Commonwealth ex rel. Buckingham v. Ward

• Decision Date: 09 March 1937
• Citation: 103 S.W.2d 117,267 Ky. 627
• Parties: COMMONWEALTH ex rel. BUCKINGHAM et al. v. WARD.
• Court: Kentucky Court of Appeals

103 S.W.2d 117

267 Ky. 627

COMMONWEALTH ex rel. BUCKINGHAM et al. v. WARD.

Court of Appeals of Kentucky

March 9, 1937

Original proceeding by the Commonwealth, on the relation of C Buckingham and another, against W. J. Ward, based on a report of the Board of Bar Commissioners recommending disbarment of the respondent.

Respondent reprimanded.

Beverly M. Vincent, Atty. Gen., and J. J. Leary, Asst. Atty. Gen for complainants.

W. J Ward, of Paintsville, for respondent.

REES Justice.

This is a proceeding to review the findings and an order of recommendation of the Board of Commissioners of the Kentucky State Bar Association that respondent, W. J. Ward, be disbarred from the practice of law.

The respondent is county attorney of Johnson county. On February 4, 1935, C. Buckingham and J. W. Caudill filed a complaint against him with the Board of Commissioners of the State Bar Association, in which they charged him with the commission of numerous offenses calling for disciplinary action, and they asked that the charges set out in the complaint be investigated and that the respondent be disbarred. The proceeding was in accordance with the rules promulgated by the Court of Appeals establishing practice and procedure for disciplining, suspending, and disbarring attorneys at law which were adopted following the enactment of chapter 3 of the Acts of 1934, now sections 101-1 and 101-2 of the Kentucky Statutes. The right of the court to establish rules of practice and procedure for disciplining attorneys was upheld in Com. v. Harrington, 266 Ky. 41, 98 S.W.2d 53, 60, and In re Sparks, 267 Ky. 93, 101 S.W.2d 194. The complaint filed with the Board of Commissioners contained fifteen charges of misconduct on the part of the respondent. The Board of Bar Commissioners appointed two of its members as a trial committee for the purpose of investigating the charges, and, after the committee submitted a written report to the board, the matter was heard by the full board, which sustained the charge referred to as the "Todd Note Case," and recommended that the respondent be disbarred. Six of the charges were not considered by the board because the alleged offenses had been committed more than five years before the complaint was filed. Other charges were dismissed because the evidence was not sufficient to sustain them.

The charge which was sustained grew out of respondent's conduct as the attorney for his sons, Hebert Ward and Shade Ward, in a suit instituted in the Johnson circuit court by Hebert Ward against W. L. Todd and Rolla Dixon. The suit was on a note for $550, executed by W. L. Todd to Hebert Ward for a part of the unpaid purchase price of a lot conveyed by Ward to Todd on September 4, 1920. Rolla Dixon was the owner of the lot when the suit was instituted on September 2, 1932, to have it sold to satisfy the lien retained in the deed from Hebert Ward to W. L. Todd to secure the payment of the $550 note. Todd conveyed the lot to Elzie Trimble on November 8, 1920, and Trimble assumed the payment of the note in question and also a note for $400, payable to G. C. Wells. Trimble testified that at or about the time the land was conveyed to him he gave to the respondent, W. J. Ward, father of Hebert Ward, a check for $500, payable to Hebert Ward, and that W. J. Ward delivered to him the note marked, "Paid." He kept the note for some time, and showed it to W. L. Todd before the latter moved to West Virginia. M. O. Wheeler, an attorney at law of Paintsville, testified that many years after the sale of the lot to Trimble he examined the title to it for Rolla Dixon, a prospective purchaser, and found that the lien retained in the deed executed to W. L. Todd by Hebert Ward on September 4, 1920, to secure the payment of the $550 note, had not been released. He asked Hebert Ward about it, and his testimony as to what occurred on that occasion follows:

"I talked to Hebert Ward in the Court House square and asked him about it and he said he felt sure it had been paid and we came to the office to release it and Mr. Ward (respondent) came in and as I remember his conversation he said during this time he did quite a bit of trading and he was not sure whether it was paid or not, and sometime after that suit was instituted by Hebert Ward by W. J. Ward attorney for Hebert Ward to collect this five hundred and fifty dollar note, and asked that a lien be adjudged against the property to secure the payment."

In the action of Hebert Ward v. W. L. Todd and Rolla Dixon, the plaintiff, through his attorney, W. J. Ward, repeatedly refused to comply with an order of the court to file the $550 note. After more than two years had elapsed and a second suit had been filed, the note was filed with an intervening petition of Shade Ward, a brother of Hebert Ward. On the day the deposition of W. L. Todd was to be taken at the offices of Wheeler & Wheeler, attorneys for Dixon, the note disappeared from the file after it had been examined by Todd and before he testified. The note disappeared from the file while the latter was in the possession of respondent. The material facts of the findings of the trial committee of the Bar Association on this point follow:

"Trimble also testifies that on the day that Todd came to Paintsville to give his deposition in this second suit that he (Trimble) and Todd examined the note filed with the Shade Ward intervening petition and that it was not marked 'paid,' as the original $550.00 note had been marked when he paid it and took it up in 1920. That when Trimble last saw the note sued on that morning it was in the hands of Mr. Wheeler, who was preparing to take Todd's deposition.

"Mr. Wheeler testifies that on that date he got the court file in the case from Mrs. Theo Wells, a stenographer, examined the note in company with Trimble and Todd, and before lunch took it back to Mrs. Wells at her office in the Court House. That about noon he returned to Mrs. Wells' office and found respondent with the court file, dictating from it with the note before him, to the stenographer; that Mr. Wheeler understood she was making a copy of the note for Ward, and that he then agreed with Ward to take depositions at Wheeler's office at one o'clock, at which hour Ward appeared with the Court file. When they started to take Todd's deposition, presumably for the

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