In re Hittson, 20 N.M. 319

In re Hittson

20 N.M. 319 | N.M. | 1915

OPINION OP THE COURT.

ROBERTS, C. J.

(after stating the facts as above) —

[1] The first' count of the accusation charges respondent with unprofessional conduct in that he counseled and advised the taking and procuring of property without process of law. It is admitted by all parties that the title to the horses was in dispute. On the one hand, Mrs. Cooper claimed to own the property, while on the other hand James and Yancy Head claimed that they owned the property. The horses had been sold to James Head. One of the horses had been listed as the property of the estate of James W. Cooper, deceased. It is unnecessary to decide the true ownership of this property, and nothing herein contained shall be construed' as adjudicating the title to the same. The question for decision of this court, under this one point, is whether an attorney is guilty of unprofessional conduct of such a nature as to require his disbarment, for counseling and advising another to procure and obtain possession of property without the aid of and directly against legal process. It is urged on the part of the respondent that he believed Mrs. Cooper to be the true and lawful owner of the horses, and that he was justified in advising and counseling an agent of the true owner to take possession of property without the aid of the process of the court. He relied upon the statements of ownership made by Mrs. Cooper and Wilson, and honestly believed, perhaps, that the title of Mrs. Cooper was superior to that of either of the Heads, or of Henry Smith. He desired that Mrs. Cooper obtain possession of the property so that title thereto might be litigated in the courts. '

It is also urged by respondent that he did not subject Mirs. Cooper, A. J. Wilson, or McDade to criminal liability because Mrs. Cooper was -the true owner of the property, and that she could not be deemed guilty of larceny, nor could any person acting as her agent in that regard, because of the positive negation of a felonious intent in the asportation of the property. As a general proposition, it must be admitted that there can be no larceny without a felonious intent. But we fail to see how that doctrine can redound to the benefit or credit of this respondent. As a member of a high profession he is charged with implicit respect towards the orderly processes of the law and those who administer it. The accusation does not charge him with the commission of larceny, but with doing acts unbecoming a member of the profession. When a person becomes a member of the bar he obligates himself, expressly or impliedly, to act uprightly and in accordance with the law. He is presumed to be specially learned in the law on account of having devoted himself to the study of it. This learning he obtains for the benefit of those who do not specialize in law. He advises of law, not against law. It is said that lawyers of the highest ability and intellect differ as to what is the law, and that respondent ought not to be deemed guilty because his view of the law may have been incorrect. We agree that respondent cannot be condemned for whatever view' of the law he may have taken. The ulterior purpose of the advice given Wilson by respondent is thus characterized by the Assistant Attorney General:

“The principal object of getting possession of this property, of course, was to eventually reimburse Mrs. Cooper for her alleged loss. But as an end to that object possession must be had. Possession could not be obtained by legal process, of which respondent by his own statements was well advised, so we see respondent exercising much ingenuity to obtain possession by unlawful, unauthorized, illegal, and unethical practices. The law gives him no right to obtain possession by legal means, except by execution upon a duly rendered judgment, so he determines he will act independent of law. To obtain possession means that he may be adjudged, or his client adjudged, owner and entitled to the possession of this property by the weakness of the proof of his adversary, without ever having put his client to one iota of legal proof of her ownership. Hie can obtain a most important advantage, he must have concluded, by taking this property according to primitive methods. The burden of proving his ownership, or right of possession, is upon him until he gets possession of the property, but when he once obtains possession, that burden is no longer upon him, but upon his adversary.”

We cannot sanction the practices of the respondent in this regard. His duty was to assist Mrs. Cooper to obtain her rights according to the prescribed law of the land. He journeyed away from the circumscribed sphere of an attorney in advising remedies not known to or sanctioned by the law. In doing this he has embarrassed the courts, to which he has declared his allegiance and fidelit}1', and has violated his duty to the courts of which he is an officer. His duty was to point out legal and authorized means of obtaining relief for his client, so that the force of law might remedy a wrong, not the force of strength or stealth. He well knew that the title of the property was in dispute. To sanction such practices by attorneys would be to disregard the fundamental principles of our government.

In view of what we have heretofore said it is unnecessary to discuss the question of the respondent aiding and abetting in the concealment of the horses. However, in our opinion, the proof does not justify a finding that be is guilty of that charge.

[2, 3] The evidence of the state, as well as the evidence of the respondent himself, justifies the conclusion that the respondent conversed with and obtained from members of the grand jury for the October, 1913, term of the district court for Quay county information and advice of an official character, and that respondent obtained this information when the said jury was in session. Section 987 of the Compiled Laws of 1897 provides that any juror who shall not keep secret what he himself, or any other grand juror, may have said, or in what manner he or any other grand juror may have voted, on a matter before them shall be punished by a fine. So far as the juror himself -is concerned, it is immaterial whether the jury was in session at the time he may have divulged matters specified in said section or not. Iiis duty is that of secrecy forever, except as otherwise provided by statute. An attorney owes an especial duty to the court and the people to refrain from obtaining information from members of the grand jury. That respondent was conversant with the actions of the district attorney before the grand jury is not open to doubt. His statements to the district attorney indicate his knowledge of what had transpired before that jury and this was at the time when the grand jury was in session. The attempted corrections of damaging statements of respondent do not suffice to justify us in finding that-respondent did not converse with grand jurors during the times they were in actual session, concerning official matters. Therefore we find that the allegations of the accusation in this regard are proved beyond a reasonable doubt, and disagreeable as it is to us, we must find the respondent guilty of the first and third counts in the accusation.

It will therefore be the judgment and sentence of this court that the respondent, Charles H. Hittson, be disbarred as an officer and attorney of this court; and it is so ordered.

Hanna and Parker, J.J., concur.