In re Simpson

• Decision Date: 12 July 1900
• Citation: 9 N.D. 379,83 N.W. 541
• Parties: In re SIMPSON.
• Court: North Dakota Supreme Court

9 N.D. 379

83 N.W. 541

In re SIMPSON.¹

Supreme Court of North Dakota.

July 12, 1900.

Syllabus by the Court.

1. In disbarment proceedings, the contents of affidavits which have been filed as a basis for commencing such proceedings cannot be considered as evidence in support of the accusations upon the trial of the issues of fact. The accused has a right to be tried upon the evidence of witnesses who have been cross-examined, or an opportunity given to do so.

2. An attorney who receives money for his client, and without the knowledge, consent, or authority of such client loans such money to a third person for his own benefit, is guilty of embezzlement, under section 7464, Rev. Codes, and such offense constitutes grounds for disbarment, under subdivision 1 of section 433, Rev. Codes.

3. Where an attorney settles an account upon which a suit is pending, and receives payment on such settlement, and thereafter conceals from his client the fact that the money has been paid and account settled, and continues his prosecution of the case at his client's expense, such act is a deceit practiced upon a party to an action, and is an express ground for disbarment, under section 428, Rev. Codes.

4. Such acts are also violations of his duty as an attorney as laid down in subdivisions 2 and 6 of section 427, Rev. Codes, and constitute grounds for disbarment under subdivision 3 of section 433, Rev. Codes.

5. The duties of an attorney in this state, who is also state's attorney, as to the enforcement of the laws relating to the sale of intoxicating liquors, are found in part in section 7604, Rev. Codes, which requires states' attorneys to diligently prosecute any and all violations of such law, and makes the neglect or failure to do so a misdemeanor punishable by both fine and imprisonment and forfeiture of office. Such misdemeanor involves moral turpitude, and is also a statutory ground for disbarment, under subdivision 1 of section 433, Rev. Codes.

6. It is found under the evidence in this case that the accused, in his capacity as an attorney at law, committed the several offenses above referred to, and his license to practice in the courts of this state is accordingly revoked and annulled.

7. The supreme court of this state, being clothed with the power to admit attorneys to practice, has as an incidental and inherent power the right to suspend and disbar them from practice for unprofessional conduct; and section 432, Rev. Codes, which purports to create such power in this court, is merely a legislative affirmance of a power which already existed.

In the matter of the disbarment of Leslie A. Simpson. Judgment of disbarment.Newton & Smith, James G. Campbell, and J. H. Field, for prosecution. Charles E. Gregory, for defendant.

YOUNG, J.

This is a disbarment proceeding prosecuted in this court against Leslie A. Simpson to revoke his license as an attorney and counselor at law for certain unprofessional acts alleged to have been committed by him in his capacity as an attorney. The proceedings were instituted under section 432, Rev. Codes, which authorizes the supreme court, or any district court, to revoke or suspend the license of an attorney and counselor at law to practice in the courts of this state. The history of the case is as follows: On August 16, 1899, one William Thaw Denniston, an attorney at law, located in Billings county, filed his affidavit in the office of the clerk of this court charging the accused with the commission of three several offenses which constitute willful violations of his duty as an attorney and counselor at law. This affidavit, with certain exhibits, was served upon the accused under the direction of this court, and he was given 20 days after the service thereof in which to file his answer. On October 3, 1899, James G. Campbell and J. H. Field, attorneys located at Dickinson, N. D., by leave of court joined in the Denniston charges, and also filed, in addition, their joint affidavit, in which they charged the accused with eight separate and additional delinquencies. The accused filed a verified answer to all of such charges, in which he denied each and every act charged in the accusing affidavits save as to one charge. As to this he set up certain facts by way of explanation. After issue of fact was joined, both the attorneys for the prosecution and the accused petitioned the court for the appointment of a referee to take testimony, and in accordance with such prayer a referee was appointed, who took a portion of the testimony at Dickinson, N. D., where the accused and most of the witnesses reside, and reported the same to the court. A number of witnesses who were subpœnaed on behalf of the accusations refused to testify before the referee. Such refusals were reported to this court. Attachments were issued, and after a hearing such witnesses were punished for their contempts. Their testimony was given in open court at the hearing of the contempt proceedings. The rest of the evidence, both on the part of the prosecution and the accused, is presented to us in the form of depositions, save that of the accused, who testified orally before the court at the final submission of the case. The record is exceedingly voluminous, embracing altogether the testimony of 36 witnesses, as well as considerable documentary evidence.

For the purpose of convenience in treatment, we shall classify such of the charges as we shall consider in this opinion under two heads. The first relates to the conduct of the accused with reference to a certain collection which he received from a Montana client. It is charged in Denniston's affidavit that in the year 1895 the Holter Lumber Company, of Great Falls, Mont., through its attorney, James Donovan, also of Great Falls, forwarded to the accused at Dickinson, N. D., an account for about $600 against one Lewis Christensen, of Belfield, in Stark county, for collection; that said Simpson, in violation of his duty as an attorney, and without the knowledge or consent of his client, “proposed to said Lewis Christensen to satisfy said demand for the sum of $250, to be paid by the said Lewis Christensen on account of said Holter Lumber Company, for and in consideration of said account and demand, and $50 to be paid to himself, said Leslie A. Simpson, and for his own personal use, and thereupon the said sums were paid by the said Lewis Christensen, and by the said Leslie A. Simpson received, and a receipt in full for said account and demand executed by the said Leslie A. Simpson and delivered to the said Lewis Christensen.” In this connection the affidavit further charges that the accused, while holding the $300 so received as before, stated falsely, and with intent to deceive his client pretended and asserted, to “his said client that said claim had not been paid, or any part thereof, and that he had for the enforcement of said claim commenced an action in the district court of said Stark county, and that said action had been referred to J. P. Folsom, Esq., J. P., of said county as referee, and that it was necessary to take depositions in proof of said claim, and that in pursuance of a notice to that end, given by the said Leslie A. Simpson as attorney for the said Holter Lumber Company, certain depositions were taken at Great Falls, Mont., in June, 1896, and returned to the said J. P. Folsom, Esq., and that thereafter, on or about August 31, 1897, the said Leslie A. Simpson paid the said Holter Lumber Company, through its attorney, James Donovan, Esq., the sum of $100, and thereafter the further sum of $125, and falsely and deceitfully pretended that he was unable to secure his fee from the said Lewis Christensen in addition to the said $250, and retained from the said sum $25 as his fee.” The source of Denniston's information is in part 12 letters written by Simpson to his said client, which letters were attached to and made a part of his accusing affidavit. The following affidavit of Christensen was also attached to the Denniston accusation: “State of North Dakota, County of Stark-ss.: Lewis Christensen personally appeared, and, being duly sworn, on oath says that he is the identical Lewis Christensen against whom the Holter Lumber Company of Great Falls, Montana, some time in the year 1895, sent a claim or account to Leslie A. Simpson, Esq., an attorney at law located at Dickinson, North Dakota, and that the amount of said claim was at said time $600, or over; that some time in the summer of 1895 said Simpson saw me, and said that if I would pay $250 on the account and $50 to him he would give me a receipt in full. I thereupon gave him two checks on the First National Bank of Dickinson, North Dakota, one for $250 and one for $50, and he gave me a receipt in full. L. Christensen.” Verified. On September 9, 1899, the accused filed the following verified answer to the foregoing accusation: “Answering paragraph two of said complaint, alleges that he received in the year 1895 from the Holter Lumber Company a claim amounting to $429 against one Lewis Christensen, with full written authority accompanying said claim to settle it as his judgment dictated; alleges that, pursuant to written instructions from said client, suit thereon was commenced against said Lewis Christensen, and process duly served by the sheriff of Stark county, North Dakota, and defendant duly appeared therein by attorney; admits that he settled the claim for $250, and charged a fee of $25 for his services from his client, and alleges that the money so paid was forwarded to client, and by it accepted and acknowledgedin writing as a satisfactory, full, and complete settlement of the matter, well knowing the circumstances thereof; alleges further that at the time said claim was received, as appears by the public records of Stark county, said Christensen was not worth in property the amount of said claim on execution, or any amount whatever above his debts and liabilities and property exempt on...