In re O

73 Wis. 602 | Wis. | 1889

Cassodat, J.

This court has held, in effect, that where the charges of professional misconduct upon which the accused is disbarred are such as would, if true, subject him to criminal prosecution, the same “ should be established by clear and satisfactory evidence, and cannot rest in doubtful and uncertain inferences.” In re Orton, 54 Wis. 386. But even where such charges are not of a criminal nature, yet we apprehend that, in order to justify disbarment, they should be established by a preponderance of satisfactory evidence. Here the charges were specific. The hearing was adjourned from time to time. The accused had ample opportunity for defending himself against the several charges made. In the conflict of evidence the trial court had advantages for ascertaining the truth which we do not possess. The findings of fact, therefore, in so far as they seem to be supported by evidence, must be received as verities in the case. Such facts need not be repeated nor stated in detail. It is enough to say, that a careful examination of all the testimony forces us to the conclusion that the several findings of fact against the accused given above are substantially supported by the evidence.

The difficulties and perplexities which frequently beset an attorney in active practice are not underestimated. In the language of another court: “His professional life is full of adversaries. Always in front of him there is an antagonist, sometimes angry and occasionally bitter and venomous. His duties are delicate and responsible, and easily subject to misconstruction.” In re Eldridge, 82 N. Y. 167. Rut we feel constrained to add that there is a spirit of fairness and magnanimity among members of the bar, not surpassed in any other profession. Besides, experience and observation warrant the assertion that no respectable bar, as a body, would for a moment tolerate the persecution of one of its members. There would, as a general thing, be more danger of laxity in the opposite direction.

To entitle a person to practice law in Wisconsin, he must, in addition to the other requisites, be “of good moral character.” Subd. 3, sec. 2586, R. S.; ch. 114. Laws of 1881; ch. 63, Laws of 1885. As a good moral character is a condition precedent to admission to the bar, so it is a requisite condition for the rightful continuance in the practice of the profession. Ex parte Brounsall, 2 Cowp. 829; Penobscot Bar v. Kimball, 64 Me. 146; Strout v. Proctor, 71 Me. 290; Delano's Case, 58 N. H. 5, 42 Am. Rep. 556; In re Davies, 93 Pa. St. 120; Ex parte Wall, 107 U. S. 280. The words “good moral character” are general in their application, but of course they include all the elements essential to make up such a character. Among these are common honesty and veracity, especiall}' in all professional intercourse. The several acts of which the accused wms found guilty all related to sucli intercourse. The ninth and twelfth findings are each to the effect that the accused collected and wrongfully converted moneys belonging to his clients, and then failed to pay them over after repeated demands. Besides, it was in effect found that his attempt to retain such moneys uras a subterfuge and in bad faith. These things of themselves were sufficient to authorize suspension if not disbarment. In re Davies, supra; In re Temple, 33 Minn. 343; Jeffries v. Laurie, 23 Fed. Rep. 786; S. C. 27 Fed. Rep. 195; In re Treadwell, 67 Cal. 353; Slemmer v. Wright, 54 Iowa, 164; People ex rel. Hungate v. Cole, 84 Ill. 327; People ex rel. Att'y Gen. v. Murphy, 119 Ill. 159; State ex rel. McCormick v. Winton, 11 Oreg. 456; In re Moore, 72 Cal. 359.

As to the third finding, it is said that the money was used by the consent of his client. But the money did not belong to his client. The accused received it from the garr nishee by reason of the confidence reposed in him as an attorney in the case. That confidence was misplaced, and by reason of it the garnishee was compelled to pay the money over again. Such professional misconduct is just as reprehensible as though he had used his client’s money without consent and then failed to paj'' it over when demanded.

As to the fourth finding, it is said that the accused did not receive the money in the course of his business as an attorney, but merely as bailee, and hence that his wrongful conversion of it does not subject him to disbarment or suspension. Oases are cited which seem to sustain such contention, but we decline to follow them. The better rule seems to be, that the misconduct requisite for such suspension is not limited to acts committed strictly in a professional character, - but extends to all such misconduct as would have prevented an admission to the bar. This is sustained by one class of the cases above cited. See, also, Re Hill, L. R. 3 Q. B. 543; In re Blake, 3 Ellis & Ellis, 34.

But the most serious finding against the accused is to the effect that after having successfully defended his client Erickson against a contest for the cancellation of his claim to his homestead, before the register and receiver of the United States land office at Eau Claire, made by one Brown, and received part payment for his services, he threatened Erickson that in case the balance of his bill for such services should not be paid he would take measures to deprive him of his homestead, and that, as such threats were ineffectual, and for the purpose of coercing such payment, he inaugurated a new contest against Erickson in the name of one Moon for the cancellation of the same homestead claim, based largely on the same facts, and in which second contest he appeared not only as attorney but as a witness for Moon and against his former client. Exception is taken because such threats and attempted coercion were not contained in the charges. Proofs were made of such threats, however, without objection, and hence the court was justified in making such findings. But the mere finding that the accused thus turned against his client is sufficiently serious for the purposes of this case. The rights of litigants and the ends of justice demand the most implicit confidence in all legitimate professional intercourse between attorney and client. Queen v. Cox, 14 Q. B. Div. 153. In such intercourse the client should feel free to disclose the weak points of his case as well as the strong ones. This he cannot feel at liberty to do if his attorney is liable to turn up against him in a similar case based on substantially the same facts.

It may be said that an attorney is not obliged to continue in the service of his client without pay. However this may be, he certainly is not at liberty to desert his client and take up against him in the same cause or a similar cause based upon substantially the same facts, for the purpose of getting better pay or even any pay. To allow such change of sides would reduce the attorney to a mere mercenary, always open for employment by the highest bidder. It would compel the poor man to surrender his supposed rights without contest, or enter into competition as a bidder for any legal talent with his more wealthy opponent. It would supplant tbe confidence which clients rightfully have in their counsel by a baneful suspicion and distrust. Eminent professional learning and ability will naturally command appropriate compensation; but professional integrity is not the subject of purchase, sale, or traffic. Such integrity is absolutely essential to the continued usefulness of the profession. Its untarnished preservation is as essential to the honor of the bar as it is beneficial to the public. These views are well supported by the authorities. State v. Halstead, 73 Iowa, 376; People v. Spencer, 61 Cal. 128; In re Cowdery, 69 Cal. 32; In re Whittemore, 69 Cal. 67; Comm. v. Gibbs, 4 Gray, 146.

It is strenuously urged that the trial court had no jurisdiction to disbar or suspend for unprofessional conduct before the officers of the United States land office. But this is not a proceeding for contempt. The issues involved the accused’s professional conduct, instituted in the court of his residence. In such a case we perceive no good reason for such limitation upon such jurisdiction. It has been held that an appellate court may take original jurisdiction for professional misconduct in the trial court or before a judge thereof. In re Whitehead, 28 Ch. Div. 614; People ex rel. Elliott v. Green, 7 Col. 237, 49 Am. Rep. 351. The findings of the trial court are sufficient to properly justify the condemnation of the accused in taking up against his client. As indicated by the trial court, these proceedings are not so much to punish the accused as to protect the public from imposition. The true lawyer has been rightfully termed a minister of justice, and he should never forget the requirements of his calling, nor allow his professional integrity to be tampered with.

In view of tbe conditions imposed by statute upon admission to the bar, the small amounts converted under claims of right, the payment of some of them, the age of the accused, and the confidence entertained of his reformation, this court has concluded to so far modify the order appealed from as only to suspend him. from practice during the two years named therein.

By the Goicrt.— The order of the circuit court is reversed, and the cause is remanded with directions to enter such modified order as indicated. No costs allowed to either party in this court, except the appellant is to pay the clerk’s fees.