In re Baum

• Decision Date: 13 January 1920
• Citation: 186 P. 927,32 Idaho 676
• Parties: In Re O. R. BAUM
• Court: Idaho Supreme Court

186 P. 927

32 Idaho 676

In Re O. R. BAUM

Supreme Court of Idaho

January 13, 1920

ATTORNEY AT LAW-DISBARMENT.

1. A proceeding brought for the purpose of procuring disbarment of an attorney is not a lawsuit between parties litigant. It is in the nature of an inquest or inquiry as to the conduct of the accused.

[As to causes and proceedings for disbarment and power of courts to disbar, see notes in 95 Am.Dec. 393; 45 Am.St. 71.]

2. A disbarment proceeding is civil rather than criminal in its nature.

3. In disbarment proceedings, charges of official misconduct must be established by a clear and undoubted preponderance of the evidence.

4. It is improper for a village attorney to institute and prosecute an action against the village during the continuance of his term of office, but where it appears that the village attorney applied to the board of trustees of the village for and was granted permission to file an action against the village, and it is shown that he acted in good faith, he should not be disbarred.

5. Under a charge that an attorney at law has represented conflicting interests in an action, where it appears that the accused acted in good faith, without improper or corrupt motives, and it is not shown that any injury resulted to his client, cause for disbarment does not exist.

6. Ordinarily a charge that an attorney has been guilty of criminal misconduct, should not be treated as ground for disbarment, where the misconduct is unconnected with the prosecution of his office as an attorney, until he has been convicted of a felony or a misdemeanor involving moral turpitude.

7. A charge of criminal misconduct against an attorney unconnected with the prosecution of his office, in order to be a sufficient ground for disbarment before conviction in a proper court, must be of a nature involving inherent dishonesty and of such a character as to render one unworthy to hold the office of attorney.

8. An attorney against whom disbarment proceedings are instituted is entitled to have the charges fully stated, and is not required to defend against or explain any matter not specified in the charges.

Original action for disbarment of attorney. Dismissed.

J. M Stevens, J. H. Peterson, E. R. Dampier, R. S. Anderson, C. T. Cotant, W. T. Stafford, W. G. Bissell, T. Bailey Lee, Edwin Snow and Karl Paine, for the Attorney.

James P. Pope, Asst. Attorney General, and Baird & Davis, appearing by request of the court.

Counsel file no briefs.

RICE, J. Budge, J., concurs in the conclusion. Morgan, C. J., dissents.

OPINION

RICE, J.

--Affidavits, properly verified, were filed with the court charging O. R. Baum, an attorney of this court, with unprofessional conduct. The court thereupon directed that the charges be formulated and a citation issued directing the accused to appear and answer at a certain date. In all, sixteen charges were made. An answer was filed denying all of the charges and the matter was referred to Honorable H. F. Ensign, one of the judges of the fourth judicial district, to take the testimony. Testimony was introduced with reference to all the charges, except the fourteenth. After the record was transcribed the referee made his return to this court, finding generally that charges Nos. 2 and 15 were sustained, and that charge No. 11 was sustained subject to the judgment of this court as to whether a cause for disbarment was stated therein, and that all the other charges were not sustained. With regard to charge No. 11, we do not think it is sufficient in substance, nor did the evidence introduced thereunder show any cause for disbarment.

We have examined the record of the testimony with great care. With reference to charges Nos. 3, 4, 8, 9, 10, 13 and 16, it is sufficient to say that the charges were not sustained. With reference to the other charges we will make such comments as they seem to require.

At the hearing before the referee there seemed to be some misconception as to the nature of this proceeding. It is not a lawsuit between parties litigant. It is rather in the nature of an inquest or inquiry as to the conduct of the accused. (Bar Assn. v. Casey, 211 Mass. 187, Ann. Cas. 1913A, 1226, 97 N.E. 751, 39 L. R. A., N. S., 116; In re Wourms, 31 Idaho 291, 170 P. 919.) It is not a criminal proceeding, but is rather one of a civil nature. (Wernimont v. State, 101 Ark. 210, Ann. Cas. 1913D, 1156, 142 S.W. 194; State v. Mosher, 128 Iowa 82, 5 Ann. Cas. 984, 103 N.W. 105; Ex parte Wall, 107 U.S. 265, 2 S.Ct. 569, 27 L.Ed. 552, see, also, Rose's U.S. Notes.)

It may be stated to be a well-settled rule in disbarment proceedings that charges of official misconduct must be established by a clear and undoubted preponderance of the evidence. (In re Sherin, 27 S.D. 232, Ann. Cas. 1913D, 446, 130 N.W. 761, 40 L. R. A., N. S., 801.)

Tested by this rule, charge No. 1 is not sustained.

Charge No. 2 was in effect that Baum had collected $ 40 from Peyton R. Harris on a judgment obtained against him by the Aberdeen Springfield Canal Company; that the matter was thereafter adjusted by a promissory note, executed in settlement of the indebtedness, but no credit was given Harris for the $ 40 which he had paid, and that interest was calculated on the total judgment and included in the note at the rate of 12% per annum. In his verified answer to this charge, the accused denied that Harris had paid him at any time the sum of $ 40, or any other amount upon the judgment. Upon the hearing before the referee when letters from the accused to Harris were introduced, showing that Harris was entitled to credit of $ 40, Baum admitted that he had received the money and offered to give his check to Harris in settlement of the demand. His explanation of this situation is that at the time of the institution of the disbarment proceedings he had forgotten about Harris having paid him the $ 40, and that upon the first examination of his office files he failed to discover he had acknowledged receipt of the same, and first discovered his error when the disbarment proceedings were in progress. In further explanation of this matter he claims that he was handling a great number of matters in his office, and that his clerks and stenographers would write many of his letters without dictation, and he had confidence in them and their ability to properly perform their work, and that he often signed letters as a matter of form or after a hurried examination. It further appears from the testimony that the $ 40 was not paid to the company, but was retained by Baum.

From the explanation given by the accused, it must be conceded that the affairs of his office were conducted negligently and carelessly, but we accept his explanation. The power of disbarment is one which should be exercised with caution, and with due regard to the serious consequences which may follow from an exercise of the power. (In re Wourms, supra; In re Wall, supra.)

Moreover, it does not appear that Harris made demand upon Mr. Baum to give him the $ 40 credit, or cause it to be given him by the company. C. S., sec. 6578, subd. 5, provides that an attorney may be removed or suspended for failure, within ten days after written demand and tender of fees due from his client, to pay over or deliver any money or other property belonging to his client which he shall have received in his office of attorney in the course of collection or settlement of any claim or demand. Harris was not Baum's client. It would seem that a demand in this case would be even more necessary than if the relation of attorney and client had existed.

The fifth charge was that while acting as city attorney of American Falls, the accused brought an action on behalf of and as attorney for W. T. Oliver against the village of American Falls, the title of the action being W. T. Oliver et al., Plaintiffs, v. John Calder and the Village of American Falls, et al., Defendants; that the accused wrongfully and knowingly advised the board of trustees of said village of American Falls to default in said action, which advice was contrary to and against the public interests of the said village.

The duties of a city or village attorney are prescribed by C. S., sec. 4065, which reads as follows:

"The city or village attorney shall be the legal adviser of the council and board of trustees. He shall commence, prosecute and defend all suits and actions necessary to be commenced, prosecuted or defended on behalf of the corporation, or that may be ordered by the council or board of trustees. When requested, he shall attend meetings of the council or board, and give them his opinion upon any matters submitted to him, either orally or in writing as may be required."

By his answer, Baum admits that he was village attorney at the time in question and that he brought the action referred to in the charge, but states that before filing such action he appeared before the village board in regular session and stated to the members thereof that Oliver was his father-in-law and desired him to bring the action and asked the board to be relieved of his obligation, if any there was, to appear for the village in such case, and also asked permission to file the action for Oliver, and that the board gave its consent. It appears by a preponderance of the evidence that he did not advise the members of the board to suffer a default in the case.

In view of the statutory duties of a village attorney, the impropriety of his bringing an action against the village is apparent, as is also the futility of seeking to be relieved of his duties by action of the board of trustees of the village. These duties are prescribed by statute. The members of the village board were agents of the village, charged with statutory duties the same as the...