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

• Decision Date: 23 October 1964
• Docket Number: No. 35399,35399
• Parties: The STATE of Nebraska on the Relation of the NEBRASKA STATE BAR ASSOCIATION, Relator, v. Paul E. RHODES, Respondent.
• Court: Nebraska Supreme Court

Page 118

131 N.W.2d 118

177 Neb. 650

The STATE of Nebraska on the Relation of the NEBRASKA STATE BAR ASSOCIATION, Relator, v. Paul E. RHODES, Respondent.

No. 35399.

Supreme Court of Nebraska.

Oct. 23, 1964.

Syllabus by the Court

1. It is the duty of this court to maintain the integrity of the legal profession by disciplining lawyers who indulge in practices designed to bring the courts or the profession into disrepute, or to perpetrate fraud on the courts, or to corrupt or defeat the administration of justice.

2. The evidence adduced in a disciplinary proceeding is reviewed de novo in this court to determine if discipline should be imposed, and, if it should, the extent thereof.

3. While a disciplinary proceeding is not criminal in nature, in view of the momentous consequences to the person charged, the presumption of innocence applies, and his culpability must be established by a clear preponderance of the evidence. That is, the court must be satisfied to a reasonable certainty that the charges are true.

4. A license to practice law in this jurisdiction is granted on the implied understanding that the party receiving it shall at all times demean himself in a proper manner and abstain from such practices as cannot fail to bring discredit to himself, the profession, and the courts.

5. The purpose of a disbarment proceeding is not so much to punish an attorney as it is to determine, in the public interest, whether he should be permitted to continue to practice law.

6. Violation of any of the ethical standards relating to the practice of law, or any conduct of an attorney in his professional capacity which tends to bring reproach on the courts or the legal profession, constitute grounds for suspension or disbarment.

7. Regardless of an attorney's frame of mind, his conduct in a courtroom must at all times conform to his oath as a lawyer, the provisions of section 7-105, R.R.S.1943, and the Canons of Professional Ethics in full force and effect in this state.

8. Abuse of a former judge, directed toward his action as a judge, is conduct which would tend to bring discredit on the judiciary.

9. The terms 'Kangaroo Court' and 'Kangaroo Judge' are terms of contempt and utter disrespect, and their use tends to bring discredit on the judiciary.

10. The fact that an attorney believes a characterization of a court as a 'Kangaroo Court' to be correct is no defense in a disbarment action, because a lawyer is presumed to know the proper method of securing redress if he feels aggrieved by the actions of a court.

11. Where an attorney acts pro se, he is charged with the same responsibility as if acting for a client, and as such must avoid the violation of the Canons of Professional Ethics governing that relationship.

Clarence A. H. Meyer, Atty. Gen., Lincoln, Peter E. Marchetti, Special Asst. Atty. Gen., Omaha, for relator.

Paul E. Rhodes, Elwood, Kan., pro se.

Heard before WHITE, C. J., and CARTER, MESSMORE, YEAGER, SPENCER, BOSLAUGH and BROWER, JJ.

SPENCER, Justice.

This is an original disciplinary proceeding initiated in conformity with the rules of this court, against the respondent Paul E. Rhodes, a lawyer duly damitted and licensed in 1943 to practice his profession in this state. The proceeding was filed in the name of the State of Nebraska ex rel. Nebraska State Bar Association as relator. The parties will hereinafter be referred to as relator and respondent.

The matter was referred for hearing, report, and recommendation to Elbert H. Smith as referee, and is before this court on his report finding the respondent guilty of unprofessional conduct, and the respondent's exceptions thereto.

The duty rests on this court to maintain the integrity of the legal profession by disciplining lawyers who indulge in practices designed to bring the courts or the profession into disrepute, or to perpetrate fraud on the courts, or to corrupt or defeat the administration of justice. We therefore review the evidence adduced in this proceeding de novo to determine if discipline should be imposed, and, if it should, the extent thereof. See State ex rel. Nebraska State Bar Assn. v. Fisher, 170 Neb. 483, 103 N.W.2d 325.

After the briefs were filed herein, and shortly before the oral argument, respondent filed a motion to disqualify all of the members of this court from participating herein because the Associate Justices had been defendants in Rhodes v. Houston, D.C., 202 F.Supp. 624, an action filed by him in the federal district court, and because the Chief Justice, while a district judge, had ruled against the respondent on a petition for habeas corpus, and for the further reason that they are members of the Nebraska State Bar Association. This motion will be discussed hereafter.

The complaint herein embraced five counts, but by amendment Count IV was withdrawn. The remaining four will be summarized in as abbreviated a form as possible to an understanding of the complaint herein.

Count I generally charges the respondent with having been charged with contempt in the district court for Morrill County, Nebraska, on July 29, 1960, because while a defendant in a criminal case he intentionally attempted to obstruct and hinder the administration of justice and to intimidate the judge of the district court by conspiring with and procuring the county judge of Morrill County to issue a bench warrant and a complaint for the arrest of the district judge in an attempt to bring about his incarceration for the purpose of preventing him from performing his offical duties. The count then alleges that after trial, respondent was found guilty of contempt, and that said judgment has become final. It also alleges that said unprofessional conduct was a violation of subdivision (1), (5), and (6) of section 7-105, R.R.S.1943. It further alleges that said act was in violation of the obligations implicit in the lawyer's oath provided for by section 7-104, R.R.S.1943; and further, that all of the said acts were a violation of Canons 1, 22, 29, and 32 of the Canons of Professional Ethics of the American Bar Association, which are the ethical standards governing Nebraska lawyers in the practice of their profession.

Count II substantially alleges that for the same purposes mentioned in Count I, respondent obtained from the county judge of Morrill County bench warrants and complaints for the arrest of Rush C. Clarke, special assistant attorney general of the State of Nebraska, James L. Macken, county attorney of Morrill County, and Norval E. Houston, sheriff of Morrill County, and personally delivered said warrants to the county clerk with instructions to execute said warrants by incarcerating the individuals named; and that said acts constituted unprofessional conduct, in violation of the provisions of section 7-105, R.R.S.1943.

Count III substantially alleges that respondent, in pursuance of a calculated and contumacious disregard for the authority, integrity, and dignity of the courts of this state, filed an action against the trial judge in the criminal contempt action, the Attorney General, the assistant attorney general, the county attorney, the sheriff of Morrill County, and others, attempting to obtain a permanent injunction against the confinement of a witness being held in the county jail for willful refusal to answer questions propounded to him in the contempt action. Said count further alleges that said respondent, knowing the district judge planned to be in Morrill County, filed an affidavit that said judge was absent from the county, and, by threats and intimidation, induced the acting county judge to sign an order restraining the district judge from keeping the witness in the county jail. That thereafter, by threats and intimidation, respondent induced the clerk of the district court to issue a certified copy of the restraining order drafted by the respondent for service on the trial judge. That thereafter, respondent filed an affidavit and a motion for disqualification of said trial judge, alleging the pendency of an action involving a pecuniary and monetary difference between the trial judge and the respondent in the action in which the alleged contempt occurred.

Count V alleges three specific instances in which respondent, by personal acts, conduct, and attitude, repeatedly exhibited a pronounced disrespect for the courts of Nebraska, to wit: a. On January 11, 1960, while being arraigned on a criminal complaint, respondent assumed a full-length, reclining position on a spectator's bench in the courtroom, and advised the district judge it would be necessary for the court to have the sheriff drag him before the bench if the court wanted him there; b. that in the early morning hours of the day after district judge R. M. Van Steenberg retired from the district bench, respondent called him by long distance, addressed him as an 'Old Kangaroo' and subjected him to a tirade of abuse; and, c. that on September 7, 1962, and at various other times, respondent has referred to the courts of Nebraska as 'Kangaroo Courts.'

Respondent filed a lengthy, repetitious answer and a supplemental amendment to his answer, which we summarize as briefly as possible. As to Count I, the answer alleges lack of jurisdiction. It contains a general denial of all of the allegations of the complaint, and specifically denies violations of the Canons of Professional Ethical Standards or the statutes of Nebraska. It alleges that the judgment in the contempt action is absolutely void, and, quoting from respondent's answer, 'to base a complaint against respondent based on such a void judgment Kangaroo Court, is a violation of (of) due process and equal protection of law to this respondent, * * *.' It alleges that the contempt judgment is void as a violation of constitutional provisions, 'trial in absentia,' and the calling of a witness without notice to respondent, and the pronouncing of sentence of imprisonment for 9 months in the Nebraska State...