In re The Disbarment of C. E. Elliott

• Decision Date: 10 February 1906
• Docket Number: 14,532
• Parties: In the Matter of the Disbarment of C. E. ELLIOTT
• Court: Kansas Supreme Court

84 P. 750

73 Kan. 151

In the Matter of the Disbarment of C. E. ELLIOTT

No. 14,532

Supreme Court of Kansas

February 10, 1906

Decided January, 1906.

Original proceeding in disbarment.

SYLLABUS

SYLLABUS BY THE COURT.

1. EVIDENCE--Privileged Communication--Requisite. In order for a communication from a client to his attorney to be confidential and to impose upon the attorney the duty of not disclosing the same it must be of a confidential character, and so regarded, at least by the client, at the time, and must relate to a matter which is in its nature private and properly the subject of confidential disclosure.

2. EVIDENCE--Attorney and Client--Publication of Communication by Client. An answer which has been prepared for the purpose of being filed by or on behalf of the client, and which has been read by the notary, with the consent of the client, and the substance of which has been given by the client to a newspaper reporter and published, and which answer has been shown by the client to, and--with client's consent--read by, an attorney appearing against said client in the proceeding in which it was to be filed, and the substance of which answer has been incorporated into a petition by the client against his attorney and filed in another action, is not such a confidential communication.

3. ATTORNEYS--Disbarment Proceeding--Limitation of Action. While there is no statute of limitations which is technically applicable to a disbarment proceeding, yet where the alleged misconduct set forth in a charge is shown to have occurred more than thirteen years before the charge is filed in this court, and it appears that proceedings to investigate the occurrence were instituted soon thereafter and proceeded so far that an accusation was prepared and the accused made known his defense thereto, and that thereupon the district court having jurisdiction, and the members of the bar thereof, dropped further proceedings, and thereafter the judge of that court and the members of the bar recognized the accused professionally and socially, this court will not consider such charge. It is at least stale.

W. P. Hackney, for the accuser.

Stanley, Vermilion & Evans, and Gleed, Ware & Gleed, for the accused.

SMITH, J. All the Justices concurring.

OPINION

SMITH, J.

In this proceeding this court is the trier of the facts involved, as shown by the evidence, as well as of the questions of law presented. We must weigh the evidence--must determine between conflicting statements what is most probably the truth. The evidence is presented in many voluminous depositions and exhibits thereto attached; so we have not the opportunity of a jury or of the ordinary trial court of observing the appearance and bearing of the witnesses and their manner of testifying, which aids so largely in determining their credibility.

The history, therefore, so far as it is disclosed by the evidence, of the accuser and of the accused and other witnesses, and especially of their relations to this proceeding, becomes of more than usual importance, as does also the animus of the accuser, disclosed by the briefs. The following is a general outline of their history, as shown by the evidence:

The accused was admitted to the bar in Illinois in 1882, and practiced law in that state till 1885, when he came to Kansas and settled at Wellington, where he has ever since practiced his profession. It is conceded by the prosecution, and testified to by his associates, that he had for nearly twenty years before the filing of the charges in this proceeding been prominent in the practice of his profession, and it does not appear that his integrity had theretofore been questioned, except in the matter set forth in a supplemental charge alleging an attempt to bribe Judge Ray in 1891, to which we will recur.

The accuser, Cleo D. Burnette, was admitted to the bar in 1895, and after serving as justice of the peace and probate judge went into partnership with the accused in 1900. His ability seems to have been well recognized, and it does not appear that his integrity was ever questioned until the genuineness of a letter copied in the letter-book of Elliott & Burnette, under date of May 31, 1902, was disputed. He was found guilty of forging this letter, and disbarred by the district court of his county in 1903. He removed to California soon after his disbarment to recuperate his health, but returned after a residence there of some months, and in June, 1905, filed the charges in this proceeding.

A reading of the testimony of the accuser and the accused impresses one with the apparent frankness and unevasiveness of the accused in his answer, and in giving his testimony, while the accuser in one part of his deposition depicts himself as being, for a considerable period of time, in such a condition of mind as to be practically unconscious of what took place in his presence and unaccountable therefor, and in another part he recites, to the minutest details, events which he says occurred within the same period, and in connection with the very acts for which by reason of his mental condition he claims to be unaccountable. By reason of this we have been unable, where a criminating fact depends upon the assertion thereof by the accuser alone and the denial thereof by the accused, to find the existence of the fact established by the clear and satisfactory evidence requisite to sustain a charge of this character, which is at least quasi-criminal. (Peyton's Appeal, 12 Kan. 398, 405.)

The accusation in this case contains fourteen separate charges:

(1) The attempt by letter to coach and procure a witness to falsify by denying an existing fact. We think the weight of the evidence is adverse to the charge.

(2) Secreting and withholding a case-made. It is shown and admitted that the accused did withhold a case-made for a day and two nights from another attorney entitled to the possession of it. We fail to discover, however, that any fraud or wrong was intended or accomplished thereby.

(3) That the accused perjured himself by testifying that a certain answer was sworn to by Burnette. The answer had been seen by the accused, was signed by Burnette, and was duly certified as sworn to by a well-known notary public. The most that can be said is that the accused swore to a conclusion reached in a legal manner, and did not know the fact from the evidence of his own senses. This was not perjury, if he believed the fact to exist, but simply incompetent testimony.

(4) Misconduct in the Smith divorce case. We find no fact in this case that should disbar an attorney. The contract was not champertous.

(5) Blackmailing Stevens to extort money from him. This charge rests entirely on the evidence of Stevens, and the denial of the most important parts by the accused. No denial, however, was necessary. If true, the story makes out a doubtful case of attempted blackmail. But the witness discredits himself. "I don't remember," given in answer to very numerous questions calling for facts which appear to have been necessarily within his knowledge, is the common cloak of a smooth prevaricator. If the memory of this witness is as poor as his cross-examination indicates, it would be quite unsafe to base an important finding of fact upon it.

(6, 7 8, and 11) These charges all relate to the concoctions of whisky and morphine claimed to have been found in the accused's desk in the office of Elliott &...