Opinion
No. 4510.
Submitted June 6, 1956.
Decided June 6, 1956.
The embezzlement by an attorney of his clients' funds is a violation of his oath of office and demonstrates his unfitness to practice law and for such conduct an attorney will be disbarred.
COMPLAINT, filed in this court by Arthur H. Nighswander, in his capacity as President of the Bar Association of the State of New Hampshire, praying that Frederic W. Harrington, Jr. of Plymouth be suspended from practice and removed from office as an attorney pursuant to RSA 311:8. On June 3, 1952, the respondent was admitted to practice as an attorney in this state, without examination, as a person previously admitted to practice as an attorney in the Commonwealth of Massachusetts, pursuant to RSA 311:3 and Supreme Court rule 19, 97 N.H. 615. At that time he took and subscribed his oath of office. RSA 311:6. The complaint alleges that on May 14, 1956, the respondent pleaded guilty to two indictments of embezzlement of his clients' funds and that the imposition of sentence thereon has been postponed until June 21, 1956.
On May 18, 1956, the respondent was suspended from practice, ordered to answer the complaint on or before May 29, 1956, and to show cause at a hearing to be held on June 6, 1956, why the prayer the complaint should not be granted. The respondent has not denied the allegations of the complaint and has tendered his resignation as an attorney.
Richard F. Upton for the respondent.
The inherent power of the judiciary to make reasonable rules for the admission and removal of members of the Bar (Ricker's Petitions, 66 N.H. 207, 211), confirmed by long usage and statute (RSA 311:8), requires that this court should take expeditious action for the protection of the community in cases of professional misconduct. Moore's Case, 76 N.H. 227, 229. "As occasion arises, appropriate disciplinary measures may be taken for the protection of the public, as well as for the maintenance of public confidence in the bar as a whole." Welanko's Case, 99 N.H. 413, 414. The misappropriation or embezzlement of clients' funds by an attorney demonstrates such lack of common honesty as to clearly justify an attorney's disbarment. Delano's Case, 58 N.H. 5. "Money collected by an attorney for his client, while in the hands of the attorney, is the money of the client and not capital for the use of the attorney in his business." Allen's Case, 75 N.H. 301, 302. While restitution of the misappropriated funds may be taken into consideration by the Trial Court on the question of sentence, it does not preclude disbarment for the protection of the public. Allen's Case, supra. The respondent's conduct is contrary to his oath of office, demonstrates his unfitness to practice as an attorney and calls for his removal from office forthwith. The tendered resignation is refused and the respondent is disbarred as an attorney in this state.
So ordered.
All concurred.