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

• Decision Date: 12 July 1957
• Docket Number: No. 33989,33989
• Citation: 165 Neb. 80,84 N.W.2d 136
• Parties: The STATE of Nebraska, ex rel. NEBRASKA STATE BAR ASSOCIATION, Relator, v. Everett O. RICHARDS, Respondent.
• Court: Nebraska Supreme Court

Page 136

84 N.W.2d 136

165 Neb. 80

The STATE of Nebraska, ex rel. NEBRASKA STATE BAR ASSOCIATION, Relator, v. Everett O. RICHARDS, Respondent.

No. 33989.

Supreme Court of Nebraska.

July 12, 1957.

Syllabus by the Court.

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

2. Any conduct on the part of an attorney evidencing his unfitness for the confidence and trust which attend the relationship of attorney and client or unworthy of public confidence constitutes a ground for suspension or disbarment.

3. 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.

4. An attorney, as an officer of this court, must so conduct himself as to assist in maintaining confidence in the integrity and impartiality of the courts.

5. The attorney and counselor being, by the solemn judicial act of the court, clothed with his office, does not hold it as a matter of grace and favor. The right which it confers upon him to appear for suitors, and to argue causes, is something more than a mere indulgence, revocable at the pleasure of the court, or at the command of the Legislature. It is a right of which he can only be deprived by the judgment of the court, for moral or professional delinquency.

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

7. The findings to sustain disbarment must be sustained by a higher degree of proof than that required in civil actions, yet falling short of the proof required to sustain a conviction in a criminal action.

8. The ethical standards relating to the practice of the 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.

9. Violation of a code of ethics or any conduct on the part of an attorney in his professional capacity which tends to bring reproach on the legal profession constitutes ground for suspension or disbarment.

10. Judicial records or papers should not be removed from the office of the clerk or files where they belong except for good and sufficient reasons, and no person has a right to remove them without permission of the court.

11. The court may, however, grant permission to remove papers from the records, this being a matter within the discretion of the court both as to the removal and as to the terms and conditions on which the permission shall be granted.

12. There may, however, be circumstances in which it is not only proper but the duty of the court to deny such an application.

13. Though one may be under no duty to speak, if he undertakes to do so, he must tell the truth and not suppress facts within his knowledge or materially qualify them. Fraudulent representations may consist of half-trusts calculated to deceive, and a representation literally true is fraudulent if used to create an impression substantially false.

Clarence S. Beck, Atty. Gen., Charles McCarl, Sp. Asst. Atty. Gen., for relator.

Baskins & Baskins, Edw. E. Carr, North Platte, for respondent.

Joseph C. Tye, Kearney, Referee.

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

WENKE, Justice.

This is a disciplinary proceeding against Everett O. Richards. It was first presented to and considered by the Committee on Inquiry for the Thirteenth Judicial District, that being the judicial district wherein Everett O. Richards resides. Thereafter it was considered by the Advisory Committee for the Nebraska State Bar Association, the latter having filed the original complaint in this court. After a demurrer was sustained to the original complaint the Attorney General filed an amended complaint setting forth charges in addition to those contained in the complaint filed by the Advisory Committee. Such procedure is in accordance with Article XI, Investigation and Disposition of Charges, of the Rules Creating, Controlling and Regulating Nebraska State Bar Association. See, sections 3, 5, 7, 8, 11, and 12, of Article XI thereof.

In the amended complaint the Attorney General alleges that Richards has been guilty of unprofessional conduct in the practice of law and of conduct which was in violation of the canons of Professional Ethics of the profession of law, thereafter setting forth in detail the conduct of Richards which it is claimed was unprofessional and in violation of such canons. In view thereof he asks, on behalf of the Nebraska State Bar Association, that this court enter an order for such discipline against Richards as it may deem reasonable and proper. Richards filed an answer to this amended complaint wherein he raised issues of fact and, based thereon, asked that the amended complaint be dismissed. We thereupon appointed a referee. See part III, § 7, Disciplinary Proceedings, of the Revised Rules of the Supreme Court.

The referee arranged for and had a hearing. He thereafter made a written report to this court setting forth the facts as he found them to be and, based thereon, recommended that some disciplinary action be taken. Richards filed exceptions to the referee's report. The question thus presented is, was Richards guilty of unprofessional conduct in his practice of the law and, if so, should he be disciplined because thereof and to what extent?

'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 perpetrate a fraud on the courts, or to corrupt and defeat the administration of justice.' State ex rel. Nebraska State Bar Ass'n v. Wiebusch, 153 Neb. 583, 45 N.W.2d 583, 584. See, also, 7 C.J.S. Attorney and Client § 34, p. 793.

'Any conduct on the part of an attorney evidencing his unfitness for the confidence and trust which attend the relationship of attorney and client or unworthy of public confidence constitutes a ground for suspension or disbarment.' 7 C.J.S. Attorney and Client § 19, p. 733. See, also, State ex rel. Nebraska State Bar Ass'n v. Wiebusch, supra.

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

Everett O. Richards, also referred to in the record as E. O. Richards and whom we shall herein refer to as either Richards or respondent, was admitted to the practice of law in Nebraska on November 8, 1939, and has, at all times since then, been legally qualified to do so. He commenced the practice of law at Chappell in Deuel County, Nebraska, on Nevember 15, 1939, and has engaged in the practice at that place ever since.

'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 v. Fisher, 103 Neb. 736, 174 N.W. 320; State ex rel. Nebraska State Bar Ass'n. Wiebusch, supra.

"An attorney, as an officer of this court, must so conduct himself as to assist in maintaining confidence in the integrity and impartiality of the court.' State ex rel. Sorensen v. Goldman, 127 Neb. 340, 255 N.W. 32, 33.' State ex rel. Nebraska State Bar Ass'n v. Wiebusch, supra.

Section 7-104, R.R.S.1943, provides the oath every person must take and subscribe upon being admitted to practice by this court. In State ex rel. Nebraska State Bar Ass'n v. Wiebusch, supra, we said: '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.'

Proceedings for the discipline of attorneys are considered civil in their nature. See, part III, § 1, Disciplinary Proceedings, of the Revised Rules of the Supreme Court; State ex rel. Nebraska State Bar Ass'n v. Bachelor, 139 Neb. 253, 297 N.W. 138, 140.

As to an attorney's rights we said in State ex rel. Nebraska State Bar Ass'n v. Bachelor, supra: "The attorney and counsellor being, by the solemn judicial act of the court, clothed with his office, does not hold it a matter of grace and favor. The right which it confers upon him to appear for suitors, and to argue causes, is something more than a mere indulgence, revocable at the pleasure of the court, or at the command of the legislature. It is a right of which he can only be deprived by the judgment of the court, for moral or professional delinquency.' Ex parte Garland, supra [4 Wall. 333, 18 L.Ed. 366].'

In State ex rel. Nebraska State Bar Ass'n v. Pinkett, 157 Neb. 509, 60 N.W.2d 641, we said: 'In a proceeding for the disbarment of an attorney at law the presumption of innocence applies, and the charge made against him must be established by a clear preponderance of the evidence.' See, also, State ex rel. Nebraska State Bar Ass'n v. Bachelor, supra.

In this respect we said in State ex rel. Nebraska State Bar Ass'n v. Gudmundsen, 145 Neb. 324, 16 N.W.2d 474, 475: '* * * the findings to sustain disbarment must be sustained by a higher degree of proof than that required in civil actions, yet falling short of the...