In re Greer

• Decision Date: 05 July 1938
• Docket Number: Civil 3938
• Citation: 81 P.2d 96,52 Ariz. 385
• Parties: In the Matter of DODD L. GREER, a Member of the State Bar
• Court: Arizona Supreme Court

81 P.2d 96

52 Ariz. 385

In the Matter of DODD L. GREER, a Member of the State Bar

Civil No. 3938

Supreme Court of Arizona

July 5, 1938

Original proceeding in disbarment under "State Bar Act" and upon record certified to this court by Board of Governors of State Bar of Arizona. Respondent disbarred.

Mr Urban R. Miller, for the State Bar.

Messrs Wilson, Wood & Compton and Mr. Guy Axline, for Respondent.

OPINION

LOCKWOOD, J.

In 1934 disciplinary proceedings were instituted by the State Bar of Arizona against Isaac Barth, who was one of its members. In the course of the hearing many charges were made by Barth against Dodd L. Greet, hereinafter called respondent, who is a member of the Bar residing in Apache county. As a result of these charges, and of many other more or less loosely made accusations against the professional character of respondent, which were prevalent in that county, the State Bar ordered that an investigation be made. The first hearing, which was rather informal in its nature, was before a special local administrative committee of the Bar, meeting in Flagstaff, and respondent testified at length. The committee took the matter under advisement and finally concluded to have a formal hearing, which was held July 22 to 27, 1936, at St. Johns, respondent being present in person and by counsel. Many witnesses were examined and a great volume of documentary evidence accepted as exhibits, while, at the request of respondent, a transcript of the proceedings of the preliminary examination held in Flagstaff, also was admitted. After a consideration of all of the evidence before it, five charges were certified to the Board of Governors of the State Bar for further proceeding. Four of these pertained to alleged misconduct on the part of respondent as county attorney of Apache county, and the fifth, containing thirty-three subdivisions referred to the alleged maladministration of the estate of Lucy Elia Castillo.

The Board of Governors met in Phoenix, Arizona, on January 26 and 27, 1937, respondent being present in person and by counsel. Further evidence was taken and the board then considered the matter. It dismissed the four charges of misconduct pertaining to respondent's acts as county attorney, and many of the specific charges of mishandling of the Castillo estate, but certified to this court thirteen of such acts as worthy of consideration. An order to show cause was served on the respondent, and the matter finally came before us on oral argument on June 15th of the current year, neither the State Bar nor respondent desiring to present any further evidence, and was submitted for our decision.

Before proceeding to a consideration of the specific charges and the evidence, we think it best to make a brief general statement of the law applicable to disciplinary proceedings in the State of Arizona, as there seems to be more or less misunderstanding, even among members of the Bar, as to what such law is. The right to practice law is not a natural nor constitutional one, in the sense that the right to engage in the ordinary avocations of life, such as farming, the industrial trades and the mercantile business is. It has always been considered as a privilege only, bestowed upon certain persons primarily for the benefit of society, and upon such terms and conditions as the state may fix. The final determination as to what these conditions are, and who has satisfactorily complied therewith, is, and always has been, in the courts before which the individual practices his profession, and from time immemorial such individuals have been considered essentially and primarily as officers of the court admitting them. As was said by the Supreme Court of the United States, in Ex parte Garland, 4 Wall. 333, 378, 18 L.Ed. 366:

"Attorneys and counsellors are not officers of the United States;... they are officers of the court, admitted as such by its order, upon evidence of their possessing sufficient legal learning and fair private character.... The order of admission is the judgment of the court that the parties possess the requisite qualifications as attorneys and counsellors, and are entitled to appear as such and conduct causes therein. From its entry the parties become officers of the court, and are responsible to it for professional misconduct. They hold their office during good behavior, and can only be deprived of it for misconduct ascertained and declared by the judgment of the court after opportunity to be heard has been afforded...." (Italics ours.)

It is true that the legislatures of the various states may, and very frequently do, prescribe minimum qualifications which must be possessed by those who desire to apply to the courts for permission to practice, and the courts will require all applicants to comply with the legislative conditions. Such conditions, however, are not a limitation upon the right of the court to determine who may practice before it, but upon the individual citizen as such, and notwithstanding that an applicant may possess the qualifications required by the legislature, this does not entitle him to admission to practice, unless the court is also satisfied that such qualifications are sufficient. As was said in the case of In re Bailey, 30 Ariz. 407, 413, 248 P. 29, 30: "In other words, they [the courts] may not accept less, but may demand more, than the Legislature has required." It necessarily follows follows that even if one has been admitted to practice because it is presumed he possesses the proper qualifications, he may be deprived of that privilege when he has shown by his conduct, either that the court was mistaken in assuming that he had them, or that he has lost them since his admission. Such deprivation may be either under the authority of a statute prescribing a specific cause therefor, or the court may act of its own inherent power. In determining whether a member of the Bar should be disciplined, there is no jurisdictional requirement when the proceeding is based on the inherent power of the court, and not upon some statutory ground, except that he may have the opportunity of appearing and being heard upon charges which are made known to him. In re Bailey, supra. In disciplinary proceedings, therefore, it is not necessary that it appear that the respondent has violated the criminal code, or even that he has subjected himself to civil responsibility by virtue of his conduct. The ultimate test is whether, in the opinion of the court which hears and determines the question, it appears that the interests of society will no longer be served by permitting him to continue to practice his profession. Any conduct, therefore, which is unethical according to the standards of the legal profession is sufficient to justify such action as the court may think proper.

The ethical principles which should govern its members in their professional conduct have been set forth by the State Bar of Arizona. They are numerous, but the one involved in the present proceeding is stated as follows:

"15....

"The lawyer owes 'entire devotion to the interest of the client, warm zeal in the maintenance and defense of his rights and the exertion of his utmost learning and ability,' to the end that nothing be taken or be withheld from him, save by the rules of law, legally applied...."

As a corollary of this, he is bound to discharge his duties towards the client with the strictest fidelity, and to observe the highest and utmost good faith towards him, and if it appears that he has failed to do this, either through willful intent, gross negligence or professional ignorance, he is subject to discipline by the court, which discipline may even extend to denying him the right to further practice his profession.

When proceedings of this kind are initiated, we are required to sit not merely as judges of the law but as triers of the facts. It is an unpleasant duty which is imposed upon us, but one which we may not shirk, and our duty in the present case is, therefore, necessarily determined by whether the evidence satisfies us that respondent's conduct has so violated his professional duty that he should be disciplined therefor, and if so, what form that discipline should take.

The charge which we are considering is the maladministration of an estate by respondent. Obviously the principal source to which we would naturally go to ascertain whether this estate was properly administered is the records of the estate, as they are contained in the files of the superior court of Apache county. Upon examining such of these files as have been certified to us, and the evidence in regard to the balance, we find a situation which we can only characterize as appalling, and an indelible stain upon the administration of justice in that court. There is no evidence whatever that many of the things, which the law mandatorily requires should be done in the conduct of a probate proceeding, were ever done. Where there is, perhaps, some suggestion in the record that some of the requirements of the code were followed, it is not established in the manner required by law. There were many things done, or omitted, which show at the least gross ignorance of the proprieties to be observed by an administrator, and which at most give ground for a belief of much worse. The whole record shows the estate was handled in a manner that was characterized, even by one of the members of the Board of Governors who considered the charges as insufficient to certify to this court, as "terrible, no question about that." Most of the deficienc i es in the record appear during the period in which respondent was either attorney for the administrator of the estate, or acted himself both as attorney and administrator. As instances of what we have said, he...