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In Re Heirich





Rehearing denied March 20, 1957.

This is a proceeding to strike respondent Heirich's name from the roll of attorneys pursuant to Supreme Court Rule 59. On June 29, 1950, a formal complaint was filed by the committee on personal injury practice of the Chicago Bar Association, signed by its chairman, charging in substance, that respondent had been guilty of conduct and practices tending to bring the legal profession into disrepute, and had solicited professional employment directly and by employed runners and touters, and had divided fees for legal services with persons not admitted to the practice of law. The complaint also incorporated a lengthy communication of George Ericksen setting forth the charges with greater particularity. This communication charged the respondent, in substance, with the following misconduct:

1. He improperly solicited cases for Robert J. McDonald and William DeParcq and conspired with McDonald and others to enable McDonald to practice law in Illinois without a license.

2. He improperly solicited cases for himself.

3. He improperly asked clients or prospective clients to solicit cases for him and they did so solicit.

4. He improperly employed professional runners to solicit claims for him and they did so solicit.

5. He made false statements under oath in the case of Stanford v. Pennsylvania R.R. Co. in the court of common pleas of Cambria County, Pennsylvania.

Respondent filed motions in the alternative, to dismiss and to strike from the files the complaint, which were denied, and a motion for a bill of particulars, which was granted in part. The motion to strike was directed against the unsworn letter of George Ericksen and charged that Ericksen was not a person aggrieved or president of the Chicago or State Bar Association. We believe the committee on grievances properly overruled the above motions and other technical motions presented by the respondent during the course of the hearing. This court, in a similar proceeding entitled In re Needham, 364 Ill. 65, at page 68, held: "A hearing in a matter of this kind is not governed by common law rules of pleading or the rules which are observed in criminal cases. (In re Sanitary District Attorneys, 351 Ill. 206.) Courts have inherent and summary jurisdiction over attorneys practicing at their bars. (In re Day, 181 Ill. 73, 87; Moutray v. People, 162 Ill. 194.) Jurisdiction was vested in the commission to hear the proceeding. The respondent was given notice of a definite charge against him, was heard in his own behalf, and was deprived of no right to which he was entitled under the law. (In re Mack, 360 Ill. 343.) It is asserted that not every member of the commission voted upon the report submitted to the court. That was not essential. The majority of the committee voted for the report, and that was sufficient." In the case of In re Lenox, 371 Ill. 505, the respondent filed a motion to dismiss the original complaint on the ground that it was not signed by the complaining party as required by Rule 59 of this court. Thereupon a supplemental complaint signed by the complaining party was filed setting forth the charges in greater detail. The respondent claimed it was error to begin the proceeding on faulty complaint, dismiss it and then proceed upon the unverified complaint without a preliminary hearing or investigation. In answer to such claim, at page 506, this court stated: "This contention cannot be sustained." Also see In re Carr, 377 Ill. 140 and In re Anderson, 370 Ill. 515.

Respondent filed an answer amounting to a general denial of the charges, and affirmatively alleging that seven major railroads organized and financed an organization known as the Railroad Claims Research Bureau for the purpose of destroying respondent's reputation and practice. It was further alleged that the said Claims Bureau hired George Ericksen to investigate the respondent, and retained Joseph Taussig, a former member of the committee on personal injury practice of the Chicago Bar Association, to make and prosecute the complaint against respondent, and that the instant proceeding is in fact being carried on by certain railroads.

Proofs were then taken by the committee on grievances of the Chicago Bar Association, sitting as commissioners of this court pursuant to Supreme Court Rule 59. Hearings were had at various times from 1951 through 1953. Proofs were closed on October 20, 1953, and the case taken under advisement after oral argument on December 8, 1953. The entire record in the case consists of over 6600 pages and the abstracts filed before us consist of over 1200 pages.

The committee on grievances found that the evidence offered sustained substantially all of the charges against respondent, recommended that the respondent be disbarred, and filed their report in this court.

Respondent has filed exceptions to the report which set forth in substance that the findings of the commissioners were contrary to the weight of the evidence, and further that the entire proceedings were instituted and conducted by paid employees of the Railroad Claims Research Bureau, that some of the commissioners were members of firms in the employ of interested railroads, that the commissioners conducted the hearing in a prejudicial manner, and that evidence was procured by representatives of the railroads by fraud, trickery, deceit and promise of reward, and was unworthy of credence.

"The privilege of appearing as an attorney in the courts of this State is granted by this court and taken away only by this court or by statutory enactment." (People ex rel. Andrews v. Hassakis, 6 Ill.2d 463, 468.) Because of the necessity of lengthy investigations and hearings in disciplinary matters which this court could not personally conduct, we appointed the board of governors of the Illinois State Bar Association and its committee on grievances, and the board of managers of the Chicago Bar Association and its committee on grievances as commissioners of this court for the purpose of investigating practices of attorneys which tend to defeat the administration of justice or to bring the courts and legal profession into disrepute. These boards and committees serve without compensation or adequate gratitude. We set up procedures for the filing of complaints and empowered the commissioners to take proofs, and, if action by this court is recommended, to so report. We first made this general appointment and set up this procedure by order of court dated April 21, 1933. It was formally incorporated into Rule 59 at the April, 1938, term.

By Rule 59 we have not abandoned our function to the commissioners, and will take their recommendations as advisory only, and will examine all the evidence in the case. Accordingly in this case we have conscientiously examined the lengthy record and abstracts, together with the report of the commissioners. It would serve no useful purpose to set forth the vast amount of contradictory testimony in the record, but we feel compelled to set forth some of the most pertinent evidence in the record. In so doing, we will first confine ourselves to the major charges against respondent — that he conspired to permit Robert McDonald to practice law in Illinois without a license; that he testified falsely in a court proceeding; and that he engaged in improper solicitation through himself and agents.

As to the first charge, it is undenied that respondent did a great deal of work for McDonald and DeParcq; that he filed numerous suits for them in Illinois, both individually, and as co-counsel for DeParcq. There is evidence that respondent had stated that he worked with and for McDonald; that settlement negotiations in some cases filed by respondent were carried out by McDonald and settlement checks sent to McDonald. There is also evidence that McDonald was once disbarred in Minnesota and later reinstated, and that he was twice refused admission to the bar of this State. However, it further appears that, at all times material here, McDonald was a member of the Minnesota bar and DeParcq was a member of the Illinois bar. Amicus curiae places damaging implications on the fact that after McDonald's death respondent purchased some of his furniture and was allegedly assigned certain cases to try by McDonald's executor. We regard the purchase of McDonald's furniture by respondent as without significance. The relationship between attorney and client is personal and the right to practice expires with the death of the individual lawyer. The personal representative of a deceased lawyer is without right to assign pending cases to counsel of his choice. (Canon 35 American, Illinois, and Chicago Bar Associations.) Such choice would rest with the client, and the record in this case does not indicate its presence or absence.

We believe that the evidence fails to show a conspiracy to permit McDonald to practice law in Illinois without a license. The attacks upon McDonald's reputation, which are not conclusively supported by the evidence, cannot be attributed to respondent by association. In acting as local counsel for McDonald, as lucrative as that association might have been, respondent was not violating the ethics of his profession. We can find no showing of improper motive or illegal conspiracy in this record.

The accusation of false testimony relates to an incident in the court of common pleas of Cambria County, Pennsylvania. Suit had been instituted on behalf of one Stanford, an incompetent, against the Pennsylvania Railroad Company. Stanford's guardian filed a petition for compromise, stating that defendant had offered to settle the case for $36,000, and setting up conflicting claims for attorneys' fees between respondent, Barnhart and Ruffalo. The alleged false statements occurred in testimony by respondent on August 31, and September 3, 1948. After the charges were made that respondent had wilfully and maliciously made false statements under oath to the effect that he was not associated with Robert McDonald prior to March 18, 1947, except that in 1945 the respondent did have cases sent to him by DeParcq, who later formed a partnership with McDonald, the Hon. John H. McCann, who sat as presiding judge at the en banc hearing on the petition, addressed a letter to the commissioners which fully explained the proceedings on the petition and concluded with the statement that, "The charge pending before your committee * * * we feel is entirely unfounded and not substantiated by anything that transpired before this court in said hearings." This letter was dated January 3, 1951. On January 2, 1951, the attorney for the respondent filed a petition to take the deposition of the court reporter, Edgar Leahey, who was present at the proceedings. No action was taken on this petition until after the ageing Leahey had died. However, on March 9, 1951, the investigator Ericksen obtained the ex parte certification of the transcript of proceedings, at which time it was certified nunc pro tunc as of September 7, 1948. This transcript of the testimony was first rejected by the commissioners, but in November, 1952, Taussig, the attorney for the complainant, took the depositions of the other two sitting judges, Judges Griffith and McKendrick, refreshed their recollection from the rejected transcript, and obtained substantial corroboration of the transcript insofar as it showed that respondent denied a close association with McDonald.

Of considerable significance is the testimony of Arthur L. Foster who is the assistant chief claim agent of the Pennsylvania Railroad Company in Chicago. On behalf of his employer he was interested in the court proceeding in Cambria County, Pennsylvania. Foster testified that he and the respondent traveled on the same train on their trip eastward, and enroute they discussed freely the respondent's association with McDonald as his local counsel in Chicago. It does not seem reasonable that respondent would state on one occasion to the claim agent of the Pennsylvania Railroad that he had been frequently associated with McDonald and on the very next day testify under oath that he did not know McDonald and do so in a proceeding where Foster was present and in which he was vitally interested.

Assuming the risk of unduly prolonging this opinion, we find it necessary to quote from the record on several occasions. The first touches the unreliability of Leahey's transcript. Richard Finn had resigned as respondent's counsel and was being cross-examined by Taussig.

"Mr. Taussig: That is all.

Commissioner Shaw: Just a minute, Mr. Finn. Do you recall the last appearance you made here when you notified the commissioners that you were withdrawing your appearance in this case as counsel for respondent? Do you recall that occasion?

The Witness: Yes, I do.

Commissioner Shaw: You remember then stating you had a statement you wished to make and as far as you were concerned it could be either on or off the record?

The Witness: I don't recall saying whether it was on or off the record, but I recall saying that I desired making a statement that I wanted to thank the committee for their fairness and the manner of treatment of me as counsel for the defendant. Is that what you were referring to?

Commissioner Shaw: Yes.

Commissioner Shaw: Yes, That is all I have.

Mr. Vogel: Thank you.

Mr. Taussig: One moment.

The Witness: I don't care whether it goes on.

Commissioner Shaw: It isn't on the record.

Mr. Vogel: It is now part of the record.

Mr. Taussig: Q. Along the same lines as to the fairness, do you recall that you and I had discussed often the question of taking the depositions of Mr. Leahey and the various judges in Edensburg?

A. What I recall about that is this: That we came back very much encouraged by the manner in which Leahey had forthrightly admitted that this was not an accurate transcript.

Mr. Taussig: I will move that be stricken as not responsive to the question.

The Witness: I think it is responsive.

Mr. Vogel: I will adopt that statement of the witness as a statement of counsel for the respondent.

The Witness: And I recall —

Commissioner Shaw: Just a minute, read the question, please.

(The question was read.)

Commissioner Shaw: The motion is granted. Strike the statement."

When Taussig, thinking Finn was in a friendly attitude, sought further commendation, he received an adverse comment on a most important issue. Finn's statement was vulnerable to objection on the ground of it being "hearsay" and not responsive, nevertheless it had, under the circumstances, all the appearances of being the truth. Barren technicalities should not be allowed to submerge the truth in proceedings of this character.

To avoid exceeding the reasonable confines of a judicial opinion, we shall consider only typical cases submitted in support of the solicitation charge. (In re Mitang, 385 Ill. 311.) In support of the charge of solicitation, prosecutor Taussig first introduced the Woodside case. The witness, Herman Woodside, a young man injured while working for the Santa Fe Railroad, testified that after he left the hospital one O.C. Brown came to see him and stated that since McDonald of Minneapolis, Minnesota, who had represented many injured railroad employees, had died, respondent was taking over, and then persuaded Woodside to go to Chicago to see respondent. There Brown had the witness examined by Dr. Turner, and then took him to respondent's office and introduced him to respondent, who, Brown stated, was a capable lawyer. Woodside further testified that respondent said the case was big and that he would like to have it, whereupon Woodside signed the usual form of contract. After having his memory refreshed by prosecutor Taussig, Woodside recalled that Brown also stated that he, Brown, was representing respondent, although Woodside did not know how that statement by Brown fitted into the conversation. At the time Woodside settled the case, contrary to respondent's advice, but at a figure substantially higher than that originally offered him, Woodside refused, at his father's suggestion, to sign the paper stating that his case had not been solicited. Woodside's mother, father and wife corroborated his testimony in regard to Brown's visits, and his mother also stated that all lawyers were crooks, and that because her son employed a lawyer he was unable to procure a job with the railroad any more.

On cross-examination Woodside admitted that his retention of respondent came about as a result of the commendation of Waller, a fellow employee injured on the same day, who was hospitalized in an adjoining bed in the Santa Fe Hospital, at Topeka, Kansas. Woodside admitted that he requested Waller to have Brown call upon him. That admission was corroborated by the testimony of Graham and McElligott, Chicago lawyers, who investigated the Woodside and other complaints on behalf of respondent, and who took a statement from Woodside in which he admitted that his employment of respondent was due entirely to the recommendation of a fellow employee. The statement was unsigned, but was admitted by Woodside as true.

We believe at this point it would be well for us to describe the part played by those two lawyers in the preparation of respondent's defense. Both Errett Graham and John McElligott are lawyers in good standing in Chicago, the former a friend of respondent who had been associated with him in several cases. Respondent employed Graham and McElligott to interview and take statements from all former clients that were listed as witnesses against him. Graham was paid nothing but his expenses, while McElligott received a per diem of $50, besides expenses.

The lawyer investigators made a written memorandum of all relevant aspects of the conversations. In some instances the person being interrogated refused to sign the statement but never was there a refusal predicated upon the reason that the statement did not contain the truth. These statements were introduced in evidence and used frequently by Graham and McElligott to refresh their recollection in their testimony in this proceeding. It is significant to note that many complaints that were originally filed by Ericksen were not urged and no witnesses were called in support of them. No doubt the effective work of Graham and McElligott had some bearing on this phase of the prosecution.

We have discovered nothing in the record that would cause us to believe that both these lawyers were not completely honest in their investigation and in their testimony with reference thereto. Respondent was well aware that there were perhaps a few disappointed and disgruntled clients, who, under the influence of Ericksen, might be persuaded to deviate from the truth. To cope with such a possibility he employed these lawyers to accompany him and interrogate such persons in his presence.

The prosecution also offered the case of Walter Wood, who testified that respondent telephoned him while the latter was in Little Rock, Arkansas, trying the Hawkins case, and that respondent solicited his case when he came out to see him at his home. Wood also stated that Brown came to see him several times, and that he finally agreed to come to Chicago and sign up. Wood's wife testified that when they were in respondent's office he showed her papers and clippings where he had obtained settlements. There was also introduced a letter sent by the Woods to O.C. Brown stating that they had recommended respondent to an injured employee, and a letter from Brown enclosing $25 for their expenses in assisting in the Maulden case.

In rebuttal, respondent offered the testimony of Webb, a fellow employee with whom Wood was acquainted, and who was being treated for injuries at the time of Wood's hospitalization. Webb testified that he and Wood visited daily while they were in the hospital, and that on a trip from St. Louis to Wood's home they discussed Wood's injury, and Wood asked Webb whether he had employed a lawyer, and Webb replied that respondent was taking care of his case. Webb also testified that Wood wrote him that he had called respondent at his hotel while he was in Little Rock trying the Hawkins case.

Webb's testimony is corroborated by the statement obtained from Wood by investigators Graham and McElligott. In that statement Wood also admitted that he noticed respondent's name in an article in a local newspaper reporting the trial of the Hawkins case, and requested respondent to see him before respondent left town, and that on January 25, 1949, Wood came to Chicago and employed respondent. Wood refused to sign the penciled statement made by the investigators, not because it did not contain the truth but because Wood said he expected to assert other claims against the railroad.

Respondent also offered a letter written by prosecutor Taussig to Wood, after Wood had testified, from which it could be implied that Ericksen had, without authority, promised Wood that his hospital and pass privileges, which had been withdrawn by the railroad when he filed suit, would be restored if he testified against respondent. This letter stated, "I am certain you must have misunderstood him when you say he told you that you would get your rights back. Mr. Ericksen had no authority so to do." Taussig, in response to the subpoena duces tecum issued for Wood's letter to him, stated that it was lost. The record clearly shows that Wood was angry, vindictive and disappointed. He claimed that he was overreached in his settlement negotiations in that he was deprived of his seniority and pass rights contrary to promises made him by the railroad claim agents and his local counsel in St. Louis. He further claimed that when he signed the releases the claim agent for the railroad and respondent's local counsel Feigenbaum held the documents covered in such a way that he did not know what he was signing. A reading of the testimony on this aspect of the case convinces us that the negotiators of the release acted properly and that Wood surrendered his railroad rights reluctantly but knowingly. Only a week later he wrote a letter to respondent which completely contradicts any claim of his having been overreached or deceived. Wood undertakes to escape the effect of this letter by saying that his wife wrote the letter and that he did not dictate it or necessarily know its contents.

The prosecution also offered in support of the charge of solicitation the Deans case, involving a claim against TWA for the death of a young man killed in a TWA accident on the way back from war service. The boy's father testified that he first met respondent when the latter came to his home and introduced himself, stating that he would like to have the case since he had the cases of the other boys killed in that accident and it would look better if they were all handled together. Deans replied that he did not like the idea of having respondent come to him, and that respondent then stated that they were reputable lawyers and would go after the railroads, airlines and big corporations. Respondent also allegedly stated that they were going to see the family of the Lyons boy, who was killed in the same accident, and showed Deans clippings from papers about different cases they won. Deans, convinced that it was all right for respondent to have the case, then signed the contract. Thereafter Deans and respondent went to the county court to procure letters of administration.

Taussig also offered the testimony of Deans's daughters, Ellen and Viola, who both testified in substance that respondent called upon them and asked if they would like to take up their brother's case. Respondent allegedly showed them checks from other cases and suggested that they talk it over with their dad. The following day Viola went to the Jefferson Hotel in St. Louis, where respondent was staying, and told him that her dad said that he did not want him to have the case. She testified that she never asked respondent or any other lawyer to come to her home.

In rebuttal, respondent introduced the testimony of William Lyons, vice-president of the Progressive Mine Workers local and representative in the Illinois General Assembly, in which he stated that he had met Deans several times at miners' conventions, and in December 1944 he had a conversation with Deans in the Odd Fellows Hall in which Deans told him about his son being killed and asked if he happened to know a lawyer in that field. Lyons, in response to Deans's request to get him a good lawyer, called respondent, who said he would go down and see Deans. Deans, however, denied any such conversation with Lyons, and stated that he never asked anybody to recommend a lawyer to him.

In the Hawkins case, offered by the prosecution in support of the solicitation charge, it appears that Hawkins, a brakeman injured in an accident on the Missouri Pacific Railroad, testified to an alleged solicitation on behalf of respondent by O.C. Brown, and stated that his original counsel, a local attorney, agreed to the additional employment of respondent. On cross-examination, Hawkins admitted that he had talked with Swaim, the engineer on the train on which he served, about his accident. Swaim was deceased at the time of the hearings, but Mrs. Swaim testified on behalf of respondent that Hawkins telephoned Swaim in May or June 1949, and that when she told Hawkins that ...

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