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

• Decision Date: 12 November 1982
• Docket Number: No. 44488,44488
• Citation: 326 N.W.2d 173,212 Neb. 815
• Parties: STATE of Nebraska ex rel. NEBRASKA STATE BAR ASSOCIATION, Relator v. John McARTHUR, Respondent.
• Court: Nebraska Supreme Court

Page 173

326 N.W.2d 173

212 Neb. 815

STATE of Nebraska ex rel. NEBRASKA STATE BAR ASSOCIATION, Relator v. John McARTHUR, Respondent.

No. 44488.

Supreme Court of Nebraska.

Nov. 12, 1982.

Syllabus by the Court

1. Disciplinary Proceedings: Appeal and Error. It is the obligation of this court in disciplinary proceedings to review the evidence de novo to determine if discipline should be imposed, and, if it should, the extent thereof.

2. Disciplinary Proceedings: Laches. A lapse of time occurring since acts on which a disciplinary proceeding is based is generally not available to the respondent as a defense.

3. Disciplinary Proceedings: Presumptions: Proof. In disciplinary proceedings involving members of the bar, a presumption of innocence applies; culpability of the person charged must be established by a clear preponderance of the evidence so the court is satisfied to a reasonable certainty that the charges are true.

4. Disciplinary Proceedings. The oath taken by one admitted to the bar requires him to faithfully discharge his duties and refrain from impeding or obstructing the administration of justice.

5. Disciplinary Proceedings. Upon admission to the bar one assumes the duties of an officer of the court, and in the performance of those duties he must conform to the ethical standards generally recognized by the profession.

6. Disciplinary Proceedings: Appeal and Error. To determine whether and to what extent discipline should be imposed, it is necessary that we consider the nature of the offense, the need for deterring others, the maintenance of the reputation of the bar as a whole, the protection of the public, the attitude of the offender generally, and his present or future fitness to continue in the practice of law.

Paul L. Douglas, Atty. Gen., and Melvin K. Kammerlohr, Asst. Atty. Gen., Lincoln, for relator.

Hyman Polsky of Bailey, Polsky, Cada & Todd, Lincoln, for respondent.

Heard before KRIVOSHA, C.J., BOSLAUGH, McCOWN, CLINTON, HASTINGS, and CAPORALE, JJ.

PER CURIAM.

This is an original proceeding wherein the Nebraska State Bar Association, relator, filed formal charges against John McArthur, respondent, who was admitted to the practice of law in this state on June 10, 1935.

The charges filed in this court on July 20, 1981, allege, among other things, that respondent violated his oath of office as an attorney. That oath is contained in Neb.Rev.Stat. § 7-104 (Reissue 1977), which provides, as it did on the date of respondent's admission: "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."

The record made before the referee of the Third Judicial District Committee on Inquiry reveals that on or about October 1, 1971, respondent filed a "Final Report and Account and Petition for Discharge" with the county court of Lancaster County in the matter of the estate of Hannah Davis, numbered E 21535 in the records of said court. That document was signed by respondent and verified by the executor of the estate, and read in pertinent part as follows: "Petitioner further shows that the real estate of which decedent died possessed of an interest consists of the following:

"Lot 17, Block 2, Houtz and Baldwin's

                  Subdivision, Lincoln, Lancaster
                  County, Nebraska                     $ 7800
                                                       ------
                "The South 50 feet of Lot 1, Block
                  205, Havelock, now Lincoln
                  Lancaster County, Nebraska           $ 4290
                

------

....

"WHEREFORE, Petitioner prays that his final report and account be approved, that upon payment of the balance of the costs, he be discharged as executor, and that the court determine that the real property be assigned in accordance with the will of deceased and that such other relief as is proper be ordered." Thereafter, the county court entered its final decree confirming and approving the final report and account of the executor and "assigned" the real property to the devisees named in the will. In truth and fact, the Houtz and Baldwin's Subdivision parcel had been sold, on or about May 13, 1969, for $7,500, and the other land had been sold, approximately a year later, for $1,000. The final report failed to disclose the sales, accounted for none of the proceeds, and did not explain the application of such funds.

The referee concluded that the "careless and cavalier attitude of the respondent" toward the county court warranted his censure and reprimand by this court, and so recommended. We observe it is our obligation to review the evidence de novo to determine if discipline should be imposed, and, if it should, the extent thereof. State ex rel. Nebraska State Bar Assn. v. Michaelis, 210 Neb. 545, 316 N.W.2d 46 (1982); State ex rel. Nebraska State Bar Assn. v. Jensen, 171 Neb. 1, 105 N.W.2d 459 (1960); State ex rel. Nebraska State Bar Assn. v. Fisher, 170 Neb. 483, 103 N.W.2d 325 (1960). We judge that misleading a court warrants a more...