Mendicino v. Whitchurch

• Decision Date: 03 June 1977
• Docket Number: Nos. 2,5,s. 2
• Citation: 565 P.2d 460
• Parties: V. Frank MENDICINO, as Attorney General of the State of Wyoming, Complainant, v. Linden E. WHITCHURCH, Respondent.
• Court: Wyoming Supreme Court

Page 460

565 P.2d 460

V. Frank MENDICINO, as Attorney General of the State of Wyoming, Complainant, v. Linden E. WHITCHURCH, Respondent.

Nos. 2, 5.

Supreme Court of Wyoming.

June 3, 1977.

Gerald A. Stack, Deputy Atty. Gen., Cheyenne, for complainant.

Jack B. Speight, of Hathaway, Speight and Kunz, Cheyenne, for respondent.

Before GUTHRIE, C. J., and McCLINTOCK, RAPER, THOMAS and ROSE, JJ.

McCLINTOCK, Justice.

This matter is before the court on exceptions of Linden E. Whitchurch (respondent) to the Findings and Order of the Grievance Committee of the Wyoming State Bar (the committee) recommending respondent's disbarment for conduct in violation of the Code of Professional Responsibility, as last amended and adopted by this court by order effective January 11, 1973. ¹ Five separate acts of misconduct were formally alleged in two complaints filed by the Attorney General of the State of Wyoming with the committee, and these charges, as well as a sixth act closely related to the fifth charge, were considered in two separate and successive hearings ² held on the same day, following After careful and independent consideration of the testimony and evidence adduced before the committee, the findings and recommendations of that committee and the arguments of counsel as contained in the able briefs and oral arguments, we are convinced that the proceedings have been fairly and constitutionally instituted and conducted, and that the respondent has been guilty of misconduct in his professional capacity, justifying and requiring disciplinary action by this court.

which Findings and Order ³ covering all six charges was drafted by the committee and filed with this court. Exceptions were filed by respondent, briefs were then filed by both respondent and the Attorney General, and a full presentation and argument was made in open court upon the record made before the committee.

THE CHARGES OF MISCONDUCT

Records of this court disclose that following completion of the required course of instruction in the Law School of the University of Wyoming and award of a J.D. degree by that institution, respondent successfully passed the bar examination prescribed by our State Board of Law Examiners. Upon recommendation of that board he was admitted to the bar of this court ⁴ on July 8, 1969. The hearing transcripts show that since that date he has engaged in the practice of law in Wyoming, first employed as a full-time staff attorney for Legal Services of Natrona County, Wyoming, a private corporation organized and operated for the purpose of furnishing free legal services to persons whose incomes do not permit retention of private counsel. He remained in that service for approximately six months and thereafter entered private practice, first in Douglas, later in Casper, and at the time of the hearing was located in Cheyenne.

In brief preliminary summary, respondent's difficulties with the committee commenced with his acceptance of employment as private counsel for the plaintiff in a divorce suit while employed with Legal Services, an agency which could possibly have furnished respondent's services without necessity for payment by the client. For those services he received payment of $200 from the client. The next charge relates to rude and insolent conduct in a trial before a justice of the peace at Douglas. The last two counts of the first complaint (Docket 2) relate to two occasions on which he wrote directly to opposing parties instead of communicating through counsel known to represent such parties. ⁵

Of considerably more serious import is the charge in the second complaint (Docket 5), growing out of his representation of one Barbara J. Kaiser in divorce proceedings, to his apparent knowledge and belief ending with the grant of an absolute decree of divorce, and shortly thereafter representing this same woman on the basis that she was the widow of her divorced husband, who died within three weeks of the divorce. ⁶

The gist of the charge as filed was that, knowing his client to have been divorced, respondent aided her in representing herself to be a widow, entitled to widow's benefits under the Wyoming Worker's Compensation Act, and knowingly permitted her to give false testimony concerning her status under that Act.

During the course of testimony as to this charge, and without any attempt of the Attorney General to open the question, counsel for respondent presented evidence that subsequent to the divorce and death respondent prepared an affidavit for Mrs. Kaiser, to the effect that she was the surviving widow of her deceased husband and thereby entitled to claim as surviving owner certain real property which had been acquired and held by them as joint tenants with right of survivorship. ⁷ The committee in its findings and order treated the complaint as amended to include this act as an additional charge of misconduct, and we must consider that the committee treated it as one of the bases on which respondent's disbarment was recommended.

CONSTITUTIONAL AND PROCEDURAL OBJECTIONS

Respondent does not substantially question the accuracy of the committee's findings but at most deals only with the interpretation that is to be put upon established facts. No claim is made of actual bias, prejudice or improper treatment on the part of the committee, nor is it alleged that the respondent was in any way unfairly treated except as he claims that the recommended punishment is harsh and inappropriate to his acts as explained by him. His principal contention is that he has been denied due process and the argument is advanced on three grounds: That he could not be found subject to disbarment for violation of a charge of which he was not given notice prior to the disbarment hearings; that denial of the right to conduct voir dire examination of the members of the committee prior to taking evidence at the hearing was a denial of due process; and that the whole procedure by which the committee recommended disbarment deprived him of due process of law.

We find and hold that with the possible exception of the Kaiser affidavit all procedures of the committee have been in compliance with the rules which this court has promulgated. If, then, it is to be concluded that respondent has not had a fair hearing consistent with due process of law, it is this court, as the author of the rules, which must bear the responsibility therefor. Except as the Federal Supreme Court may consider due process under the Federal Constitution there is no other tribunal which can pass upon the questions raised by respondent and we therefore are charged with the delicate task of passing upon the merits of our own efforts in rule-making. ⁸ We consider respondent's contentions in inverse order.

The Claim That the Procedure Itself Deprives Respondent of Due Process of Law

By order effective April 1, 1973 this court adopted the Disciplinary Code, Wyoming State Bar, expressly declaring that all statutes and rules theretofore pertaining to disbarment In re Little, 40 Wash.2d 421, 244 P.2d 255, 259 (1952) points out that a disciplinary proceeding is not adversary and is strictly speaking

                proceedings were superseded.  9 The preamble of the Code recites that the court " * * * has inherent power to supervise the conduct of attorneys who are its officers and in furtherance thereof promulgates the following rules pertaining to disciplinary enforcement," thereby reiterating the view expressed in State Board of Law Examiners of Wyoming v. Brown, 53 Wyo. 42, 48, 77 P.2d 626, 628 (1938) that discipline and disbarment are special proceedings "necessarily incident to the inherent power of courts to control properly their own affairs."
                

" * * * a special proceeding peculiar to itself, in which the court, with the assistance of the bar association, inquires into the conduct of an officer of the court and a member of that association, and, if necessary, exercises its inherent power to discipline the accused." ¹⁰

Brown enunciates the general principles which we think are basic to the whole intent and purpose of disciplinary proceedings, namely, that they

" * * * are not litigation between adverse parties, but simply the exercise of jurisdiction over an official whose authority to serve the public and the courts issues out of the courts themselves. Such proceedings cause an inquiry into his conduct not for the purpose of applying a remedy for a wrong done, but only for the maintenance of the purity and dignity of the courts, by removing an officer whose fitness to function has been questioned and whose unfitness shall be established. When they result in disbarment, the official affected is, of course, punished thereby, but the intrinsic nature of the whole matter involves a determination in the public interest whether the person whose conduct is the subject of the inquiry should be permitted to practice the profession of law. * * * " 53 Wyo. at 48, 77 P.2d at 628-629. (Emphasis supplied) ¹¹

The disciplinary procedure.

Rules IV and V of the Disciplinary Code set forth the procedure to be followed by the committee in initiating and recommending disciplinary action against attorneys:

1. The Grievance Committee either on its own motion or upon complaint by any person investigates or causes to be investigated the conduct of an attorney. Rule IV(c)(1); Rule V(a) and (b). This investigation can only be initiated by the committee and the preliminary investigation can either be done by the committee or attorneys appointed by the committee. All officers of the bar, member attorneys and judges are required to be alert to claims of improper conduct by an attorney and forward such claims to the committee.

2. After investigation, the committee determines whether the complaint is meritorious. Rule V(c)(1) and (2); Rule IV(c)(5). If so found, the committee then causes written findings and its proposed action to be sent to the attorney involved. Rule V(c)(2).

3. The attorney then has 20 days to...