*2 ANDERST, Circuit Judge.
A formal was filed complaint in this court on the 3rd day of 1972, February, charging E. Goodrich with two different John charges of dishonest and unprofessional conduct as an attorney at law. answer, The accused filed an and this court thereupon appointed Manson, R. Honorable F. one of the judges Circuit, Third as referee to the issues raised try Judicial Trial of the pleadings. matter was held on 1972. The June referee filed his Findings Fact Recommendations with this court on the 3rd day July, the Bosanco discharging charge, sustaining Ferguson charge recommending that the accused be permanently disbarred from the of law. practice The accused filed exceptions orally argued by thereto that his counsel. The special assistant attorney general appeared announced that by reason of an action in the United pending States District Court note he would not (see infra) argue further herein. participate
The pertinent facts sustained surrounding charge by the referee are as follows: Dr. During early part S. James Murdo, Dakota, South charged by attorney office with general’s approximately thirty-five counts of felonies fifteen approximately counts of misdemeanors concerning of medicine. Doctor practice accused, retained the John Goodrich, E. represent him in his defense. Bond was originally $25,000. set at Later the amount of the bond was reduced to $20,000. The bond, doctor could not personally raise the nor could he procure a commercial bond. Contact was made with the brother, doctor’s Ferguson, rancher, an Australian request- John that he ing send the necessary bond money for his brother. Thereupon, transmitted the sum of to the John Bank, Kennebec, Lyman County with a letter of *3 transmittal that such sum was specifying to be used only for bail bond The purposes. money 11, 1968, on deposited April in a special checking account as designated Bond Special “J. Account”, and the accused signed signature card himself giving sole access to the account. time,
At this same some of the friends of the doctor in the Murdo, South Dakota vicinity had contributed and solicited others for $2,700 contributions that totaled in excess of to be used in the doctor’s defense. This money was in a deposited special checking account the Draper State Bank to disburse- subject ment by Mrs. Delores Iversen and Mr. H. R. North.
On April the accused drew and two signed checks on the Bond Special Account in the Lyman County J. Bank, $18,101, one in the sum of payable to the Lyman County Bank, and $1,900, the other in the sum of payable cash. 1'n return he received a cashier’s check $18,100 in the sum of payable to the clerk of courts County, South Jones cash.1
The accused then who, turn, contacted Mr. North contacted Iversen, Mrs. who related it thus in her testimony: Do
“Q you remember the day the bond was posted Doctor you so could him out get James jail? charged $1a issuing 1. The bank fee for the cashier’s check. Yes,
“A I do. And “Q you you do remember who came to or how you
were contacted about this? Mr. North and Mr. “A I believe Mr. Goodrich called me if I would be ready North called me and asked get enough money togo Draper finish bond, (emphasis supplied) ‡ ‡ $ $ ¤ He Do remember “Q you prelimi- conversation out the from this ac-
nary your drawing money count?
“A All real excited we were at just feeling
least him going finally get out and then they $1,800. said we needed the Was it 19 or 18? “Q
“A Nineteen. Nineteen hundred dollars?
“Q
“A Yes.
“Q you Do remember who said that?
“A (Goodrich).” John
Mrs. Iversen then drew and a check to the signed payable $1,901. State Bank in the sum In Draper return she received a $1,900 cashier’s check in the sum of to the payable County Jones clerk of courts.2 She this check gave accused who deposited $18,100 it and the cashier’s check County with the clerk of Jones courts. Doctor was then released from jail. Prior to this time Doctor wanted the accused to co-counsel, obtain and because of the of the severity charges the number thereof the accused agreed George Johnson again, Here charged $1 bank issuing fee for the cashier’s check. assist on the should & Johnson, Gregory,
Johnson the accused gave $950 release of Doctor Ferguson, case. After the as a retainer and payment firm of & cash to the Johnson Johnson as payment $950 fees. He retained the other on attorneys’ and expenses. towards his fees funds in the remaining special
Evidence was that in the bank were used for Draper “Iversen-North Account” Control over the personal legal expenses. Doctor Ferguson’s well from the money remainder as as the bond money, “J. Account” that was refunded by Bond Ferguson Special Jones courts, by clerk was turned over to Doctor Ferguson County and this money accused with the consent of Ferguson, John his needs. The accused personal was used Doctor by only of the light foregoing contends that his actions did or entries and that he dishonest nothing bookkeeping unprofessional. Ethics of the State Bar of South
The Canons Professional read in as pertinent part Dakota in force and effect follows: Property.
“11. With Trust Dealing refrain action where- lawyer any “The should from he abuses takes gain for his benefit or or by personal in him advantage reposed by of the confidence client. client collected for the client or
“Money of the coming possession other trust into property be and accounted for lawyer promptly, should reported and should not under circumstances commingled him.” with by his own or used acts, $21,900, described By the above the accused procured $1,900 which was in excess of the bond and which required deceit, accused’s fraud and procured through misrep- resentation. The in the Account” was money Ferguson Special “J. limited for bond and the specifically purposes only, money given Iversen was to “finish the bond.” All accused Mrs. to the were thus to him in given received the accused trust moneys
151 specific deposit for a as bond for Doctor purpose Ferguson. —to The accused in violation this trust and appropriated of procured $1,900 of bond money for his own The fact that purposes. some or all of this have been was used money may or later for other is immaterial and is no defense to this This purposes proceeding. court other courts have held the to intent the repay money may use which later put money or to a taken authorized has no on the taken the time bearing actions at Kaas, 4, was money or collected. In Re misappropriated 39 S.D. 162 N.W. Failure 370. of Grievance Committee or attorney general file a to the in complaint as Ferguson charge 1970 does not August affect merits of that charge.
The found, referee further supports the record such finding, the accused during less than hearings forthright, that he evaded frequently direct answers questions, and that he similarly gave complex and answers to unresponsive plain questions susceptible simple of answers. Such actions on the are part accused to the issue pertinent under consideration.
The accused is
not
young
inexperienced attorney,
having first been
29,
admitted to
law
practice
on August
He continually
practiced law this state until
on
his disbarment
24,
September
Goodrich,
8,
re
(In
78 S.D.
N.W.2d 125).
17,
On
1965,
November
he was reinstated to the
of law
practice
by this court and has practiced to date. The
record of
prior
attorney may be considered in determining the appropriate
discipline.
California,
Simmons v.
Bar
State
2 Cal.3d
Cal.Rptr.
These proceedings are not to administer for punishment criminal misdeeds but to exercise the court’s it power to make impossible men whose honesty and as members of reliability the legal profession have been certified to by this court who have their wronged wrongs clients’ trust to commit further Kaas, toward those who seek their may services. In Re The supra. practice law a qualified is right granted demonstration upon fitness legal moral satisfactory character. To continue enjoyment of this right one must maintain this fitness and character. ex State rel. v. Cozad, Rice 70 S.D. 16 N.W.2d 484. The purpose disbarment is the administration guard
152 courts, and the the profession public and to the justice protect failed the from who have to maintain required those practitioners Hosford, fitness. In Re S.D. N.W. 843. If that that a be it protection requires lawyer suspended disbarred almost results in and his This always hardship family. him naturally makes these cases unpleasant. constitutional did not raise the accused
Although objections in his the referee or hearing in the before questions in questions certain he did raise constitutional the referee’s report, have those questions, We considered his brief filed in this court. our constitutionality the his challenge with together him in face and as applied on their procedures, disbarment in in his in action as set complaint this forth proceeding, have and we infra), District footnote United States Court (see accused are by claims raised that the constitutional concluded without merit. in the E. Goodrich to continue
The unfitness of John clear established the having by prepon law been practice of evidence, a judgment we are of the opinion derance of the by recommended the accused as disbarment permanent against the referee should entered.3
It and is so ordered adjudged. court, period arguments by During a two-week oral scheduled arguments proceeding Findings in this as to the Fact and Recommenda- for, on, September tions of that referee were and heard 1973. On set Summons, morning Complaint Temporary a and a Motion for Restrain- Court, ing Order in an action titled In the United States District District of Dakota, Division, naming plaintiff South Central John E. as Goodrich Dakota, Supreme the Dakota, of the of South The State Bar South Court State Sande, Dakota, Attorney A. and Kermit General of South as defendants, together with a Notice thereon that the Motion would be heard 26, 1973, Aberdeen, September a.m. at on at 10 not, Obviously, served and did court. court on the Chief Justice of this could not, hearing. temporary appear at We advised no such are court, restraining against though order was some direction or entered may against parties. order have been entered named This situa- other delay may writing filing tion account for some of the date, Answer, including opinion proceeding. court’s this At later Dismiss, court, was did Motions to and thereafter counsel court, appear plaintiffs District for the on the Motions made the action February dismissed on the United States Court. BIEGELMEIER, WOLLMAN, C. J., concur. J., DUNN, WINANS and dissent. JJ., ANDERST, DOYLE, Circuit Judge, sitting J., disquali- fied.
DUNN, (dissenting). Justice
amI in with the agreement that our disbarment majority procedures are constitutional.
amI in also with agreement that the majority prior of record disbarment be may considered in determining Goodrich, Mr. appropriate discipline for am but I in not agreement that it should be in considered his determining guilt. The Ferguson case was investigated by Grievance Committee some three years on the ago of complaint Ferguson. John a full Following accounts, disclosure of the handling of the John withdrew Ferguson complaint. his Dr. Ferguson moved James back to Australia and died. The file Ferguson of the John Grievance Committee was closed.
Upon a second complaint in being in Bosanco case, which heard and the referee found to be proven”, “not case was resurrected and is now the basis of John Goodrich’s disbarment. If the case was to the basis disbarment, it should have been in 1971 when prosecuted Fergusons available to renewal testify. The of these charges after almost three years have elapsed denies to Mr. Goodrich very fundamental I rights. must dissent. respectfully
WINANS, (dissenting). Justice I concur in the dissent of Dunn. I Also am Justice agreement with the that our majority disbarment are procedures constitutional. I would add a but short statement as background. The referee made rather shrift short of the and I charge Bosanco think he was correct in so doing. complaint Whatever was originally by made Dr. Ferguson or his brother or both John against Goodrich been appears have completely adjusted John and settled among themselves. This borne by is out Exhibit under date of It also by Dr.
signed June office year Attorney one earlier the of the nearly appears a letter by of the of South addressed to General State Committee, Grievance dated Chairman of the South Dakota likewise with the satisfied August explanation Goodrich, attorney, his conduct made showing by through The Attorney then under last investigation. paragraph with statement: General’s letter concludes this “Unless is either the by this office notified Grievance South Supreme Committee or the Dakota Court required further investigation action or is the Attor- ney General, we will in this case.” close our file have in Mr. Good- against What I we this proceeding believe a possible super-sensitive rich is technical violation highly Bar of 11 of Professional Ethics the State vindication Canon as set in the Dakota in force effect forth I not believe that the opinion. following language Court’s do warranted the record: justified such is either opinion * * “* *8 de- which accused’s procured through ceit, These are charges, fraud and serious misrepresentation.” had Attorney previously General closed same on which the far I too and at too late majority opinion goes files. think the reasons, I judgment outright date. For dissent from these case. disbarment this BEEK,
STATE, v. VAN Respondent Appellant N.W.2d (216 561) (File Opinion April No. 1974) May petition rehearing denying Order