In re O'Keefe
| Decision Date | 27 June 1914 |
| Docket Number | 3437. |
| Citation | 142 P. 638,49 Mont. 369 |
| Parties | IN RE O'KEEFE. |
| Court | Montana Supreme Court |
Proceedings for the disbarment of R. E. O'Keefe, an attorney at law. Judgment suspending the attorney for a specified period.
The respondent, R. E. O'Keefe, a member of the bar of this state, stands charged with malpractice in three particulars to wit: (1) That he filed in the district court of Blaine county an affidavit falsely accusing W. B. Sands, also a member of the bar of this state, with unprofessional conduct (2) that, as attorney for the estate of Pauline Lane, he purposely conducted the proceedings therein in an indefinite uncertain, and incomplete manner, with the intent that the administrator thereof might defraud the same; (3) that he while acting as attorney for the plaintiff in a certain action then pending in the district court of Blaine county, and with the intent wrongfully and corruptly to procure John Nakladahl and Annie Nakladahl to become interested in said action as witnesses for said plaintiff and by their testimony to corruptly insure a verdict for said plaintiff, did write and send certain letters promising to pay said Nakladahls out of any judgment recovered by plaintiff in said action the sum of $250 over and above their expenses, in consideration of their appearance as witnesses at the trial on behalf of plaintiff. These charges were referred for investigation to Ira T. Wight, Esq., as a special commissioner of this court, with directions to report his proceedings and recommendations in the premises. This has been done. The respondent has been heard in person and by counsel before us, and the cause now stands for final disposition upon the record presented.
At the outset we desire to express our appreciation and approval of the manner in which the commissioner has discharged the delicate and difficult duty imposed upon him. It is quite clear to be seen that without a firm hand the proceedings would have degenerated into a mere exhibition of ill feeling with charges and counter charges in no wise relevant to the inquiry. The commissioner, however, with eminent fairness has succeeded in placing before us all that is material to the accusation and all that can fairly make for the exoneration of respondent. His conclusions are just and merciful, and we proceed to show why, in the judgment of this court, they ought to be, and are, adopted.
1. The affidavit of respondent filed in the district court of Blaine county in the case of Smith v. Kirk averred that W. B. Sands "falsely and fraudulently, and with the intent and purpose to mislead and deceive the Honorable Frank N. Utter, judge of this court, did procure to be made, and make, certain false oral statements to the said judge, and did exhibit and read to the said * * * judge * * * certain false affidavits and statements in writing * * * wherein and whereby the said W. B. Sands procured" from said judge a certain order in said cause. The commissioner, in considering this charge, declined to pass upon the actual merits of the controversy between counsel in the case of Smith v. Kirk, but held that, under all the circumstances disclosed by the evidence, no sufficient ground was made to appear for the disbarment of the respondent. In this we concur, remarking, however, that while there was reason for the respondent to challenge the accuracy of Mr. Sands' representations to Judge Utter, the drastic conclusions of the affidavit were not warranted by any specific averments.
2. The details of the second charge need not be specified. Suffice it to say that practically every statutory provision designed to protect estates from spoliation by giving record information of their character and condition was ignored, and ignored so effectively that the inference of sinister motive was inevitable. A consideration of the evidence, however, prompts the conclusion that no evil intent existed on the part of any one "to loot the estate or deprive the infant heir of any of her inheritance"; that, in point of fact, she was not defrauded, but was treated by the administrator fairly and generously, and that the district judge was not deceived. This being true, the respondent is entitled to have the second charge dismissed.
The respondent insists that the commissioner's recommendation of censure in connection with a dismissal of this charge is unjust, and counsel suggest that:
"If respondent had been charged with carelessness or incompetency, perhaps he could have met that charge by showing that all errors and omissions had been called to the attention of the court and considered too trivial to need correction."
No such showing would have availed, for errors and omissions such as are here disclosed cannot be considered too trivial for correction. We will not do respondent the injustice of imputing to him a degree of incompetence so gross, and, though the showing of actual fair dealing and honesty has avoided the inference of sinister motive, we cannot overlook the only alternative of culpable negligence; for we cannot, even by inference, set the seal of our approval upon such haphazard and irresponsible methods in dealing with estates.
One of the things imputed to respondent in connection with this charge is that, while the estate was pending, he was directly and financially interested in continuing the house of prostitution conducted by Pauline Lane at the time of her death, and received large sums of money for using his influence to prevent prosecution of the inmates thereof. The respondent resents this imputation more than any, and keenly feels that the commissioner's finding of no justification for it in the evidence is not ample. We hardly see how the commissioner could have done more; but for the satisfaction of the respondent we are glad to say that, not only is there no justification for this imputation in the evidence, but that it appears to have been wholly inexcusable.
3. As presenting the view of the third charge most favorable to the respondent, we state the facts substantially as asserted by his counsel. Some time prior to October 24, 1913, one John Flynn committed a brutal and dangerous assault upon E. E. McIntosh in the presence of John and Annie Nakladahl. McIntosh was rendered unconscious from the first blow or blows administered by Flynn, and the Nakladahls were therefore the only witnesses who could testify impartially to the particulars. On October 24, 1913, McIntosh commenced his action for damages against Flynn, and almost immediately thereafter the Nakladahls began demanding money of McIntosh. They were transients, looking for public lands on which to locate, and some time before the trial were seen at the depot by McIntosh about to leave for parts unknown. They demanded of McIntosh, as a condition to their advising him of their whereabouts and to their appearance as witnesses in his behalf, that he guarantee them $250 out of any judgment he might recover in his action. McIntosh promised to do this, and they agreed to communicate with him upon arrival at their destination if his promise then appealed to them as satisfactory. Thereafter McIntosh received from one Parrotte the following:
"Great Falls, Mont. Nov. 14th, 1913.
Mr. Ed C. McIntosh, Chinook, Mont.--Dear Sir: There are...
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