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

• Decision Date: 23 October 1953
• Docket Number: No. 33135,33135
• Citation: State ex rel. Nebraska State Bar Ass'n v. Pinkett, 60 N.W.2d 641, 157 Neb. 509 (Neb. 1953)
• Parties: STATE ex rel. NEBRASKA STATE BAR ASS'N v. PINKETT.
• Court: Nebraska Supreme Court

Page 641

60 N.W.2d 641

157 Neb. 509

STATE ex rel. NEBRASKA STATE BAR ASS'N v. PINKETT.

No. 33135.

Supreme Court of Nebraska.

Oct. 23, 1953.

Syllabus by the Court.

In a proceeding for the disbarment of an attorney at law the presumption of innotence applies, and the charge made against him must be established by a clear preponderance of the evidence.

C. S. Beck, Atty. Gen., Dean G. Kratz, Asst. Atty. Gen., for relator.

H. J. Pinkett, pro se.

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

CARTER, Justice.

This is an original proceeding questioning the right of the respondent, H. J. Pinkett, to continue in the practice of law because of conduct 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 Wilber S. Aten, referee, for hearing, report, and recommendation. A hearing was had and the report of the referee made, in which it was determined that the charge was not sustained by sufficient evidence. The relator moved for a disciplinary order notwithstanding the decision of the referee. The respondent moved for judgment upon the report of the referee. These motions present the question to be here decided.

The evidence shows that one Richard Bryant was charged, prior to February 18, 1950, with first degree murder. On the last named date respondent was called to the home of W. B. Bryant, the attorney for Richard Bryant, and requested to aid in the trial of the case which was to commence on February 20, 1950. On February 19, 1950, he met Richard Bryant and agreed to help with his defense for a fee of $250, which offer was accepted. Richard Bryant thereupon paid him $10 and gave him a note for $240. During the trial, which commenced on February 20, 1950, Richard Bryant paid respondent $100 which was credited on the note. He thereafter made four payments of $5 each. The remaining $120 due on the note was never paid, so far as the record shows.

The jury found Richard Bryant guilty of murder in the second degree on or about February 23, 1950. Richard Bryant thereupon entered into a written contract with the respondent by which the latter agreed to perfect an 'appeal' to the Supreme Court for a total consideration of $400. The contract states that $300 was to be paid on the signing of the agreement and $100 'within the time when the Bill of Exceptions is ready for approval and filing.' Out of the total sum of $400, respondent was to pay for the bill of exceptions, the printing of the brief, and all costs in the district court and Supreme Court, except the cost of bonds. The $300 was paid in cash. The $100 remains unpaid. Richard Bryant disappeared while out on bond and is now a fugitive from justice.

The transcript was ordered and filed in the Supreme Court. A bill of exceptions was ordered. The time for preparing and serving the bill of exceptions was September 8, 1950. On the latter date the court reporter delivered the bill of exceptions to respondent who gave his check for $100 therefor. The court reporter discovered that the bank upon which the check was drawn would not honor it and demanded and received back the bill of exceptions. Respondent withdrew from the case at the instance of W. B. Bryant on October 10, 1950. Subsequent to this date he received and paid the court reporter for the bill of exceptions.

The record indicates that W. B. Bryant was hospitalized for a considerable period following the completion of the trial in the district court. This delayed a hearing on the motion for a new trial in the murder case. Respondent filed two affidavits with the clerk of the district court, which purported to establish misconduct on the part of the jury sufficient to vitiate the verdict. On the hearing on the motion for a new trial, both W. B. Bryant and the respondent neglected to offer such affidavits in evidence, a fact which was not discovered until later. Respondent contends that on August 28, 1950, he determined in view of this latter fact not to file the bill of exceptions in the Supreme Court and to rely solely upon the invalidity of the verdict as shown by the affidavits appearing in the transcript. He states that his decision was influenced largely by proof offered by the State that Richard Bryant had been convicted of felonies on four different occasions after Bryant testified that he had been convicted but once. Respondent states that he accepted and paid for the bill of exceptions after he was out of the case because he had ordered and agreed to pay the court reporter for it.

The relator infers throughout its case that the $100 paid to the...