41 Wn.2d 457, In the Matter of the Proceedings for the Discipline of G. E. LOVELL, an Attorney at Law
[No. C. D. 3881. En Banc. Supreme Court November 13, 1952.]
In the Matter of the Proceedings for the Discipline of
G. E. LOVELL, an Attorney at Law.«1»

[1] ATTORNEY AND CLIENT - THE OFFICE OF ATTORNEY - SUSPENSION - UNETHICAL CONDUCT. In disciplinary proceedings against an attorney, held that his actions with reference to the affairs of a client fell considerably short of acceptable standards of professional conduct and warranted the imposition of a suspension of three months.

Proceedings filed in the supreme court January 18, 1952, for the suspension of an attorney, upon findings of the board of governors of the state bar association recommending suspension. Judgment of suspension.

G. E. Lovell, pro se.

A. Vernon Stoneman, for the board of governors.

FINLEY, J. -

This appeal involves disciplinary proceedings instituted by the Washington state bar association against G. E. Lovell, an attorney, practicing in Spokane,

«1» Reported in 250 P. (2d) 109.

[1] See 5 Am. Jur. 415 et seq.

458 IN RE LOVELL. [41 Wn. (2d)

Washington. The association charged unethical and unprofessional conduct, summarized briefly as follows:

1. That attorney G. E. Lovell instituted a law suit (cause No. 118486, Spokane county) against the Old National Bank of Spokane and John Evans on behalf of Mary Witte, plaintiff, when he knew, or in the exercise of proper professional judgment should have known, that the plaintiff had no just cause against the defendant, and that the allegations of the complaint could not be proved; that such conduct on the part of Mr. Lovell violated canon No. 30 of the Code of Ethics of the legal profession, which provides:

"The lawyer must decline to conduct a civil cause or to make a defense when convinced that it is intended merely to harass or to injure the opposite party or to work oppression or wrong. But otherwise it is his right, and, having accepted retainer, it becomes his duty to insist upon the judgment of the court as to the legal merits of his client's claim. His appearance in court should be deemed equivalent to an assertion on his honor that in his opinion his client's case is one proper for judicial determination." Rules of Court, Professional Ethics 30, 34A Wn. (2d) 124, 138.

2. That he sued and took judgment by default in the sum of $2,500, plus costs and disbursements, against Mary Witte on behalf of Charles F. Hafer, plaintiff, when in fact G. E. Lovell was the real party in interest, and was the party of record, representing Mary Witte, in another pending law suit; and that, at the time of the default judgment, G. E. Lovell knew or should have known that Mary Witte was incompetent. Relative to this aspect of the matter, the general rule as to dealings between an attorney and his client was involved in In re Beakley, 6 Wn. (2d) 410, 423, 107 P. (2d) 1097, wherein we quoted from 7 C. J. S., Attorney and Client, § 127, as follows:

"`The relation of attorney and client has always been regarded as one of special trust and confidence. The law therefore requires that all dealings between an attorney and his client shall be characterized by the utmost fairness and good faith, and it scrutinizes with great closeness all transactions had between them. So strict is the rule on this subject that dealings between an attorney and his client

Nov. 1952] IN RE LOVELL. 459

are held, as against the attorney, to be prima facie fraudulent, and to sustain a transaction of advantage to himself with his client the attorney has the burden of showing not only that he used no undue influence but that he gave his client all the information and advice which it would have been his duty to give if he himself had not been interested, and that the transaction was as beneficial to the client as it would have been had the client dealt with a stranger.' 7 C. J. S., Attorney and Client, § 127."

3. That G. E. Lovell misrepresented significant facts to the court in cause No. 122522, Spokane county, thereby misleading the court and procuring a default judgment against Mary Witte, all of which constituted a fraud upon the court.

After a hearing on July 31, 1951, at which G. E. Lovell was duly represented by competent counsel and appeared as a witness in his own behalf, a trial committee of the Washington state bar association recommended to the board of governors thereof that G. E. Lovell be suspended and deprived of his right to practice law for a period of six months. Subsequently, at a meeting on December 15, 1951, in Spokane, after reviewing the matter, the board of governors concluded that the evidence previously presented to the trial committee was sufficient to warrant the following findings:

"That at the time the respondent commenced action #118486, he knew he could not prove the allegations of his complaint and started it to harass and injure the defendants; that when he took judgment by default against Mary Witte in Cause #122522, he knew she was verging on insanity and that his relationship should be one of special trust and confidence; and that in taking the said judgment under an allegation that Cause #118486 had been dismissed, the respondent committed a fraud upon the court."

Although agreeing with the findings of the trial committee, the board was of the opinion that the recommended penalty should be modified somewhat, particularly in view of respondent's age. Accordingly, a suspension from the practice of law for three months was recommended. We agree with the views of the board, on the basis of the facts as hereinafter discussed in some detail.

460 IN RE LOVELL. [41 Wn. (2d)

G. E. Lovell has practiced law in this state since 1902. For a number of years, he and Charles F. Hafer have occupied the same suite of offices at 410 Ziegler Building, Spokane, Washington. The latter is not a lawyer but is engaged in investigation, detective, and collection activities. It appears that over the period of years of their association Mr. Hafer referred numerous legal matters to Mr. Lovell.

Sometime during July, 1943, Mr. Hafer introduced Mary Witte to Mr. Lovell. Mr. Lovell became her attorney and represented her in extended litigation over the descent and distribution of property involved in the estate of Mrs. Witte's deceased husband. In this particular matter, he continued to represent her until the estate of her deceased husband was closed, April 25, 1947. The amount that Mrs. Witte realized from the estate was substantially increased, largely as a result of the litigation conducted by Mr. Lovell. For legal services in this matter, Mrs. Witte paid Mr. Lovell $12,316.

For some reason - which is not entirely clear from the evidence - Mrs. Witte called upon Mr. Hafer before the matter of her husband's estate was concluded (in which she was represented by attorney Lovell), and signed an agreement, ostensibly with Mr. Hafer, dated October 1, 1946, as follows:

"Mr. Charles F. Hafer has done some detective work for me and I have faith in his judgment. I desire him to be my agent and authorize him to investigate and hire an attorney to protect my right. I desire to bring a suit to collect from the Old National Bank and John Evans for the expenses they have caused me in carelessly and negligently managing the estate of E. A. Witte. I agree to pay Mr. Hafer the sum of $2,500.00 in full for bringing the suit, and he is to hire and pay for the attorney from that amount. This sum is to be payable at the termination of the suit in the Superior Court."

Apparently, somewhere there was some dissatisfaction over the manner in which the executor and the attorney for the estate of Mary Witte's husband had conducted themselves.