State v. Fisher

• Decision Date: 27 September 1919
• Docket Number: 20562
• Citation: State v. Fisher, 103 Neb. 736, 174 N.W. 320 (Neb. 1919)
• Parties: STATE OF NEBRASKA, COMPLAINANT, v. ALLEN G. FISHER, RESPONDENT
• Court: Nebraska Supreme Court

174 N.W. 320

103 Neb. 736

STATE OF NEBRASKA, COMPLAINANT, v. ALLEN G. FISHER, RESPONDENT

No. 20562

Supreme Court of Nebraska

September 27, 1919

Original proceeding by the state to disbar respondent from the practice of law. Disbarred.

Admission of the defendant, Allen G. Fisher, to the bar of this state canceled and annulled, and his name stricken from the roll of attorneys and counselors at law.

Fawcett Mockett & Walford and E. D. Crites, for complainant.

J. B Barnes and Strode & Beghtol, contra.

SEDGWICK J. MORRISSEY, C. J., not sitting.

OPINION

SEDGWICK, J.

Disbarment proceedings were begun against the defendant by filing in this court a complaint with seven separate counts with specifications. The defendant answered, and the court appointed Honorable Frank A. Barton referee to take the evidence and report to the court his findings of fact and conclusions of law. The matter appears to have been very earnestly contested before the referee. A very large amount of evidence was taken by the state, and the referee has found that the first four alleged grounds for disbarment stated in the information are established by the evidence, and his conclusion is that the defendant is guilty as charged, and that he ought to be disbarred. The referee found that the three remaining charges of the information are not established by the evidence. A motion, was made to confirm the report of the referee as to the first four counts and for order of disbarment thereon, and that the findings of the referee as to the fifth and sixth charges of the information be reversed, and the court find from the evidence that the defendant is guilty as therein charged. It is conceded that the seventh charge of the information is not supported by the evidence.

It was objected that the information should be dismissed, because it is presented by a private person, and not by the authority of the court or of the state. It is the duty of any citizen who has knowledge of the fact to inform this court when any member of the bar has been guilty of such conduct as to require his disbarment. Perhaps regularly upon such information the court would order the attorney general or some member or committee of the bar to investigate the matter and formulate charges. However, when the information is brought to this court by the sworn statement of a citizen formulating the charges against a member of the bar, as in this case, and the member so charged makes formal answer to the information, no other proceedings are necessary to present the issues for determination.

The first count of the information charges that the defendant in February, 1907, was guilty of forgery in an action pending in the district court for Dawes county, in which he was employed as attorney, and that he offered the forged document in evidence, and that, to procure the admission of the document in evidence, he falsely testified in that trial that the document as offered by him was executed in his presence by the parties by whom it purported to be executed. The record, including the evidence taken in the trial of the case referred to, was offered and received in evidence before the referee. As this defendant was not a party to that action, it is objected that this record and evidence was incompetent and should not have been received. This objection would have been available as to a large part of this record, at least, if it had been made at the time it was offered and had been insisted upon. On the contrary, it was stipulated between the parties that the files offered were the original files in the case referred to, "and that said files were produced by the proper authority, foundations of proof being waived." The defendant made several objections to the evidence, as that the charge was too state, and that the charge was not ground for disbarment, and was barred by the statute of limitations, and was false in substance. When the pleadings, proceedings, and decree in the cause were offered, the defendant objected on the ground that it was "incompetent, irrelevant and immaterial, not tending to support any issue in this case." But afterwards the record shows: "Objection is withdrawn and said exhibits numbered 1 to 1-L are here received in evidence." The defendant, by withdrawing this objection to the evidence, made the production of oral testimony unnecessary, and cannot now be heard to object to the competency of the evidence.

It is also objected that the evidence, even if the record is considered, is not sufficient to support the finding and conclusion of the referee.

"The lawyer's life must be one of fidelity and stern integrity." In re Sitton, 72 Okla. 13, 177 P. 555.

"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. If a deceit is practiced by an attorney in his character as such, although not in a suit pending in the court, he may be removed from his office as attorney." State v. Burr, 19 Neb. 593. 2, 28 N.W. 261 R. C. L. 1099, sec. 192; 6 C. J. 598, sec. 58.

The facts established by the uncontradicted evidence, with admissions of defendant, in this record, prove that the defendant knew, or at least as the responsible attorney in the case should have known, that the document he offered in evidence had never been agreed to by the party against whom it was offered. If defendant was not guilty of forgery himself, he sought to deceive the court by the forgery of others. One who attempts to benefit by the use of forged commercial paper is as guilty of felony as the forgery himself. And so, the lawyer who knowingly uses forgery of another to impose upon a court cannot justify or lessen his violation of duty as a member of the bar by showing that he did not himself commit the forgery. This evidence is an important part of the whole evidence showing the character of the defendant's professional conduct during a series of years.

Proceedings for disbarment of this defendant were heard before this court in 1908, and resulted in his suspension from practice as an attorney for the year commencing Feb. 1, 1909. State v. Fisher, 82 Neb. 361, 117 N.W. 882. The second count of the information that we are now considering charged that the defendant, in violation of the order of this court in the former proceedings, continued in the practice of law during the whole year in question. The order of this court was; "It is therefore considered, ordered and adjudged that the defendant Allen G. Fisher be, and he is hereby, suspended from the practice of his profession of attorney and counselor at law in this and the district courts of this state for the period of one year; but, in order to protect the interests of his clients the suspension shall not take effect until January 1, 1909." The defendant was employed as an attorney in litigation then pending, and he attempted with another member of the bar to conduct the litigation in the courts, not only in those cases then pending, but also in such new cases as might be offered to defendant. It is contended that the defendant did not at any time orally participate in the trial of cases in open court, either in the state supreme or district courts, and that the order of the court did not deprive him of the right to do any other act or thing that he was authorized to do by his membership of the bar of the state. If it should be considered that the order did not suspend all of the powers given him by his membership of the bar, he was forbidden to "practice his profession" in the courts named. What is it to practice the legal profession in the courts? In In re Lizotte, 32 R.I. 386, 35 L. R. A. n. s. 794, 79 A. 960, it is held: "An attorney who has been suspended from the practice of his profession is guilty of contempt of court if he retains upon his office door and stationery the statement that he is an attorney, and consults with clients, makes collections, and does other legal work the same as before his suspension, except so far as it requires his appearance in court proceedings, although in so doing he acts upon advice of counsel." The opinion recites the acts complained of, which are substantially the same as this defendant has done. The court said: "Members of the bar who are under suspension will be required to comply with the terms of the decree suspending them in such a manner that there may be no ground for suspicion on the part of other members of the bar or of the public that the decree of this court are not being exactly observed in their letter and their spirit."

The defendant here not only prepared and filed in the district court pleadings and other papers with the name of another attorney attached, but in some instances with his own name also attached as attorney. He maintained a law office as before his suspension, which carried a sign naming him as an attorney at law. He consulted with clients continually in regard to their actions pending in this and the district court, and was present in court when their cases were tried. In some cases he attempted in open court to make suggestions in regard to one of his cases being tried, and was rebuked by the court. These things and other matters that are proved without contradiction constitute...