In re Disbarment of Swihart, 177 N.W. 364

In re Disbarment of Swihart

177 N.W. 364 | S.D. | 1920

WHITING, J.

The issues in this proceeding" were brought on for trial before this court on March 16, T920. At the termi*632nation oí the trial, we announced our decision - to the effect that defendants should stand suspended for six months, and stated that the written opinion would be prepared and'filed' later. Findings o-í iact and conclusions of law have been rendered. We found defendants guilty of unprofessional conduct, which wrongful conduct was in part as follows:

As partners they engaged in a collection business under the fictitious names of “Watkins Detective Agency” and “Watkins Detective ¡Service.” They used the word' “Detective,” not -because their business was that of detectives, but for the effect that su'ch word might have in intimidating- the weak and ignorant against whom they might hold claims for collection. They advertised in newspapers much- like a mercantile establishment would advertise its wares or a real estate agent his ¡business.

In order to. mislead the ignorant and frighten the timid against whom they held claims for collection, they mailed to them a so-called “final demand before suit.” This demand purported- on its face to- be a legal writ or process. With its blanks unfilled, such “demand” was as follows:

“State of South Dakota, Count}? of Brown — ss.: “In Municipal Court, City of Aberdeen, South Dakota. ................................................, Plaintiff, v..............:.................................., Defendant.

“Final Demand Before Suit.

“The State oí South Dakota to- the Above-Named Defendant:

“Take legal notice:

“First. That the above-named plaintiff claims that you are indebted to .............................. in the sum- of ........................................................................

“Second. Although duly requested, the same has not been paid, nor any part thereof, save and except the sum -of ........................ ....................................... dollars, and that .................................................................................... is the balance legally due and owing hereon, plus accrued interest.

“Third. Now, therefore, unless you remit to, or appear at the office of .Swihart & Branson, lawyers, rooms 21 and 24, Hagerty Block, in- the city of Aberdeen, county of Brown, and state of South Dakota, on or before the ................................................ day of............................................................., ................., at 2 o’clock p. m. of said day, for the payment of said claim with interest thereon at the rate of *6337 per cent, per annum from the date of maturity, or make proper provisions for ths adjustment thereof, suit will forthwith be entered for the "total amount with interest, together with the costs and disbursements of the action.

“Dated! at Aberdeen, South Dakota, this ................................................ day of ..............................................................., ................... 'Swihart & Branson, Attorneys for the Plaintiff, Aberdeen, South Dakota.-

' “It is hereby ordered that due and legal service hereof be made by mailing same to said defendant at his last known post office address. -S'W-ihart & Branson, Attorneys for the Plaintiff.”

Eventually they struck from the above the words “In Municipal Court, City of Aberdeen, South Dakota,” and as so changed continued to use it up to the beginning of this proceeding.

For a period of about a year, and until the judge of the municipal court advised them to discontinue such practice,' they were in the habit of issuing and mailing, to at least some of those against whom they held claims for collection, summonses in regular form, issued in the name of the state of .-South Dakota, and directing the defendants therein named to--, appear in such court. Such summonses were, as we find, ,-sent out in the hopes that, by their use, ignorant and weak defendants would be frightened into making settlements, or at least led to appear in court under the belief that legal service of process had been made upon them.

Defendants issued posters listing- judgments for sale. - These posters named -each debtor, his place of residence, amount of each judgment, and they also contained ’the information that additional offerings would be advertised later. For the very apparent purpose of blackmailing- those against whom -they held for collection claims not yet reduced- to judgment, they mailed *'-• t-’-e-'n nos^ers. Defendants -could not have honed to find purchasers for these judgments among those against whom they held uncollected claims; the purpose of sending- these posters to’ such - parties is too 'clear to admit of doubt; -

A certain married woman resident of Aberdeen -Was employed at manual labor on a monthly salary while her husband was in the military service of,the United States. -Without the *634slightest apparent justification for sending her such a letter, they sent to her the following:

“Swihart & Branson, Lawyers

“Aberdeen, S. D., January 25, 1919.

“Aberdeen, -S. D.

“Dear Madam: The ...................................................... has instructed us to begin another series of action to secure the money which you owe them for clothes to cover your nakedness.

“It w|ould seem that a woman who respects herself and who has the means of payment should be willing to do at least something toward paying for the clothes s'he wears on her back. Are you a woman who does pay for what she wears, or who does not?-

“You are aware that we have a judgment, and that we are now ready to secure an execution and turn the matter over to the sheriff’s attention for levy, seizure, and sale under execution.

“If you care to- do anything about this matter we are going to give you the opportunity if you' do something at once.

“You may be of the opinion that this office has been stumbling along and does not have. men who have their eyes .open. We are not disposed to embarrass-nor inconvenience you, but unless this debt of ............................................................... is paid we may take steps which will astonish you.

“We believe ‘safety first’ would be a good motto for you.

“Yours very truly,

“C. M. BRANSON.

“CMB. UM'H."

They then brought suit against her in municipal court, garnishing her wages. These were claimed as exempt, and the exemption allowed. Theyr appealed to the circuit court, and, pending a decision in the circuit court, garnished her next month’s wages.

[1] Defendants professed to have been of the opinion, at the time they mailed the final demand notices and the summonses, *635that what they were doing was both morally right and' perfectíy lawful. Furthermore, they sought to excuse their style of newspaper publications and the forms of letters and notices sent out by them, under the claim that other collection agencies did the same thing. They offered in evidence forms which were used by such agencies in some of. the large cities. It is noticeable, howjever, that such forms did not purport to be issued in the name of any state, nor to be issued from any court. The use of even such forms of notice as those offered in evidence by defendants is open to criticism; but the forms used by them were much more to be condemned-

[2] It is unnecessary for us to enter into any long discussion of the facts before us. Attorneys should never forget that they are officers of the court; that justice undter the law is all that their clients are entitled to and all that they have a right to seek for them; that theirs is an 'honorable -profession whose true votaries never try to justify their acts on the old saw, “The end justifies the means.” The collection of claims is a legitimate field of work; but it is a sad commentary on the legal profession that there are attorneys- who are willing to resort to any and all means to -make collections, knowing that they are many creditors who- care little the means that are used by their collectors so -long as the desired end is gained.

[3-8] To advertise as defendants did is unethical; to send out notices which might readily be taken as legal writs or processes is unprofessional; to mail summonses in the hope that the recipient will take their receipt as the equivalent of personal service is unlawful; to send out a letter such as the one above referred to is beneath the dignity of any self-respecting attorney; to resort to- the second garnishment in the case referred to -was an act of oppression absolutely unjustified; to attempt to blackmail debtors by means of implied threats such as those contained in the. posters, and the above-quoted letter sent out by defendants, is contemptible in the extreme.

[9] We have no hesitancy in holding that any one who persists in such wrongdoing is an unfit person to be intrusted with the great powers for good or ill possessed by an attorney at law. Upon the other hand, w!e have a full appreciation of *636what it means, to one who has Chosen the profession of the law as his life work, to lose the privilege of practicing such profession. We have had occasion to dwell on this point in other disbarment proceedings, so that our position is well known. State v. Kirby, 36 S. D. 188, 154 N. W. 284; In re Egan, 37 S. D. 159) 157 N. W. 310.

Defendants have not tried! to conceal from us. their wrongdoing; upon the other hand, they have been exceedingly frank in their admissions. They express most earnest desires to conform their future conduct With the best ideals of their profession. We do not feel that they have been shown so unfit to practice their profession as to require that a judgment of disbarment should be entered against them. On the other hand, we feel that they will come to a fuller and- truer realization of what it means to be intrusted with the licenses which they.have held if such licenses are taken from' them for a short period.

Defendants will stand! suspended for the period of six months from March 16, 1920, from the practice of the law before any of the courts of this state, and from giving advice or in any other manner acting as attorneys at law in this state.

McCOY, J., not sitting.