Louisville Bar Ass'n ex rel. Drane v. Yonts

• Decision Date: 04 June 1937
• Citation: 109 S.W.2d 1186,270 Ky. 503
• Parties: LOUISVILLE BAR ASS'N ex rel. DRANE et al. v. YONTS.
• Court: Kentucky Court of Appeals

109 S.W.2d 1186

270 Ky. 503

LOUISVILLE BAR ASS'N ex rel. DRANE et al. v. YONTS.

Court of Appeals of Kentucky

June 4, 1937

As Extended on Denial of Rehearing November 26, 1937.

Disbarment proceeding by the Louisville Bar Association, on the relation of Mary L. Drane and Josephine L. Maurer, against Morton K Yonts.

Respondent suspended for period of one year.

B. M Vincent, Atty. Gen., for complainant.

S. M Wilson, of Lexington, and John P. Haswell, of Louisville, for respondent.

PERRY Justice.

This proceeding is instituted in this court, looking to the disbarment, suspension, or other disciplinary action upon the respondent, Morton K. Yonts, a member of the Kentucky Bar, for alleged unethical conduct in the practice of his profession.

The proceeding taken to reach this court had its inception in certain charges preferred by the complainants, Mrs. Mary L. Drane, her daughter, Mrs. Josephine L. Maurer, and a colored man, Woodson Harper, against the respondent, Morton K. Yonts, of misconduct while serving them in the capacity of an attorney at law.

These charges were lodged with Louisville Bar Association in December, 1933, whereupon its investigating committee proceeded to take testimony concerning them.

Upon completing their inquiry and hearing in the matter, this committee submitted these complaints, presented by affidavits, together with transcript of evidence taken by them, to the commonwealth's attorney of Jefferson county for his consideration and determination of the propriety of his instituting disbarment proceedings thereon against the respondent, should he conclude upon his examination of the record submitted him that such course was justified.

After a due examination made of such record, it appears by his letter addressed to the trial committee of the State Bar Commissioners that he had thereupon reported to the Louisville Bar Association that he declined to institute disbarment proceedings thereon against the respondent, as in his opinion, "a successful prosecution could not be maintained upon such evidence."

Following this, in April, 1935, these charges preferred, together with the evidence heard by the investigating committee in regard thereto, were referred to and filed with the Board of Commissioners of the Kentucky State Bar, which appointed two of its members as a trial committee, who proceeded to reinvestigate these charges preferred against respondent and to hear further testimony in regard thereto.

The charges preferred by Mrs. Drane embraced five or more counts, those of Mrs. Maurer, three counts, and Harper's only one.

Upon a hearing by the trial committee of all these charges upon the record submitted it, as well as upon such additional and further testimony as was introduced and heard by it, its two members made separate reports of their findings with their somewhat different recommendations based thereon.

The report of the one, Mr. Hughes, is to the effect that all of the charges made by the complainant, Mrs. Drane, were fully sustained, as also were the charges preferred by Mrs. Maurer, by ample evidence to convincingly show the respondent guilty of the charged unprofessional and unethical conduct, but that the complaint of Woodson Harper should not be considered, in that the evidence as to it was of too uncertain character to show any offense committed.

His recommendation, therefore, based upon such findings, was that, to protect the public against a repetition by the respondent of the proven offenses, he should be ruled to show cause why he should not be disbarred.

The less inculpating report of the other commissioner, Mr. Burke, is to the effect that while his findings upon the evidence also were that the conduct of the respondent, in respect to some of the matters or counts embraced in the Drane complaint, was clearly subject to censuring criticism and not to be approved, yet, after due consideration of the whole record, he was unable to agree with his associate trial commissioner that respondent should be disbarred or that the charges preferred by the complainant, Mrs. Maurer, should be sustained, but that for the Drane charges preferred and in part found sustained, a severe public reprimand or a brief suspension from practice of the respondent was justified and should be imposed.

Thereupon, the matter was heard upon the record, reports, and briefs of counsel by the full board, which made and adopted the following findings and award: That counts Nos. 1, 2, and 4 of the Drane complaint should be sustained, the others dismissed; that count No. 3 of the Maurer complaint should be sustained and the others dismissed (leaving approved the committee's report that the Harper complaint be not considered); further recommending its award made, that the respondent, Morton K. Yonts, "be suspended from the practice of law in this state for the period of one year."

The respondent, both by demurrer and response, attacks the constitutionality of section 101, Kentucky Statutes, and its subsections and the rules of this court adopted in pursuance thereof, and further, by demurrer and plea, insists that the charges made fail to state facts sufficient to support or constitute the charged offense of unprofessional conduct.

As to the federal questions here raised and most insistently urged by the appellant's challenge to the constitutionality of the disbarment proceedings, here followed and conducted pursuant to the provisions of the State Bar Act of 1934 (Kentucky Acts, Regular Session, 1934, pp. 5, 6, c. 3; Ky. Statutes, 1936 Edition, §§ 101-1 and 101-2), and rules of court adopted under and pursuant to said act, as construed and administered by this court, we deem it sufficient answer thereto that we have, both in this and in the several prior disbarment proceedings prosecuted under said act, looking to the enforcement of the professional ethics of the Bar, among which may be cited Com. ex rel. Ward v. Harrington, 266 Ky. 41, 98 S.W.2d 53, and In re Sparks, 267 Ky. 93, 101 S.W.2d 194, after a very careful consideration of these and like attacks and arguments advanced in support thereof, reached the conclusion that the said act and rules of court are not violative in their prescribed procedure of either the State or Federal Constitution and have in each instance decided adversely to these contentions made against their validity, in that we find in these provisions of the act no denial of the equal protection of the laws nor any abridgment of the privileges of the citizen.

In these cases of Commonwealth ex rel. Ward v. Harrington, 266 Ky. 41, 98 S.W.2d 53, and in Re Sparks, 267 Ky. 93, 101 S.W.2d 194, we determine these questions, saying in the course of our opinion given in the latter case, discussing and disposing of this question, as follows:

"In Commonwealth ex rel. Ward v. Harrington, 266 Ky. 41, 98 S.W.2d 53, decided November 6, 1936, the validity of section 101-1 et seq., in so far as it applies to disciplinary proceedings in this court, was expressly upheld. It was pointed out in that opinion that an investigation looking to the disciplining of an attorney at law was not an 'adversary' proceeding and was not therefore within the class of litigation over which the Court of Appeals has 'appellate jurisdiction only.' The opinion is not only sound in principle, but it is sustained by authorities from this and other jurisdictions to the point of demonstration. For example, see In re Richards, 333 Mo. 907, 63 S.W.2d 672; State v. Cannon, 196 Wis. 534, 221 N.W. 603; Legal Club of Lynchburg v. Light, 137 Va. 249, 119 S.E. 55. The power to regulate the conduct and qualifications of its officers does not depend upon constitutional or statutory grounds. It is a power which is inherent in this court as a court--appropriate, indeed necessary, to the proper administration of justice. That we have, in deference to the Bar Integration Act (Ky.St. §§ 101-1, 101-2), set up a standing Board of Commissioners and machinery to conduct and report on investigations concerning the conduct of attorneys, does not alter the fact that we are but exerting an inherent power.***

"The argument that this is an arbitrary power which the court is arrogating to itself or accepting from the Legislature likewise misconceives the nature of the duty. It has limitations no less real because they are inherent. It is an unpleasant task to sit in judgment upon a brother member of the bar, particularly where, as here, the facts are disputed. It is a grave responsibility, to be assumed only with a determination to uphold the ideals and traditions of an honorable profession and to protect the public from overreaching and fraud. The very burden of the duty is itself a guaranty that the power will not be misused or prostituted. The power is not made arbitrary merely because it exists in this court as well as in other courts of the Commonwealth.

If not an arbitrary power in other courts, it is not arbitrary here."

Now looking to the nature, evidence, and merit of the several items of complaint preferred by Mrs. Drane:

The first relates to her charge and supporting evidence that the respondent, in handling certain litigation for her in respect to what we will refer to as the "Graves property," was guilty of unethical conduct. As to this, the facts are clearly shown, and admitted, that Mrs. Drane held a second mortgage on this certain property which she had earlier sold Mrs. Graves for some $5,000 and that the Liberty Bank of Louisville held a first mortgage on it, reduced in its amount at this time to some $1,400; also that Mrs. Graves had for some time previous stopped making the agreed monthly payments upon these debts owing by her to Mrs. Drane and the bank, and had also suffered the taxes thereon to...