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In Re Gavin

OPINION FILED JANUARY 20, 1961.

IN RE JOHN W. GAVIN, ATTORNEY, RESPONDENT.


DISCIPLINARY PROCEEDING.

MR. JUSTICE BRISTOW DELIVERED THE OPINION OF THE COURT:

The Committee on Grievances of the Chicago Bar Association as commissioners of this court filed a complaint charging the respondent in two counts with misconduct that brought the legal profession into disrepute. The first count charged respondent with accepting $600 in settlement of a personal injury claim of Florence Tree without her consent and procuring the execution of releases and the signing of a draft in payment thereof without the consent and authority of Mrs. Tree. The second count charged respondent with a failure to pay a $260 doctor bill after withholding an amount for expenses in the settlement of a personal injury suit of Clara Bandy.

It was found by the commissioners that the respondent's conduct tended to defeat the administration of justice and recommended that he be suspended from the practice of law for a period of three years. Respondent has filed exceptions to this report and here he contends that the evidence does not sustain the findings and conclusions appearing therein and does not justify their recommendation of punishment.

John W. Gavin was licensed to practice law in the State of Illinois in 1950. He is married and the father of three children and previously has enjoyed an unblemished reputation.

We shall turn our attention to the second count, initially, since it is not so involved. In December of 1954, Clara Bandy received personal injuries which supplied the basis for a damage suit which she placed in the hands of respondent early in 1955. The fee agreed upon was one third of the amount recovered. In May 1956, the case was settled for $7,000 and Mrs. Bandy received $3,800. Of the $3,200 balance respondent was obligated to pay a $600 hospital bill and a $260 doctor bill. After a lapse of many months Mrs. Bandy discovered that her doctor bill had not been paid. The respondent apparently had withdrawn from the practice of law and was employed as a claim adjuster for an insurance company, and in doing so had changed his mailing address. Mrs. Bandy was unable to locate him and wrote the Chicago Bar Association setting forth the fact of nonpayment of the doctor bill and expressed a desire to ascertain his whereabouts. The Committee on Grievances wrote respondent, enclosing a copy of Mrs. Bandy's letter and advising him that the letter was being treated as an inquiry, that respondent should write his explanation and that his answer should be filed promptly. A hearing on this complaint was set for March 17, 1958, but respondent testified that he did not receive the communication until long after it arrived at his old mailing address; that he thought he had paid the doctor bill; that he called the doctor on the telephone who assured him that he had not been paid; that after failing to find any proof of paying he mailed the doctor a check for $235 in June 1958; he explained the $25 discrepancy between $260, the amount claimed, and $235, the amount paid, by stating that the doctor admitted on the telephone that $25 of his bill was embraced in the $600 hospital bill. Mrs. Bandy protested rather firmly against being cast in the role of a complaining witness. She explained that she was not preferring charges against respondent when she wrote the bar association, but simply was trying to find him so that she might bring to his attention his default in the payment of her doctor bill. And quoting from the record: "Q: And were you satisfied with the services Mr. Gavin rendered you? A. Sure, I was satisfied with him. Q: Mrs. Bandy, did you ever actually complain of anything Mr. Gavin had done while handling your case? A: No. I never did, he was mighty nice." She insisted that she never considered the neglect of her attorney any more than a mistake or an oversight.

The first count is more troublesome and involved many hearings. Mrs. Florence Tree was injured on June 29, 1956, while crossing a street intersection, by being struck by a vehicle owned by Ketone Automotive Company which was insured by United States Fidelity & Guaranty Company. She was taken to the Oak Park Hospital where X-ray pictures were taken and found negative. Before evening she left the hospital, suffering with a number of bruises. Soon thereafter Mrs. Tree employed respondent to represent her, upon the recommendation of a friend of hers. On July 17, 1956, Mrs. Tree executed a written contract employing respondent to represent her in her suit for damages, for a contingent fee of 33 1/3%. A bitter controversy arises concerning the next phase of the contract. Respondent insists that at the bottom of the contract of employment he added the following: "The attorney may execute any documents or drafts on my behalf," which was signed by Mrs. Tree. He testified that it was her desire that he handle the matter for her in this fashion because "she was extremely nervous"; that she did not want to come down town and did not want to be bothered;" that "because of family differences [Mr. Tree] was not available;" and that "because of Mrs. Tree's obesity it was difficult for her to get around." Mrs. Tree admitted that she signed the contract of employment, but denied that she had signed the power of attorney, although she admitted "it looks like my signature."

On the hearing, only a purported photostatic copy of the contract was produced. Respondent was not able to account for the loss of the original.

Pursuant to his employment, respondent visited Mrs. Tree on several occasions and eventually secured a settlement with United States Fidelity & Guaranty Company on April 12, 1957, for $600. On that date Frank Fiore, claim adjuster for United States Fidelity & Guaranty Company, gave respondent a draft for $600 and releases to be executed by Mr. and Mrs. Tree. The draft was cashed by respondent and the names of Mr. and Mrs. Tree appeared on the releases, having been executed by respondent's secretary. Respondent claims that his action was authorized by the disputed power of attorney. Admittedly he did not possess such authorization from Mr. Tree but explained that Mr. Tree never made any claim against the company and he regarded his signature as a bare formality.

Mrs. Tree testified that she refused in April to accept the $600 offer of settlement and that, not hearing from any one for several months, she called United States Fidelity & Guaranty Company only to learn that her case had been settled, releases signed and the draft cashed. On June 24, 1957, Mrs. Tree employed Harold Huff and Tom C. Willson of the law firm of Peterson, Lowry, Rall, Barber & Ross, and they subsequently obtained for Mrs. Tree a satisfactory settlement.

Respondent testified that he wrote and telephoned Mrs. Tree several times to come to his office and complete the settlement. In December, 1957, he sent Mrs. Tree a check for $325 which he considered to be her share of the $600 settlement. This check was returned. He explained his delay in sending this, because he was awaiting a report from her newly acquired attorneys. It was stipulated that the $600 was returned to United States Fidelity & Guaranty Company after these proceedings were instituted by the Chicago Bar Association.

Frank Fiore who negotiated the $600 settlement for United States Fidelity & Guaranty Company testified "I felt then that I had negotiated a fair and competent settlement based on her condition and the medicals and specials she had," and while respondent was in his office he heard him make a telephone call and said "As I recall, it was a conversation where he sought approval of his client."

Walter F. Kelly, appearing for respondent, testified that he was licensed to practice law in Illinois in 1931; that at present he is a referee in the Monroe Street court; that he had been with the Pennsylvania Casualty Company for six years and had charge of their personal injury law suits, claims and investigations in five States; and that he had final authority in the settlement of all claims in excess of $1,000. Kelly testified that he had advised with respondent in the handling of the Tree case; that "I would guess sometime in March, 1957, respondent called Mrs. Tree on the telephone in my presence." He said to her he had gotten the $600 that she wanted; that he had seen respondent's file and at the time of the conversation above quoted the file contained the releases, the draft and power of attorney, and that he saw the original power of attorney with Mrs. Tree's signature affixed thereto. He testified he had also seen the signed power of attorney in January or February, 1957, prior to the settlement.

Nick B. Cindric, called by respondent, testified that he owned and operated the Cindric Auto Body Shop in LaGrange and was president of the Pack Manufacturing Co. which makes abrasive segregators. Cindric had become well acquainted with Mrs. Tree while she was working in the office of George E. Fowlie, which was in the same building occupied by Cindric. He testified that Mrs. Tree told him about her accident, and in discussing the advisability of employing counsel she said that she did not have much faith in the legal profession, that one time she was "gyped" by a lawyer. Nevertheless she accepted his recommendation to employ respondent in her recent accident. Counsel for respondent sought to show by this witness that Mrs. Tree was a very heavy woman and that she drank excessively, but the commissioners sustained objection to this line of questioning.

Further, Cindric testified that he had several conversations with Mrs. Tree on the telephone; that on one occasion she told him that Gavin had settled her case for $600 and that she was not satisfied and that witness said: "Well, if you are not satisfied how could he settle the case?" and she said: "Well, I had given him power of attorney to settle the case," and that witness said: "Well, if you gave him power of attorney to settle your case, he could have settled for two dollars," and she said: "I don't give a damn if he does have power of attorney. I am going to get another attorney and I am going to fight him." Mrs. Tree denied this conversation, denied that she drinks intoxicating ...


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