16 Mont. 119 | Mont. | 1895
This is a proceeding for the disbarment of the respondent who is an attorney at law, regularly licensed heretofore by this court, and enrolled as a member of the bar of this state.
The relators are all members of the bar, and comprise some of the most prominent attorneys of the state. They constitute nearly all the members of the local bar of Gallatin county.
The respondent, as the records of this court show, was admitted to practice law in this state on the 16th day of February, 1891. He has acquired a considerable practice, and achieved,a prominent position among the members of the profession.
The respondent is charged with being guilty of malconduct in his profession as an attorney and counselor at law. It is also charged that he is a person whose general moral character is bad; and that he has been guilty of such fraudulent, deceitful, and immoral conduct and practices as to render him- an unfit person to practice law in this state, or to be an attorney
The specifications of malconduct are too numerous to discuss seriatim, and to do so would be useless, and without profit. ■> We shall therefore confine our treatment to a few specifications, which are gravest in their character.
Specification “D” is as follows: “That prior and up to the '28th day of June, A. D. 1893, the case of Barbara Spieth vs. D. E. Grogan and J. P. Grogan, partners as D. F. Grogan & Bro., and Jesse H. Grogan, was pending in the ninth judicial district court of the state of Montana, in and for the county of Gallatin, upon the cross complaint and answer of said Jesse H. Grogan, and the answer and reply thereto of the said Barbara Spieth. That on or about the 27th day of June, the Hon. F. K. Armstrong, judge of said court, tried the same, a jury therein having been waived by the parties, and made certain findings of fact, and, pursuant to the practice in the said court, required the attorneys for the parties thereto to prepare a decree, and on or about the 29th day of June, A. D. 1893, the said E. P. Cadwell, defendant herein, being the attorney for the said Barbara Spieth, plaintiff, and Messrs. Cockrill & Pierce, two of the relators herein, being the attorneys for the defendant Jesse H. Grogan, appeared in open court before the said judge, and the said E. P. Cadwell, having theretofore prepared a decree in said case, submitted the same in open court to the said Cockrill & Pierce, attorneys for the said Jesse H. Grogan, as aforesaid, and the said Cockrill & Pierce, having examined the said decree, and being satisfied therewith, agreed
The referee finds this charge sustained by the evidence. The decree, of the court mentioned above is filed as an exhibit in the case, showing the interlineations the respondent is charged with making therein. The original decree was typewritten; the interlineations are made with a pen, and are confessedly in the handwriting of the respondent. By the original decree, J. H. Grogan, mentioned therein, was adjudged to have a prior mortgage and lien upon all the land mentioned therein, except forty acres, as against all +he other parties named in said decree. The words interlined in said decree by respondent are as follows : “That the defendant J. H. Grogan be, and he is hereby, barred and forever foreclosed from having or claiming to have any interest in said land;” and were so interlined as to refer to all the lands mentioned in said decree, and to change entirely the effect of said decree, as to the rights adjudged to J. H. Grogan.
The testimony of T. M. Pierce and H. C. Cockrill, attorneys in the case, is clear and positive to the effect that said decree, before being signed by the court, was submitted to them by the respondent for inspection, and that said interlineations were not in it when signed. The respondent swears that they were in the decree when signed. C. G. Bradshaw, an attorney, also says that he suggested that the interlineations be made; and he says that upon his suggestion the respondent wrote them in the decree, and stepped into the judge’s office adjoining that of respondent, or near by, and returned in a few moments, saying the judge had signed it. But W. L. Holloway swears that when Bradshaw made this statement to him in a conversation concerning the matter he told Bradshaw that the decree was signed by the judge in open court, and that Bradshaw then said : “If that is so, I can do Cadwell no good.” W. G. Fleischhauer’s testimony is to the same effect.
The action of respondent in filing a motion to vacate or correct this decree, after he learned that steps were being taken to disbar him, tends strongly to show that he understood that these interlineations did affect the decree, and that he felt that his conduct would tend to show when they were made, as well as the corrupt purpose in making them.
Specification <£H” is as follows : ££Your relators are informed and believe, and therefore allege the fact to be true ; That one Samuel Smith was charged in the district court of the Seventh judicial district of the state of Montana, in and for the county of Yellowstone, on the 15th day of October, 1891, with assault with intent to commit murder, and'the said E. P. Cad-well was employed by the said Smith as attorney to defend him on said charge. That the said case was tried on a change of
The referee finds this charge established by the evidence. The mortgage and notes mentioned in the above charge, as well as the written contract between respondent and Smith, and respondent’s receipt to Smith, are all filed as exhibits in the case. Smith’s testimony is positive as to every allegation in the charge. The respondent contends, and so swears, that the several notes mentioned in the mortgage, including the §600 one, were given for services rendered and to be rendered by him for Smith. Let us examine the evidence. The receipt given by respondent to Smith, of the same date as that of the
Now let us look at this charge as disclosed by the uncontradicted evidence. When Smith called on respondent on his way home from prison, to get these papers, he was, according to respondent’s theory, still his client, for respondent contends that these notes and mortgage were all given for service rendered and to be rendered after Smith’s release. Was it not, then, a duty respondent owed to Smith, his client, to deal fairly with him, and tell him the troth about these notes and mortgage ? Respondent knew then that he had the $600 note and mortgage in his possession. He knew that they were not in the bank at Billings. He knew that he had never placed them there, as he had agreed with his client to do. He knew that he had sold this note, and assigned the mortgage to his other client, Mrs. Spieth. He knew also that in so doing he had deceived Mrs. Spieth. He had sold this note and assigned this mortgage to her without ever telling her about the circumstances under which they were executed. When Mrs. Spieth gave respondent the money, which he applied on the
It is not without interest to note here the objections of respondent to the testimony of Smith. He says Smith ought not to be permitted to testify, because he thereby seeks to impeach the validity of this note in the hands of Mrs. Spieth, who is an innocent holder thereof. It is true that Mrs. Spieth is an innocent holder of the note, and respondent’s objection would be of greater force if. this were a suit by her against
W e think the finding by the referee that the two charges above treated are supported and established by the evidence should be approved and adopted by this court.
It is contended by respondent that he ought not to be disbarred in this proceeding, because it is not shown that he has committed or been convicted of any crime. This contention proceeds upon the theory that this is a criminal proceeding. In ex parte Wall, 107 U. S. 265, 2 Sup. Ct. 569, a leading and exhaustive case on this subject, it is held that “the proceeding is in its nature civil;” that “the proceeding is not for
In In re Treadwell, 67 Cal. 353, 7 Pac. 724, a disbarment proceeding, it is said: “In the exercise of this power the court deals with the attorney only as an officer of the court in investigating charges against him, for the purpose of determining whether under the proofs, he is a fit person to be allowed to continue to practice as an attorney and counselor in the courts under the license which has been granted to him, and not for the purpose of adjudging whether he is guilty of a commission of a crime for which he ought to be convicted and punished. That can only be done in a criminal court of competent jurisdiction by due process of criminal law. Previous conviction of a crime is not necessary to a proceeding to disbar
In State v. Winton, 11 Or. 456, 5 Pac. 337, it is said: “Legal knowledge and skill are not the only requisite of attorneys, but they must be conjoined with that ancient requirement of the law, integrity of character. Before admission to his office, as regulated by the Code, he must prove by evidence satisfactory to the court that he is a person of good moral character, and show by an examination in open court that he possesses the requisite learning and ability. * * * Upon an order being entered reciting these facts, he receives his certificate of admission, and becomes entitled to practice in all the courts of this state. The order of admission is the judgment of the court that he possesses these qualifications, and is fit to be intrusted with the responsible duties of his office. It, in effect, certifies to the community that he is competent to advise in legal matters, or to conduct legal proceedings, and is of such 'good moral character’ as will be a pledge to those dealing with him professionally of fidelity and honesty to their interests. And to this is added the sanction of his official oath to be faithful, upright, and honest in all duties which may devolve upon him as an attorney. These duties often comprise grave responsibilities and interests of the highest conceivable character; life, liberty, reputation, and property are often intrusted to his care. It is indispensable that he be trustworthy, and of unswerving integrity of character in his official relations. As prerequisite to his admission, they must be enduring and distinctive traits of his character while he exercises the high prerogative of his office. A lapse from them, upon a proper showing, in his official conduct, is fatal to his right to be an attorney. Justice to the court, protection to the public, and
We think the great weight of authority is to the effect that a charge or conviction of crime is not a prerequisite to the proceeding for the disbarment of an attorney.
The question presented by this proceeding is not whether the respondent is guilty of a crime of which he has been or ought to be convicted, but whether, under all the facts of the case, he is a fit person to be permitted to practice as an attorney and counselor at law in this state.
We think that an attorney who will take a decree of court into his possession, and surreptitiously change and alter it, with the corrupt purpose and intent to defeat the rights of the parties thereto, and to advance his own interests, is not, and cannot be said to be, a fit person to practice and assist in the ministration of law and justice in this state. We think a person who, by one corrupt scheme or transaction, and in the consummation thereof, will willfully defraud one client and deceive another, is not entitled to use the license of this court to carry on such nefarious practices as an attorney and counselor ^.t law in this state.
The respondent also contends that he ought not to be found guilty under charge ‘£ H, ” because, he says, the only witness against him is Smith, who is a pardoned convict. It is true that Smith is in this condition, but nearly all the facts and circumstances detailed in the evidence of Smith are corroborated. The respondent only disputes his testimony as to the purpose of the scheme entered into by them. Smith is’ not otherwise contradicted. The offense of which he was convicted does not
Respondent, after some eighteen of Ms neighbors testified that his reputation in this regard is bad, attempted to defend his good name by offering proof in rebuttal. But we think he did not succeed. Bradshaw makes no such attempt. We therefore find nothing in this contention to authorize us to interfere with the finding of the referee.
There are a number of charges involving the malconduct and bad moral character and want of truth and veracity on the part of respondent as an attorney and counselor at law, but the conclusions reached above render it unnecessary to treat them.
As noted in the statement of this case, the relators constitute nearly all the local bar of Gallatin county, of which they and respondent are all members. Numbered among them are some of the most prominent lawyers of the state, whose high characters and reputations for integrity preclude the idea that in prosecuting this proceeding they have been actuated by jealousy or malice or other impure motives. There is nothing in the case to authorize the belief that they have been controlled by aught else than a desire to protect the courts, the profession and the public from the scandals and wrongs resulting from permitting an unfit person acting as an. officer of this court and participating in the ministration of the law in this state.
A careful consideration of the whole case forces us reluctantly to the conclusion that the respondent is an unfit person to practice as an attorney and counselor at law in this state, and that our duty to the courts, the profession, and the public requires at our hands a judgment that he be disbarred.