In re Carter, 6546

• Decision Date: 05 December 1938
• Docket Number: 6546
• Parties: In re D. L. CARTER
• Court: Idaho Supreme Court

86 P.2d 162

59 Idaho 547

In re D. L. CARTER

No. 6546

Supreme Court of Idaho

December 5, 1938

ATTORNEY AND CLIENT-MISCONDUCT OF ATTORNEY-PROCEEDINGS-EVIDENCE-SUSPENSION-COSTS.

1. Evidence that attorney as attorney and agent for client took property covered by mortgage securing loan from client to third person and attempted to discharge third person from liability without notifying client of his action and failed to account to client for proceeds of check given attorney to be applied on loan to third person justified finding of commissioners of State Bar Association that attorney was guilty of violation of his duties as such requiring disciplinary measures. (I. C. A., sec. 3-301, subd. 5; Rules of Supreme Court and Board of Commissioners of the Idaho State Bar, Rule 175.)

2. The relationship between an attorney and client is a fiduciary relationship of the highest character, binding the attorney with the strictest accountability and fidelity to his client's interests.

3. The purpose of suspension and disbarment proceedings is not to punish, but to protect the public from those who are found unfit to perform the duties of an attorney.

4. An order of the commissioners of the State Bar suspending an attorney for one year and assessing costs of proceedings in amount of $340.20 against him for violation of duties to client was required to be reduced to suspension for period of four months and assessment of costs in amount of $100, in view of failure of evidence to show willful and fraudulent intent and in view of attorney's apparent illness during time misconduct occurred.

(I. C A., secs. 3-301, subd. 5, 12-101; Rules of Supreme Court and of the Board of Commissioners of the Idaho State Bar, Rule 175.)

5. In disciplinary proceedings, costs may be assessed against attorney. (I. C. A., sec. 12-101.)

Review of a recommendatory order of the Idaho State Bar Association in disciplinary proceedings.

Petition for review of the Findings and Recommendatory Order of the Commissioners of the Idaho State Bar, suspending petitioner for one year and assessing costs. Period of suspension and assessed costs reduced.

Petition for rehearing denied.

A. L Freehafer, George Donart and S. E. Blaine, for Petitioner.

Rule 158 of the Rules of the Supreme Court and the Board of Commissioners of the Idaho State Bar, provides that the Prosecuting Committee shall prepare and sign a complaint, and Rule 154 provides that the complaint shall set forth all acts or omissions claimed to constitute improper conduct. There is no intimation anywhere in the Rules that any other than the ordinary rule of evidence should prevail. The petitioner could not be put upon trial for a matter not pleaded in the complaint. An attorney is not required to defend himself against, or explain any matter not specified in the complaint. (In re Baum, 32 Idaho 676, 186 P. 927.)

We respectfully submit that the Board of Bar Commissioners were blindly following the reasoning of the attorneys for Mrs Thompson, in attempting in addition to the ordinary discipline, to assess costs of the proceeding against the petitioner. We find no authority for such action in any case, to say nothing of the attempt to collect witness fees for the two witnesses from Redmond, Oregon, for a great distance of travel outside of the State of Idaho,--in direct contravention of our law governing witness fees. (State v. Baird, 13 Idaho 126, 89 P. 298.)

William Langroise and Hugh Caldwell, Prosecuting Committee.

Even though there has been a settlement between the attorney and his client, it is no defense in disbarment proceedings. ( In re Burns, 55 Idaho 190, at p. 208, 40 P.2d 105, par 8.)

Disbarment proceedings are not designed to compel payments, but to protect and preserve the honor and integrity of the legal profession, and for the protection of the public. (In re Burns, 55 Idaho 190, at p. 208, 40 P.2d 105, par. 8; sec. 3-401, I. C. A.)

As good character is an essential qualification for the admission of an attorney to practice, he may be removed whenever he ceases to possess such a character. A continued possession of such good moral character, honesty and integrity is equally essential, and an attorney may be disbarred for misconduct, professional or non-professional, which shows that he has forfeited his claim thereto. (Thornton on Attorneys at Law, sec. 850; 6 C. J. 573, 584.)

Attorneys who are guilty of fraud and deceit in their relations with others, even in their private transactions, should not be allowed to escape discipline, for the utmost good faith, and the highest degree of honesty is required from attorneys of the profession. (Thornton on Attorneys at Law, sec. 849; Matter of Alexander, 137 A.D. 770, 122 N.Y.S. 479.)

The court may suspend an attorney from practice until the performance of prescribed conditions. (6 C. J. 612; In re Tyler, 78 Cal. 307, 20 P. 674, 12 Am. St. 55; In re Evans, 22 Utah 366, 62 P. 913, 83 Am. St. 794, 53 L. R. A. 952.)

GIVENS, J. Holden, C. J., and Ailshie, J., concur. Morgan, J., did not sit at the hearing nor participate in the opinion. BUDGE, J., Dissenting.

OPINION

GIVENS, J.

Disciplinary charges were filed against D. L. Carter, a member of this bar. The commission, after a prosecution before it by a special prosecuting committee, found petitioner guilty of a violation of his duties as an attorney, and recommended a suspension of one year and assessment of $ 340.20 costs of the proceedings against petitioner (secs. 3-408, 3-412, I. C. A.) who filed a petition for review thereof.

The charge involves two separate situations: First, for some years prior to July 6, 1933, Mrs. Lelia H. Thompson, then Buchanan, had been petitioner's intermittent client and he had, both as attorney and agent, handled various business for her. On that date petitioner arranged a loan for Mrs. Thompson of $ 265 to one Abernathy, who gave her a note secured by a chattel mortgage on twelve head of cattle and three horses. Thereafter, the note not having been paid when due, without Mrs. Thompson's knowledge or consent, petitioner took possession of the cattle and horses from Abernathy, giving him a full release as follows:

"Mr. Eddie Abernathy:

"This is to make a record of our agreement that I take the fourteen head of cattle and calves covered by mortgage and three horses in full settlement of note secured by the mortgage. You can keep the horses & work them until you have put in your crop.

"Sept 11 1934.

"D. L. CARTER."

He did not notify Mrs. Thompson of so doing but continued to lead her to believe the note had not been paid, and she did not find out the true facts of the situation until she employed Cunning & Brewster, lawyers of Redmond, Oregon, and Herman Welker, an attorney at Weiser, to collect the note and mortgage, and Mr. Welker was told by Mr. Abernathy that he had paid the note, as shown by Committee's Exhibit 11, as follows:

"I am now informed by Welker that Abernathy has a receipt showing that he paid you the note in full during September, 1934. Mrs. Thompson tells me that as late as March 1935 you informed her that Abernathy would be ready to take up his note in a few days. You did not tell her you had collected the note nor did you pay her the proceeds of your collection. You as an attorney know that you had no right to collect any note unless you had it in your possession."

Various offers of compromise or partial payment were made by petitioner but no complete tender until after these disciplinary proceedings were commenced, then full payment was made and accepted. The record discloses Mrs. Thompson was put to considerable expense to secure her money, but the exact amount, and whether she was reimbursed for them is not disclosed by the record, though it details negotiations to that end.

Petitioner's only excuse for not notifying Mrs. Thompson was in substance that he had been ill, she would have worried if she had known he had taken the security (she evidently had just cause so to do) and that he felt himself morally if not legally obligated to secure her loss, but that he had no explanation even satisfactory to himself.

Petitioner was unable to testify when such agreement (of being responsible to make good any loss for loans made by him) was made, and Mrs. Thompson denied that such agreement had been made and the commission found that there had been none.

The second situation is that about May 11, 1933, Mrs. Thompson delivered her check for $ 240 to petitioner with the understanding that it was to be applied on a loan which she was making to one Ed. Buchanan. Petitioner accepted the check, indorsed it and deposited it to his own account, and finding that he had other sufficient funds belonging to Mrs. Thompson to complete the Buchanan loan, the funds represented by the $ 240 check were never applied on the loan, but were drawn on by petitioner as his own funds. About October 7, 1933, petitioner submitted a written statement to Mrs. Thompson purporting to be a complete accounting of transactions between them, and noting that she had not been given credit for the $ 240 check she called his attention to the same. At first he stated that he did not remember having received the check, but upon her presentation of the check with his indorsement he agreed to pay her for it, and some months later gave her his note therefor.

The entire conduct of petitioner in his dealings with Mrs Thompson indicates great laxity and carelessness, and a positive violation of 3-301 subsection 5, I. C. A., and Rule 175 of the Supreme Court and Board of Commissioners of the Idaho State Bar, and while the evidence does not definitely establish willful misconduct or fraudulent intent it clearly shows deceit and a breach of the confidential...