I agree that the charge based upon the so-called Olson matter should result in an acquittal. I do not agree that there was no reason for pressing it.
Respondent's treatment of Mrs. Sprague is of such a nature that in my judgment it constitutes misconduct so serious that it cannot be overlooked, even upon the ground that for nearly 40 years the respondent has been distinguished, both in his profession and out of it, to a degree far beyond the average. On April 8, 1926, judgment was ordered in Mrs. Sprague's favor to the effect that she was the owner of the fund in controversy. One M.H. Sprague of Grafton, North Dakota, is the son of the plaintiff. Respondent, by a letter of April 8, 1926, promptly advised him of the favorable outcome, saying also that he did not know whether or not there would be an appeal, and promising finally to "keep you promptly advised as to any new developments." Mrs. Sprague, the client, was not a resident of Albert Lea, where respondent lives, and it does not appear that he had any correspondence at all with her, except for the final letter later referred to. Whatever authority the son, M.H. Sprague, may have had to act for his mother, respondent certainly assumed that it was proper enough to correspond with him and inform him of progress made. There was no appeal, and on April 21, 1926, the case was disposed of by a final stipulation of settlement, pursuant to which there was then turned over to respondent non-negotiable securities of the value of $1,541 and Liberty bonds of the par value of $900, with matured interest coupons aggregating $125.08, the total being $2,566.08.
April 23, 1926, without report to his client and without her consent, respondent appropriated to his own use the Liberty bonds and accrued interest, an aggregate of $1,025.08. It is found that respondent claimed that he was entitled to the bonds for his fee, but *Page 279 that in fact "no bargain, agreement or contract with regard to fees was made between Nellie Mae Sprague or any one having authority to act for her and the respondent," except one implied from the fact of retainer, "to pay the reasonable value of respondent's services." The agreement which respondent claims is one alleged to have been made with Mr. T.V. Knatvold, who, respondent says, represented Mrs. Sprague in retaining him. Mr. Knatvold having in the meantime departed this life, there is no evidence of the alleged agreement other than that of respondent himself.
July 28, 1926, M.H. Sprague, writing for his mother, asked respondent to "send the notes, stocks and bonds either directly to her" or to a designated bank for delivery to her, together with a statement of account covering respondent's services. Mrs. Sprague was financially responsible and able to pay in money. Respondent ignored that letter. Again on August 11, M.H. Sprague wired respondent asking when he might expect an answer to his letter of July 28, which had been registered. On August 12, respondent replied, "Just as soon as I can dictate of course." True, respondent was somewhat incapacitated by sickness during the summer and fall of 1926, the finding being that he "was part of this time detained from his office on account of illness, but that said illness did not wholly prevent him from attending to his correspondence and other routine office business." He was in his office part of the time and attending to business there or elsewhere most of the summer. It is clear that during his absences his office was in charge of a competent stenographer, and it does not appear that she could not be depended upon to report what was going on and get off messages by letter or telegram even though respondent should give her nothing but the substance of the communication. Except for the implication in his telegram of August 12, that he would write "just as soon as I can dictate," he did not advise either Mrs. Sprague or her son that he was detained from his office by illness or otherwise. Anyway, he did not keep his promise to write M.H. Sprague as soon as he could dictate. He did not even reply to a courteous letter written by the judge before whom the case had been tried, advising him that M.H. Sprague was inquiring concerning the case *Page 280 and asking him, respondent, to "kindly write Mr. Sprague." He neither answered the letter nor complied with that, its one request.
Respondent's inaction continuing, on September 20, M.H. Sprague, again expressly "acting on behalf" of his mother, requested an answer to his former letters and telegrams, threatening "drastic action," in default of an accounting, and, specifically, that a complaint would be filed against respondent. That letter was delivered to respondent's office September 22. Again he did not reply. October 11, M.H. Sprague called personally on respondent at Albert Lea and demanded the securities, respondent refusing the demand. October 13, M.H. Sprague made formal complaint to the board of law examiners. There may be no connection between the two events, but on October 16, 1926, respondent caused to be mailed to Mrs. Sprague her securities, other than the Liberty bonds. He simply told his stenographer to mail them, which she did without any letter of transmittal or statement of account. They were misdirected, and fortunately returned to respondent October 25, 1926. He then remailed them to Mrs. Sprague at Grafton, North Dakota, this time accompanying them by a letter which detailed the inclosures. It referred to his "letter to you of some days ago, enclosing" them, although there had been no such letter. This, his final communication with his client, was accompanied by no statement of account, made no reference to fee or any claim that one had beenagreed on, and was silent concerning the Liberty bonds andaccrued interest. At no time did respondent make any claim that he was entitled to 40 per cent of the recovery, pursuant to agreement or otherwise, to Mrs. Sprague, to her son, or to anyone acting for them or either of them. That claim did not appear until after the charges under consideration.
The referee found that the reasonable value of respondent's services did not exceed $500. For respondent it is claimed that he had in any event earned all or more than he retained. That issue is not for us, but it may be mentioned that, before the commencement of the suit Mrs. Sprague had been offered $1,800 in settlement. It may be doubted therefore whether respondent, in any view of the case aside from that of express agreement, would be entitled *Page 281 to over $1,000 for bettering his client's condition only to the extent of about $750. The suggestion, in argument, that respondent's misconduct was such as to forfeit his right to compensation raises no issue for consideration here. See In re Disbarment of Buck, 171 Minn. 352, 214 N.W. 662.
It is urged that we should give respondent the benefit of the contingent fee agreement, which he claims was made, entitling him to 40 per cent of the recovery. The adverse finding is a stubborn obstacle. It is entitled to "the effect of a special verdict." G.S. 1923, § 9319. But in deference to the argument, so sincerely and persistently urged for respondent on this point, I have examined the evidence and must say that an opposite finding would be opposed to every trend of the record except alone the statement of respondent himself. The lawyer who has practiced so extensively as has respondent for nearly 40 years ordinarily does not appropriate to himself over $1,000 worth of his client's securities without telling her what he is doing and why; and if his action is based upon contract, it is explicitly made the basis of his action. Nowhere, through a correspondence extending over months, did respondent suggest a contract to justify his action. Worse than that, he did not tell his client or anyone representing her what he had done, and finally he attempted to close the matter without explanation. Respondent's silence, which so characterizes the res gestae, has grown into a significance vastly more than that of a mere negative circumstance. It has become an outstanding affirmative fact, persuasive if not conclusive, against the claim of a contract for 40 per cent of the recovery.
The foregoing discussion shows plainly that respondent was guilty of a conversion of the Liberty bonds. I do not overlook his attorney's retaining lien to secure his fee and disbursements. We may here indulge the assumption, impossible as fact, that respondent had a right to 40 per cent of the recovery. Allowing that, it remains that the client and not the attorney had the right to say how that fee should be paid. The securities were specific personal property belonging to the client. They were her property, and it was her right to take them upon paying respondent his fee and disbursements. *Page 282 Of that right she was denied by the wrongful act of the attorney. In any view of the case, even his own, respondent has been guilty of misconduct to that extent.
Likewise and again even from his own standpoint, respondent has been guilty also of misconduct towards his client in failing to advise her promptly of the settlement of the case and his acquisition of the resulting fund for her account. He did not account promptly or at all. That itself is misconduct. In re Disbarment of Yakey, 170 Minn. 21, 212 N.W. 13.
Another argument for respondent is that his client, Mrs. Sprague, never complained of his action and does not now complain. There is a finding to that effect. I consider it immaterial. Given misconduct of an attorney, the court of which he is an officer is not much interested in learning that for some reason or other the client is satisfied to have been mistreated. The private relation between attorney and client is not the thing at issue. It is rather the relationship of the profession and the courts to the public which they serve. So the fact should be ignored that here the client is not the complaining party. It is not her interest that is being served by this prosecution. The power to discipline erring attorneys "cannot be made to depend upon the inclination to prosecute by the particular client who may happen to be the victim of an attorney's misconduct." People v. Chamberlain, 242 Ill. 260, 267, 89 N.E. 994, 996. See also In re Webb, 37 S.D. 509, 159 N.W. 107.
The respondent's previous high character makes for credibility and leniency. But, given the demonstration of flagrant misconduct which we have, it is a queer kind of justice which can here acquit because of previous good character alone and in another case (In re Disbarment of Yakey, 170 Minn. 21, 212 N.W. 13), for a much less serious offense, suspend for two years. Certainly if there is justice in the one case, there is grave injustice in the other.
I do not consider it a case for disbarment, but I cannot find, and I have diligently searched for, any reason for letting the respondent go with only the mild and inadequate censure with which the majority content themselves. *Page 283