105 P.2d 870 | Or. | 1940
In Banc. On November 3, 1938, the Oregon State Bar filed a complaint against James K. King, an attorney of this court, charging him with unprofessional conduct. On the 6th and 7th of February, 1939, a trial was had before the Trial Committee at which Mr. King appeared in person and by counsel. There were seventeen alleged causes of complaint. During the course of the trial, the 6th, 7th and 17th causes of complaint were dismissed on motion of the prosecutor of the Oregon State Bar.
The first cause of complaint, in effect, charges defendant with having converted to his own use the approximate sum of $795.62 belonging to Winifred Russell.
The second cause of complaint, in effect, charges defendant with having converted to his own use the sum of $795.62, or a portion thereof, belonging to Vivian Oliver.
These first two causes of complaint are based upon the same transaction. In December, 1937, three sisters, namely, Pearl Satterfield of Junction City, Oregon, Vivian Oliver of Los Angeles and Winifred Russell of Vallejo, California, agreed to sell certain real property held by them as tenants in common, in Eugene, Oregon, to Sol Rosenberg and Rebecca Rosenberg of Eugene, for the sum of $2,500. Mr. Rosenberg paid the sum of $100 to Pearl Satterfield, and deposited the sum of $2,400 with the Lane County Abstract Company under an escrow agreement under which Pearl *105 Satterfield, Vivian Oliver and Winifred Russell also deposited their deed conveying said real property to the Rosenbergs.
The defendant was employed by the three grantors named to receive from said escrow the sum of $2,400 less certain fees, costs and expenses; then forthwith to pay the sum of $10 to Pearl Satterfield and then forthwith to pay to said three grantors in equal shares the sum of money remaining.
On or about the 27th day of December, 1937, the escrow agent paid the approximate sum of $2,396.86 to defendant for repayment to said three grantors, whereupon said defendant paid the sum of $805 to Pearl Satterfield and retained the remaining approximate sum of $1,594.24 which defendant had been instructed forthwith to pay in equal shares to Vivian Oliver and Winifred Russell.
The second cause of complaint realleges by reference the foregoing quoted allegations of the first cause and further alleges: *107
On or about the 8th day of February, 1938, Vivian Oliver deposited the check drawn to her as payee by defendant as payor in the Seventh and Alvarado Branch of the Citizens National Bank of Los Angeles, to which bank the Eugene Branch of the United States National Bank of Portland returned said check marked, "not sufficient funds" on or about the 12th day of February, 1938.
The fourth cause of complaint charges:
By reference, the fifth cause of complaint embraces the facts stated in the first seven paragraphs of the fourth cause, the same being the paragraphs II to VII both inclusive, above quoted, and the allegations to the effect that the Oregon State Bar is an agency of the state of Oregon existing under and by virtue of the laws of the state of Oregon, and that defendant is duly admitted to practice law in Oregon.
Said fifth cause of complaint expressly alleges the following:
The Trial Committee unanimously found the defendant guilty of the charges set forth in the first and fifth causes of complaint and two of the three members of the Trial Committee found him guilty of the charge set forth in the fourth cause of complaint. One member of the Trial Committee was unable to concur with the other two members thereof in their finding on the fourth cause of complaint.
The Trial Committee recommended that the defendant be permanently disbarred from the practice of law.
The Trial Committee found that the Oregon State Bar had not sustained the charges set forth in the second, third, eighth, ninth, tenth, eleventh, twelfth, thirteenth, fourteenth, fifteenth or sixteenth causes of complaint.
On November 15, 1939, defendant filed an application with the Oregon State Bar asking the Board of Governors thereof for a hearing de novo on the charges against him and on the findings and recommendations of the Trial Committee. This application was granted and such a hearing was had.
Thereafter, to-wit, on the 9th day of December, 1939, the Board of Governors of the Oregon State Bar made findings to the effect that of the charges set forth in the first, second, fourth, and fifth causes of complaint the accused is guilty; and that of the charges set forth in the third, eighth, ninth, tenth, eleventh, twelfth, thirteenth, fourteenth, fifteenth and sixteenth causes of complaint, the accused is not guilty.
The Board of Governors, by an affirmative vote of eight of the nine members present, recommended *112 that the accused James K. King be permanently disbarred.
One member of the Board of Governors recommended the imposition of a relatively long period of suspension.
On February 8, 1940, defendant filed a petition in this court for a review of the foregoing decision and recommendation of the Board of Governors of the Oregon State Bar; and upon the 10th day of March, 1940, defendant filed his brief. On the 8th day of April, 1940, the brief on behalf of the Oregon State Bar was filed, and the cause was set for hearing in this court on May 23, 1940. Upon the attention of this court being called to the fact that issues were joined upon an appeal from a judgment of criminal conviction of defendant rendered in the circuit court of Lane county on the 23rd day of June, 1939, the hearing of the disbarment proceeding was postponed until the final disposition of defendant's appeal in the criminal case. The crime of which the defendant herein was convicted is known to the statute of Oregon as false swearing.
On the 2nd day of July, 1940, this court affirmed judgment of conviction of State v. King, p. 26 supra,
"The only difference in definition between the crime of perjury and that of false swearing, under the present law of Oregon, is that to constitute the former, the false statement must bematerial to the matter concerning which the oath is taken, whereas the materiality of the false statement is not essential to the latter." State v. King, supra.
The statute provides that an attorney may be removed or suspended upon his being convicted of a misdemeanor involving moral turpitude in which case *113 the record of his conviction is conclusive evidence. Section 32-502, Oregon Code 1930. The conviction of defendant of such a misdemeanor is within our judicial knowledge. While it is not made the basis of any charge in the complaint herein, we are unwilling to omit reference to it. Such omission might lead to the view that we deem it trivial and unworthy of consideration. This court entertains exactly the opposite view. Such a crime involves moral turpitude and merits either suspension or permanent disbarment.
Under the statute of Minnesota similar to that of Oregon, except that the Minnesota statute makes the wilful signing of a frivolous pleading ground for removal or suspension [Sec. 5697, Gen. Stat. Minn. 1923.], the supreme court of Minnesota, in dealing with a case of false swearing, said:
"The question remaining is whether the giving of the false testimony constitutes professional misconduct under our statute (G.S. 1923, Sec. 5697). That it does we can have no doubt. Hertz, licensed by this court, was testifying before the United States district judges. He had knowledge of the facts, and testified untruly. It is not important whether perjury could be predicated upon his testimony. In re Popper,
Under a federal court rule, authorizing disbarment for any sufficient cause, perjury, regardless of the materiality of the false testimony, is sufficient ground therefor since it involves moral turpitude and a conviction therefor need not have been returned. In re Ulmer, 208 Fed. 461. *114
The filing of a false affidavit has been held by this court to be ground for suspension of an attorney. State v. Woerndle,
The foregoing cases and others are cited in annotations to be found in 9 A.L.R. 200, 43 A.L.R. 110, 55 A.L.R. 1375.
For the reason, that, in our opinion, the record in the instant disbarment proceeding discloses misconduct on defendant's part for which he should be disbarred, we deem it unnecessary to institute or direct the institution of further proceedings of disbarment based upon defendant's criminal conviction.
No good purpose can be served by reviewing the testimony. Suffice it to say that the defendant's admissions alone support the conclusion we have reached herein.
On the 24th day of September, 1940, the defendant filed in the office of the county clerk of Lane county, where defendant resides, his written resignation as an attorney. Pursuant to the statute [§§ 32-401 and 32-402, Oregon Code 1930], the county clerk of Lane county has forwarded a certified copy of defendant's resignation to the clerk of the supreme court, who has filed the same in his office on September 25, 1940.
The resignation of an attorney, without consent of the court, is ineffectual to preclude his disbarment when proceedings therefor were pending at the time of his resignation. Ex ParteThompson,
Based upon the record before us in this disbarment proceeding, this court concurs in the recommendation of the Trial Committee and the majority of the Board of Governors that the defendant should be disbarred and it is so ordered. *115
The Oregon State Bar suggests that a judgment for costs and disbursements should be entered against defendant; and in support of this suggestion cites Ex Parte Thompson, supra, and ExParte Ditchburn,
The course taken in the instant case is not governed by the statute of 1862, above cited, which requires the supreme court to conduct a trial when issues are joined upon charges of alleged unprofessional conduct. On the contrary, the course taken herein is merely a review of the findings and recommendations of the Board of Governors of the Oregon State Bar. It is not an appeal from the judgment of a court, and therefore, the general statute providing for the recovery of costs and disbursements can have no application. State ex rel. v. Estes,
BEAN and ROSSMAN, JJ., not sitting. *116