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

• Decision Date: 12 January 1951
• Docket Number: No. 32936,32936
• Citation: State ex rel. Nebraska State Bar Ass'n v. Wiebusch, 45 N.W.2d 583, 153 Neb. 583 (Neb. 1951)
• Parties: STATE ex rel. NEBRASKA STATE BAR ASS'N v. WIEBUSCH.
• Court: Nebraska Supreme Court

Page 583

45 N.W.2d 583

153 Neb. 583

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

No. 32936.

Supreme Court of Nebraska.

Jan. 12, 1951.

Syllabus by the Court

1. A motion for judgment on the pleadings admits facts well pleaded or admitted in an answer but does not admit conclusions of law contained therein.

2. Where, upon statements in the pleadings, one party is entitled by law to judgment in his favor, judgment should be so rendered by the court.

3. The purpose of a disbarment proceeding is not so much to punish the lawyer as it is to determine in the public interest whether he should be permitted to practice.

4. In admitting a lawyer, and granting him a license to practice law, it is on the implied understanding that the party receiving such license shall in all things demean himself in a proper manner and abstain from such practices as cannot fail to bring discredit upon himself, the profession, and the courts.

5. The oath taken by him, as required by section 7-104, R.S.1943, requires a lawyer to faithfully discharge his duties; uphold and obey the Constitution and laws of this state; observe established standards and codes of professional ethics and honor; maintain the respect due to courts of justice; and abstain from all offensive practices which cast reproach on the courts and the bar.

6. A lawyer owes his first duty to the court. He assumed his obligations toward it before the ever had a client. He cannot serve two masters, and the one he has undertaken to serve primarily is the court.

7. The ethical standards relating to the practice of law in this state are the canons of professional ethics of the American Bar Association and those which may from time to time be approved by the Supreme Court.

8. Canons of ethics and rules governing professional conduct of lawyers are recognized and applied by this court in proper cases.

9. Misconduct of a lawyer acting in an official capacity such as judge, may constitute grounds for his suspension or disbarment, since his untrustworthiness and infidelity in one office shows his untrustworthiness and infidelity in the other, and a violation of his judicial oath only aggravates the offense of violating his oath as a lawyer.

10. By virtue of section 7-111, R.S.1943, no person is permitted to practice as a lawyer in any of the courts of this state while holding the office of county judge in any county having a population of more than sixteen thousand, and any lawyer who holds the office of county judge is not permitted in any event to practice as a lawyer in any action, matter, or proceeding brought before himself, or to draw any paper or written instrument to be filed in his own court, except such as he is required by law to draw.

11. If thus forbidden to practice law while serving as county judge, a lawyer should refrain from accepting any employment as such while in office, and in any event, even if permitted to practice elsewhere, he should never practice law in the court in which he is judge or appear therein for himself in any controversy, even if presided over by another judge, and a violation thereof is highly improper.

12. As provided by Article V, Section 14, Constitution of Nebraska, no county judge shall practice law in any court in any matter arising in or growing out of any proceeding in his own court, and a violation thereof is highly improper.

13. A duty rests on the courts to maintain the integrity of the legal profession by disbarring lawyers who indulge in practices designed to bring the courts or the profession into disrepute, or to prepetrate a fraud on the courts, or to corrupt and defeat the administration of justice.

C. S. Beck, Atty. Gen., Bert Overcash, Asst. Atty. Gen., for relator.

George W. Wiebusch, pro se.

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

CHAPPELL, Justice.

This is a disciplinary proceeding initiated by relator in conformity with rules of this court against respondent, a lawyer duly admitted and licensed to practice his profession in this state.

The formal complaint filed in this court alleged in paragraph II that from January 1941 to January 1949, respondent was the duly elected, qualified, and acting county judge of Custer County, Nebraska, which at all times had a population of more than 16,000, as designated in section 7-111, R.S.1943.

Paragraph III alleged generally that respondent had been guilty of unprofessional conduct and violation of the laws of the state and canons of ethics of the Nebraska State Bar Association governing Nebraska lawyers in the practice of their profession by acts and practices thereinafter recited and described substantially as follows:

Paragraph IV alleged that prior to December 1, 1948, while respondent was county judge as aforesaid, he prepared a petition for appointment of an administrator in the matter of the estate of Charles Hircock, deceased, and on December 1, 1948, filed said petition in his own court and accepted employment and acted as attorney for petitioner in said matter in his own court, having theretofore written letters to petitioner recommending himself to act as such attorney.

Paragraph V alleged that on or about September 21, 1948, respondent prepared a petition for the administration of the estate of William Ward Henman, filed it on that date in his own court, acted not only as attorney for the administrator but also as county judge all through said proceedings, and collected an attorney's fee in said cause as attorney for the administrator.

Paragraph VI alleged that on or about September 15, 1948, respondent prepared and filed a petition in his own court for administration of the estate of Anna Schneringer, deceased; prepared all of the papers in the administration of said estate; and acted not only as attorney for the administrator but also as county judge during most of the proceedings, and collected a fee as attorney for the administrator.

Paragraph VII alleged that on or about December 1, 1948, respondent prepared and filed in his own court a petition seeking decree of heirship of one Charles Deal and throughout said proceedings and until decree was entered, acted therein not only as attorney for petitioner, May Etta Amsberry, but also as county judge, and collected a fee as attorney for such services.

Paragraph VIII alleged that on or about September 15, 1948, respondent, while the duly elected, qualified, and acting county judge of Custer County, prepared and on October 19, 1948, filed a petition in the district court for Custer County to foreclose a tax sale certificate, conducted said case to conclusion, received the proceeds of said sale as attorney for plaintiff therein, and charged and collected a fee for acting as such attorney.

Paragraph IX alleged that on October 10, 1948, respondent prepared and filed in his own court a complaint in forcible entry and detainer as attorney for plaintiff. Also, at the same time, respondent filed a disqualification, and prepared a summons which the acting county judge signed on October 19, 1948. Thereafter, all of the papers involved in said cause, including the judgment entered on November 3, 1948, were prepared and filed by respondent without the acting judge being present in court or conducting a hearing and trial therein.

Other charges, alleging misconduct, were set forth in paragraphs X and XI, but as hereinafter observed, not being admitted by respondent in his answer, they need not be reiterated here.

Paragraph XII alleged that respondent practiced law generally while acting as county judge, maintained a law office downtown, and practiced law therein while he was county judge, and on August 12, 1948, entered into a division of fees contract with another lawyer.

To the foregoing complaint, respondent duly filed an unverified answer which contained no general denial. Rather, it admitted the allegations of aforesaid paragraphs II, IV, V, VI, VII, VIII, and IX; admitted, as alleged in paragraph XII that on August 12, 1948, he entered into a contract with another lawyer for the purpose of forming a law partnership, but alleged that it was to be effective only at the conclusion of his term of office as county judge, and that he had not participated in any division of fees with such attorney during his term of office. He also admitted that 'during the summer of the last year of his term as County Judge respondent was in the process of building a law office which building was ready for occupancy about September 1, 1948,' and that 'for about four months just prior to the end of his term as County Judge he spent his time in his own office building except such times as official duties required his attendance at the Court House.'

His answer also alleged as conclusions of law that 'in all matters of law practice participated in by him while he held the office of County Judge, he at no time did anything which tainted of using his judicial position to further his professional success,' that 'at no time did he do anything which would cause anyone having business before the County Court to feel that his matter would not be heard fairly and impartially and just disposition made' and 'that notwithstanding the infractions complained of and admitted, he is a fit person to be trusted with the duties and responsibilities belonging to the office of attorney.'

Relator's complaint prayed that this court take such disciplinary action as it deems just and proper, and respondent's answer prayed that this court should make such disposition of the matter as it deems just and proper. The matter was finally briefed, argued, and submitted to this court by relator and respondent, upon relator's motion for judgment of disbarment upon the aforesaid pleadings filed by the parties. We sustain the motion of relator, bearing in mind that a motion for judgment on the pleadings admits facts well pleaded or admitted in an answer but does not admit conclusions of law....