I find that I am unable to agree with the majority of the court in the present case.
I am of the opinion, that, while ordinary disputes between counsel and client concerning the apportionment of funds in the hands of the attorney must be determined in the usual manner like other disputes, a consideration of the circumstances surrounding *Page 452 the present dispute is sufficient to differentiate it from a mere controversy over the amount of the attorney's fee, or the value of his services to be deducted from the fund in question, and to warrant the disciplinary action of this court in respect to one of its officers. The circumstances referred to consist of the admitted facts; that the attorney had not only ceased to act for the complainant but was acting for his adversaries and was using against him the knowledge obtained while in his employ, and was holding over him the prospect of a slander suit in which the attorney was to be the plaintiff. Such condition of affairs was unfavorable to the client, and gave him no opportunity to calmly consider his rights in the premises, and a settlement arrived at on such an occasion should be scrutinized closely. If the counsel obtained an unfair advantage of his former client in such a manner, he should not be permitted to retain it.
I am of the opinion that the conduct of the attorney in attempting to represent the legatees after he had been counsel for the executor of the estate, was highly improper and should be punished.
I am also of the opinion that the settlement made as claimed by the counsel should not be permitted to stand, and that the respondent should be required forthwith to repay to the complainant the sum of $725 with interest from October 1st, 1909, and also be required to withdraw from all future participation in the prosecution of claims against the estate of Mary E. Holden, of which the complainant is executor.