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

• Decision Date: 04 October 1957
• Docket Number: No. 34205,34205
• Parties: The STATE of Nebraska ex rel. NEBRASKA STATE BAR ASSOCIATION, Relator, v. James J. FITZGERALD, Respondent.
• Court: Nebraska Supreme Court

Page 323

85 N.W.2d 323

165 Neb. 212

The STATE of Nebraska ex rel. NEBRASKA STATE BAR ASSOCIATION, Relator, v. James J. FITZGERALD, Respondent.

No. 34205.

Supreme Court of Nebraska.

Oct. 4, 1957.

Syllabus by the Court

1. In granting a license to practice law it is on the implied understanding that a party receiving it 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.

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

3. Misconduct of an attorney, indicative of moral unfitness for the profession sufficient to deny an applicant admission to the bar, even if the act is not committed in a professional capacity, justifies disbarment.

4. The oath required by section 7-104, R.R.S.1943, obligates lawyers taking the same to faithfully discharge their 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.

5. In general it may be stated that a conviction of a felony or misdemeanor involving moral turpitude, as such term is defined by the statutes, is conclusive evidence warranting disbarment.

Clarence S. Beck, Atty. Gen., Gerald S. Vitamvas, Asst. Atty. Gen., for relator.

Kennedy, Holland, DeLacy & Svoboda, Omaha, for respondent.

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

WENKE, Justice.

This is an original proceeding brought by the State on the relation of the Nebraska State Bar Association praying for disciplinary action against the respondent, James J. Fitzgerald. The charges against respondent are that: '* * * during and for the years 1947, 1948, 1949, 1950, 1951, 1952, 1953, and 1954, (he) failed to file with the United States of America, or any office or branch thereof, or with the United States Treasury Department, Internal Revenue Service, any return, report, or information relating to or concerning his income, earned or reportable, during said years; that the said James, J. Fitzgerald had an income for each of said years which he was required by law to report to the said United States Treasury Department, Internal Revenue Service; that on or about the 5th day of January, 1956, the said James J. Fitzgerald was charged in the United States District Court for the District of Nebraska, sitting at Omaha, Nebraska, with failure to make the income tax returns, as aforesaid, to which he entered a plea of nolo contendere; that upon a hearing he was fined the sum of $750.00 on account thereof.'

Respondent admits these charges to be true but claims he was not thereby charged with nor guilty of any act involving moral turpitude.

'In granting a license to practice law, it is on the implied understanding that the party receiving it 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.' State ex rel. Attorney General v. Burr, 19 Neb. 593, 28 N.W. 261, 262. See, also, State ex rel. Nebraska State Bar Ass'n v. Palmer, 160 Neb. 786, 71 N.W.2d 491.

'The purpose of a disbarment proceeding is not so much to punish the attorney as it is to determine in the public interest whether he should be permitted to practice.' State ex rel. Wright v. Sowards, 134 Neb. 159, 278 N.W. 148, 149. See, also, State ex rel. Nebraska State Bar Ass'n, v. Wiebusch, 153 Neb. 583, 45 N.W.2d 583; State ex rel. Nebraska State Bar Ass'n v. Palmer, supra.

While it is clear that the offenses committed were committed by the respondent in his capacity as a private individual, and not in any professional capacity, however, we have held that if such misconduct indicates moral unfitness it justifies our taking action thereon. See, State ex rel. Sorensen v. Scoville, 123 Neb. 457, 243 N.W. 269, 271; State ex rel. Wright v. Sowards, supra. As said in State ex rel. Sorensen v. Scoville, supra: 'Misconduct of attorney, indicative of moral unfitness for the profession sufficient to deny an applicant admission to the bar, even if the act is not committed in a professional capacity, justifies disbarment.'

Section 7-104, R.R.S.1943, requires: 'Every attorney upon being admitted to practice in the Supreme Court or district courts of this state, shall take and subscribe an oath substantially in the following form: 'You do solemnly swear that you will support the Constitution of the United States, and the Constitution of this state, and that you will faithfully discharge the duties of an attorney and counselor, according to the best of your ability.''

We said in State ex rel. Nebraska State Bar Ass'n v. Wiebusch, supra, that: 'Such an oath requires lawyers to faithfully discharge their 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.' [153 Neb. 583, 45 N.W.2d 588.] See, also, State ex rel. Nebraska State Bar Ass'n v. Palmer, supra.

In the Rules Creating, Controlling and Regulating Nebraska State Bar Association it is provided by Article X thereof, as to professional conduct, that: 'The ethical standards relating to the practice of law in this state shall be the canons of Professional Ethics of the American Bar Association, including the additions and amendments as of January 1, 1945, thereto, and those which may from time to time be approved by the Supreme Court.'

Canon 29 thereof provides in part that: 'He should strive at all times to uphold the honor and to maintain the dignity of the profession and to improve not only the law but the administration of justice.'

And canon 32 provides in part that: 'He must also observe and advise his client to observe the statute law, though until a statute shall have been construed and interpreted by competent adjudication, he is free and is entitled to advise as to its validity and as to what he conscientiously believes to be its just meaning and extent. But above all a lawyer will find his highest honor in a deserved reputation for fidelity to private trust and to public duty, as an honest man and as a patriotic and loyal citizen.' (Emphasis ours.)

Respondent, who is now 49 years of age, was graduated from Creighton law school in 1932 and was admitted to the practice of law in this state on June 3, 1932. Upon being admitted he immediately began the practice of law in Omaha and has continued to do so except for a period of 4 years, beginning May 9, 1942, during which time he served in the armed forces of his county. During his years of practice respondent served as deputy county attorney of Douglas County for a period from 1935 to 1940 and as county attorney thereof from 1947 [165 Neb. 216] to 1951, having been elected in 1946 for a 4-year term beginning on January 9, 1947.

On January 27, 1947, respondent suffered a coronary occlusion and entered a hospital because thereof on January 29, 1947. He remained in the hospital until February 15, 1947, when he was released to return to his home with instructions to remain there and rest. This he did until in May 1947. Thereafter, in June 1947, he returned to his office for an hour or two a day but gradully increased the length thereof until in the fall when he returned to full duty. However, at all times during this period, he avoided excitement, overexertion, or anything of a nature that would tend to excite, tire, or overburden him. Respondent, because of this illness, failed to file a report of his income for 1946, due March 15, 1947, with the Bureau of Internal Revenue although he had a taxable income to report for that year.

After respondent commenced working full time he went down to see the people in charge of the Internal Revenue Service in Omaha but instead of making an application to obtain an extension of time in order to file his income tax report due March 15, 1947, based on the fact that he was ill and unable to file a report at the time it was due, he gave them a hypothetical case of a doctor client, using the same facts as his own as an example. Those in charge of the Internal Revenue Service would not assure respondent that if he...