In re Felton

• Decision Date: 16 September 1939
• Docket Number: 6688
• Citation: 60 Idaho 540,94 P.2d 166
• Parties: In re JAMES H. FELTON
• Court: Idaho Supreme Court

94 P.2d 166

60 Idaho 540

In re JAMES H. FELTON

No. 6688

Supreme Court of Idaho

September 16, 1939

ATTORNEYS-DISBARMENT PROCEEDINGS-EVIDENCE, SUFFICIENCY OF.

1. In disbarment proceedings wherein it was claimed attorney conspired with client to present false testimony as to length of client's residence within state for purpose of establishing that notes were barred by statute of limitations, statements of client not made in presence of attorney were not admissible as declarations of a conspirator against his coconspirator where proof of existence of conspiracy rested solely on such statements. (I. C. A., secs 5-216, 5-239.)

2. A combination or conspiracy must be established before acts declarations, or confessions of one alleged conspirator can be given in evidence against another.

3. Where two or more attorneys represent the same party communications and consultations between them with respect to the rights and liabilities of such party are privileged.

4. In disbarment proceedings wherein it was charged that an attorney conspired with a client to present false testimony in action on promissory notes, testimony of co-counsel, who assisted accused attorney in action, as to conversation with accused concerning subject matter of litigation, was inadmissible as being privileged.

5. In disbarment proceedings, evidence based solely on hearsay testimony of client and on privileged communications with co-counsel was insufficient to establish that attorney had advised client to testify falsely as to length of client's residence in state for purpose of establishing that notes signed by client were barred by statute of limitations, where issue of client's residence had been raised by an answer filed prior to attorney's participation in action. (I. C. A., secs. 5-216, 5-239.)

6. In disbarment proceedings, wherein it was charged that an attorney solicited a personal injury action, a question asked party alleged to have been solicited as to "What else if anything, did he (attorney) say with reference to what you could accomplish by starting suit for yourself and him?" was objectionable as a leading question.

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

8. In disbarment proceedings, evidence based solely on testimony that attorney stated to one injured in an automobile accident that, if she started a personal injury action, she could "recover plenty of money," was insufficient to establish that attorney was guilty of solicitation.

9. In disbarment proceedings, evidence was insufficient to establish that an attorney during trial of an action willfully secreted an exhibit in his personal files with intention of depriving court of benefit of evidence as against defense that exhibit was accidentally commingled with attorney's papers.

10. In disbarment proceedings, evidence was insufficient to establish that attorney without consent of client commenced an action in client's name to recover a sum of money.

11. The purpose to be served by the bar commission in conducting disbarment proceedings is to exact justice and to purge profession of unworthy and unscrupulous lawyers.

12. In the conduct of disbarment proceedings, the bar commission is not authorized to admit incompetent evidence.

13. In disbarment proceedings, the court and bar commissioners must exercise great care and diligence in order that no injustice be done in the performance of their duties.

Proceedings on the petition of James H. Felton for a review of the findings and order of the commissioners of the Idaho State Bar in disciplinary proceedings by the Idaho Bar Association against petitioner, recommending disbarment.

Proceedings dismissed.

Whitla & Knudson, for Petitioner.

This court announced in the case of In re Baum, 32 Idaho 676, at page 687, 186 P. 927, that:

"One against whom disbarment proceedings are instituted is entitled to have the charges fully stated."

In the case of Abrams v. Jones, 35 Idaho 532, at page 544, 207 P. 724, this court said:

"It is elementary that in any judicial or quasi-judicial proceedings, a pleading in the nature of an accusation or complaint must contain positive statements of the essential facts, and that it is insufficient where it merely states conclusions."

In view of the fact that the case in connection with which these confidential communications were divulged by Mr. Goff, was at the time of the hearing in this matter, on appeal to the supreme court of this state, we contend that it was highly prejudicial to require or permit this witness to testify concerning conversations had in connection with the preparation of the defense of that case. The general rule is stated in 70 C. J. 397 as follows:

"Both in common law and under express statutes it is well settled that confidential communications, communicated in the course of professional employment between an attorney and his client, cannot without the consent of his client be divulged by the attorney."

Nor does the fact that this witness was asked concerning communications had with the associate counsel take such testimony out of the rule as laid down by our statute (70 C. J. 403, par. 543):

"Where two or more attorneys represent the same party, communications and consultations between them with respect to the rights, liabilities, etc., of such party are privileged."

Also the federal court recognizes such a rule-- Montgomery v. Perkins, 94 F. 23.

C. H. Potts, John W. Cramer and Leo McCarty, for the Commission.

Communications between attorney and client are not privileged unless they are for a lawful purpose or in furtherance of a lawful end. (Canons of Professional Ethics of the American Bar Association: 28 R. C. L., "Witnesses," sec. 158; In re Watson, 83 Neb. 211, 119 N.W. 451-453; Ex parte McDonough, 170 Cal. 230, 149 P. 566, Ann. Cas. 1916E, 327, L. R. A. 1916C, 593; Hartness v. Brown, 21 Wash. 655, 59 P. 491.)

The acts and declarations of a conspirator are admissible against his coconspirator. (State v. Corcoran, 7 Idaho 220, 61 P. 1034; State v. Hammock, 18 Idaho 424, 110 P. 169.)

BUDGE, J. Ailshie, C. J., and Givens and Holden, JJ., concur. Morgan, J., did not participate in the opinion.

OPINION

BUDGE, J.

--Disciplinary charges were filed against James H. Felton, a member of this bar, and the bar commission after prosecution before it by a prosecuting committee found petitioner guilty of certain violations of his duties as an attorney and recommended disbarment of the petitioner, who filed a petition for review pertaining to paragraphs one, two, four and seven of the findings of the commission and their recommendations.

The complaint with reference to the first matter here for consideration alleges:

"That in July, 1935, there was a suit pending in the District Court of the Second Judicial District . . . . wherein the First Trust & Savings Bank of Moscow was suing one A. E. Randall on a guarantee on two promissory notes, wherein it appeared from the face of the complaint that the Statute of Limitations had run on said notes and wherein it was alleged that the defendant, A. E. Randall, was a nonresident of the State of Idaho and that the Statute of Limitations had been tolled; that in July, 1935, while said suit was pending, said defendant, A. E. Randall, retained Abe Goff, a practicing attorney in Moscow, . . . . to defend said suit and informed said Goff that he had been in Montana practically all of the time since the notes were executed; that shortly prior to the time the case was first set for trial, in February, 1936, said Randall asked Mr. Goff if he would be willing to have James H. Felton associated with him in the case; that said Felton was thereafter associated in the case; that said Felton advised said Randall that the plaintiff First Trust & Savings Bank of Moscow, could not prove that he was out of the State and suggested to and advised said Randall that if his testimony was to the effect that he had been a resident of Idaho during all of the time since the execution of the notes the action would be barred by the Statute of Limitations; that the said James H. Felton advised A. E. Randall that if he was going to testify that he had been in Idaho selling oil stock around Lewiston, Idaho, that he had better get down to Lewiston and stay around there a day or two and learn something about the country; that thereafter said A. E. Randall, pursuant to the advice given by said James H. Felton, spent considerable time in and around Lewiston, Idaho.

"That said case came on for trial in April, 1936, and at said hearing said A. E. Randall testified that he had been in and around Lewiston, Idaho, during all the time since the execution of said notes principally engaged in the business of selling oil stock; that said testimony was false; that on the strength of said testimony judgment was entered for said A. E. Randall. Thereafter a motion for a new trial was granted and at the new trial it was proved that said defendant, Randall, had resided at all times within the State of Montana and judgment was entered for the plaintiff; that said James H. Felton had advised and induced said defendant, A. E. Randall, to testify falsely in said proceedings, knowing the same to be false."

Defendant's answer to the foregoing was as follows:

"Denies each and every allegation, matter and thing set forth in said paragraph III, except that in July, 1935, there was a suit pending . . . . on a guaranty on two promissory notes and that it was alleged in the complaint in said action that A E. Randall was a non-resident of the State of Idaho, and that the statute of limitations had been tolled, and it appeared from the face of the complaint that the...