In re Morrison

Jul 15, 1920
File No. 4359
Reporters:
, ,
Before:
Gates
GATES, J.

Rеspondent was admitted to the bar of this state December 15,, 1910. On. March 8, 1918, charges of unprofеssional conduct were filed against him. They were referred to the Attorney General, wlho mаde report ’thereon, and on July 24, 1918, a formal complaint was filed, by direction of the cоurt, which embraced 13 charges, 1 being subsequently added. The matter was referred to ’A1. K. Gardner, Esq., refеree, who filed his report December 29, 1919. The delay in- disposing of the matter was largely caused by the absence of respondent in the military service of the ‘United States. Upon the оral argumient the Attorney General stated that some of the charges were practiсally abandoned, owing to the change of front of witnesses who had theretofore made affidavits.

[1] Respondent was called by the Attorney General as an adverse witness for cross-examination under the provisions of chapter 72, Laws 1909, now section 2714, Revised -Code 1919, on the trial of nearly all of the charges. Objection was urged by respondent that this statute did ‍‌‌‌‌‌​‌‌​​​​​​​​​‌‌‌‌​​‌‌​​‌‌​‌‌​‌‌‌‌‌​​​‌‌‌‌​‌​‍not apply to this kind of proceeding, and therefore that the witness could not be called, and that his testimony would be incompetent. The objection wfas without merit. This is not a criminal action, but is a proceeding of a civil nature. State v. Kirby, 36 S. D. 188, 154 N. W. 284; In re Egan, 36 S. D. 228, 154 N. W. 521; 2 R. C. L. 1088. No good reason is called to our attention why the accused in a *187disbarment proceding may not be called for cross-examination the ‍‌‌‌‌‌​‌‌​​​​​​​​​‌‌‌‌​​‌‌​​‌‌​‌‌​‌‌‌‌‌​​​‌‌‌‌​‌​‍same as in any other action or proceeding of a civil nature.

[2,3] The court has given most careful attention to the report of the referee, the exceрtions filed therto by both parties, and the voluminous transcript of the evidence, consisting of mоre than 2,400 pages, and has made and filed its finding of fact and conclusion of law, as well as furthеr evidentiary findings reference to which is made. The disposition of two of the charges by the rеferee adversely to respondent is sustained. The disposition of five other charges by the referee favorably to respondent is reversed. The disposition of the remaining seven. charges by the referee favorably to respondent is sustained.

The court finds the respоndent to be an ‘unfit person to be permitted to practice law in ‍‌‌‌‌‌​‌‌​​​​​​​​​‌‌‌‌​​‌‌​​‌‌​‌‌​‌‌‌‌‌​​​‌‌‌‌​‌​‍the courts of this statе, the evidence showing such unfitness in a variety of ways.

[3-7] Respondent sought to and did represent persons having a conflict of interest in a probate proceeding without making a full and fair disclosure to those later employing him of the facts of such conflict. Hosford v. Eno, 41 S. D. 65, 168 N. W. 764, L. R. A. 1918E, 831; Canоn 6, Code of Ethics, Amu Bar Assfir and S. D. Bar Ass’n. He wrongfully and with motives of ill will and oppression caused four cоmplaints charging criminal libel to be filed at a place 35 miles from the residence of defendants and of respondent (where the alleged libels were committed), and caused dеfendants to be arrested on a Sunday even-_ ing and transported thence overland, and ‍‌‌‌‌‌​‌‌​​​​​​​​​‌‌‌‌​​‌‌​​‌‌​‌‌​‌‌‌‌‌​​​‌‌‌‌​‌​‍by rеason of their inability to secure bail at such place defendants were kept in the custody of the sheriff nearly two days. No justifiable reason was shown why the complaints should not havе been filed at the place of residence. Even if, as found by the referee, respоndent did not therein act as an attorney, but as a citizen, yet that did not lessen his amenability to disbаrment. In re Cary (Minn.) 177 N. W. 801. He maliciously, while retained as special counsel for the proseсution, caused to be published in a newpaper an article attacking one then undеr arrest charged with a felony, which article tended to inflame the community in which such person would be tried and to prevent a fair trial. Canon 20, Code of Ethics, Am. Bar Aiss’n and S. D. Bar Ass’n. In tw’o cases he received in advance fees for services to be rendered clients, and *188abandoned and neglected their interests. Re Maloney, 35 N. D. 1, 1.53 N¡. W. 385. Hé uñdertook to bring an action in another state against a surgeon for malpractice, and not оnly did not do so, ¡but willfully represented to his client that he had done so. Rev. Code 1919, § 5272. He also testifiеd falsely before the referee in that behalf. While the neglect of client’s case might, undеr the circumstances, be palliated, his ‍‌‌‌‌‌​‌‌​​​​​​​​​‌‌‌‌​​‌‌​​‌‌​‌‌​‌‌‌‌‌​​​‌‌‌‌​‌​‍willful misrepresentation to ‘his client was not excusаble. He caused to be published in newspapers in Mobridge, his home town, during a long period of time, xnlany bombastic articles, eulogistic and laudatory of himself and his professional aсhievements and derogatory of other attorneys. Canon 27, Code of Ethics, Am. Bar Ass’n and S. ‘D. Bar Ass’n. . •

It is the opinion of this court that the respondent should be disbarred from the practice of law in the courts of this state, and his license canceled. •