State ex rel. Nebraska State Bar Ass'n v. Hungerford

• Decision Date: 28 December 1954
• Docket Number: No. 33435,33435
• Citation: 67 N.W.2d 759,159 Neb. 468
• Parties: The STATE of Nebraska ex rel. NEBRASKA STATE BAR ASSOCIATION, Relator, v. Lester C. HUNGERFORD, Respondent.
• Court: Nebraska Supreme Court

Page 759

67 N.W.2d 759

159 Neb. 468

The STATE of Nebraska ex rel. NEBRASKA STATE BAR ASSOCIATION, Relator, v. Lester C. HUNGERFORD, Respondent.

No. 33435.

Supreme Court of Nebraska.

Dec. 28, 1954.

Syllabus by the Court.

1. When an attorney is shown to have converted funds to his own use which he held as referee in a partition suit, and refused to account for same for more than 3 years, he is subject to disbarment.

2. In admitting a lawyer to the bar and granting him a license to practice law, it is with the understanding that he will faithfully discharge his duties, uphold and obey the Constitution and laws of the state, observe established standards and codes of professional ethics, maintain the respect due to courts of justice, and abstain from all offensive practices which cast reproach on courts and the profession of law.

3. A restitution of funds wrongfully converted by a lawyer, after he is faced with legal accountability, is not an exoneration of his professional misconduct.

C. S. Beck, Atty. Gen., Robert A. Nelson, Asst. Atty. Gen., for relator.

Lester C. Hungerford, Hyannis, respondent, pro se.

Heard before SIMMONS, C. J., and CARTER, MESSMORE, YEAGER, CHAPPELL, WENKE and BOSLAUGH, JJ.

CARTER, Justice.

This is an original disciplinary proceeding initiated by the relator, Nebraska State Bar Association, against the respondent, Lester C. Hungerford, a lawyer, who is duly licensed and admitted to the practice of law in this state.

The formal complaint is in two counts, each asserting conduct on the part of the respondent alleged to be in violation of his duties and obligations as a practicing lawyer. After the filing of the complaint the matter was referred to Lester A. Danielson, referee, for hearing, report, and recommendation. A hearing was had and the report of the referee filed with this court in which it was determined that the charge contained in Count 1 was not sustained by sufficient evidence. As to Count 2, the referee found that the charge was established and recommended that disciplinary action be taken against the respondent. The respondent filed no exceptions to the report of the referee. The matter is before this court on the motion of the Attorney General for a final judgment pursuant to Rule 8, Rules of the Supreme Court, governing disciplinary proceedings, and for an order disbarring the respondent, Lester C. Hungerford.

We shall not undertake a review of the record relating to Count 1, on which the referee found the evidence to be insufficient to sustain the charge, in view of the conclusion we have reached as to Count 2.

It is alleged in Count 2 of the complaint that respondent was appointed referee in a partition proceeding in the district court for Hooker County, Nebraska, entitled Hayward v. Coombes. He furnished bond, qualified as referee, and sold the real estate involved to Coombes for $5,320. The sale was confirmed on August 5, 1947. Coombes was the owner of a two-thirds interest in the land, Hayward being the owner of the other one-third. The total expense connected with the partition amounted to $426.70. Hayward was therefore entitled to $1,631.10 for his one-third interest in the real estate.

The record discloses that Coombes paid respondent $466.67 on July 7, 1947; $131.25 on July 10, 1947; and $1,175.41 on July 24, 1947; a total sum of $1,773.33. This money was deposited in a joint account in the Bank of Mullen with respondent and the clerk of the district court as joint depositors. On July 26, 1947, respondent transferred the joint account to the Hungerford Trust Account in the Bank of Mullen. From July 28, 1947, to November 13, 1947, respondent drew 43 checks on this trust account, reducing it from $1,773.33 to $1.24.

The record shows further that respondent excused his refusal to distribute the money realized from the sale of the real estate on the ground that Coombes had not paid in sufficient funds to pay up the costs. It is true that after the payments by Coombes in the total amount of $1,773.33 had been made, $284.46 remained to be paid by him. This amount was paid by Coombes on May 20, 1948. Respondent cashed his check and converted it to his own use. It is clear therefore that Coombes had paid in the full amount owing on the land involved in the partition suit on May 20, 1948. The respondent paid $366.05 on the expenses of the partition suit and converted the remaining $1,690.50 to his personal use.

The attorney for plaintiff in the partition suit was Carl G. Humphrey of Mullen, Nebraska. Humphrey demanded an accounting of the funds on the following dates: June 28, 1948; July 9, 1948; November 4, 1948; March 2, 1949; April 15, 1949; January 23, 1951; February 27, 1951; and July 2, 1951.

On September 14, 1951, respondent deposited $1,750 in his trust account and paid up the amounts owing. Respondent states that he had this money in a bank at Holdrege, Nebraska, in his mother's name for reasons which are immaterial to this proceeding. It is quite evident that he obtained the money from his mother to pay up the shortage in his account which had existed for more than 3 years.

The respondent is engaged in the practice of law at Hyannis, Nebraska. He was graduated from law school in 1932 and was admitted to the bar immediately thereafter. He commenced the practice of law at Friend, Nebraska, where he remained for about 4 years. He thereafter practiced at Holdrege for a time and then took a position as a cost accountant for a construction company in Alaska. In 1945 he commenced the practice of law in Bozeman, Montana, where he remained for something over a year. In 1946 he came to Hyannis where he has since practiced.

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