In re Clark v. Williams, 18825.

• Decision Date: 29 May 1939
• Docket Number: No. 18825.,18825.
• Citation: 128 S.W.2d 1098
• Parties: IN RE COMPLAINT OF BOYLE G. CLARK AND OTHERS, INFORMANTS, v. B.R. WILLIAMS, RESPONDENT.
• Court: Missouri Court of Appeals

128 S.W.2d 1098

IN RE COMPLAINT OF BOYLE G. CLARK AND OTHERS, INFORMANTS, v. B.R. WILLIAMS, RESPONDENT.

No. 18825.

Kansas City Court of Appeals. Missouri.

May 29, 1939.

Original Proceeding in Disbarment.

RESPONDENT SUSPENDED (conditionally).

Clif Langsdale, J.R. Baker, N.T. Cave and Paul M. Peterson for informants.

(1) A good moral character is a prerequisite to admission to and the continuance in the practice of law, and acts of misconduct, either in professional or nonprofessional activities, which show an attorney to be lacking in such good moral character, demand his disbarment by the court. 5 Am. Jur., Attorneys at Law, secs. 260, 261; State ex rel. v. Harber et al., 129 Mo. 271; In re Richards, 63 S.W. (2d) 672, l.c. 679; In re H____ S____, 69 S.W. (2d) 325, l.c. 327; In re Stolen, 193 Wis. 602, 214 N.W. 379, 55 A.L.R. 1355; In re Wilson, 79 Kan. 450, 100 Pac. 75; In re Law Association, 288 Pa. 331, 135 Atl. 732, 50 A.L.R. 380; Re Gottesfeld, 245 Pa. 314, 317, 91 Atl. 495; State v. Peck, 88 Conn. 447, 91 Atl. 274, L.R.A. 1915A, 663; Sanborn v. Kimball, 64 Me. 140, 148; Delano's Case, 68 N.H. 5, 42 Am. Rep. 555; Re Percy, 36 N.Y. 651, 654. (2) The record discloses respondent guilty of many acts showing him to be unfit to retain his license to practice law. (a) Respondent's actions with reference to the James Hunt juries require his disbarment. (b) Respondent attempted to suborn perjury for his defense. In re Schwartz, 267 N.Y.S. 343; In re Silver, 252 N.Y.S. 749; Klensin v. Board of Governance of Pennsylvania Bar, 168 Atl. 474; Thornton on Attorneys at Law, sec. 894. (c) Respondent not only was guilty of a violation of the law and unethical conduct in borrowing money from the Richardson estate, but he committed perjury in attempting to exonerate himself. In re Schwartz, 267 N.Y.S. 343; Thronton on Attorneys at Law, sec. 894. (d) Respondent induced the painter Bunton to increase his charge and divide with him. (e) Respondent's actions with reference to the loan of $5000 from the estate of Eliza Elder show him unfit to continue in the practice of law. (f) The record discloses that respondent was guilty of embezzlement of the inheritance tax paid to him as probate judge in three separate estates. (g) Respondent was guilty not only of accepting a reward for performing his services he was obligated to perform as a sheriff, but also of deceit in obtaining the reward. (h) The record discloses that respondent does not now possess the character and good reputation in his community that is required of an attorney. 5 Am. Jur., Attorneys at Law, secs. 260, 261; State ex rel. v. Harber et al., 129 Mo. 271; In re Richards, 63 S.W. (2d) 672, l.c. 679; In re H____ S____, 69 S.W. (2d) 325, l.c. 327; In re Stolen, 193 Wis. 602, 214 N.W. 379, 55 A.L.R. 1355; In re Wilson, 79 Kan. 450, 100 Pac. 75; In re Law Association, 288 Pa. 331, 135 Atl. 732, 50 A.L.R. 380; Re Gottesfeld, 245 Pa. 314, 317, 91 Atl. 495; State v. Peck, 88 Conn. 447, 91 Atl. 274, L.R.A. 1915A, 663; Sanborn v. Kimball, 64 Me. 140, 148; Delano's Case, 58 N.H. 5, 42 Am. Rep. 555; Re Percy, 36 N.Y. 651, 654.

Owen & Thurlo for respondent.

(1) The power to disbar an attorney is possessed by all courts which have authority to admit attorneys to practice, but this power should be exercised only for the most weighty reasons: Bradley v. Fisher, 13 Wall. 335, 20 L. Ed. 646; In re Bone, 83 Fed. 947; U.S. ex rel. v. Green, 85 Fed. 861; People ex rel. Elliott v. Green, 7 Colo. 242, 47 Am. Rep. 353, Pac. 65; Re Walker, 26 Colo. 162, 56 Pac. 576; Re Reifschneider, 60 App. Div. 487, 69 N.Y. Supp. 1069; Re Davis, 93 Pa. 121; Re Evans, 22 Utah, 387, 53 L.R.A. 960, 83 Am. St. Rep. 794, 62 Pac. 913; Re Waugh, 32 Wash. 597, 2 Pac. 710; Re Orton, 54 Wisc. 382, 11 N.W. 584; State ex rel. Johnson v. Gebhardt, 87 Mo. App. 542 l.c. 552. (2) Attorneys are not subject to disbarment for misconduct not in their professional capacity unless such conduct is infamous or very gross and involves moral turpitude. Re Jones (Utah), 249 Pa. 803; State v. McClaugherty, 33 W. Va. 250, l.c. 258, 10 S.E. 407; In Re Elliott, 73 Kans. 151, l.c. 157, 84 Pac. 750; In re Washington, 82 Kans. 829, 109 Pac. 700; State ex rel. Walker v. Mullins, 129 Mo. 231, 31 S.W. 744; Baird v. Justice Court, 11 Calif. App. 439, 105 Pac. 259; Re Silkman, 88 App. Div. 102, 84 N.Y. Supp. 1025; People ex rel. Colorado Bar. Assn. v. Class, 70 Colo. 381, 201 Pac. 883; 90 A.L.R. (Annotation) 1111. (3) Old or stale complaints against attorneys which seek their disbarment should be looked upon with disfavor. Re Sherin, 27 S.W. 232, 130 N.W. 761, 40 L.R.A. (N.S.) 801. (4) The chancellor may, in his discretion, submit an issue of fact to the jury for determination, but the special verdict of the jury in such cases is in no sense binding upon the court but is advisory only, and it is the duty of the court to accept or reject the jury's finding, after a careful examination into the facts and according as right and conscience may require. Young v. People Bank, 101 Mo. App. 127, 135; Snell v. Harrison, 83 Mo. 651, 657; Davis v. Forman, 229 Mo. 27, 35; Bingham v. Tinsley, 149 Mo. App. 477; Ely v. Coontz, 167 Mo. 371, 376; Yoeman v. Herrick, 178 Mo. App. 274, 278; State Nat'l. Bank v. Anderson, 198 S.W. 511, 515. (5) There is a distinction between a master's or commissioner's report in an equity and law case. The findings of fact in an equity case are like the special verdict of a jury in a chancery case, that is, advisory only, to be reviewed by the trial or appellate court, and accepted or rejected according to the court's conception of the facts upon a consideration of all the testimony. Pendergast v. Eyerman, 16 Mo. App. 387; Johnson v. Ewald, 82 Mo. App. 276; State ex rel. Peter Cooper v. B. & L. Assn., 78 Mo. App. 104; Rawleigh Investment Co. v. Cureton, 232 S.W. 769; Rawleigh v. B. & B.V. & W. Ry. Co., 232 S.W. 760; Hansen v. Duvall, 333 Mo. 59, 62 S.W. (2d) 732. (6) A disbarment proceeding is a proceeding sui generis. It is neither civil nor criminal nor adversary, but is a proceeding in the nature of an investigation by the court into the conduct of one of its officers. In Re Richards, 333 Mo. 907, 63 S.W. (2d) 672; In Re Sparrow, 338 Mo. 203, 90 S.W. (2d) 401; In Re Noell, 96 S.W. (2d) 213; In Re Pate, 107 S.W. (2d) 157. (7) The power to disbar, fraught as it is with such momentous and far reaching consequences to the respondent should be exercised with great caution. State ex rel. v. Laughlin, 10 Mo. App. 1, 6; Re Sizer & Gardner, 306 Mo. 356, 267 S.W. 9, 22; In Re Conrad, 340 Mo. 582, 105 S.W. (2d) 1; Wilhelm's Case, 269 Pa. 416, 112 Atl. 560; Re Wilmoth, 42 S.D. 76, 176 N.W. 921; People v. Hansen, 316 Ill., 502, 147 N.E. 431; Re Eagan, 24 S.D. 301. (8) The power to disbar is not an arbitrary or despotic one, to be exercised at the pleasure of the court or from passion, prejudice or personal hostility; it is the duty of the court to exercise and regulate it by a sound and just judicial discretion whereby the rights and independence of the bar may be as scrupulously guarded and maintained by the courts as the rights and dignity of the court itself. It should disbar or suspend an attorney only when the continuance of the attorney in practice would be subversive to the proper administration of justice or incompatible with a proper respect of the court for itself or a proper regard for the integrity of the profession. 5 Am. Jur., sec. 253, p. 413, and cases cited; Bradley v. Fisher, 13 Wall. 335, 20 L. Ed. 646. (9) In disbarment proceedings the burden is on the informant to establish not only the acts charged to have been committed, but also the bad or fraudulent motive must be proved by the preponderance of the evidence. Gould v. State (Fla.), 127 So. 309, 69 A.L.R. 699. (10) There is some difference of opinion as to the amount of proof necessary to sustain the charges in disbarment proceedings. The rule, as stated in some jurisdictions, is that a clear preponderance of the evidence is necessary. Other courts require that the guilt of an attorney be clearly and satisfactorily established, or that the evidence in support of the charges satisfy the court to a reasonable certainty that the charges are true and warrant a judgment of disbarment. But proof beyond a reasonable doubt, as in a criminal case, is not required. 5 Am. Jur., sec. 295, p. 439.

BLAND, J.

This is an original proceeding by information filed in this court on August 12, 1936, by the General Chairman of the Bar Committees of Missouri, and the members of the advisory committee to the General Chairman. The information charges the respondent, a duly licensed and practicing lawyer in this State, with misconduct and seeks his disbarment. Upon the filing of the information the court appointed the Honorable John H. Taylor of the Livingston County Bar, commissioner, to hear the testimony and to report to the court his finding of facts and conclusions of law. There were twenty-four charges, upon eleven of which evidence was introduced. The commissioner found respondent guilty of ten of the eleven charges and not guilty as to one of them and recommended a permanent revocation of the license of respondent to practice law. Exceptions were filed by respondent to the report and upon the submission of the case to this court an opinion was rendered findings respondent not guilty. Thereupon, informants applied to the Supreme Court for a writ of certiorari. Upon a hearing that court quashed the opinion of this court. [See State ex rel. v. Shain et al., 112 S.W. (2d) 882.] Thereafter, the case was set down in this court for further hearing and the cause has been submitted. On the first hearing, on the theory that this proceeding is founded upon section 11707, Revised Statutes 1929, and related sections of the statute, this court held that, in order to establish respondent's guilt, it was necessary for informants to show that he was guilty of professional misconduct or...