In re Lunke

• Decision Date: 30 June 1919
• Docket Number: 4298.
• Citation: 182 P. 126,56 Mont. 226
• Parties: In re LUNKE.
• Court: Montana Supreme Court

182 P. 126

56 Mont. 226

In re LUNKE.

No. 4298.

Supreme Court of Montana

June 30, 1919

Original proceeding for the disbarment of R. O. Lunke, an attorney. Respondent suspended.

S. C Ford and I. W. Choate, both of Helena, for the State.

HOLLOWAY J.

R. O Lunke, an attorney admitted to practice in the courts of this state, was accused by the Attorney General of professional misconduct. After issues joined, the matter was referred to John G. Brown, Esq., to take testimony and report findings and make recommendations. The complaint contains five charges. The third was abandoned, and the referee finds that the evidence is insufficient to sustain the fourth.

First. The accused is charged with failing to account for money collected by him for his client, and with concealing from his client material facts which it was his duty to disclose. The referee has found that the evidence is insufficient to sustain a charge of corrupt practice, but that the accused is subject to censure for concealing from his client material facts.

Second. The substance of the second charge is that the accused knowingly rendered false statements of account to his client. That incorrect statements were rendered is admitted by the accused, but the referee has accepted his explanation with reference to all the erroneous items save one, and finds that an overcharge of $50 is seemingly without excuse.

Fifth. The referee finds that the fifth charge is sustained, and recommends that the accused be suspended for six months.

The Attorney General and the accused each excepts to the findings.

While the findings of a referee are not absolutely conclusive, they are to be given the same dignity as the special verdict of a jury of the findings of a trial court, and whenever they depend upon conflicting testimony they will be treated as unassailable if there is any substantial evidence to sustain them. 23 R. C. L. 299, and cases cited. We are satisfied that the evidence is sufficient to justify the findings returned herein, and they are approved.

Since the last charge involves the most serious consequences, a brief reference to it is made. In 1918, in a criminal action pending in Carter county, wherein J. A. McGlynn was defendant, one Wm. McGlynn deposited with the clerk of the district court $5,000 as cash bail. Thereafter, about July 11, 1918, Judge Hurley made an order permitting the substitution of a personal undertaking, and the substitution was made. Mr. Lunke, acting for Wm. McGlynn, secured from the treasurer of Carter county a return of the money, taking in the name of Lunke & Hoover two checks issued by the treasurer, one for $3,000 and one for $2,000. The checks were dated July 13th. About July 15th Lunke indorsed the check for $3,000 and caused it to be deposited to the credit of McGlynn, explaining to his client, about the same time, that there would be some delay attending the payment of the remainder, as the officials of Carter county had raised the question of Judge Hurley's authority to order the substitution, but that in his (Lunke's) opinion the reason for holding up the payment was because the county was short of funds. In the meantime, Lunke had taken the check for $2,000 to his office in Billings, had...