums had for some time been supporting Donahue and paying his expenses at a hotel in Chicago. It is true that Donahue’s statement in regard to his need of medical care and attention and his lack of funds therefor was untrue for the reason that at that time he was in the employ of the railroad company and yet such fact was not known to respondent, and while respondent and his brother had advanced money to Donahue for his personal expenses and for assistance to his family yet they were under no obligation to do so. It is also claimed that respondent knew that Donahue was not confined to his home in a helpless condition. While respondent knew that Donahue had a family residing in Minnesota, yet prior to his supposed injury he had left his family there and taken a presumably permanent job with the railroad company, and for some time prior to the making of the affidavit he had been confined to his room in the Sherman House in an apparently helpless condition. While technically this room in the Sherman House may not have been Donahue’s home, this is a mere technicality, as respondent knew that such room was then Donahue’s present place of abode, that he was confined therein in an apparently helpless condition, and that he was apparently in urgent need of medical care and attention on account of his physical, critical condition. As we have seen, respondent at that time had no knowledge whatever that Donahue’s condition was feigned, but, on the contrary, he had every reason to believe from the statements made to him by Donahue, taken in connection with his apparent physical condition, that he was in a helpless, and apparently critical, physical condition. Donahue’s statements to respondent as to his physical condition were corroborated by written statements made to respondent by reputable physicians who claimed to have made a thorough physical examination of Donahue. There is no evidence showing or tending to show that at the time respondent made the affidavit in question he did not believe the facts therein stated as to Donahue’s physical and financial condition. If those facts were true, then Donahue was entitled, under the rules of practice, to have his cause advanced for a speedy trial, and it was immaterial whether he was confined to his home or was confined under like conditions in a room in the Sherman House. The charge in the second count of the information is tantamount to a charge of perjury against respondent, and the evidence in the case falls far short of the degree of proof required to substantiate such charge.

The third count of the information charged that respondent was engaged in the' practice of his profession in association with his brother, James A. McCallum, who is not a lawyer, and that the business of the office was conducted in such a manner as to bring about a division of fees for legal services by respondent with James A. McCallum and with other persons not admitted to practice law, and that respondent thus fraudulently enabled and permitted his brother to engage in the practice of law without a license from this court; that respondent employed solicitors and actively sought business by direct solicitation; that he contributed money to maintain his clients as a regular system, and advanced court costs and charges to his clients contrary to law and to the ethics of the profession of the law, and that in the solicitation of cases he sought to secure clients by representing, as an inducement to employ him, that he would liberally maintain the client during the pend-ency of the litigation. There is evidence in the case tending to show that prior to November 22, 1924, a' relationship which in law would constitute a partnership existed between respondent and his brother, who is not a lawyer. On that date the grievance committee of the Chicago Bar Association, through its attorney, asked respondent to treat as a complaint against him a recent opinion of the Appellate Court. Respondent answered that communication in a lengthy letter under date of November 26, 1924, in which he stated the relationship existing between himself and his brother and that in his opinion there was nothing improper in such relationship, but stated, “I think I now understand the distinctions that the courts make, and whether the arrangement I had with my brother is proper or improper, I will see to it that in the future our arrangements are such that they cannot be criticised.” The grievance committee passed upon the question after giving the matter careful consideration and abandoned its proceedings and no court action was taken by the bar association on that complaint after respondent had made his answer thereto. Without going into the evidence in detail, we are of the opinion that it shows that since that time, while J. A. McCallum was connected with the office of respondent, his connection was that of employee and not of a partner.

The evidence shows that at various times the McCallums have advanced living expenses to needy clients who had claims for personal injuries against railroad companies where respondent had a fee contract, which was a lien upon any damages which might be recovered upon the injury. In most such cases the clients were unable to work, had no money or property, and their only asset was the claim for damages against the. railroad, upon which respondent had a lien. We know of no law which makes it more unethical, under such circumstances, to advance living and medical expenses to the client, and so prevent his becoming a public charge, than it would be, if the client’s only asset were a piece of real estate, to advance him, on a mortgage thereon, money for such expense. It is not uncommon for attorneys to commence actions for poor people and make advances of money necessary to the prosecution of the suit upon the credit of the cause. Thus a man in indigent circumstances is enabled to obtain justice in a case where without such aid he would be unable to enforce a just claim. (Christie v. Sawyer, 44 N. H. 298; Shapley v. Bellows, 4 id. 355.) The practice of advancing money to the injured client with which to pay living expenses or hospital bills during the pendency of the case and while he is unable to earn anything may in a sense tend to foment litigation by preventing an unjust settlement from necessity, but we are aware of no authority holding that it is against public policy or of any sound reason why it should be so considered. (Johnson v. Great Northern Railway Co. 128 Minn. 365; Potter v. Ajax Mining Co. 22 Utah, 273.) By canon 42 of the ethics of the American Bar Association it is permissible for an attorney to advance costs and court charges for his client, with the understanding that the same are to be ultimately paid by the client.

Much evidence was heard on the subject of solicitation of business. The railroad company, with the aid of two of respondent’s employees whom it had corrupted, after the expenditure of much time and money in interviewing former clients of respondent, produced some who testified that their cases had been solicited by persons purporting to represent respondent, while respondent produced many of his former clients to testify to his fair dealing and that they had taken their cases to him by reason of his general reputation among the railroad men as to his success in personal injury cases. Railway Men’s Union officials testified as to his reputation in that respect among the Railway Union men. Respondent testified that he had not personally solicited any claim. When the evidence is all considered we are of the opinion that it shows some solicitation on the part of persons purporting to represent respondent and that he had knowledge of such solicitation. The undisputed evidence in the case is that it was the general report that all personal injury lawyers in Chicago had solicitors out. The fact that other personal injury lawyers had solicitors for the purpose of procuring business for them, however, is no justification in this case. Its only relevancy is that it is one of the circumstances to be considered, together with all the other evidence in the case, as to respondent’s motive and intention. It is a practice, however, which is contrary to the canons of ethics of the State and the American Bar Associations. The American and the State Bar Associations are not legislative tribunals, and their canons of ethics are not of binding obligation and are not enforced as such by the courts, although they constitute a safe guide for professional conduct in the cases to which they apply, and an attorney may be disciplined by this court for not observing them. (Hunter v. Troup, 315 Ill. 293.) This court has by way of dictum said that all forms of advertising are not to be understood as forbidden or to be considered as unethical or unprofessional; that the canons of ethics of the American Bar Association recognize the publication and circulation, as a matter of convenience, of ordinary business cards stating the attorney’s name, location, his specialty in the law, (if he has one not prohibited by law,) and making reference to responsible persons from whom his standing and responsibility may be learned by persons in need of such an attorney, or to advertising, to the extent indicated, in any publications that are circulated among lawyers and business men who may require the services of an attorney in a foreign city or State, or even in a local municipality, provided no improper contract is exacted of the patrons or the advertisement is unaccompanied by self-laudatory statements by the attorney or the newspaper editor or proprietor. The dividing line between advertisements of that character and advertisements by means of business cards circulated among men who are in urgent need of an attorney to safeguard their interests, by persons who are paid a fixed salary, not contingent upon their success in procuring clients, and where no fraud or misrepresentation is used, is exceedingly narrow. In each case the money expended by the attorney is for thé object of bringing his name to the attention of persons in need of legal services.

The discretion of courts in disbarment proceedings is not to be exercised in an arbitrary manner, but in accordance with legal rules and principles, in determining the guilt of the party charged. As some infractions of the Criminal Code are more serious than others and call for a much higher grade of punishment, so it is with infractions of the canons of ethics. The offense of the solicitation of business charged against respondent is not one which imports, neither does the evidence produced in support thereof show, venality, criminality, fraudulent practices or moral turpitude on his part. We are of the opinion that while the circumstances of this case are not such as call for the disbarment of respondent yet they cannot lightly be passed over. Conduct such as respondent’s in soliciting business is deserving of severe censure by this court, and persistence therein would justify disbarment.

The motion of relator that the rule be made absolute is denied, and, with this censure, the rule is discharged.

Rule discharged.