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In re Shelley

Supreme Court of Arizona

November 25, 1940

In the Matter of MAL SHELLEY, a Member of the State Bar

Original proceeding in disbarment under "State Bar Act" and upon record filed in Supreme Court by Board of Governors of State Bar of Arizona. Respondent disbarred.

Mr. K. T. Palmer, for State Bar of Arizona.

Mr. Mark Wilmer, for Respondent.

OPINION

McALISTER, J.

On March 29, 1940, a citation was issued by the Maricopa County Local Administrative Committee of the State Bar directing Mal Shelley, a member of the bar of this state, to appear before the committee and show cause why he should not be disciplined for professional misconduct. The order advised him of two specific instances of unprofessional conduct of which complaint had been made.

[56 Ariz. 304] The first was that on June 10, 1939, he agreed to secure for Harry F. Long, of Phoenix, a divorce from his wife, Kathleen Hodges Long, for the sum of $47.50, including costs and attorney's fee; that pursuant to this agreement Harry F. Long paid him $47.50 on or before June 12, 1939, but he failed without just cause or excuse, to secure the divorce or file a complaint therefor or to refund the $47.50, or any part thereof; that he advised Harry F. Long some time after June 12 and prior to September 15, 1939, that he had secured a divorce for him and that he was free to marry again.

The second charge is that on or about October 9, 1939, he agreed to obtain a divorce for Jean Edmund, of Phoenix, on the ground of desertion, for the sum of $35, including attorney's fee and costs; that she paid him this sum on or about October 9, 1939, but, notwithstanding this, he failed and refused to file a complaint for the divorce or to repay her any part of this sum.

In response to this citation the respondent admitted that he had received the $47.50 from Harry F. Long for the purpose of obtaining a divorce for him and that he had not done so, the reason for his failure being that the money paid him by Long had been stolen from his office, and that the illness of his aged mother and himself in the spring of 1939 had made it impossible for him to obtain the money to file the complaint or repay Long. He alleged that he did not advise Long that the divorce had been secured or had become final.

In answering the charge relative to the Jean Edmund divorce he denied agreeing to secure it for $35 and alleged that she had failed to complete the payment of his fee, which, he testified, was $52.50, that he was under no obligation to procure or attempt to procure a divorce for her until she had paid him in [56 Ariz. 305] full and that he told her several times that it would be secured when she paid the balance of his fee. He denied informing her that the divorce complaint had been filed.

The local administrative committee, composed of three members of the state bar, heard the matter and at the close of the hearing, which was attended by respondent both in person and by attorney, found him guilty of professional misconduct and recommended his disbarment. This recommendation, together with the full record of the proceedings which had been reported stenographically and transcribed, was, as directed by section 35, chapter 66, Session Laws of 1933, the State Bar Act, forwarded to the board of governors which held a hearing at which additional evidence was taken, the respondent being present personally and by attorney. At the close of the proceedings the board filed with this court, without recommendation, the entire record, including the evidence in both hearings.

It appears from the testimony that on June 10, 1939, Mrs. Nina Long went to the office of respondent in Phoenix and consulted him about securing a divorce for her son, Harry, and that he told her he could file the case that day and advertise it the next week if she would get him $15. Thereupon she called her husband, Frank Long, who came to the office and gave respondent his check for that amount. Two days later Harry went to respondent's office for the first time and was told by him that the divorce

Page 509

complaint had been filed and that he wanted some more money, whereupon Harry paid him $32.50, the balance of the $47.50, which Mrs. Long, who made the agreement with him, testified included an attorney's fee of $25 and $22.50 for court costs and advertising. Nothing concerning the divorce appeared in the Monday papers, so Mrs. Long called at respondent's office Tuesday and [56 Ariz. 306] inquired whether the action had been commenced and he told her it had been filed and also advertised. From there she went to the office of the clerk of the court and ascertained that he had not filed it, whereupon she returned to his office with this information and he admitted that he had not filed it but said he would "right away." About a week later she called to see him and he told her he didn't have the money to file it and wanted her to get it for him again for this purpose and she told him that she couldn't get him any more money. After that she went to his office many times and he would always promise to file it, the last time being in September or October, but he never did.

In reply to the question whether he had any further conversation with respondent with reference to securing the divorce, Harry stated that two or three weeks after June 12 he and his mother went up to see why he hadn't obtained the divorce and he told them "it was all ready and I could get married; all I had to do was to wait for the final papers to come, but I had a divorce." A month or two after this, while still waiting for the final papers they called on him again and were told by him that he "hadn't even filed for it," and the reason given was that he had lost the money at the time they gave it to him; that someone came in and stole it from the top of his desk where he had it. Harry's testimony as to his reply was this, "I told him I ...


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