*1 503 turns the conclusion of this “The soundness obligations rights and the of the contract terms parties under it.” appellant made an at bar was not the case in agent purchase done as was of materials called for contract where Kern-Limerick case agent purchasing for the Govern- act contractor directly passed purchased articles to the ment, title Govern- and the Government, vendor from the payment directly the vendor liable to ment was persent price. purchase are not elements These the case at bar. finding agree that the re- with the chancellor’s
We independent lationship one of bar was in the case at appellant agency, and therefore contractor, involved within of the items consumer, user, meaning in find- correct of the Act. chancellor was ing contractor the sale to the holding taxable. contractor was sale affirmed. The decree of the chancellor is NATIONAL M. v. FIRST RUSHTON, Joe F. D. BANK MAGNOLIA OF 2d 426 378 5-4417 S. W. April Opinion 1, delivered May 6, [Rehearing denied 1968.] Harry Colay, B. & and War- Chambers, Chambers *2 appellant. Bullion, ren & for Clegg Gavghan Laney,
Keith, & Eckert and & appellee. appeal by
Conley Byrd, Justice. This F. Joe Rush- arising ton, D., is one of a number M. of lawsuits from president appellee the dismissal of W. C. Blewster as Magnolia. First National Bank of Dr. Rushton contends endorsing that in ing Company certain for Numark Manufactur- *3 stockholder in Magnolia the First National Bank of since 1936 a and engaged director He since 1937 or 1938. enterprises in a of number with W. C. Blewster —some Congressman and some with Oren now Harris, U. S. Judge District for the Eastern District of Arkansas. His prepared financial by statement, Magnolia, the First National Bank of on October a 1, 1963, showed net worth of $1,701,493.00.
3. T. A. Monroe, an had insurance been di- man, president rector of bank since 1951 and vice Upon 1956 to 1964. Mr. Blewster’s Mr. termination, president September Monroe became and served until president, 1965. As was member of the Exec- bank’s along utive Committee Mr. with Eckert. Magnolia,
4. William A. Eckert, Jr., Arkansas, attorney years had been for the bank some fourteen and a director since 1957. He served on the Execu- bank’s along tive Committee with Mr. Mr. Monroe, after Blew- signed pleadings ster’s termination. He some of the herein as the bank, for most of but the sub- sequent pleading's signed Graughan Laney. were & He during did not examine trial, but witnesses appellee shoAvnhere as counsel for bank. Odyssey Company corporation
5. Trailer awas organizing which Blewster was instrumental prevailed upon time Mr. Blewster At trailers. one build him asked and later in stock $2,500 Dr. Bushton to take city please was all $2,500, to Magnolia another take company get After started. lacked to pre- Odyssey organized, and others was Mr. Blewster upon County Industrial Commis- vailed the Columbia through building issue. a bond sion Odyssey it to erect for through National Bank the First financed was Magnolia. it forty built, had been After trailers some high apparent too and their cost became was industry. company Dr. and Bushton was sick Odyssey’s had directors and on board of Blewster were Bepublie personally $35,000 note endorsed renewed several Dallas National Bank of which times. Company Magnolia was anoth- Products
6. Wood Magnolia industry er that Mr. Blewster secured Mag- Bank financed the First National that was friendly industry too; a fore- sick, This became nolia. January had; 11, 1963, the foreclo- closure was Magnolia for sure sale National Bank First .the plus judgment interest of $52,705.45 amount of its debt attorney’s fee confirmed. *4 Manufacturing Company the name Numark 7. merger resulting given from be- new to venture the Company. Magnolia Odyssey Products Wood tween and as stock- Numark were the same stockholders Odyssey Magnolia. Dr. Bushton was and holders of president urged to absence and serve elected by capacity was also that Blewster. Blewster government board Numark obtained of directors. its operated dismissal contracts and after Blewster’s until bankruptcy president bank. went some of the It into time trial before of case. meeting January
8. The minutes of the 16, 1963, Numark directors, of the board of with reference to following: issues here showed the involved, C. Blewster “W. stated that Firsts National Magnolia, Magnolia, by Bank of had, foreclo- Arkansas, proceedings, acquired sure all title of the to assets Magnolia Company, Wood Products that the bank leasing corporation property is rental per of $250 month. He further stated that he and Mr. high hopes arranging had company Drew for the corporation obtain an ABA loan so as to enable the purchase Magnolia all of the old assets of the Wood Company Products from the bank.” special meeting minutes the Numark board of directors on March reflected fol- lowing :
“Mr. Blewster stated National First Bank Magnolia conveyed Magnolia had all assets the old Company Wood Products F. to Joe Rushton, Trustee, Company Manufacturing possession Numark inwas Magnolia properties of the old Wood Products under agreement by lease entered F. into between Joe Manufacturing Rushton, Trustee, lessor, and Numark Company, explained as lessee. It was that it was antici- pated attempt that Numark should to obtain from Redevelopment Area Administration loan corporation might pur- amount of so that the $200,000, chase from the all Trustee assets of Prod- the Old Wood 'Company. complete ucts a full and After discussion of Viering matter, motion made Charles corporation seconded Felton Roberson that attempt should to borrow $200,000 with ARA, purchase Magnolia which all of the assets of Wood Company property Products and other related thereto, title to which now in Joe F. Rushton, Trustee.”
9. On March 1963, the 1, First National Bank of Magnolia conveyed to Dr. F. Joe Rushton, Trustee, property acquired Magnolia Wood Products Com- pany foreclosure. April Rushton, Trustee, F. Dr. Joe 1963, 3,
10. On for First Trustee Black, of trust Carl executed deed property covering Magnolia, ac- Bank of National Company. quired Magnolia This Products from Wood days given a note due deed of to secure trust was signed hy date, $97,787.77, in the amount of Rushton, Joe F. Trustee. Manufacturing April Com-
11. Numark 3, 1963, On pany Bank National Texarkana executed note to the by Dr. Rushton and This note endorsed $35,000. Mr. Blewster. September April Nu- 26, 1964, 3, 1963,
12. From Magnolia by National Bank of mark was financed tlirough First amount of overdrafts which had accrued September Numark 26, On that date as of $225,000 1964. Bank First National to the $225,000 executed note for participated Magnolia. Texarkana National Bank upon per- $125,000 $225,000 note to the extent guaranty Mr. Blewster. Dr. Rushton and sonal pledged 24,675 shares as collateral addition Dr. Rushton Asphalt Company. Berry note Numark executed 1964, 13. On October Avas note This National Bank. $35,000 Texarkana and Mr. BleA\ster. Dr. Rushton endorsed dis Blewster A\as 1, 1964, 14. On November president bank. missed Re Numark executed 23, 1964, 15. On NoAember public $35,- a note for Dallas, Texas, National Bank of Mr. Blewster. Dr. Rushton and endorsed Mr. T. A. Mon- dismissal,
16. After Blewster’s in- an unexecuted desk drawer roe found in Blewster’s Mag- mortgaging the Numark was strument wherein security First Bank nolia National Wood Products to Realizing bank had no for the note. $225,000 that the *6 security part $225,000 for its that title note property to the Rushton, Joe F. Trustee, joined suggestion, hank, at Mr. Eckert’s with Joe F. by conveying on deed Rushton, Trustee, December Magnolia proper- Company 20, 1964, Wood Products ty Manufacturing Company, and simultane- Numark ously caused unexecuted deed Numark trust from in favor of the bank be executed. removed This security signed by $97,787.77 note Dr. Rushton placed as Trustee and it on the $225,000note of Numark. 17. On December 28, 1964, Numark executed to Re- public National Bank of Dallas its note for $37,390.69, by endorsed Dr. Rushton and Mr. Blewster. January
18. 1965, On Numark executed Re- public National Bank of Dallas its $19,000, note for also endorsed Dr. Rushton and Mr. Blewster. February signed
19. On 1965, Dr. Rushton acknowledging instrument he indebted to the among things, First National Bank for, other $97,- pledged 787.77 note as trustee. In addition as collat- security Berry eral 10,500 shares Petroleum Com- capital pany Magnolia stock and 140 shares of Broad- casting capital Company stock. parted
20. After Dr. 10,500 Rushton had with the Berry Mag- shares of Petroleum stock and 140 shares Broadcasting nolia Eckert, W. A. stock, Jr., bank’s attorney, suggested to Dr. Rushton he should em- ploy his own counsel.
21. From the time Blewster was dismissed from the bank until made his Dr. collateral Rushton pledge with the all bank, bank transactions between the Dr. Rushton were T. A. Monroe handled usually together. W. A. Eckert, Jr., FACTS
CONTROVERTED testified that W. Blewster direct examination C. *7 leading Dr. Rushton in the transaction became trustee presi- up he, because as to and involved in this lawsuit trustee; to act Bank, National asked him dent of First trying going keep attempting he Numark was that in to having prevent Bank from substan- First National to bank’s bene- for the was loss,- tial that this transaction suggestion, intention and it was not fit and at Ms up personally and that liable; to be for Dr. Rushton Bank liad National First until this Numark transaction going everything large and losses never sustained money forced he was and well until the ARA ran out Bank resign. First National that to Blewster stated Mr. trusteeships like work out situations had had to other questioned they the bank been this one had never examiners. apparent when it became
Dr. Rushton testified that go Odyssey going trailer of the to make that was not that the best of directors he told the board business, up. Mr. thing fold and let it was to it down do shut to manager Drew, suggested Mr. that then Blewster Magnolia Odyssey, Products Wood look at the take property continued with if could and see business companies. merger had taken a The bank two companies to want Mr. Blewster did both loss in suggestion, Mr. happen. Drew At Mr. that Blewster’s see companies put perhaps two he could decided that manufacturing pull products together, go into wood he stated that Rushton Dr. out of the fire. the situation merger meeting because after the attend the could not see Mr. surgery, Blewster called and that when he they they had elected decided, he found what had president. reluctantly accepted at office Mm He through request. Mr. Blewster told him Blewster’s arrange going ARA they an were Hamilton Moses^ as trustee him to act loan; that Mr. Blewster wanted get company could make bank loans to this new so money its back from ARA Dr. Rushton stated loan. position explained meeting that his at trustee bank’s board of directors; that the bank had asked him arrange to act as trustee it the bank could so pay for him to off its it indebtedness notes was about arrangement lose; that this was the same bank had used before with Mr. Shanehouse and Varner capac- and one two others who had served in the same ity as had Dr. Rushton; that all the time were endeavors being made to secure loan and that while ARA nothing himself being had do to with it it, he knew was helped filling done because the bank had out the forms. *8 respect February
"With to the collateral (see pledge above) item 20 Dr. Rushton testified.1 put resigned, up After Mr. my W. C. Blewster had I Magnolia Broadcasting stock in Company and the rest Berry I Company the stock had in Petroleum to se- mortgage. any money $97,000 cure the I did not receive warranty or consideration for the deed Numark Man- ufacturing. put up security I The reason this for the mortgage trustee T. A. 1963 was that Monroe called me to come to the Bank. I went down there and Mr. I Eckert told me He was serious trouble. said that going penitentiary W. C. Blewster was I and might going my be I with him. He said had clear better part at name the First Bank; National that I was thing. money, the whole asked I He me what did with the got any money, I I and said never of the and said he money you might investigated is somewhere and you everything the Federal Government and will lose your you everything, have; home and clinic and I thing. thought doing right I was I followed the ad- put up security. vice the Bank’s subsequently by legal I was advised counsel that I brevity, appellant’s 1 For we have abstract of used Dr. Rush- point. ton’s and Mr. Monroe’s on this put up my Magnolia did I stock in not have to do that. Broadcasting Company 10,500 of Ber- and about shares ry blowup at the Bank. was after the Petroleum. This put up signed any security I did I not in 1961 when Broadcasting Company Odyssey Magnolia note. The typed Berry stock stock on that and the Petroleum was my and I not know it was consent, note without did there. security putting up
I into was coerced on the my legal acting Mr. Bank Eckert advisor note. was acting legal while he for the Bank. I was advisor paying him had been friends for not fee. We close years I not him. or 15 no reason to trust and had T. A. Monroe testified: ways, had been the whole board of directors some they ways duty fail but in did not derelict their other 'things they were did not know some because going . . I in the executive on. did not tell Dr. Rushton myself, meetings Rushton and Dr. between Eckert of federal law that his activities in violation were Mr. Eckert tell I hear was in serious trouble. did meetings might gone or been I out of the him that. have advising called I know. Mr. Eckert out. don’t But *9 legal he liability if told him We Dr. Rushton on his ... voluntary up put it would his free securities prevent, merely loan to .. him to act. asked We secure being of direc- board before the him from embarrassed brought I in don’t but We wanted the securities tors. ap- just voluntary. more . . It was think we mentioned straight. help get didWe pealing to him us loan to voluntary act. him free and it would be his not tell Mr. testified: Later Monroe you saying “what did I Rushton don’t recall Dr. up money” It come of times. do with that a number did emphasize. A I didn’t two statement on one or occasions. emphasis. might carry Dr. Rush- I like that own told its put up investigating FBI if bank, ton tlie bnt he property and it would take I securities, the heat off. don’t think Dr. Rushton was threatened the extent being intimidated. you
“Q. When was the first time heard Doctor presence anyone your Rushton state to in acting he was as trustee for the First National Magnolia, taking Bank of in this Numark property?
A. meeting That inwas our first with him. your meeting That Q. first with Doctor Rushton?
A. Yes sir. Laney you question Q. When Mr. asked this every you direct examination, he time asked question you answered ‘no.’ had You people presence your heard tell him other acting that he was as trustee for the had bank, you not? Meeting.
A. Yes but not in sir, a Board Mr. Lan- ey say I asked me if had heard him that in Meeting. Board your pertained Then all of
Q. ‘no’ answers of only Meetings, Board Monroe?
A. Yes sir. Laney you going
Q. told that he was ask questions put those and would the word Meetings’? ‘Board I
A. knew would have to ask but that.” Yes, *10 Following testimony, Mr. Monroe’s W. A. Eckert testify was called as a witness for the to defendant. At Dr. Rushton the called, for made time he was counsel following' objection: object testifying. has
“I want Mr. Eckert He during sat here entire and we asked for not leave the witnesses he did rule Your Honor.” Courtroom, thereupon objection The court Mr. overruled Eckert testified that he was at several conferences with period Dr. Rushton over time December 1964 February 1965 and first time he about ever heard claiming Dr. Rushton been he had authorized to act agent complaint or for trustee the bank was when the had ever filed and that no one suit; instant anyone presence coerced in his in connection with the reg- Dr. Rushton affairs. Mr. Eckert stated that he had ularly meetings attended the and had nev- bank’s board any bank er heard at of them that the discussion agreed liad Dr. harmless connection to hold Rushton papers Numark. *11 permitted poration in the court was to remain who pointed room. for Rushton out Counsel Dr.. that sitting Mr. A. Eckert at the W. counsel’s table participated and that Eckert had in number undoubtedly of these and would transactions be called as a witness. for Counsel the bank announced participate attorney Eckert would as an would be called witness.” as
[*] [*] [*] recognize great “We that the court trial has deal applying in discretion the rule but that discretion is not without limitation. When it is called to the attention of the Court and that an counsel obvious specific objection witness is courtroom and made to that an witness, it is abuse discretion for permit participate the trial court to trial and then case take the witness testify.” stand and
Appellee argument its the matter states follows:
“It is true this was conducted under ‘the rule.’ This did not Mr. Eckert exclude who was attor- ney Appellee. every right record He had present duty having to be and it was his there through years been dur- all the- the bank’s ing which the occurred. The involved transactions actual trial of conducted other coun- the case was sel. only question pos-
“As we see it which could testifying sibly be involved Mr. Eckert’s is whether proper of Pro- under Canon 19 of the Canons Ethics. fessional Canon reads: This except ‘When is a witness client, merely formal such as the attestation matters, custody of an instrument and the like should Except trial of leave the the case other counsel. justice, when essential to the ends should ’ testifying avoid in Court behalf of his client. opinion conducting “In of bank’s counsel *12 justice’ trial it was ‘essential to the ends of that testify Eckert called and he was as a witness. appraisal If trial counsel was in error in his of what justice’ ‘essential was ject to the ends then he is sub- anything to criticism but fail to we see in- else ’’ volved.
CONCLUSION
participation
of counsel and his
in a
case in which one of
them
is dealt
is witness
with at
length
Opinion
in Formal
220 of the American Bar As
“Opinions
sociation’s
of the Committee on Professional
pointed
puts
Ethics.”2
there
As
it
out,
counsel in the
position of both
one
witness,
advocate
re
which
quires
partisan
to be
and the other of which
requires him to be factual. It
robs the trial of that
thus
appearance
every
of fairness which should characterize
Morgan
hearing.
(1865);
Roberts,
court
v.
Ark. Stat. Ann. 28-702 § “If party requires may judge either it, exclude party, courtroom of the adverse not at the may time under examination, so that he not hear tes timony construing of the other statute, witness.” Arkansas Motor Ark. Williams, Ltd. v. 196 Coaches, (1938) 116 State, S. W. 2d 585 v. 135 Ark. Oakes (1918), consistently 305 we S. W. held have that permit it within the discretion of trial court to testify though in a even the rule has cases, however, been invoked. above do not show developed situation that in this case. Here the record conclusively only that Mr. establishes Eckert was one Opinion as an addendum.
2 Formal 220 is attached hereto beginning. key from the three witnesses in this lawsuit agree appellee necessary can Nor we with became it justice during the trial for Mr. Eckert ends testify. appears it Rather, bank took a calcu- lated risk that Dr. Rushton make could not out case.
Upon grounds both we hold that the trial court permitting testify, abused its discretion in Mr. Eckert to depended upon for Dr. Rushton’s whole lawsuit credibility of Dr. A. Rushton, T. Mon- during roe meetings A.W. Eckert held from February. December to
Usually chancery cases such as this are tried de
novo
this court but in such instances we have the bene-
complete
fit of a
Here it
bank
record.
is obvious that the
*13
would like to have
Mr.
Fur-
the
of
Eckert.
according
reply
to Dr.
thermore,
Rushton’s
brief, he
opportunity
would like to have the
to show that the bank
position
against
lias taken Dr.
in a lawsuit
Rushton’s
Fidelity Guaranty Company
U.
&
S.
U. S. District
the
Court for the Eastern District
Di-
Arkansas,
Western
posi-
vision. Thus we find that we
in much
are
the same
tion
involved in
Ark.
Cline v.
104,
Miller,
(1965).
reversing
Reversed and remanded.
ADDENDUM FORMAL OPINION 220
(July 1941) 12, CANONS INTERPRETED: ETH- PROFESSIONAL ICS opinion by was stated committee Phillips,
Drinker, Messrs. Brown, and Miller, Jackson concurring, Houghton and Mr. Brand dissent. questioned
A member of this Committee has former Opinions generalizations the of certain in our soundness relating 50, and 185 conduct litigation may in which one been or has propounded be a material us the witness, and has specific following questions: represented
A member of a law firm has a decedent gift subject gift in connection ing awith hav- federal tax, papers, paid drawn all the tax, calculated opinion given prop- gift to his client that contemplation er and not made in of death. The represented also drafting the decedent in connection with the expected by
of his Will, and was the decedent represent estate, which Executor and the fam- ily of the decedent also desired. attorney
After the death, client’s and his firm represent Subsequently, are retained to claim estate. gift made the Federal Government that contemplation made in and a tax is assessed. death, represented who the decedent is neces- sary gift. to defend repre-
Is it unethical for his to continue to opposing sent the estate the claim Federal Government? involving question to whether one cases *14 represent may
member of firm a a in a client case where partner necessary his is a should a witness, distinction be drawn between:
(a) position lawyer Cases where the must a take supported by partner adverse to that his a witness, as lawyer partner’s supports and cases where his tes- timony?
(b) partner required in which the Cases is to tes- tify concerning profes- in connection with his matters involving distinguished sional duties, from cases tes- timony relative to other matters? problem involving participation by
Is not the lawyer litigation partner necessary where his ais by general one which witness, should be covered not by provision but ethics, rule more flexible such as would following involve the addition to Canon 19 of the paragraph! improper
“It is for an to act as counsel in a matter which as to he or his has testified required testify, except by or will special permis- appear sion of the tribunal in which he is to as counsel.” provides Canon 19 as follows: lawyer except “When a a witness for client, merely as to formal such matters, the attestation or custody anof instrument and the he should leave like, Except the trial of the case to other counsel. when essen- justice, testify- tial to the ends should avoid ing in court in behalf of client.” Opinion
In 33 we held that where a firm law had represented procuring an imbecile relief for her imbecility, any reason of her it was unethical for mem- accept subsequently employment ber of firm in- volving the assertion that she was an imbecile. We there said that
The relations of in a law firm are so close all firm, the members are thereof, accepting any employment, barred from prohibited taking. one member of the firm is Opinion stating without the facts of the case condemning before us, we referred to Court decisions generally, professional as a breach of the rules of con- acceptance employment duct, the who knows will that he be a material witness for his client, testifying, already, employed, “except or his where those rare cases where, from some unforeseen event oc- curring progress of a trial, his becomes indispensable prevent injustice.”
520 though a that,
We further said zeal even his lawyer might testimony witness, not as a influence his public might suspect it would, situation —a lawyer referring which the should avoid. After to the Opinion principle precluded lawyer 33 that a is from accepting continuing any or in a in which his partners properly employed, could not be we stated broadly lawyer may accept properly that a a case in which he has reason to believe that or he his ordinarily will abe material witness and must proceedings, withdraw if and when, the course of the apparent. such becomes Opinion Opinions referring held, 185we 33 improper lawyer accept employ- it that was for a duty
ment in a case it be where would his to attack the given by partner essential to be on be- half the other side. February
On 10, 1941, the Committee on Profes- Philadelphia sional Guidance of the Bar Association opinion substantially rendered an on facts similar to those involved in the case now submitted to this Com- Philadelphia Can- mittee. Committee discussed our Opinions express- on and our 19 and 185. 33, 50, While high Opinions, Philadelphia ing regard for our Com- Opinion mittee declined whereby follow the statements accepting precluded broadly a from is partner continuing employment in a in which his ease or ydtness. Philadelphia or will a material been has Opinions agrees in our conclusions with the Committee lawyer may continue not assume or 33 and 185 that been position has for which 'to that adverse agrees should be a will witness, litigation must himself in which not himself conduct require clearly justice be a unless the ends witness, Philadelphia Canon constructs Committee it. The precluding counsel” “other its not, face, partnership the wit- being with which member holds, however, ness affiliated. It
521 reasoning which agree with the are unable We impropriety participation a to the attaches partner lawyer trial counsel a and his as as represented have in a matter where the they en- and where are client from the outset conflicting upon opposing the con- gaged sides of troversy. opinion op- of the committee is also
This posing judge should be advised counsel and trial partner aas witness. to the status of the Philadelphia in that, holds further Committee appears partner it would witness, a in which a cases improper lawyer to conduct the case be for the contingent fee. Opinions and 185, in the decisions where
With required lawyer his to attack own the testimony would have been partner, in entire his are still or that of we employment accept would aceord. or continue such To position necessarily place lawyer inconsistent in the by Canon 6. condemned position that where with in accord are also
We necessarily witness as material will be professional relating should duties, he matters not his accept employment in the case. instance, in the first not, opin- present constituted is as at The Committee properly may often distinction ion, however, partner’s relates to in where drawn cases professional du- occurring his course of matters long has in cases where and also ties, familiarity matter the details with intimate necessarily de- litigation, will so that his withdrawal peculiar experience knowledge prive client of irreplaceable value. and unwise both consider unwarranted therefore We Opinions generalizations 185 to 50 and broad lawyer may accept the effect that a properly never em- ployment likely where to be a witness and that he must probability withdraw from a case when snch develops. question frequently arises connection with propounded.
cases like that here In such cases the law- yer prepared papers, decedent has all the knew *17 exactly why the decedent, and knew he did what he did. represents His naturally firm, however, the decedent’s properly gift. which estate, on them to sustain relies the By knowledge reason of their of the decedent’s affairs they peculiarly qualified they are to do and unless so, deprived can so the estate will be of their valuable d#o services. appear
In such cases there does not to be im- propriety lawyer papers in the who drew the knew testifying surrounding the testator the facts the ex- gift, partner represent- of the ecution deed of and in his ing possibility the estate to sustain it. of the witness moulding higher his in order secure a fee injustice by for firm his is more than balanced the necessary depriving of the client either the latter of lawyer. specially qualified possible witness or of a merely interest of the would witness affect his credibil- ity. require might itWhile is true such a situation lawyer argue veracity the of the estate to his partner, equally this would be the case where part- Actually, was his friend near relation. if his ner of the and asked witness withdrew from case colleagues place, one of his at the to take bar standing up latter would be not assiduous in less reputation partner. the witness’ would the latter’s We do not construe the words “other counsel” in necessarily excluding Canon 19 as of the law- yer who must become witness. opinion, properly
In our it cannot be therefore', said every may properly appear in case that a partner' hut not: caso where could that each case depend should on its own facts. many problems arising
Like other in the of course professional employment, questions this involves good depending well as of ethics, taste as its solution largely surrounding light on the circumstances, which each must resolved, within limits lawyer, full outlined, with, course, above dis- opposing tribunal. closure to counsel and to the dissenting: MR. HOUGHTON,
From certain and conclusions statements opinion respectfully majority I committee, dissent. agree
I con- do not criticized statements Opinions relating to the tained in con- ducting litigation one of his which *18 may witness, material are been or be a has departed agree wrong I Neither do or be from. should partner proper and to a witness it one for that is in in a trial even cases where the advocate another the lawyer long acting famil- and detailed as a witness lias litigation, so iarity in that matter the details of the with deprive may necessarily his client withdrawal his irreplaceable experience knowledge value. lawyer opinion should be firmly no that I of the am excepting those cir- under advocate, witness both existing permitted by recognized Canons, cumstances existing opinion Canons I of the am further justify reached conclusion to be amended not should opinion. majority improper premise it is If with we start in a con- lawyer and an advocate a to be both witness a part- opinion law my that his then firm ease, it tested is doing. The func- from so be barred ner likewise should carried not be should a and an advocate tions of witness person. out the same function to of a witness is questions. tell facts as he recalls them answer partisan. The function of an advocate that of a is provides except Cation 19 that, effect as to formal lawyer when matters, a is a liis client, witness for should leave the trial case for other counsel. This Opinions Canon has been construed in committee prohibit partner acting and 185, to one a wit- as ness and another as an advocate in contested crystallization merely case. The is Canon itself of rec- ognized years. prevailing many bar views Bank, Roys
In the v. case of National First 183 Wis. 10, where the court had under consideration the matter propriety appearing of the. a case a witness to contested facts, court called attention to Canon 19 and stated: simply
This rule be allowed because the adopted American Bar it, Association has but with better reason because it states ethical considerations appeal every that must sound. A law- yer has retainer —as a witness lie is not entitled to such. He will find it hard disassociate re- lation to client as and his relation to party as witness. This case bears that fact. by many
The soundness of the Canon is evidenced opinions Campbell, of various courts. Lord in his Lives *19 relating the in fact Chancellors, the that the solicitor general prosecution conducting against who the Sir Thomas offered the More, himself as witness for disgrace, Crown, said that he did it his eternal disgrace permitted the eternal of the court which such decency. outrage Byron, on v. 4 an Dowl. & L. Stones 393, Note. Alger Merritt,
In the case v. 16 Iowa 121, attorney just coneep- having Iowa held court that no
525 willingly proper position unite will true and of his tion case, same witness of counsel the character experience stating that those has shown that in effect repeated thus allow themselves to be occasions, who, consequences keenly the feel most are certain to used, might even and that such indiscretion, of their regarded proof is source of excluded, not because the integrity policy public and the but because as unreliable, profession that no one should dictate and welfare of and witness for same time advocate at both client. 240 Ill. Grindle, 148, v.
In Grindle of an attor conduct N. court condemned the 473, E. acting as ney burden had assumed the double who necessary furnishing the evidence a ease and solicitor to success. Pennsylvania Drinker, Frear v. case,
In an early practice highly indecent it Pa. the court said was 520, jury attorney address witnesses, to examine give the witnesses. evidence to contradict duty Many of an at- have held it courts that is torney learns withdraw from the case as he as soon necessity him a witness therein. to be that there is opinion of the Bar I it is unanimous believe that improper passing question it on this that is and courts a con- attorney be both witness and counsel for an tested case. practice because a to be condemned less
Is advocate is the case? stated: Opinion it 1931, March- rendered are so firm in a law relations of . . The
. thereof, members and all the firm, close any employment, accepting barred are *20 any prohibited one member of firm the is from tak- ing. ruling
The reason for the was because of the close relationships partners in a law firm. Opinion 1931, rendered December it is
stated: lawyer
... accept As properly employ- cannot ment in matter in which he knows he will be a party seeking material employ accept him, properly employment cannot party. anything requires Likewise, which requires to withdraw from a case partners withdraw. my opinion
It is that the functions aof witness and an by party, advocate should not be carried out the same nor part- different members of A the same firm. law nership reality entity. is in The are bound members agreement. partnership Any act of the one binds partnership. I believe that the same reasons that bar acting one member aof firm from as a witness partners apply counsel the samo case all being firm, well. The witness, member of the shares monetary partners in rewards of his who are the being advocates, he, firm, a member of the is and advocate. hand, On if one of other acting capacity ais witness, the same firm in dual of witness and advocate. opinion justify majority attempts such con- judge permits
duct in it. my any way This to mind An does not affect propriety of the act of counsel. practice proper by
I do not believe the con- is made permission judge. sent or of the trial function of judge passing should be limited to on whether *21 particular bring circumstances of the it within the exceptions of the Canons. may pointed opinion, majority
It out in the he, might standpoint it that he desirable from a of the suc- firm the cessful conduct the case one member of that in cases another as the advocate act as witness partners represented from the where the have the client knowledge experience gained from outset have attorney relationship facts, in These the my opinion, and client. any degree the in alter or affect do not partners prohibitions Canon. The of the for the reasons wit- they be in the case as whether are to must elect really re- be should as advocates. Election or nesses have his If he elects for the client. served gets attor- benefit of the full he witness, act as ney’s knowledge believe that I not facts. do any hardship because cases, most suffer would client event, any required advocate. is to obtain new proper justice af- should administration partner who zeal of advocate fected having firm act of one insists members repugnant capacity of and advocate. witness respectfully foregoing reasons, I dissent.
For dissenting: BRAND, MR. partner question is whether a
The sole involved lawyer-witness words coun- “other included is appearing in Canon 19. sel” clearly
It is intent of that the the Canon must a material for a client who become should justification important not conduct the. trial. professional applies equal rule of with conduct force lawyer-witness. Opinion The statement 33 that The relations of in a law firm are so close and all the members are firm, thereof, barred from accepting any employment, one member of the firm prohibited from taking. is sound. OF LITTLE
CITY ROCK al v. SUNRAY DX OIL et
COMPANY
*22
5-4238
Opinion delivered April V. Perry Whitmore, A. F. Mouse, Lester & Shults, Meeh, Bose, Mouse, Barron, Williamson, Nash & for appellant.
Darrell Dover and Mouse, Holmes & Jewell, appellee.
Gr. David Walker, Special Justice. The issue case is the correct zoning classification of property sit- uated at the Northeast Corner the intersection notes acting he was for the benefit of as trustee against the bank. trial court found Dr. Rushton be- (1) they cause be ultra acts, occurred, if had would binding bank; vires and Dr. Rushton (2) prove alleged; was failed Dr. Rushton the facts (3) Dr. Rush- barred doctrine; “clean hands” (4) personal, having liability recognized was ton, estopped trusteeship guaranty to assert hy the bank; Dr. claim barred Rushton’s (5) denying trial relief, of frauds. In addition to statute upon judgment against Dr. court Rushton entered $158,230.47, which included bank’s counterclaim for April signed note for dated 3, $97,787.77, Dr. Rushton as trustee. upon several For reversal Dr. Rushton relies points, com- but that calls since there error only alleged plete error we deal with the new trial, permitting Eckert, Jr., the trial court in William A. objec- testify Dr. Rushton’s record, over Eckert invoked and that tion that the had been rule throughout trial. had remained the courtroom FACTS UNCONTROVERTED fairly following facts: establishes the record president Na- 1. of the First W. C. Blewster was Magnolia July 1942 until his termi- tional Bank of During bank nation on November tenure 1964. large only had suffered no losses and had foreclosed prior twice Magnolia foreclosure of the Wood property. grown Products The bank had from $856,000 manager Avlienhe became active $22,550,000 at the spent time of his termination. Blewster much of his president trying time as hank to secure industries for Magnolia. In the of Mr. T. A. Monroe, words suc- who president, ceeded Mr. Blewster as hank “Mr. Blewster Magnolia. ran the First National Bank of It was sub- stantially hanking operation.” a one-man Appellant 2. physician Dr. Joe F. Rushton was surgeon Magnolia, Arkansas. He had been
Notes
ivitli endorsement notes Following Eckert, Mr. coun- direct examination of him and Dr. sel Rushton refused to cross-examine following made the motion: testimony of this Honor, “Your we ask that By record. his own tes- stricken from the witness timony, he is for the has admitted that Counsel ineligible testify. bank He he is and, therefore, known allowed to remain was a he was Rogers was announced to be the Courtroom. representative of the Your bank, defendant Honor, not Mr. Eckert.” argument Appellant’s is as with reference to the rule follows: plaintiff beginning of this asked “At an- rule’ witnesses. ‘the on the The defendant president Rogers, bank, nounced that representative of cor- would be the the defendant