In re Sweeney, Civil 3888

• Decision Date: 06 December 1937
• Docket Number: Civil 3888
• Citation: 73 P.2d 1349,51 Ariz. 9
• Parties: In the Matter of JOHN L. SWEENEY, a Member of the State Bar
• Court: Arizona Supreme Court

73 P.2d 1349

51 Ariz. 9

In the Matter of JOHN L. SWEENEY, a Member of the State Bar

Civil No. 3888

Supreme Court of Arizona

December 6, 1937

Original proceeding in disbarment under "State Bar Act" and upon record certified to this court by Board of Governors of State Bar of Arizona. Proceedings quashed.

Mr James E. Nelson, for the State Bar.

Messrs Wilson, Wood & Compton, for Respondent.

OPINION

LOCKWOOD, J.

This is an original proceeding in disbarment in this court instituted by the State Bar against John L. Sweeney, hereinafter called respondent. There were five charges of unprofessional conduct filed against him, which were first investigated by a special local committee, which took evidence and made its report and findings to the Board of Governors of the Bar. Thereafter, the board had a hearing, at which further evidence was submitted, and dismissed charge No. 3, transmitting the other four charges, together with the evidence taken by both committees, to this court for its consideration.

The charges are: (a) That respondent procured one Robert L. Holm to testify falsely in a certain divorce proceeding in the superior court of Navajo county; (b) that he procured one Cornelius J. Mossey to testify falsely in the same case; (c) that he procured one C. A. Rushing to testify falsely in a certain criminal case, wherein Holm was defendant; and (d) that he procured Holm to testify falsely in the same criminal case.

That such conduct, if true, is a violation of professional ethics in the highest degree, and deserves the severest punishment, cannot be questioned. Respondent, however, denies that he is guilty of any of the misconduct charged, and the issue of fact raised by the charges and the denial is the matter which we must try.

In proceedings involving the punishment of practicing attorneys for violation of the legal code of ethics, this court sits as trier of the issues of fact, as well as of law, perhaps the only case in which this is done. We have previously laid down a rule, which should govern us in determining the guilt or the innocence of any attorney who is charged with unprofessional conduct, in the following language:

"We are of the opinion that while disbarment proceedings are not, strictly speaking, criminal in their nature, they are quasi so, and, while the evidence need not necessarily show beyond a reasonable doubt that a respondent has been guilty of unprofessional practices, it must at least be clear and convincing to that effect, before we should impose a penalty therefor." In re Myrland, 43 Ariz. 126, 29 P.2d 483.

With this rule for our guidance, we have carefully examined the evidence in the case. So far as charge (a) is concerned, it is dependent entirely upon the testimony of Holm, which testimony is contradicted directly by respondent and two witnesses. So far as charge (b) is concerned, it is supported only by the testimony of Mossey, and is contradicted by respondent directly and impliedly by the testimony of three witnesses. So far as charge (c) is concerned, it is denied by respondent, and his denial is impliedly supported by certain circumstances which appear in the evidence. And so far as charge (d) is concerned, it is again supported only by the evidence of Holm.

The question, then, resolves itself...