In re Peters
| Decision Date | 25 April 1925 |
| Docket Number | 5706. |
| Citation | 235 P. 772,73 Mont. 284 |
| Parties | In re PETERS. |
| Court | Montana Supreme Court |
In matter of disbarment proceeding against Julius Peters. Decree of disbarment.
L. A Foot, Atty. Gen., and I. W. Choate, Asst. Atty. Gen., for the State.
Henry C. Smith, of Helena, for respondent.
Julius Peters appears on the roll of this court as a duly licensed and practicing attorney and counselor at law. For a number of years prior to the failure of the Commercial National Bank of Great Falls in 1922, Mr. Peters was attorney for the institution, and, in addition thereto, was one of the board of directors and actively connected with the management of the bank. After the failure of the bank, a federal grand jury returned an indictment charging Peters, Robert B. Noble, and Edward R. Funk with making, and causing to be made, false reports with the intent to deceive the Comptroller of the Currency and any agent or examiner appointed to examine the affairs of the bank. A trial was had in the United States District Court at Great Falls, resulting in the conviction of Peters and Noble, and on the judgment of conviction each was sentenced to a term of 2 1/2 years in the federal prison at Leavenworth. From the judgment the two defendants prosecuted separate appeals, resulting in affirmance by the Circuit Court of Appeals. A certified copy of the record of conviction has been filed in this court by the clerk of the United States District Court.
Upon the facts heretofore set out, the Attorney General has filed herein a complaint charging that Peters, as a duly licensed and practicing attorney at law, has been guilty of such professional misconduct as to authorize and warrant his disbarment. The answer to the complaint admits the charge and conviction, but denies that the offense charged involves moral turpitude, or that Peters was guilty of moral turpitude, and further alleges that the evidence adduced on his trial did not disclose any moral turpitude on his part. The answer also alleges that Peters has never been convicted of any offense which was or is a felony or misdemeanor under the laws of this state, and that the charge on which he was convicted in the federal court is neither a felony nor a misdemeanor under the state laws.
The Attorney General admits that all that is said in behalf of Peters may be true, but contends that: (1) Disbarment may be based upon a conviction in the federal court as well as in the state courts; and (2) a conviction being shown, the court should go no further than to consider the record of conviction. Counsel for Peters, on the other hand, contends that, the conviction not being had in a state court, the question of moral turpitude is one of fact to be determined from the record by this court, and asks that we consider the transcript of the evidence taken on the trial in the federal court. He further contends that the crime of which Peters was convicted was merely malum prohibitum, an infraction of the banking laws, and that no one was injured thereby.
That the Attorney General recognizes a distinction between a conviction in the state courts and in the federal court would seem to be fairly inferable from the fact that he filed a complaint herein, and had process issued and served upon Peters. Section 8961, Revised Codes, 1921, provides:
Section 10502 declares:
"Conclusive evidence or unanswerable evidence is that which the law does not permit to be contradicted."
If the conviction here charged comes within the provisions of section 8961, it was, therefore, not necessary to file a complaint nor to have process issued or served. In re Bloor, 21 Mont. 49, 52 P. 779. This court will on its own motion and on the record of conviction alone strike the name of the attorney so convicted from the files. Section 8963, Rev. Codes 1921; In re Bloor, supra; In re Wellcome, 23 Mont. 140, 58 P. 45; In re Sutton, 50 Mont. 88, 145 P. 6, Ann. Cas.
1917A, 1223; In re Thresher, 54 Mont. 474, 170 P. 1163. But where the proceedings come within any other subdivision of section 8961, complaint must be filed and citation issued and served, as was done in this case. Section 8963.
1. We are of the opinion that the language of subdivision 1, section 8961, is sufficiently broad to warrant and demand action on the part of this court whenever it is brought to its attention that an attorney of this state has been convicted of a felony or misdemeanor involving moral turpitude, whether the conviction is had in a state court or in the federal court. The section quoted does not mention the state courts, but declares broadly that conviction of a felony or misdemeanor involving moral turpitude is ground for removal or suspension. The same question was raised in South Dakota, under a like statute, and determined adversely to the contention of respondent. In re Kirby, 10 S.D. 322, 414, 73 N.W. 92, 907, 39 L. R. A. 856, 859.
We are not concerned with the technical question as to whether the crime for the commission of which the attorney is convicted was presented to a court of this state, of a sister state, or a federal court, but only as to whether an attorney has so far misconducted himself as to be convicted of a felony or a misdemeanor involving moral turpitude, and, therefore demonstrated that he is unworthy of the trust reposed in him by the court when it admitted him to practice. The purposes of removal of an attorney are to purge the profession of those who lower its high standards and bring an honorable calling into disrepute and contempt, and to protect the public at large, and the courts, from the acts of the unscrupulous. As was said in Re Thresher, 33 Mont. 441, 84 P. 876, 114 Am. St. Rep. 834, 8 Ann. Cas. 845:
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However, the responsibility resting upon us is twofold: An attorney is an officer of the court; he holds an honorable position in his community, and his disbarment deprives him, not only of his chosen means of making a livelihood for himself and family, but of the confidence and respect of his fellows, and such action will only be taken when the members of this court are convinced of its necessity for the purposes above enumerated.
Ordinarily the "record of conviction" shows on its face whether the conviction was of "a felony or misdemeanor involving moral turpitude;" the nature of the crime charged discloses whether it comes within the statute or not; and, if it appears from the record that it is within the purview of the statute, the court will go no further. The only question then open to the court is, has there been a conviction? "The question of guilt is not involved, * * * the issue was not whether the defendant was guilty of the crime charged in the criminal action, but was he convicted?" In re Kirby, 10 S.D. 322, 73 N.W. 92, 39 L. R. A. 856. "If accused is, in fact, innocent of the crime of which he was convicted, his situation is indeed unfortunate; if he is, in fact, guilty, it is equally, if not more unfortunate; but in neither event is this court responsible for his conviction or conduct." In re Kirby, 10 S.D. 414, 72 N.W. 907, 39 L. R. A. 859.
But as counsel contends that the crime of which Peters was convicted does not involve moral turpitude, and as Peters has long enjoyed the confidence of this court, and the record hereinafter referred to discloses that he derived no benefit or profit to himself from the transactions which led to his conviction, but, on the contrary, ruined himself financially as well as socially in an attempt to keep the bank going, in justice to him we will pass the question whether he was convicted of a felony or a misdemeanor, and the question whether, under the statute, where the conviction is for the commission of a felony, the limiting clause "involving moral turpitude" is to be considered, and resolve the question only whether the crime of which he was convicted involved moral turpitude. To this end we have carefully read the entire record of the trial before the federal court, bearing in mind the approved definition of the phrase, which is:
"Everything done contrary to justice, honesty, modesty or good morals, is said to be done with turpitude." 2 Bouvier's Law Dict. 759; In re Hopkins, 54 Wash. 569, 103 P. 805; Holloway v. Holloway, 126 Ga. 459, 55 S.E. 191, 115 Am. St. Rep. 102, 7 L. R. A. (N. S.) 272, 7 Ann. Cas. 1164.
The record discloses that of Peters' codefendants, Noble was at the times charged in the indictment, vice president and manager, and Funk assistant cashier; that the bank was financially involved long prior to the date on which it finally closed its doors; that it continued open during this period was due, perhaps, to the heroic efforts of Peters and Noble, and that Peters, in his efforts to save the institution, sacrificed a considerable personal...
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