In re The Disbarment of J. A. Smith

• Decision Date: 12 May 1906
• Docket Number: 14,864
• Citation: 73 Kan. 743,85 P. 584
• Parties: In the Matter of the Disbarment of J. A. SMITH
• Court: Kansas Supreme Court

85 P. 584

73 Kan. 743

In the Matter of the Disbarment of J. A. SMITH

No. 14,864

Supreme Court of Kansas

May 12, 1906

Decided January, 1906.

Appeal from Wyandotte district court; J. MCCABE MOORE, judge.

SYLLABUS

SYLLABUS BY THE COURT.

1. PRACTICE, DISTRICT COURT--Change of Venue--Prejudice of the Judge. An apprehension of a party that a judge is prejudiced against him is not enough to require a change of venue, but it must satisfactorily appear that prejudice in fact exists.

2. ATTORNEYS--Disbarment--Statutory Grounds Not Exclusive. The enumeration in the statute of certain acts which will be deemed sufficient for the revocation or suspension of an attorney's license to practice law does not limit the common-law power of the court in that respect and attorneys may be disbarred for other than the statutory grounds.

3. ATTORNEYS--Gross Misconduct a Ground for Disbarment. An attorney may be disbarred not only for malpractice and dishonesty in his profession, but also for gross misconduct showing him to be unworthy of the privileges which the law confers on him and unfit to be entrusted with the duties and powers of an attorney.

4. ATTORNEYS--Proof of Conviction of Crime Not Essential. Where the charges made against an attorney involve moral turpitude, proof of a conviction is not essential to a disbarment.

5. ATTORNEYS--Statute of Limitations Not a Defense. In a proceeding for the disbarment of an attorney the statute of limitations is no defense.

6. ATTORNEYS--Procedure--Court itself Must Try Facts. In such a case the court itself is the trier of both facts and law, and these functions cannot be delegated to a committee, commissioner, or referee.

7. ATTORNEYS--Accusation--Form and Requisite. The formal and technical requirements of criminal pleading are not required in an accusation, but it is necessary that the charge against an attorney shall be so specific as fairly to inform him of the precise nature of the misconduct of which he is accused. If the facts of the charged misconduct are clearly brought to his attention, the form in which they are stated or whether some of them are repeated in several paragraphs is not vital.

8. ATTORNEYS--Sufficiency of Evidence. The testimony of moral and professional delinquency of the accused is held to meet the requirement that more than a mere preponderance of the evidence is necessary in such cases, and is sufficient to support the judgment of disbarment.

J. A. Smith, pro se.

Samuel Maher, John A. Hale, and Thomas J. White, prosecuting committee.

JOHNSTON C. J. All the Justices concurring.

OPINION

JOHNSTON, C. J.:

This was a proceeding brought in the district court of Wyandotte county for the disbarment of J. A. Smith, a practicing attorney in the courts of Kansas. Upon a complaint made that Smith had been guilty of malpractice, and other misconduct, the court appointed a committee of the bar to make a preliminary investigation of the charges and to report whether further action upon the complaint should be taken. This committee, after an extended inquiry, recommended that an accusation be filed against Smith. The court accordingly appointed another committee of lawyers to prepare and file an accusation against him, and one containing three paragraphs was drawn and filed.

In the first paragraph it was alleged that Smith was a material witness in a case pending in the district court of Lyon county, as to whether a certain deed purporting to convey the land in controversy was genuine or a forgery; that he was visited by J. W. Blank, who offered to give Smith $ 200 if he would testify falsely in the case, or would absent himself so that his deposition could not be taken or service of a subpoena be made upon him; that Smith accepted the offer, and agreed with Blank either to give the false testimony or to absent himself so that his evidence could not be had; that Blank paid Smith ten dollars of the stipulated amount, and to secure payment of the remainder gave Smith a diamond of the value of $ 175; that later Blank brought an action of replevin for the recovery of the diamond against Smith in the district court of Wyandotte county, in which Smith stated and made the defense that the diamond was given to him for the immoral and illegal purpose mentioned in the offer; that the trial resulted in a verdict and judgment against Smith, whereupon he instituted a proceeding in error in the supreme court to reverse the judgment, and to that end argued there that because the diamond had been given to him for the aforementioned immoral and illegal purpose there should be a reversal of the judgment, but that upon his own statement and argument the supreme court denied any relief and dismissed the proceeding upon the grounds stated in the decision. (69 Kan. 853, 76 P. 858.)

In the second paragraph it was alleged that Smith came into possession of the diamond mentioned in the first paragraph, but that the exact manner in which he gained possession of it was not known to the committee; that upon a demand for its return to the owner Smith refused to surrender it, setting up that it was obtained for the illegal purpose mentioned in the first paragraph. The details of the transaction, the bringing of the replevin action, and the attempted review of the judgment rendered in that action, together with the defenses, statements and arguments made by Smith in those proceedings, were alleged in substantially the language employed in the first paragraph, closing with the averment that notwithstanding the final judgment for the return of the diamond to its owner Smith still refused to give it up.

In the third paragraph it was averred that Smith brought an action in behalf of a client to recover an indebtedness for labor, and, after having been informed by both of the parties to the transaction that the debt had been paid and the controversy settled, he continued the litigation, introduced false testimony and made false statements, in the absence of the defendant, by which the justice of the peace before whom the case was tried was deceived, and was induced to enter a judgment against the defendant for ten dollars, when Smith well knew that the debt had been fully paid and satisfied.

After several motions directed at the accusation, and a motion for a change of venue, had been made and denied, the accused answered, denying the charges made against him, pleading in bar the statutes of limitation, and also a former adjudication of the charge as to the diamond, and setting forth his version of the transactions upon which the charges in the accusation were based. Much testimony was offered, upon which the court found that the charges were sustained, and entered a judgment revoking the license of the accused as an attorney and counselor at law, barring him from practicing his profession in the courts of the state, and striking his name from the roll of attorneys.

The first question raised on this appeal is, Was there error in refusing the accused's application for a change of venue? In an affidavit Smith stated that he believed the district judge entertained a feeling of ill will and prejudice toward him, citing rulings in a number of cases as indicating such a state of mind; that his apprehensions of prejudice were shared by his clients, and on that account he had been bringing most of his cases in the court of common pleas of Wyandotte county. The accused also stated in his affidavit that he acquitted the judge of any intentional misconduct or desire to wrong him, and that although the judge seemed not to be conscious of any prejudice toward him he believed the judge's state of mind was such that he could not give the accused a fair trial. Eliminating mere conclusions, and looking to the facts stated in the affidavit, it is clear that a change of venue would not have been justified. It frequently has been held that the venue should never be changed upon this ground unless the evidence clearly establishes the prejudice of the judge. The most that can be said of the showing in support of the application in this case is that it indicates a strong belief on the part of the accused that a prejudice existed against him in the mind of the judge. It is not enough that a party apprehends or believes that a judge is prejudiced, but it must satisfactorily appear that prejudice in fact exists. If mere fear of prejudice in a judge would warrant a change of venue the applications therefor would be numerous. The rule established by the statute and the decisions relating to changes of venue on account of the prejudice of the judge makes it clear that no error was committed in denying the accused's application. (City of Emporia v. Volmer, 12 Kan. 622; The State v. Bohan, 19 Kan. 28, 50; Protective Union v. Gardner, 41 Kan. 397, 401, 21 P. 233; The State v. Grinstead, 62 Kan. 593, 608, 64 P. 49; The State v. Stark, 63 Kan. 529, 66 P. 243, 54 L.R.A. 910, 88 Am. St. Rep. 251; The State v. Parmenter, 70 Kan. 513, 79 P. 123.)

It is next contended that some of the charges against Smith do not fall within the causes for disbarment named in the statute. As will be observed, the statute does not provide that the only causes for which the license of an attorney may be revoked or suspended are those specified in it, nor does it undertake to limit the common-law power of the courts to protect themselves and the public by excluding those who are unfit to assist in the administration of the law. It merely provides that certain causes shall be deemed sufficient for the revocation or suspension of an attorney's license. (Gen. Stat. 1901, § 398.) In the early case of Peyton's Appeal, 12 Kan. 398, 404, it was held that this statute is not an enabling act, but that the power of the court to exclude unfit and...