State v. Rogers

• Decision Date: 08 November 1937
• Citation: 226 Wis. 39,275 N.W. 910
• Parties: STATE v. ROGERS.
• Court: Wisconsin Supreme Court

226 Wis. 39

275 N.W. 910

STATE

v.ROGERS.

Supreme Court of Wisconsin.

Nov. 8, 1937.

This is an original action brought on December 4, 1934, upon the petition of the State Board of Bar Commissioners for the disbarment of Alfred T. Rogers, an attorney of this court.

It appears that complaint had been made to the Board of Bar Commissioners, investigation had been held by the board, and the filing of the petition was based upon the proceedings had before the board. Hon. George A. Affeldt of Milwaukee was appointed referee. The matter has been heard by him and he has filed his report and recommendations. The referee recommended that the defendant be suspended from practice for two years. In this court, the defendant contends that the proceeding should be dismissed.

The complaint contains eight counts or charges. In the first count the defendant is charged along with other officers of Joseph M. Boyd Company with a violation of section 189.23 (2) (b), Wisconsin Stats. of 1929, which provides that,

“Every officer *** of any company *** shall be punished by imprisonment in the state prison not exceeding five years, or in a county jail not exceeding one year, or by a fine not exceeding five thousand dollars, or by both: ***

“(b) Who authorizes, directs or aids in or consents to, the issue or sale of, or issues or executes or sells, or causes or assists in causing to be issued, executed or sold, any security, knowing said issue, execution or sale to be in nonconformity with the representations made to the commission in securing the permit.”

The second count relates to a violation of section 189.23 (2) (f), which provides a like punishment for any officer, agent, or employee of any company “(f) who, directly or indirectly, applies or causes or assists in causing to be applied the proceeds or any part thereof from the sale of any security to any purpose which he knows, or should know by reason of his office, position or occupation, to be contrary to the representations made in the application to the commission,” etc.

The third count relates to a violation of section 189.23 (2) (g), which provides a like penalty for any officer “(g) who, with knowledge or by reason of his office, position or occupation should know that any advertisement, pamphlet, prospectus or circular concerning any security contains any statement that is false or misleading or otherwise likely to deceive a reader, issues, circulates, or publishes the same, or shall cause the same to be issued, circulated or published, or consents to the same.”

It appears from the findings of the referee that the defendant was convicted in the circuit court for Columbia county of the offenses thus charged and sentenced to pay a fine of $1,000 on each count or $3,000 in all. Upon the record the referee likewise finds the defendant guilty of the offenses so charged.

In count 4 the defendant is charged along with other officers of the Joseph M. Boyd Company with having unlawfully and feloniously embezzled certain moneys belonging to the Beecroft Building Company then in the possession and under the control of the Joseph M. Boyd Company. The total amount so alleged to be embezzled was $216,000. Upon this count the defendant was acquitted on the trial in the circuit court of Columbia county, but his fellow officers, Boyd, Kropf, and Farness, were convicted upon a similar count. The referee also acquits the defendant of embezzlement.

The fourth count further charges that defendant knew from time to time that said moneys and funds were wrongfully converted and used improperly by the said Joseph M. Boyd Company; that he failed to notify said Beecroft Company and inform them of said fact and failed to do anything to protect said Beecroft Company's interest in said moneys and funds and failed to perform his duty in that respect to his said client, the Beecroft Building Company. The referee found the defendant guilty upon this latter charge.

The referee found the defendant not guilty of misconduct in respect to the matters charged in counts 5, 6, 7, and 8 and those counts will not be set out. No further reference will be made to them. A more detailed and complete statement of the facts will be found in the reported case, State ex rel. Kropf v. Gilbert (1933) 213 Wis. 196, 251 N.W. 478, to which reference is made.

The referee made the following recommendation:

“The ultimate question involved is whether the defendant lacks the moral fitness, character and qualifications to continue as a member of the Bar of this Court. The defendant was admitted to practice in 1896 and for a period of more than thirty years prior to 1928 practiced continuously in the city of Madison; during a portion of that time he held high public office. Until the happening of the events which form the basis of the charges involved no complaint reflecting upon his character appears at any time to have been made against the defendant and he enjoyed the confidence and trust, not only of the judiciary and members of the Bar of Dane County, but also of the community in which he resided. Notwithstanding what has occurred, it appears from the evidence that the Judges of the Courts of record and the members of the Bar of Dane County and defendant's clients have not lost faith in him but still regard him as honest and trustworthy. It is most unfortunate that, after an attorney has practised for so many years without a blemish and is approaching the end of his career a situation such as is here involved should arise.

“I am convinced that the violations of the Blue Sky Law by the defendant and his failure to meet the duties and obligations to the public and the Beecroft Company in the respects hereinbefore referred and to protect his client, the Beecroft Company, were due, not to any evil, vicious or dishonest trait or tendency in defendant's character or to any intent or thought of personal gain, but to lack of sufficient courage to oppose the action of Joseph M. Boyd, the president and general manager of the Boyd Company. It clearly appears that Joseph M. Boyd was a very positive character and dominated the affairs of the Boyd Company and that the other directors had little voice therein. I am satisfied, notwithstanding the defendant's appreciation of the seriousness of the situation while the conversion was continuing, that he failed to fulfill his duties and meet his responsibilities because he was reluctant and lacked the courage to take a definite and firm stand and thereby incur or create the enmity or opposition of Boyd.

“I am satisfied that the defendant was negligent in many respects; that he was negligent in his regard for the oath which he took when verifying the complaints in the foreclosure actions mentioned in the fifth, sixth and seventh charges or counts in the complaint.

“I am unable, however, to convince myself that the character of the defendant as revealed, established and manifested during the years before the happening of the events involved has been so affected or impaired as to warrant permanent disbarment.

“The defendant is now a man approximately sixty-three years of age. He has already suffered much as a result of what has occurred. He was convicted upon the criminal trial in Columbia County and paid fines and costs aggregating $3050.00. It also appears that civil proceedings are now pending against him to recover the amount of the loss sustained by the Beecroft Company. The charges upon which the defendant is herein found guilty consist mostly of acts of omission rather than acts of commission.

“Under all of the circumstances of the case it is the recommendation of the referee that the defendant's license to practice as a member of the Bar of this Court be revoked and suspended for a period of two years from the date of the entry of judgment herein and thereafter until the same shall be restored and he be reinstated upon presentation of evidence of the payment by the defendant of the costs of these proceedings, including the fees of the reporter and referee to be taxed by the clerk of this court and that he has in the meantime refrained from the practice of law.”

Spencer Haven, Special Counsel, of Hudson, for plaintiff.

Leon E. Isaacson, San W. Orr, and H. H. Thomas, all of Madison, for defendant.

W. Wade Boardman, of Madison, amicus curiae.

PER CURIAM.

[1][2] Section 189.23 (2) (b), (f) and (g) are a part of what is commonly referred to as the Blue Sky Law of this state. The whole purpose and object of the enactment of this law was to prevent the public from being imposed upon by the sale or offer for sale of any worthless or fraudulent securities or other securities not issued in accordance with the provisions of the act and the orders of the Railroad Commission (Public Service Commission). A violation of the act in any of the particulars specified was made a felony, although the defendant was upon his conviction punished only by the imposition of a fine. By the verdict of the jury as well as by the findings of the referee in this proceeding the defendant was found to have violated the provisions of this section by consenting to the issue and sale of securities in violation of the act, by assisting and causing the proceeds of the sale thus made to be devoted to a purpose other than that specified in the permit issued by the public authorities and by consenting to the issuance and circulation of advertising matter which contained false and misleading statements. It appears from the evidence that the defendant as an attorney at law procured the issuance of the permit in question for the sale of these securities upon certain specified conditions. He had had more experience than the ordinary practitioner in the procuring of such permits and must have been thoroughly familiar with all of the provisions of the statutes. While he was not, as found by the jury, an actor in the sale and unlawful conversion of the securities, he was apprised of the fact that the securities were...