In re Hargis

• Decision Date: 02 October 1945
• Citation: 190 S.W.2d 333,301 Ky. 276
• Parties: In re HARGIS.
• Court: Kentucky Court of Appeals

190 S.W.2d 333

301 Ky. 276

In re HARGIS.

Court of Appeals of Kentucky

October 2, 1945

Rehearing Denied Dec. 4, 1945.

Proceeding by the Kenton County Bar Association to disbar William G Hargis from the practice of law and strike his name from the roster of members of the State Bar Association.

Order permanently disbarring respondent and striking his name from such roster.

CAMMACK Justice.

Following a hearing before Commissioners Gavin Cochran and Edward A Dodd, the Board of Bar Commissioners ruled that Wm. G Hargis, a member of the Kenton County Bar, be permanently disbarred from the practice of law in Kentucky, and that his name be stricken from the roster of the members of the Kentucky State Bar Association. The respondent, Hargis, was found to be guilty of unprofessional conduct in filing and prosecuting a divorce action in the Kenton Circuit Court on behalf of a nonresident after he had been informed that she was not a resident of Kentucky. Hargis objected to the manner in which the proceeding was conducted at the outset, and has raised the same question before us. Permission was granted him by this Court to file additional proof. The additional proof, however, adds little, if anything, new to the action. The case of Commonwealth ex rel. Ward v Harrington, 266 Ky. 41, 98 S.W.2d 53, disposes of the question relating to the nature of the proceeding. After a careful examination of the record we have reached the conclusion that the finding of the Board of Bar Commissioners should be confirmed.

Mrs. Gindy, for whom Hargis obtained a divorce, her sister, Mrs. Bradley, and a man by the name of Radel testified against the respondent. Mrs. Flonnie Cox and Mr. and Mrs. Lawson were the principal witnesses for the respondent, in addition to himself. The evidence against the respondent was to the effect that he knew Mrs. Gindy was a resident of Ohio at the time he filed the divorce action for her. The evidence in his behalf was to the effect that he did not know she was a nonresident until after the hearing (but before judgment) in the Kenton Circuit Court. The report of the Trial Committee contains a very careful analysis of all the evidence produced at the hearing. Because of the seriousness of the penalty imposed upon the respondent, we have decided to quote at length from that report and adopt it as our opinion:

'On February 25, 1944, respondent himself testified by deposition, although the deposition which he had previously given before the Investigating Committee had been filed as a part of the record at the hearing on December 15th. He testifies that when Mrs. Gindy first came to his office on November 30, 1942, she told him that she lived at 121 E. Sixth Street, Covington, and that she had lived there since August, 1941. Respondent says that he had no reason to doubt her statement, and on the strength of his belief in its truth he drew up a divorce petition which Mrs. Gindy signed and swore to. No mention was made, the respondent says, of Mrs. Cox, or of using Mrs. Cox as a witness in Mrs. Gindy's divorce case.

'The respondent substantiates, of course, the testimony of Mr. and Mrs. Lawson that they were in his office on the morning of November 21, 1942, the day the Gindy divorce case was set for hearing, and that the Lawsons went into a back room when Mrs. Gindy and Mrs. Bradley came into the office. He says that Radel, contrary to the latter's assertion, did not come into the office that morning with Mrs. Gindy and Mrs. Bradley, but came in later, and after the conversation related by the Lawsons had taken place. Mrs. Bradley, the respondent says, asked what he wanted her to say, that he replied, 'whatever you say let it be the truth, anything else is perjury.' The respondent, Mrs. Gindy, Mrs. Bradley and perhaps Radel (the respondent not being sure whether the latter accompanied them or not) them went to the Court House, and Mrs. Gindy and Mrs. Bradley 'were sworn and testified to the same thing they told me. The story they told Judge Goodenough on the witness stand was the identical story they had told me. I did not know and had no idea that they were from Cincinnati until after the trial.'

'After the respondent had completed his own testimony, he filed with his deposition, over complainant's objection, fourteen exhibits. Probably most of these exhibits are technically incompetent or of no probative value, because their purpose is simply to impeach complainant's chief witness, Mrs. Gindy, and in most instances they relate to the character or criminal record of persons other than Mrs. Gindy herself. Indeed, there is no direct evidence that the 'Helen H. Bradley' and the 'Helen (Bradley) Jones' referred to in most of the exhibits are the same person as Helen B. Gindy. The Complainant's objection to the filing of most of these exhibits should probably be sustained. However, the Trial Committee is of the opinion that the interests of justice can best be subserved by overruling the complainant's objections and permitting all of the fourteen exhibits offered by respondent to be filed and considered for whatever they may be worth.

'These exhibits show, if they show anything, that a man who was presumably Mrs. Gindy's first husband was convicted of a felony; that she herself (if indeed it is she to whom the exhibits refer) in 1927 was adjudged in Ohio to be a juvenile delinquent; and once many years ago was referred to by the Cincinnati papers as a 'flapper bandit'; that the morals of her current husband, David Gindy, are conspicuous by their absence; and that one or more of Mrs. Gindy's children by Gindy may have been born before she and her husband found it convenient to solemnize a formal marriage. And it is undisputed, of course, without the aid of the exhibits, that Mrs. Gindy and Catherine Bradley, both witnesses for complainant, were guilty of perjury in the Gindy divorce suit.

'So whether all or any of respondent's fourteen exhibits are technically competent or not, we think that we may take it as proven or admitted that the character of the complainant's principal witnesses is, to put it euphemistically, not beyond reproach.

'The issue as to whether or not, at the time he was first employed by Mrs. Gindy to obtain a divorce for her in Kentucky, respondent knew that she lived in Ohio and had never been a resident of Kentucky, presents simply a question of the veracity of the witnesses. If Mrs. Gindy, Mrs. Bradley and Radel are to be believed, the respondent knew all the facts from the beginning, and it was he and Mrs. Cox who suggested to Mrs. Gindy that she swear that she lived at 121 E. Sixth Street in Covington. If the respondent, Mrs. Cox, and Mr. and Mrs. Lawson are to be believed, then Mrs. Gindy herself contrived the story that she lived at the address just mentioned; the respondent was innocently taken in by his client, and he knew nothing of the true facts until after the divorce case had been formally submitted for judgment.

'In general, the veracity of witnesses is to be determined by

'(1) Their appearance on the stand, and their character insofar as their character bears upon the question of their probable willingness to lie;

'(2) The existence or non-existence of a motive for falsification; and

'(3) The collateral undisputed facts bearing upon the intrinsic probability of the truth or falsehood of the testimony given.

'The Trial Committee did not have the benefit of observing the appearance on the stand of any of the witnesses who testified, except the respondent and Mr. and Mrs. Lawson, since the other witnesses all testified by deposition. The character of respondent and his witnesses, so far as the record discloses, is unquestionably superior to that of the complainant's principal witness, Mrs. Gindy. No attack is made upon the character of Mrs. Bradley, with the rather important exception that, to help her sister-in-law, she admittedly perjured herself at the divorce hearing. Nicholas K. Radel's character is in no wise called in question, unless it be by the fact that he admittedly 'had to do with liquor in some way' during prohibition, and by the rather clear inference in the record that his interest in Mrs. Gindy, a married woman, is something more than platonic.

'It seems to the Trial Committee that the respondent has considerably more motive for fabrication than do any of the witnesses for the complainant; and the motive of his friends, Mrs. Cox and the Lawsons, exists in a corresponding degree. If the facts stated by complainant's witnesses be true, then the preservation of respondent's professional life depends upon a successful fabrication by him and his witnesses. If the facts stated by respondent be true, it is difficult to see that complainant's witnesses have anything at all to gain by a fabrication. The mere fact that Mrs. Gindy's character and morals may not be of the highest order, does not, of course, mean that she can be expected to perjure herself for the mere joy of lying. Even a person of low character will ordinarily tell the truth unless he has something to gain by telling a lie. The record suggests no motive which would impel Mr. Gindy or the complainant's other witnesses to fabricate their story, unless it be an intimation by respondent in his testimony that Mrs. Gindy has become angry at him (though no reason why she should have become angry is suggested), or unless it be that Mrs. Gindy and Mrs. Bradley, who are under indictment for perjury growing out of the Gindy divorce suit, hope for some leniency in that criminal prosecution as a result of their testimony in the present proceeding. Such hope, whether well founded or not, may be adequate to supply a motive for the falsification of their testimony by complainant's

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