State ex rel. Montgomery v. Estes

• Decision Date: 03 October 1922
• Parties: STATE EX REL. MONTGOMERY ET AL. v. ESTES.
• Court: Oregon Supreme Court

209 P. 486

105 Or. 173

STATE EX REL. MONTGOMERY ET AL. v. ESTES.

Supreme Court of Oregon

October 3, 1922

In Banc.

Disbarment proceeding by the State, on the relation of Hugh S Montgomery and others, against George Estes. Defendant disbarred.

Bradley A. Ewers and Robert F. Maguire, both of Portland, for plaintiffs.

B. F Mulkey, E. L. Fraley, and D. D. Hail, all of Portland, for defendant.

PER CURIAM.

The Multnomah Bar Association is an organization composed of attorneys at law who reside in Multnomah county and have been admitted to practice law in the courts of this state. Hugh S Montgomery, Albert B. Ridgway, Bert E. Haney, Robert F. Maguire, Homer D. Angell, and John K. Kollock are the members of the grievance committee of the association, and Clarence H. Gilbert, Clarence J. Young, and J. F. Boothe constitute the board of chancellors of the association. Under the rules of the organization it is the duty of the chancellors and the grievance committee, if they find reasonable grounds to believe an attorney at law guilty of conduct meriting disbarment, to initiate a disbarment proceeding against such attorney.

The persons composing the grievance committee and the board of chancellors of the Multnomah Bar Association caused to be filed in this court on June 7, 1922, pursuant to section 1096, Or. L., an accusation containing six charges against George Estes, a member of the bar of this state. The accused denied all the charges. The trial was conducted in the presence of all the members of this court sitting in bank and therefore the court had the benefit of seeing and hearing all the witnesses testify, except the witness J. H. Hobart, whose testimony was taken on written interrogatories.

Section 1091, Or. L., is given the following heading in the present Code: "An attorney may be disbarred for unprofessional conduct." This section was enacted in 1901 (Laws 1901, p. 67), and was entitled, "An act to regulate disbarment proceedings," and the body of the act read as follows:

"Section 1. Any member of the bar of this state shall be disbarred by the Supreme Court, upon proper proceedings for that purpose, whenever it shall be made to appear to that court that if he were then applying for admission to the bar his application should be denied because of unprofessional conduct."

The statute was codified as section 1066 in Bellinger & Cotton's Annotated Codes and Statutes of Oregon, and was there given the above-quoted heading. The statute appears with the same heading in Lord's Oregon Laws as section 1091. This court, in an opinion rendered in Ex parte Tanner, 49 Or. 31, 88 P. 301, stated that the interpretation of the language of the act was involved in doubt, but suggested that the statute probably meant:

"That an attorney shall be disbarred when it appears that his general moral character or unfitness is such that, if he were applying for admission, his application would be denied."

The statute was amended in 1915 so as to read as follows:

"Any member of the bar of this state shall be disbarred by the Supreme Court, upon proper proceedings for that purpose, whenever it shall appear to that court that his conduct has been such that if he were then applying for admission to the bar his application should be denied." Chapter 259, Laws 1915; section 1091, Or. L.

It is plain that the heading given to the section in its original form in the Bellinger & Cotton and in the Lord compilations is not an appropriate heading for the statute in its amended and present form. Under the law as it now is any member of the bar of this state "shall be disbarred" whenever it shall appear that his conduct has been such that "if he were then applying for admission to the bar his application should be denied." It is provided by section 1077, subd. 2, Or. L., that an applicant for admission must show that he is a person of good moral character. This court has said:

"The immorality that rejects an applicant is ground upon which to disbar." In re Crum (Or.) 204 P. 948.

We quote from 6 C.J. 584:

"As good character is an essential qualification for the admission of an attorney to practice, he may be removed whenever he ceases to possess such a character."

The misconduct which under our statute will disbar "is not limited to acts committed strictly in a professional character, but extends to all such misconduct as would have prevented an admission to the bar." In re O----, 73 Wis. 602, 42 N.W. 221. The words "good moral character" include "all the elements essential to make up such a character. Among these are common honesty and veracity, especially in all professional intercourse." In re O----, 73 Wis. 602, 42 N.W. 221; In re Crum (Or.) 204 P. 948; 1 Thornton on Attorneys at Law, § 62; 6 C.J. 573.

A disbarment proceeding is a civil and not a criminal proceeding, and yet a mere preponderance of the evidence is not sufficient to warrant disbarment or suspension. The guilt of the attorney must be clearly established. In re Crum (Or.) 204 P. 948; Ex parte Kindt, 32 Or. 474, 52 P. 187. The imposition of punishment for the commission of criminal offenses is provided for by other proceedings authorized for that purpose, but a disbarment proceeding is entertained as "necessary for the protection of the court, the proper administration of justice, and the dignity and purity of the profession, and for the public good and the protection of clients." Ex parte Finn, 32 Or. 519, 52 P. 756, 67 Am. St. Rep. 550; Ex parte Tanner, 49 Or. 31, 88 P. 301. As was said in Attorney's License, 21 N. J. Law, 346, the power to reject an applicant for admission or to disbar an attorney already admitted "is one of great delicacy, and should be exercised with extreme caution, and with a scrupulous regard for the character and rights of the applicant. But on the other hand, the standing of the profession must not be disregarded, nor must the court shrink from the performance of a clear duty however embarrassing." The ultimate purpose of a disbarment proceeding is "to ascertain whether the accused is worthy of confidence and possessed of that good moral character which is a condition precedent to the privilege of practicing law and of continuing in the practice thereof." In re Thresher, 33 Mont. 441, 84 P. 786, 114 Am. St. Rep. 834, 18 Ann. Cas. 845.

For convenience the six charges may be designated respectively as the Willoughby, Hansen, Schrump, Baird, Meyers, and the Roberts charges.

The Willoughby Charge.

The accusation alleges that prior to November 24, 1916, George Estes was employed as an attorney by John Willoughby and Anna Willoughby to negotiate a loan to Julia Kerslake on certain real property in Multnomah county; that on about November 24, 1916, the defendant, as such attorney, in behalf of John and Anna Willoughby, loaned $500 to Julia Kerslake, and took her note for that amount, secured by a mortgage on the land, and that on April 11, 1917, as such attorney for John and Anna Willoughby, he loaned an additional sum of $500 to Julia Kerslake, and received her note secured by a mortgage on the real property; that on February 25, 1920, the amounts due on the notes were paid to George Estes as the attorney in fact for Anna Willoughby, and as such attorney in fact he executed a release of the mortgages; that George Estes willfully converted the money to his own use, and has not accounted for any of it, except on about May 15, 1922, and after he had been tried before the grievance committee and chancellors of the Multnomah Bar Association, he paid $500 to the Security Savings & Trust Company of Portland. It is also averred in the accusation that the defendant was employed by Anna Willoughby to act as attorney in the estate of John Willoughby, deceased, which was being administered in the probate department of the circuit court for Multnomah county, and, knowing that Anna Willoughby "is a blind, aged, and feeble old woman" the defendant obtained from her a power of attorney to represent her; that soon after giving the power of attorney Anna Willoughby learned that the defendant had drawn funds out of her bank account and the funds belonging to said estate; that thereupon, on March 10, 1919, she revoked Estes' power of attorney, and made a declaration of trust with the Security Savings & Trust Company which provided for the handling of her entire estate and all matters by the trust company; that notice of such declaration of trust and of the revocation of the power of attorney was immediately conveyed to the defendant, and a demand was made upon him by the trust company for an accounting of all moneys collected and disposed of for Anna Willoughby individually or for the estate of John Willoughby, deceased; that the defendant misappropriated the moneys of Anna Willoughby and of said estate, and has refused to account for the money collected by him and drawn from the bank.

John and Anna Willoughby were husband and wife, and he owned and drove a taxicab. John Willoughby died November 7, 1918. On November 15, 1918, Anna Willoughby gave to George Estes a general power of attorney. Under date of December 27, 1918 Anna Willoughby revoked the power of attorney which she had given to Estes. On March 10, 1919, Anna Willoughby, as trustor, executed a declaration of trust to the Security Savings & Trust Company of Portland as trustee. It is admitted that in behalf of John and Anna Willoughby the defendant loaned $500 to Julia Kerslake on November 24, 1916, and that he loaned a like amount to her on April 11, 1917. It is also admitted that Julia Kerslake paid the notes representing the loans, and that Estes received the money and satisfied the mortgages given as security for the notes. The accusation charges that Estes converted the money to his own use. The...