172 N.W. 921 | S.D. | 1919
This is an original proceeding instituted upon the complaint of Jacob C. Hatfield and John H. Boots and seeking the disbarment of A. W. Wilmarth, a duly licensed practitioner 'before this court. Pursuant to statute the Attorney General has charge of the prosecution. The issues were referred for trial to a referee selected by the Attorney General and respondent. The referee has reported findings of fact and has recommended that respondent be suspended from practice for the period of i/á years. The Attorney General has moved for additional findings and a judgment of disbarment. Respondent moves for a dismissal of the charges. The findings of the referee are, so far as material, as follows:
Respondent is now, and has been ever since 1883, an attorney and counselor at law duly admitted, to practice in all the courts of this state, and he has practiced during all of that time at Huron.
In the year 1908, and while state’s attorney in and for Beadle county, respondent instituted two certain criminal actions. While each of such criminal actions was pending and undetermined, respondent, as attorney for the party complainant in the criminal action, represented such party in a civil action brought against the party who was defendant in the criminal action. Each civil action depended substantially upon the same facts upon which the corresponding criminal action was based.
In 1912 respondent was retained to bring a certain civil action in justice court. There was a younger attorney at Huron to whom respondent often turned over justice court cases for trial. In this, particular matter respondent prepared the papers, including the summons, and indorsed this other attorney’s name thereon as attorney and did not indorse his own name thereon. This other attorney took the papers to the justice, who signed and issued them, and such attorney delivered them to the constable for service. The case was settled before trial by the payment into court of the amount ,of the claim and costs not including statutory attorney fees. Á controversy afterwards took place between
On or about January ra, 1915, Boots, one of the complainants herein and á resident of Huron, went to his farm on some 'business. While there he got into difficulty with one Hansen in the course of which trouble a revolver carried by Boots was discharged. After his return to town Boots went to respondent’s office and retained respondent to defend him. in the event that Hansen should prosecute him for assault with a dangerous weapon. To enable respondent to prepare for such defense Boots detailed to respondent what he claimed were the facts in the difficulty that had taken place between him- and Hansen. Np prosecution for assault was instituted against Boots and on March 10, 1915, respondent wrote Boots requesting payment of $25 for his services. Boots not having paid this, respondent on October 18, 1915, sued -him in the justice court for the sum of $100, which suit was settled by the action of $35 and the costs of the action. On November 10, 1915, an action was commenced in the circuit court of Beadle county by Hansen against Boots for $5,000 -damages for alleged assault occurring in the difficulty hereinbefore referred to. This action was commenced by one M., as attorney for the plaintiff, and ivas brought on for trial at the June, 1916, term of said court. Before the convening of this term- M. found that, owing to the condition of -his health, he would be unable to try cases at that term, and he procured respondent to try such of his cases as would come to trial at that term, including the case of Hansen v. Boots. Boots in some manner learned that the respondent intended to try this case on behalf of Hansen and wrote him a letter denouncing' his proposed course in appearing for Hansen after having been his
Respondent testified that he was not aware of section' 938, Rol. iCode, when, as state’s attorney, he maintained criminal and civil actions based upon same state of facts. Said section 938 forbids such practice. It has been in force since 1883. The referee finds that respondent’s ignorance of this statute does not excuse its violation.
The referee criticises respondent for indorsing the name of the other attorney on the summons in justice court and in keeping .his own relation to the case undisclosed. The referee suggests that such action might be deemed a violation of section 214, Penal -Code. Such section forbids an attorney allowing any person, other than his partner or clerk, to sue out process in the attorney’s name, and said section makes both the attorney and the other party criminally liable.
The referee finds that Exhibit 31 would naturally mislead C., who would take it to be a communication from respondent himself ; that C. was misled was shown by the answer to Exhibit 31 which answer respondent conceded he received' and read; that respondent must have and should have seen that C. believed its claim had not been passed upon; that it became respondent’s plain duty to have unequivocally informed C. as to the exact situation; that he should not have allowed it to remain in ignorance of the true situation until time '"or appeal from the order rejecting the claim had expired; and that he should not have contested to the last C.’s application to have the matter reopened, such-motion being based on the ground that C. had been misled by the communications received from respondent’s office.
The referee held that respondent should not have appeared on behalf of Hansen in' the trial of Hansen v. Boots, and especially so after receiving the letter from Boots denouncing such
But, inasmuch as á judgment of disbarment from the practice of an honorable profession ' entails not only great financial loss' — ofttiihés destroying one’s only means of livelihood — and"in all cases brings disgrace and humiliation, thus partaking of the nature of, and ofttimes equaling or even, éxce'eding,' the punishment 'inflicted for breaches of our penal laws, courts should always hésitate éither to disbár or even' to suspend one from, such
If such were the facts, respondent’s appearing on behalf of Hansen, calling and examining Boots as an adverse party, and cross-examining him when he took the stand in his own behalf would be most reprehensible and in direct violation of that part of the Sixth Canon of Ethics adopted by the American and South Dakota Bar Associations, reading as follows:
“The obligátion to represent the client with undivided fidelity and not to divulge his secrets or confidences forbids also the subsequent acceptance of retainers or employment from others in matters adversely affecting any interest of the client with respect to which confidence has been reposed.”
But such finding has no support except in the testimony of Boots, one. of the complainants in this proceeding, which testimony was corroborated in some particulars by Mrs. Boots. Boots testified that on the day of this trouble he reached Huron in the evening; that he was sick and unable to and did not go up town that 'evening; and that the next day he went to respondent’s office, retained him, and had a long interview at which he related fully the facts and circumstances connected with the shooting affair. Mrs. Boots testified that Boots reached home late and
Furthermore, in his written complaint, signed and sworn to, and upon which this proceeding is based, Boots says: “That thereupon your complainant immediately left said farm, and * * * at once proceeded to the office of the said A. W. Wilmarth in Huron.” And at another place in said complaint Boots refers to his interviews with respondent “on- the date on which said encounter took place and on the following; day.”
It follows that, while respondent should not have appeared against Boots without Boots’ consent, yet he was not in a position to take any unfair advantage — a matter most material to the question of moral turpitude.
“The office of attorney does not permit, much less does it demand of him for any client, violation of lav/ or any manner of fraud or chicane.” 15th Canon of Ethics.
The duty of an attorney to his client demands nothing more than an honest effort to secure.justice for such client; it does not permit, neither does it excuse, a resort to deception to procure
“When they would not settle and put up the fight, then I put up the best fight I could to beat them and they would settle.”
Judgment will enter accordingly.