In re Disbarment of Otterness

• Decision Date: 26 September 1930
• Docket Number: 27,620
• Citation: In re Disbarment of Otterness, 181 Minn. 254, 232 N.W. 318 (Minn. 1930)
• Parties: IN RE DISBARMENT OF GEORGE H. OTTERNESS
• Court: Minnesota Supreme Court

232 N.W. 318

181 Minn. 254

IN RE DISBARMENT OF GEORGE H. OTTERNESS

No. 27,620

Supreme Court of Minnesota

September 26, 1930

Proceedings for the disbarment of George H. Otterness. The matter was referred to Honorable Charles T. Howard, judge of the thirteenth judicial district, who made findings of fact. Respondent deemed guilty of conduct requiring censure rather than disbarment or suspension.

SYLLABUS

Evidence as to breach of contract not convincing.

1. The evidence on the charge that defendant, an attorney at law breached a contract entered into by him with another attorney, is not so clear or convincing or of such a character as to justify this court in basing thereon any conviction of serious misconduct.

Defendant held guilty of misconduct in assisting bank to practice law.

2. Defendant was employed by a bank as vice president, on a fixed annual salary. By the agreement defendant was also to continue to practice law, not alone for the bank but generally for others. All fees earned by him in the practice were to go to and be paid over to the bank and become income of the bank. Large sums were so earned and received by the bank. The findings of the referee, that by this means and practice the bank in fact and effect carried on the general practice of law, are sustained by the evidence. Defendant is held guilty of misconduct in his profession in participating in such practice.

Misconduct of attorney in practicing as agent of bank.

3. A corporation cannot itself practice law, nor can it lawfully do so by hiring an attorney to conduct a general law practice for others for pay, where the fees earned are to be and are received as income and profit by the corporation.

Foreclosure by advertisement constitutes practice of law.

4. The foreclosure of mortgages by advertisement, where an attorney's fee is charged as part of the expenses and included in the costs, is practice of law under our statutes.

So does conduct of probate proceedings.

5. Conducting proceedings in the matter of estates and guardianships in the probate courts of this state is the practice of law. Executors, administrators and guardians, as such, have no right to conduct proceedings in probate court except as to matters personal to themselves as such representatives.

Censure sufficient penalty.

6. Under the circumstances of this case, censure and not disbarment or suspension is considered a sufficient penalty.

John A. Burns, Frank E. Putnam and Alexander Seifert, for state board of law examiners.

Fosnes & Rolloff, for respondent.

OPINION

PER CURIAM.

Proceeding on complaint of the state board of law examiners for the discipline of George H. Otterness, an attorney at law, hereinafter referred to as the defendant.

1. One charge against the defendant is that he made a contract with one Charles A. Oberg, an attorney at law of this state, for the transfer or turning over of defendant's law practice at Willmar, Minnesota, to Oberg. The referee found that it was in effect agreed between them that defendant should transfer to Oberg all his law business, with certain specified exceptions, and should not thereafter practice law at Willmar, and that defendant violated this contract by continuing to practice law there.

There was no written contract between the parties, and what their agreement was must be gathered from conflicting oral testimony and from written correspondence between them. The evidence on this charge is not so clear or convincing or of such a character that we feel justified in basing thereon any conviction of serious misconduct. State Board of Law Examiners v. Dodge, 93 Minn. 160, 100 N.W. 684; In re Hertz, 139 Minn. 504, 166 N.W. 397. What civil liability, if any, there may be, we are not here to determine.

2. The serious accusation here presented has reference to the relation between defendant and the Kandiyohi County Bank, a banking corporation organized under the laws of this state and doing business at Willmar. This accusation is divided into three separate charges in the complaint, which will be here considered together.

On March 1, 1920, defendant became cashier of the bank. He was employed at a salary of $3,000 per annum. In addition thereto he was permitted to receive and retain any attorney's fees earned by him from other parties during the time of his employment. On or about June 1, 1921, a change in the employment was made and a new agreement entered into. He was then made vice president of the bank at a salary of $4,000 per year; and, as part of his contract of employment, it was agreed that all attorney's fees earned by him thereafter during such employment should when collected be turned over to the bank as income of the bank and become its property. It was also agreed that a contingent or revolving fund of $600 should be set aside by the bank for defendant's use in paying officers' fees and expenses advanced by him for the clients in the law practice, to be returned to the bank and credited to this fund when repaid by the clients. Defendant served under this employment until April 1, 1929. During that period the bank received as income from the law practice so carried on by defendant sums varying from $1,662.60 to $4,366.34 per year, and aggregating $24,651.15 for the entire period. During that time defendant foreclosed as attorney, ten mortgages, five of them for the...