Evening bulletin. [volume] (Honolulu [Oahu, Hawaii]) 1895-1912, 1903-08-11
DECISION OF COURT ExHONoRATING MACON

against J. Alfred Magoon, is, in full, as
follows:
In the Supreme Court of the Territory
of Hawaii. October Term, 1902.
In the matter of J. A. Magoon. an At
torney at law.
Original.
Submitted July 2S. 1903. Decided Aug
ust 10, 1908.
F'rear, CD, Galbraith and Perry, il.
An attorney should not be punished
quasi.criminally in a proceeding for
djsbarment or Suspension instituted
by the Attorney General for charging
his client a fee which the court deems
excessive, even though the client is an
aged man of weak mind AMI easily in
fluenCed, when II appears that the eli
ent is satisfied. that the attorney acted
honestly and in good faith, that he did
not use threats or other improper
methods to induce the payment Of the
fee, and that there is fair ground for a
difference of opinion as to the reason
ableness Of the fee.
Opinion Of the Court by Frear. CO.
(Galbraith. j., dlssenting)
The Introductory facts and circum-
stances of this case are set forth SO
fully in Mr.. Justice Galbraith's opin-
ion in this case and in the opinions in
Kellett V. Sumner. known as the Rop-
ert case. ante, and In re Humphreys,
ante, and In re Davis, filed this day,
that little need be added here.
Two charges are made against the
respondent In this disbarment proceed
ing. II is conceded that one is not sus-
tanned and no further notice will be
taken of that. The other Is in sub
stance that the respondent was guilty
OF gross professional improperly and
misconduct In inducing Sumner to pay
AZ the conclusion Of the Ropert case
fee that was grossly excessive under
the circumstances, namely, Zee of
$4,000. The allegation as to the fee OF
$500 In the guardianship and injunc-
ton cases is made not as a separate
charge but merely as Introductory to
or as having some bearing upon the
charge as to the $4,000 fee.
The theory of this case Is that the
respondent has been guilty of such
professional misconduct as to warrant
dealing with him quasl-criminally.
This is not an action by the attorney
for his fees, In which he could recover
only what his services were reasonably
worth-in the opinion Of the court or
Jury upon the evidence, nor is 1t a pro-
ceeding by the client to set aside the
transaction or to recover the excess
paid, because of fraud or undue influ-
cree, actual or presumed, nor Is II a
proceeding in which the court is asked
to determine what may properly be
paid as a reasonable fee by a guardian,
administrator or trustee. nor is IL even
a summary proceeding brought by a
client asking the court to exercise its
summary jurisdiction over attorneys to
compel his attorney to pay to him
moneys unju5tly withheld. II comes
nearest to this last mentioned proceed
ing-in which the court may act upon
the basis Of the conduct of the attor-
ney as distinguished from the reason.
ableness of his claims, and yet II Is
not such proceeding. 1t is not brought
by or at the instance Of the client nor
is there any prayer for such relief MOI
was any evidence introduced on tina,
theory to show how much of the fec
was excessive or how much should be-
returned to the client. And II such q
summary proceeding for the enforce
ment of the clients alleged rights
WnIl1 n "a M 81 in a
that is, to compel the return OF the ex.
cess in the amount OF u fee lin thii
instance, not a fee retained by the at
toney out of the proceeds collected bu
a fee paid voluntarily by the ellen
after payment to him Of such pro
ceeds), would not the complaint hav,
to be dismissed and the client left Il
his action II il appeared that the at
torney acted in good faith and no
dishonesty? In Rule on Kennedy, ~
Ia. st. 497, 502, the court said. quot
ing In part from an earlier Pennsyl
vania case:
"'If the client is dissatisfied will
the sum retained. he may either brlnI
suit against the attorney or take a rul,
upon him. In the latter case the cour
will compel immediate justice or in
fiict summary punishment upon the at
torney, II the sum be such as to show
fraudulent intent. But II the answe
TO the rule cOnvinces the court that /
was held back in good faith and be
lieved not 10 be more than an homes
compensation, the rule will be dis
missed and the client RENTED to
jury trial And We may add to thi
that a man does not lose his right I,
trial by jury because he is an attorney
at-law. Where an issue OF fact is fair
y raised between himself and his eli
ent he is as much entitled to such tria
as any other citizen"
The Supreme Court OF the Unite
G States said, per Mr.. Justice Bradley, 4
. the case OF In re Paschal, 10 Wall 40;
491:
IF an attorney have collected none
for his cllen,, II Is prima facie hi
1uty Dftpr TeduCtinp hiG NUN cnsta n N