In re Egan
| Decision Date | 18 October 1915 |
| Docket Number | 3819. |
| Citation | 154 N.W. 521,36 S.D. 228 |
| Parties | In re EGAN. |
| Court | South Dakota Supreme Court |
In the matter of the disbarment proceedings against George W. Egan Attorney. Motion to amend complaint allowed.
C. C Caldwell, Atty. Gen., for the State.
Aikens & Judge and D. J. Conway, all of Sioux Falls, for respondent.
Complaint having been filed in this court charging respondent, a licensed attorney of this court, of such misconduct as would show him unfit to be an attorney at law, and the Attorney General having, pursuant to statute and the order of this court, made an investigation and reported thereon to this court, the Attorney General was directed to, and he did file in this court a complaint in writing charging respondent with various acts all of which were alleged to constitute "dishonorable and unprofessional conduct as an attorney and counselor of this court." Respondent having made answer thereto, the issues raised were referred for trial to a board of referees. After the commencement of such trial, the Attorney General sought leave to amend the complaint so as to charge respondent with another alleged dishonorable and unprofessional act. The referees refused the amendment, and, while the further trial of said cause stood adjourned for a few days, the Attorney General procured an order of this court requiring respondent to show cause why an order of this court should not issue directing the referees to allow such amendment. Upon the return of such order to show cause, the court entered an order directing the referees to allow the amendment. Such order was, of necessity, entered before the court had time within which to prepare and file its written opinion, which opinion is now presented.
The misconduct alleged in the original complaint included several distinct acts or transactions widely varying in nature and extending over a period of more than three years immediately prior to the filing of such complaint. The act of misconduct pleaded in the proposed amendment was alleged to have been committed a few days more than three years prior to the date which such amendment was offered. The act charged in such proposed amendment was different in nature from, and had no relation to or connection with, any act or transaction set forth in the original complaint.
To the granting of an order allowing the proposed amendment respondent filed written objections setting forth: (1) That the court should not pass on any matter of amendment, for the reason that the whole matter had been referred with power to the referees to act with regard to allowing amendments, and it appeared that application to amend was made to the referees and denied; (2) that it was not sought to amend the complaint, but to add thereto a new and separate cause of action; (3) that the matters and things sought to be charged in the proposed amendment are barred by the provisions of chapter 129, Laws 1907; (4) that the order to show cause issued by this court was improvidently granted, in that it was impossible to give to respondent proper and timely notice of the application to amend. Attached to such objections were affidavits showing that, owing to the time set for the return of the order to show cause and the necessity of respondent himself attending, at Minneapolis, upon the taking of certain depositions to be used on the further trial of this proceeding, and owing to the necessary attendance of his leading counsel upon the trial of a cause in Yankton county, it was impossible for either himself or such counsel to appear in person in this court upon the return of such order to show cause. Such affidavit set forth a matter not otherwise advanced as one of the grounds of objections, namely, that a civil action based on the facts set forth in the proposed amended complaint had been brought against respondent, that the issues therein had been submitted to a jury and determined in favor of respondent, and that a judgment had been entered therein, and contending that it would be unjust and unfair to respondent to have the same matters retried in this proceeding, especially in view of the fact that the same are barred as set forth in the objections presented.
In our order directing the allowance of the amendment, which order was made while two members of this court were away upon vacation, we reserved final determination of the application of said chapter 129, Laws 1907, to this proceeding until the return of the referees' report herein to be then "considered by the full court." This was done in expectation that this opinion would be handed down prior to the return of such absent judges. Inasmuch as they have returned and take part in this decision, it is thought best to pass upon all the objections interposed.
No question is or could be raised but that this court would have, upon the coming in of the referees' report, the power to reverse their ruling on the question of allowing such proposed amendment, and, in case of such reversal, the power to send the cause to such referees to hear evidence on and report upon any issue of fact that might arise owing to such amendment. It is certainly much better that this matter be determined at a time that gives opportunity for such issue or issues of fact to be tried out prior to such report.
We are of the opinion that an understanding of the nature of a disbarment proceeding and of the real basis or "ground for" a judgment of disbarment will make clear that the second and third objections were not good. Statutes, text-writers, and courts speak of certain misconduct of attorneys as being "grounds for" disbarment. Such use of the term "grounds for" is misleading and tends to the conclusion that it is in fact, for the "misconduct" that the attorney is disbarred. To disbar for an act savors of punishment and would ally a disbarment proceeding to a criminal proceeding, to which proceeding a disbarment proceeding has, in fact, no relation. In only one sense is such use of the term "grounds for" correct, and that is as stating that the misconduct furnishes the proof of the wrongdoer's present unfitness to hold a license as an attorney at law; but it is such "unfitness" which in every case is the real "ground for" disbarment. As said by the court in Ex parte Tyler, 107 Cal. 78, 40 P. 33, when speaking of the power to disbar, the italicizing being ours:
"In the exercise of this power the court deals with the attorney only as an officer of the court in investigating charges against him for the purpose of determining whether, under the proofs, he is a fit person to be allowed to continue to practice as an attorney and counselor in the courts under the license which has been granted to him, and not for the purpose of judging whether he is guilty of a crime for which he ought to be convicted and punished."
We agree with the courts of Iowa and Wisconsin in holding that:
"One of the requisites for admission to the bar is the possession of a good moral character, and by consensus of judicial opinion it is also a requisite for the rightful continuance in the profession." Section 686, Pol. Code; State v. Mosher, 128 Iowa, 82, 103 N.W. 105, 5 Ann. Cas. 984; In re O_____, 73 Wis. 602, 42 N.W. 221.
Our statutes (section 704, P. C.) prescribe that certain things "are sufficient causes for revocation or suspension," but such section certainly does not make it mandatory upon the court to disbar or suspend an attorney against whom one or more of the "causes" may be proven, if from the whole evidence the court should be satisfied that at the time of such disbarment...
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