In re Wilmarth
| Decision Date | 17 June 1919 |
| Docket Number | 4293. |
| Parties | In re WILMARTH. |
| Court | South Dakota Supreme Court |
Original proceeding in the matter of the disbarment of A. W. Wilmarth an attorney. Judgment of censure and for costs.
Byron S. Payne, Atty. Gen., and Clarence C. Caldwell, of Sioux Falls, for the State.
T. H Null, Kelley & Byrnes, and C. P. Warren, all of Huron, for respondent.
This is an original proceeding instituted upon the complaint of Jacob C. Hatfield and John H. Boots and seeking the disbarment of A. W. Wilmarth, a duly licensed practitioner before this court. Pursuant to statute the Attorney General has charge of the prosecution. The issues were referred for trial to a referee selected by the Attorney General and respondent. The referee has reported findings of fact and has recommended that respondent be suspended from practice for the period of 1 1/2 years. The Attorney General has moved for additional findings and a judgment of disbarment. Respondent moves for a dismissal of the charges. The findings of the referee are, so far as material, as follows:
Respondent is now, and has been ever since 1883, an attorney and counselor at law duly admitted to practice in all the courts of this state, and he has practiced during all of that time at Huron.
In the year 1908, and while state's attorney in and for Beadle county, respondent instituted two certain criminal actions. While each of such criminal actions was pending and undetermined, respondent, as attorney for the party complainant in the criminal action, represented such party in a civil action brought against the party who was defendant in the criminal action. Each civil action depended substantially upon the same facts upon which the corresponding criminal action was based.
In 1912 respondent was retained to bring a certain civil action in justice court. There was a younger attorney at Huron to whom respondent often turned over justice court cases for trial. In this particular matter respondent prepared the papers including the summons, and indorsed this other attorney's name thereon as attorney and did not indorse his own name thereon. This other attorney took the papers to the justice, who signed and issued them, and such attorney delivered them to the constable for service. The case was settled before trial by the payment into court of the amount of the claim and costs not including statutory attorney fees. A controversy afterwards took place between respondent and the justice as to whether attorney fees were taxable, but respondent finally accepted the amount of the claim and receipted for it in the justice docket. Respondent charged his client $10 for services and divided said $10 with the other attorney.
In 1914 administration proceedings on the estate of one Stroup were pending in the county court of Beadle county. Respondent was attorney for the administratrix. About October 2d, one C.'s claim of $3,020 against the estate was presented to the administratrix. The claim was indorsed by the administratrix, "Received October 3, 1914." On December 18th the administratrix filed her report on claims, in which C.'s claim was indicated "Not allowed." January 2, 1915, was appointed as the day for hearing the report on claims. Notice of the time and place of this hearing was mailed to the several claimants and among others a notice appears to have been mailed, or was intended to have been mailed, to C. However, C. did not receive such notice. On January 4, 1915, an order was made by the county court adjudicating the claims, and C.'s claim was wholly rejected and disallowed. This order was filed January 5, 1915. Not having heard what disposition was made of its claim, C., on January 16th, wrote respondent that, as he was attorney for the administratrix, they would appreciate information as to the standing of their claim. In reply C. received a letter dated January 18th (Exhibit 31) written on respondent's stationery and purporting to be signed by him, stating that the claim had neither been allowed nor rejected. Further correspondence between C. and respondent occurred up to about the last of May, 1915, from which correspondence C. was warranted in believing that its claim had not yet been passed upon. On December 7, 1915, C.'s attorney wrote inquiring as to this claim, and in response to this the respondent, on December 9th, advised them that the claim was disallowed January 4, 1915. This was the first notice C. had that the claim had been disallowed. Thereafter, by its attorneys, C. moved the county court to vacate the order disallowing the claim, which motion was resisted by respondent on behalf of the administratrix. The county court vacated the order of disallowance and fixed a date for the further consideration of the claim. From this order an appeal was taken by respondent, on behalf of the administratrix, to the circuit court, where the order was affirmed, and from such affirmance respondent, as attorney for the administratrix, appealed to the Supreme Court, where the order of judgment of the county court opening up the case for consideration was again and finally affirmed. On January 27, 1915, respondent had knowledge that C. believed that its claim had not been passed on and knew, or should have known, that this belief was induced by the letter, Exhibit 31. Respondent's conduct in resisting the application to open up the judgment disallowing this claim was, under all the circumstances, unethical and in violation of his duty as an attorney.
On or about January 12, 1915, Boots, one of the complainants herein and a resident of Huron, went to his farm on some business. While there he got into difficulty with one Hansen in the course of which trouble a revolver carried by Boots was discharged. After his return to town Boots went to respondent's office and retained respondent to defend him in the event that Hansen should prosecute him for assault with a dangerous weapon. To enable respondent to prepare for such defense Boots detailed to respondent what he claimed were the facts in the difficulty that had taken place between him and Hansen. No prosecution for assault was instituted against Boots and on March 10, 1915, respondent wrote Boots requesting payment of $25 for his services. Boots not having paid this, respondent on October 18, 1915, sued him in the justice court for the sum of $100, which suit was settled by the payment of $35 and the costs of the action. On November 10, 1915, an action was commenced in the circuit court of Beadle county by Hansen against Boots for $5,000 damages for alleged assault occurring in the difficulty hereinbefore referred to. This action was commenced by one M., as attorney for the plaintiff, and was brought on for trial at the June, 1916, term of said court. Before the convening of this term M. found that, owing to the condition of his health, he would be unable to try cases at that term, and he procured respondent to try such of his cases as would come to trial at that term, including the case of Hansen v. Boots. Boots in some manner learned that the respondent intended to try this case on behalf of Hansen and wrote him a letter denouncing his proposed course in appearing for Hansen after having been his (Boots') attorney in the criminal matter. Respondent received this letter before the commencement of the trial of the case of Hansen v. Boots, but tried the case as attorney for Hansen. In the course of the trial respondent called Boots for examination as an adverse party. He examined him at length in regard to his relations with Hansen, and in regard to the details of the occurrence between him and Hansen on which the action was based. He also cross-examined Boots at length in regard to the same matter when Boots was called as a witness on the defense.
Respondent testified that he was not aware of section 938, Pol. Code, when, as state's attorney, he maintained criminal and civil actions based upon same state of facts. Said section 938 forbids such practice. It has been in force since 1883. The referee finds that respondent's ignorance of this statute does not excuse its violation.
The referee criticises respondent for indorsing the name of the other attorney on the summons in justice court and in keeping his own relation to the case undisclosed. The referee suggests that such action might be deemed a violation of section 214, Penal Code. Such section forbids an attorney allowing any person, other than his partner or clerk, to sue out process in the attorney's name, and said section makes both the attorney and the other party criminally liable.
The referee finds that Exhibit 31 would naturally mislead C., who would take it to be a communication from respondent himself; that C. was misled was shown by the answer to Exhibit 31 which answer respondent conceded he received and read; that respondent must have and should have seen that C. believed its claim had not been passed upon; that it became respondent's plain duty to have unequivocally informed C. as to the exact situation; that he should not have allowed it to remain in ignorance of the true situation until time for appeal from the order rejecting the claim had expired; and that he should not have contested to the last C.'s application to have the matter reopened, such motion being based on the ground that C. had been misled by the communications received from respondent's office.
The referee held that respondent should not have appeared on behalf of Hansen in the trial of Hansen v. Boots, and especially so after receiving the letter from Boots denouncing such proposed course; and held that such conduct was a violation of section 6 of the Canons of Professional Ethics adopted by the American Bar Association and the Bar Association of this state.
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