Rerat, In re

• Decision Date: 11 August 1950
• Docket Number: No. 34475,34475
• Parties: In re RERAT.
• Court: Minnesota Supreme Court

Page 273

44 N.W.2d 273

232 Minn. 1

In re RERAT.

No. 34475.

Supreme Court of Minnesota.

Aug. 11, 1950.

Syllabus by the Court.

1. A proceeding for the discipline of an attorney is considered in a different light from that of an ordinary action. It is a proceeding Sui generis. This rule applies to proceedings instituted by the Practice of Law Committee of the Minnesota State Bar Association.

2. A disciplinary proceeding is not the trial of an action or suit between adverse parties, but an investigation or inquiry by the court into the conduct of one of its officers in order to determine his fitness to continue as a member of his profession.

3. In an ordinary matter, a referee's findings are treated in the same manner as the findings of a court or jury. However, disciplinary proceedings are Sui generis. The object of the proceeding is not to punish the offender, but to protect the court in the interest of the public good. Its purpose is to guard the administration of justice so that the judicial system does not fall into disrespect.

4. In a disciplinary proceeding, the question before the court is the fitness of the attorney to continue as a member of the legal profession, and the test is whether the conduct of the attorney comes up to the standards set by the Canons of Ethics.

5. The cases recognize that to take away an attorney's means of livelihood is a serious matter; hence, proof of wrongdoing must be cogent and compelling, although proof beyond a reasonable doubt is not necessary.

6. Held that, while the record discloses what appears to have been a thorough investigation, so far as circumstances permitted, of the charges made against respondent by petitioner Practice of Law Committee, the evidence of solicitation on the part of respondent is not so full, clear, and convincing, in view of the many charges, countercharges, conflicting testimony, statements, affidavits, and repudiations, as to justify setting aside the referee's findings that respondent was not guilty of organized solicitation.

William C. Blethen, Mankato, Charles H. Richter, St. Cloud, Cyrus A. Field, Fergus Falls, Paul C. Thomas, St. Paul, for petitioner, the Practice of Law Committee of the Minnesota State Bar Assn.

Roger L. Dell, Fergus Falls, Ben R. Toensing, William A. Tautges, Walter J. Welch, Donald Chapman, and John Ott, all of Minneapolis, for respondent.

FRANK T. GALLAGHER, Justice.

Disciplinary proceedings upon the petition of the Practice of Law Committee of the Minnesota State Bar Association, referred to hereinafter as petitioner, for the discipline of Eugene A. Rerat as attorney at law, referred to hereinafter as respondent.

The matter was duly referred by an order of this court, dated October 15, 1947, to the Honorable Rol E. Barron, judge of the district court of the seventh judicial district, as referee to take testimony in the proceedings and report the same to this court, together with findings of fact. Thereafter, the referee caused the matter to come on for hearing at the courthouse in the city of Minneapolis.

Petitioner's bill of particulars, as amended, consisted of 29 cases in which respondent was accused of organized solicitation. No proof was offered by petitioner in 19 of these cases. The referee made separate findings in connection with the other ten cases listed in petitioner's bill of particulars, involving a period of time from 1941 to 1946, inclusive. The names of the cases referred to in the findings are as follows: Orris E. Heller, C. T. Curran, John B. Schneider, H. J. Ireland, Frank Lowery, Mary Jo Overstake, Jack Roger Davis, Christian Butherus, Mrs. Natle Kline, and Hershel Salters. In its brief to this court, petitioner lists six of these cases, which it contends clearly show organized solicitation on the part of respondent to wit: Christian Butherus, Mary Jo Overstake, Jack Roger Davis (Hillys Kline and Carroll C. Kline), Mrs. Natle Kline (Rose C. Kline, formerly Rose C. Natle), Orris E. Heller, and C. T. Curran. We shall refer to these cases later.

The court is confronted in connection with this disciplinary proceeding with a record of about 3,700 typewritten pages, approximately 255 exhibits of various kinds and nature, including affidavits, statements, and depositions; the findings of the referee consisting of 29 pages; and approximately 190 pages of printed briefs. Obviously, it would be impossible in this opinion, without unduly prolonging it, to attempt to satisfactorily discuss the contents of this vast mass of material in any detailed or exhaustive manner.

Briefly, petitioner charges respondent with professional misconduct in connection with the solicitation of personal injury cases in various states, particularly in the state of Nebraska, all contrary to the rules of conduct for lawyers enunciated by this court and contrary to the Canons of Ethics adopted by the American and the Minnesota State Bar Associations.

1-2. This court has already stated that it considers a proceeding instituted by the State Board of Law Examiners to discipline an attorney in a different light from that of an ordinary action. It is a proceeding Sui generis. In re Disbarment of McDonald, 204 Minn. 61, 64, 282 N.W. 677, 679,284 N.W. 888; In re Application for Discipline of Rerat, 224 Minn. 124, 127, 28 N.W.2d 168, 172. This rule applies also to proceedings instituted by the Practice of Law Committee of the Minnesota State Bar Association, as here. In the Rerat case we said that a disciplinary proceeding is not the trial of an action or suit between adverse parties, but an investigation or inquiry by the court into the conduct of one of its officers in order to determine his fitness to continue as a member of his profession. We also said, 224 Minn. 128, 28 N.W.2d 172: 'Although the exercise of the court's disciplinary jurisdiction is not to be encumbered by the technical rules and formal requirements of either criminal or civil procedure, nevertheless, in the conduct of a disciplinary inquiry by the court, it is essential that the requirements of due process of law be observed, and to this end the charges of professional misconduct, though informal, should be sufficiently clear and specific, in the light of the circumstances of each case, to afford the respondent an opportunity to anticipate, prepare, and present his defense. It goes without saying that a proceeding which may result in depriving a person of the right of following a profession to which he has dedicated his life is a serious matter. It deprives him of his established means of livelihood. He is entitled to a fair and impartial hearing and to a reasonable opportunity to meet the charges brought against him.' (Citing cases.)

On the other hand, we also said in that case, 224 Minn. 130, 28 N.W.2d 173: '* * * The furnishing of pertinent evidentiary facts is a duty which respondent owes to the court as well as to himself as an aid in effecting a full and fair investigation of the charges of professional misconduct.'

See, also, In re Disbarment of McDonald, 204 Minn. 61, 64, 282 N.W. 677, 679, supra.

3-4-5. In an ordinary matter, a referee's findings are treated in the same manner as the findings of a court or jury. 1 Dunnell, Dig. § 412. However, disciplinary proceedings are Sui generis. The object of the proceeding is not to punish the offender, but to protect the court in the interest of the public good. In re Application for Discipline of Rerat, 224 Minn. 124, 127, 28 N.W.2d 168. Its purpose is to guard the administration of justice, In re Application of Smith for Reinstatement, 220 Minn. 197, 19 N.W.2d 324; In re Disbarment of Greathouse, 189 Minn. 51, 248 N.W. 735, so that the judicial system does not fall into disrespect. Thus, the question before the court is the fitness of the attorney to continue as a member of the legal profession, In re Application for Discipline of Rerat, supra, and the test is whether the conduct of the attorney comes up to the standards set by the Canons of Ethics. Cf. In re Disbarment of Greathouse, supra.

The cases recognize that to take away an attorney's means of livelihood is a serious matter; hence, proof of wrongdoing must be cogent and compelling. In re Disbarment of McDonald, 204 Minn. 61, 282 N.W. 677, 284 N.W. 888, supra. In Re Application of Smith for Reinstatement, 220 Minn. 197, 200, 19 N.W.2d 324, 326, we said: 'An attorney should be disbarred only upon a strong and convincing showing that he is unfit to practice law and that disbarment is necessary to protect the public and to guard the administration of justice,' although proof beyond a reasonable doubt is not necessary. State Board of Examiners in Law v. Dodge, 93 Minn. 160, 171, 100 N.W. 684, 689, where this court said: 'While it is not necessary to establish a charge against an attorney at law which will result in his disbarment, beyond a reasonable doubt, yet such a charge is so grave, and the consequences of a conviction so serious, that something more than a preponderance of the evidence--the rule in civil actions--is required. The rule in such a case is that, to justify a conviction, the evidence must be full, clear, and convincing.'

As stated above, while we cannot possibly hope to exhaustively detail in this opinion the vast record before us, we have examined carefully the six cases referred to in petitioner's brief as the ones petitioner considers as clearly showing solicitation on the part of respondent; we have compared the record with the findings of the referee in connection with these cases; and we shall state our observations. Before doing so, we must state, however, that we are confronted in each case with conflicting testimony, statements, counterstatements, denials, and repudiations of former statements or testimony. This necessarily leaves us in a quandary in many instances as to just what the facts were.

1.

Christian Butherus case.

Petitioner calls our attention to the deposition of Christian Butherus as...