
    WHAT CONSTITUTES UNPROFESSIONAL CONDUCT.
    [Common Pleas Court of Butler County.]
    In the Matter of U. F. Bickley, ex parte.
    Decided, March, 1906.
    
      Attorney — Charges of Unprofessional Conduct against — Penal in Nature and Should he Strictly Construed — Must Involve Moral Turpitude within the Lines of Professional Duty — Charging and Collecting an Exorbitant Fee not Ground for Suspension from Practice, When— But False Representations as to an Order of Court Sufficient Ground for Suspension — Pleading—Disbarment Proceedings.
    
    1. The statutes make no provision for any demurrer to be filed to a charge of disbarment; nevertheless, the right is indirectly recognized in the 9th Ohio, where the Supreme Court passed upon a demurrer to charges of that kind.
    
      2. The statute, regulating the suspension and removal of attorneys from their office, is penal in its nature, and should be strictly construed.
    6. An attorney, by virtue of his admission to the bar, acquires a right of office to appear in all courts of record of the state, and to constitute a sufficient charge for misconduct in office, the conduct charged must relate to some act of such attorney in his office, and affect his conduct with the court, or the public administration of justice.
    4. A specification, under a charge of unprofessional conduct involving moral turpitude, which sets forth conduct which does not involve a professional act, but the conduct of an attorney, as a private citizen, is insufficient in law and does not state a cause, under the statute, for removal or suspension from office, and a demurrer thereto will be sustained, although the act charged amounts to a crime involving moral turpitude.
    5. A specification, under a charge of unprofessional conduct involving moral turpitude, which sets forth that an attorney made, presented and collected an exorbitant attorney fee from himself, as admin- - istrator, for the purpose of cheating and defrauding the estate, and does not set out that such charge and payment of fees was ever presented to the court for allowance, or entered upon the account of his administration, does,not state in law a good cause for suspension or removal from office, and a demurrer thereto will be sustained.
    
      6. A specification, wiLicli charges that an attorney, who is an administrator, falsely represented to creditors of the estate that he had been ordered by the probate court appointing him to pay but three per cent, interest on a note, when in fact no such order had ever been made, as he well knew, is unprofessional conduct involving moral turpitude, for which he will be held to answer.
   Kyle, J.

This case is submitted to the court upon the demurrer of the respondent to both of the charges, and to each specification in support thereof on two grounds?

First. That there are not facts sufficient set forth to require him to answer in these proceedings.

Second. That he should not under the law be required to answer in these proceedings.

The statute makes no provision for any demurrer to be filed to a charge for disbarment; nevertheless, the right to file a demurrer is directly recognized in The State v. Hands, 9th Ohio, -where. the Supreme Court passed upon a demurrer to charges against an attorney.

A demurrer to the charges was also sustained in the case of The State v. Bentley, 4th Ohio Decisions, page 362.

The demurrer in effect admits, for the. purposes of this hearing, all the allegations contained in the charges and specifications thereunder.

In determining this case as presented and submitted, I will consider the charges preferred in the order they are made a ground for removal from office under the statute.

Under the charge of misconduct in office, two specifications are set forth, and the question presented here for consideration on the demurrer: Is the- respondent required under the law to answer to the charge of misconduct in office under the specifications alleged and set forth, admitting them to be true as stated?

The first specification dn the charge of misconduct in office, alleges—

‘' That said U. F. Bickley, acting in the capacity of an attorney at law, and while acting as an attorney for U. F. Bickley, administrator of the estate of Charles G-athman, deceased, charged up to and collected from said U. F. Bickley, as administrator of Charles F. Gathman, deceased, for legal services, purported to have been rendered by Bickley & Bickley, a partnership engaged in the practice of law, of which the said U. F. Bickley is the senior member, for said U. F. Bickley, administrator, as aforesaid, the sum of $750, said sujn being exorbitant, as was well known by the said U. F. Bickley at the time he made said charge and collected said amount. That no legal services of any consequence were ever rendered by said Bickley & Bickley to said U. F. Bickley, as administrator of said estate, and the services of an attorney were not necessary in any matters connected with the settling of said estate, and all of which was well known to the said U. F. Bickley at the time he made said charges, and collected said money, and said act was done for the purpose of gain, and to cheat and defraud said estate of Charles F. Gathman, and that all of said acts thus done by the said U. F. Bickley were done by him wrongfully, corruptly and unprofessionally, as such attorney ,at law, in the manner aforesaid, with the knowledge aforesaid, and with the intent and for the purpose aforesaid.”

The second specification avers that U. F. Bickley in like manner charged himself as administrator for certain services amounting to $60, which were in fact not worth more than $10 and that the same was done for the purpose of cheating and defrauding said estate.

When a person is admitted to the bar, he is required to take an oath of office, and is thereby admitted to practice as an attorney and counselor at law in all the courts of record of this state.

The statute in providing that misconduct in office and unprofessional conduct, involving moral turpitude, as two separate causes of disbarment would imply that there is a distinction to be recognized between the official conduct of an attorney, and his professional conduct.

Any misconduct in office is cause for suspension or removal. Unprofessional conduct is a cause only when such conduct involves moral turpitude; and the misconduct of an attorney, which pertains to the court, or affects the public administration of justice, should he violate his duties in that behalf, would be misconduct in office, and cause for striking his name from the roll.

And in order to constitute a sufficient charge of misconduct in office, the act charged must relate to an official act, that is, it must relate to his conduct with the court or to the public administration of justice.

The specifications aver that the respondent as attorney, charged, presented and collected from himself, as administrator, fees for which no substantial services had been rendered, with the purpose and intent to cheat and defraud the estate of which he was the administrator.

There is no allegation that Bickley, as attorney or administrator, ever presented any claim for such fees to the court for allowance.

The allegations in the concluding part of specification one, under the charge of professional conduct, can not be considered a part of the second specification under the charge of misconduct in office. Each charge must stand or fall on the specifications thereunder set forth. And-there is nothing to show, as a matter of fact, that it is the same item referred to.

The act charged is, what Bickley attempted to do, or did, if such thing can be done, which is not here determined, in dealing for himself with himself in two different capacities or relations.

In the administration of estates, if the administrator renders any services, not required of an executor or administrator, in the common course of his duties, such further allowance shall be made by the court appointing him as the court shall consider just and reasonable for such'extraordinary services.

The allowance for attorney’s fees or extra compensation is peculiarly within the jurisdiction of the probate court. The fact that U. F. Bickley, administrator, was a member of the firm of Bickley & Bickley, would probably require him to present any claim for their services as attorneys as a claim for extraordinary services. For ought that appears, from these specifications, the charge of fees so averred to have been presented and paid by the respondent, as administrator, to himself as attorney, or the firm of Bickley & Bickley, was never presented to the probate court for' its consideration.

The statute regulating the suspension or disbarment of an attorney at law from practice is penal in its nature, and should be strictly construed.

Under such rule of construction, the court would not be warranted in finding that a claim so charged, presented and allowed by the respondent to himself, was ever presented to the probate court for allowance. Such finding would be going beyond the record, and in the absence of any averment to the contrary, the court would be warranted in finding they were not so presented.

There is no averment in either of the specifications, which sets forth any act on the part of the respondent with the court or the public administration of justice, therefore, it does not effect him im his conduct in his office.

Prior to 1880, the statute providing for causes of disbarment provided that, “An attorney may be disbarred for miseonduct in office, or for any good cause shown.” Under the law, as it then stood, the court could consider misconduct of an attorney in his professional, business or private life, as a ground for disbarment. .

In ¡the codification of 1880, the grounds were changed and a limitation was placed upon the right of the court to disbar and provided that the court might suspend or remove an attorney at law from his office'—

First. For misconduct in office.

Second. Conviction of crime, involving moral turpitude.

Third. Unprofessional conduct, involving moral turpitude.

It has been suggested that the court has inherent power, at the common law, to remove and suspend an attorney from his office independent of the statute.

The Legislature has seen fit to set forth and prescribe grounds for removal or suspension; whether or not such regulation limits or controls the course to be pursued, which has been so held in some states, is not necessary here to be considered and determined, as the method sought to be pursued against the respondent in this case is that laid down and directed by the statute.

It is the opinion of the court that the specifications set forth as the basis for 'the charge of misconduct in office do not relate to, or charge the respondent with any act or conduct in his office, as attorney, affecting his relations or dealings with the court, or the public administration of justice and, therefore, if such specifications do not so charge the respondent with misconduct in office, they would not be sufficient to require him to answer in these proceedings, and the respondent ought not, under the law, be required to answer, and the demurrer thereto should be sustained.

2. The second charge against the respondent, which is the third under the statute, is, that the respondent is guilty of unprofessional conduct, involving moral turpitude. Under this charge there are eleven specifications, all of which specifications, except the eighth and ninth, refer to the conduct of the respondent in respect to his administration of the estates of Gathman and Sentre.

•Counsel for the respondent claim that whatever he did, except as to the eighth and ninth specifications, which are the same as the two specifications set forth under the charge of misconduct in office, that he acted as a private citizen, and that such charges as alleged, do not involve the professional conduct of the respondent.

If the acts charged do not involve the respondent professionally, or in his professional capacity, can they be made.the basis or grounds for removal from office, unless a conviction was first had?

The statute as ground for removal, provides:

First. “Misconduct in office,” which includes the acts of an attorney with the court, or has relation to the public administration of justice.

Second. “Conviction of crime involving moral turpitude,” which presupposes that he has been legally indicted and tried before a jury and found guilty, or confessed in open court, as provided by law.

Third. ’ ’Unprofessional conduct involving moral turpitude, ’ ’ which relates to, and includes all his professional acts other than what is included in misconduct in office.

It has been held in New York state by the Court of Appeals (Rochester Bar Association v. Dorothy, 152 N. Y., page 596) that—

Syllabus: “The Appellate Division of the Supreme Court has power to disbar an attorney for professional misconduct without regard to the fact of possible or pending indictment.
“If the charge involves a felony or a misdemeanor entirely distinct from the parties professional action, the court will stay its hand until the criminal trial has taken place; but if the charge involves professional misdemeanor, the fact that some of the acts complained of are felonies, and indictment may follow, is no reason for staying the proceedings to disbar.”

The court in the opinion in this ease, in discussing the opinion of the Supreme Court of the United States, and the dissenting opinion of Judge Field, in Ex parte Wall (107 U. S., 265) say:

“The learned dissenting judge was evidently of the opinion that the act complained of did not concern the defendant in his professional relations to court or client, while his associates entertained the contrary view. The majority opinion distinctly recognizes the rule that where an attorney commits an indictable offense in a transaction not involving his character as an attorney, and does not admit the charge, the court will not strike his name from the roll, until he has been regularly indicted and convicted. ’ ’

This holding of the New York court is in the faee of the fact that the statutory grounds for disbarment is much broader than the statute in Ohio and is as follows:

“An attorney and counselor, who is guilty of any deceit, malpractice, crime or misdemeanor * * * may be suspended from practice or removed from office.”

In the case of Ex parte Steinman (95 Pa., page 220, syllabus) :

“1. An attorney may only be disbarred for misconduct in his professional capacity, or respecting his professional character.
“2. Although there may be cases of misconduct not strictly professional, which would clearly show the person to be unfit to be an attorney, as theft, forgery or perjury, but even for such an offense, he would not be summarily disbarred, without a formal indictment, trial and conviction.”

There are a certain class of cases cited, in which an attorney, according to some authorities, may be held to answer, although they do not relate to professional misconduct. But so far as those cases were examined, the offense charged related to some professional act, or the statute was broad enough to give that right.

Of the adjudicated cases in this state, in one which was determined upon a demurrer to the charges, the case of Be Dellenbaugli (17 C. C., 109), the court say:

“The authorities are greatly at variance as to whether the party can be convicted or can be removed for- unprofessional conduct involving moral turpitude, where that moral turpitude is a crime, without being first convicted of that crime. The prevailing authorities seem to be that if that moral turpitude pertains to some act done while acting as attorney, the attorney may be proceeded against without being first convicted before a jury, but if it is something lying outside of the attorney’s profession or duties as an attorney, there is much more authority going to show that he should be first convicted. ’ ’

The examination of the authorities cited by counsel outside of Ohio, so far as I have been able to examine them, are cases which rest upon the statutes different from ours, and are not helpful in the construction of the statutory ground for disbarment in -this state.

It is not necessary here to determine the extent or nature of the specifications, which do not involve the respondent in ■his professional capacity, as to whether or not a crime is, in fact, charged. If the conduct charged did not involve the respondent in his professional character but pertained to his acts as a private citizen, and the. acts charged do not amount to a crime, a demurrer would be sustained in any event; and if the acts charged amounted to a crime, then it becomes necessary to determine whether or not, under our statute, the charge of a crime is cause for suspension or removal.

While it is true -that in some jurisdictions it has been held that this is not an inflexible rule, our statute having provided specific grounds for removal, and if they are strictly construed, I do not see how it can be held that any act done by an attorney, as a private citizen, amounting to a crime, involving moral turpitude, can be made the ground of a charge for disbarment, unless a conviction was first had. . And without reviewing the many authorities cited by counsel, suffice it to say that it is my opinion that the authorities justify holding that any act done by an attorney, as a private citizen, amounting to a crime, involving moral turpitude, can not be made the ground of a charge for disbarment, unless conviction is first had.

In the states where the charge of a crime has been held to be sufficient cause for removal from office of an attorney, and they have statutory grounds for disbarment,’ such grounds so stated, as a rule, are broad enough to sustain the charge of a 'crime as a ground for removal without conviction; but under our statute, the commission of a crime is not made the ground but “conviction of crime involving moral turpitude.” The statute seems to imply that conviction is a prerequisite to make the commission of a crime the cause for removal.

It is not the crime that is made the cause for disbarment, but the conviction; and to hold that the charge of a crime, if a crime be in fact charged, is a ground or cause for removal, would be going beyond the strict construction of the statute, and render the second cause therein stated meaningless.

It is true that if the act charged involved the professional conduct or misconduct of the respondent, although the act charged amounted to a crime, the respondent could be held to answer, if such specifications were set forth as a cause under the third ground for removal, notwithstanding a conviction was not first had. And to require an attorney to so answer would not affect or impair his constitutional right to be tried by a jury.

Now these specifications are averred under the charge of unprofessional conduct, the third cause, and if the acts charged were not professional acts, but related. to the conduct of the respondent as a private citizen, they would not sustain such charge if true.

The charge is unprofessional conduct; then if the act charged did not relate to professional conduct, it would be insufficient whatever the character of the act charged.

That leaves the only question for consideration, the determination of the character of the acts charged. Do they involve the professional conduct of the respondent or simply relate to his acts as a private citizen?

The second, third, fourth, fifth, sixth, tenth and eleventh relate to the conduct of Bickley as an administrator. When an administrator is appointed, the statute requires the performance of certain duties The character of -the act is not changed by reason of the administrator being' an attorney.

It is my opinion that the second, third, fourth, fifth, sixth, tenth and eleventh specifications do not relate to or involve the professional conduct of the respondent. And holding these views, it is the judgment of the court that the demurrer of the respondent to the second, third, fourth, fifth, sixth, tenth and eleventh under the charge of unprofessional conduct should be sustained.

The eighth and ninth are the same as the two specifications heretofore referred to under the charge of misconduct in. office.

In arriving at a determination upon the demurrer to such specifications, the court has experienced the greatest difficulty and the conclusions reached are not very satisfactory.

The question presented is: Does a specification under a charge of unprofessional conduct, involving moral turpitude, which sets forth that an attorney made, presented and collected exorbitant attorney’s fees from himself as administrator for the purpose of cheating and defrauding the estate, and does not set out that such charge and payment of fees was ever presented to the court for allowance, or entered upon any account of the administrator, state, in law, a good cause for suspension or removal from office?

Where an attorney is an administrator, the law does not contemplate that he will either present to himself or allow himself any attorney’s -fees; for such services he is to be allowed reasonable compensation as for extraordinary services.

If the statute provides a method whereby an administrator can be paid for any services he renders beyond those ordinarily required of an executor, then any act of the administrator, in attempting to procure attorney fees in any other way, would be of no effect.

It might be said: Suppose that it appeared from these specifications that such claim for fees had been presented to the probate court for allowance, and there was no fraudulent act or misrepresentation to the court of the character and extent of the services rendered, and such court had allowed the entire sum asked for by the respondent, as administrator or attorney, would it lie -within the power of this court in these proceedings to question that finding regardless of how excessive this court might regard .the charge and allowance?

If the door was once open to this line of charges, namely: exorbitant fees as unprofessional conduct involving moral turpitude, what difficulty there would be in placing any limitation upon it.

The employment or payment by an administrator of attorney fees does not bind the estate. Thomas, Admr., v. Moore (52 O. S., page 200, syllabus):

“Executors and administrators are personally liable for the services of attorneys employed by them, but their contracts do not bind the estate, although the services are rendered for the benefit of the estate, and are such as the executor or administrator may properly pay for, and receive credit for the expenditure in the settlement of his accounts.” Approved and followed in 68 O. S., page 507.
“The rule is that the administrator can be allowed credit -only for counsel fees which he has actually paid, and no more than is reasonable compensation for the services rendered to the estate no matter what the administrator has actually paid or contracted to pay; and the burden is on him to prove the necessity and value of these services.” Woerner on Administration, Section 515, approved, 52 O. S., page 206.

And the question is here presented: Can the concluding averments of the first specification be taken as a part of the ninth since they are both made under the same general charge ?

The demurrer is, to each of the several specifications, and there would be no more reason for connecting the specifications than ■the charges. And it is my opinion that each specification must stand or fall by itself. But, as was heretofore stated, it does not appear that the $60 referred to in the first specification, is the same item as the ninth, and a court would not be warranted in so holding, if it could be considered.

' From these authorities, it would appear that it was of no consequence to the estate what U. F. Bickley, as administrator, paid U. F. Bickley, as attorney, or the firm of Bickley & Bickley. In any event, the estate can not be interested or affected by what the respondent did, and it can not be claimed that any advantage, so far as the estate is concerned, could be taken unless the claim so charged, presented and collected by Bickley for himself or for the firm of Bickley & Bickley was presented to the court for allowance or entered upon his account.

That being true, the respondent would not be guilty of any unprofessional conduct affecting the estate of which he was the administrator.

And the only remaining question to be considered is: Can U. F. Bickley be guilty of unprofessional conduct involving moral turpitude in dealing with himself?

It would be impossible for U. F. Bickley, as attorney, to. cheat and defraud himself. U. F. Bickley, as the administrator, possessed all the knowledge and information as .to the character and extent of the labor performed as U. F. Bickley, attorney. And if he had voluntarily, as administrator, paid the firm of Bickley & Bickley what right would the court have to say that such act was unprofessional conduct involving moral turpitude?

The anomaly presented is a charge of a man cheating and defrauding himself. Suppose that Bickley personally held a claim, and he himself brought suit for its collection, and he had made an exorbitant charge against himself for the purpose of cheating and defrauding himself, or if he even employed the firm of Bickley & Bickley, and he, as the senior member of such firm, made an exorbitant charge against himself on behalf of the firm, with the intent to cheat and defraud himself, would it be contended that that would be a ground for suspension or removal from office?

It appears to me that the charge on its face refutes itself. If the respondent had done any act or taken any step to make this charge effective beyond himself as against the estate, it would have constituted unprofessional conduct, but in the absence of an averment, the court would not be warranted in finding that the respondent ever presented such claim to the probate court, or entered the same upon his administration account for allowance.

From the face of these charges, the act done did not extend beyond himself, and until an act of this character, ■ namely, the charge and collection of fees is in some way attempted to be made effective against the interests or rights of a third parson, it would not be sufficient charge for suspension or removal from office.

Holding these views, it is the opinion of the court, that a specification under the charge of unprofessional conduct involving moral turpitude, which sets forth that an attorney made, presented and collected an exorbitant attorney’s fee from himself as administrator, for the purpose of cheating and defrauding the estate, and does not set out that such charge and payment of fees was ever presented to the court for allowance, or entered upon the account of the administrator, does not state in law a good cause for suspension or removal from office, and a demurrer thereto will be sustained.

Under the first specification, all the acts charged do not affect the respondent professionally, unless the entry of the item of $60 for making deeds. Even if all was done that is averred in such specification as to such charge, it would not constitute unprofessional conduct.

There is no claim of bad faith or that the amount paid was unreasonable. It is only claimed that the respondent knew it was not a proper charge against the estate, that it should have been paid by the heirs.

All this may be true, yet if it was a just claim, and in the end the same parties would have it to pay, the question of the method or manner of payment would not be of much consequence, so no charge of bad faith or intent to wrong is charged.

Considering specification one, standing alone, it does not state any unprofessional conduct involving moral turpitude that should require the respondent to answer.

Only the eighth and ninth specifications under the charge of unprofessional conduct are charged by the committee, as having been done “unprofessionally.” None of the others are so charged. And it would appear that the committee, by the form of their charges, did not think that the professional conduct of the respondent was involved, save in the eighth and ninth. The court in that respect would not be bound by the judgment of the committee.

The last specification, the seventh, in my opinion although not so charged, involves the professional conduct of the respondent. It is charged ‘‘that he represented to the said Ollie and Anna Weir that he had been ordered by E. H. Jones, Judge of the Probate Court of Butler County, Ohio, not to pay but three per cent, interest on said note for the last year, when in truth and in fact no such order had ever been made, all of which was well known to said U. F. Bickley at the time. ’ ’

J. F. Neilan, W. G. Shepherd and Brandon Millildn, committee.

Andrews, Harlan & Andrews, for U. F. Bickley.

Such representations were not a part of the duties of an administrator under the statute, like the preparing and filing an account. And the persons to whom such representations were -made were much more likely to be misled by such false statements, because the party representing them was an attorney, and would have the means of knowing.

To make such false representations so admitted by the demurrer would constitute unprofessional conduct involving moral turpitude, and the respondent should be held to answer, and the demurrer thereto should be overruled.

An order may, therefore, be drawn sustaining a demurrer to each and all the charges and specifications' thereunder, excepting the seventh, on the ground that the facts set forth are not sufficient to require the respondent to answer, and he ought not under the law be required to answer in these proceedings. As to the seventh specification, the demurrer will be overruled.  