Walker, Matter of, 11797

• Decision Date: 26 May 1977
• Docket Number: No. 11797,11797
• Citation: 254 N.W.2d 452
• Parties: In the Matter of the Discipline of Hermon B. WALKER, also known as Hermon Walker, as an attorney at law.
• Court: South Dakota Supreme Court

Page 452

254 N.W.2d 452

In the Matter of the Discipline of Hermon B. WALKER, also known as Hermon Walker, as an attorney at law.

No. 11797.

Supreme Court of South Dakota.

May 26, 1977.

R. James Zieser, Tyndall, for the Grievance Committee South Dakota Bar Ass'n, for complainant.

George A. Bangs, Rapid City, for respondent.

PER CURIAM.

This is a disciplinary proceeding against Hermon B. Walker (respondent), a member of the South Dakota Bar now practicing at Rapid City, South Dakota. Respondent was admitted to practice as an attorney and counselor-at-law in the courts of the State of South Dakota on August 10, 1961. Since that time he has been engaged in the active practice of law with offices at Sturgis in Meade County, South Dakota until about July 1, 1975, and thereafter at Rapid City in Pennington County, South Dakota.

Certain complaints regarding the respondent's conduct in the practice had been reported to the Grievance Committee of the State Bar Association which undertook to investigate the complaints. A report from that committee to this court resulted in an order authorizing the filing of the formal complaint, which order was dated the 24th day of November, 1975. By formal complaint filed on the 4th day of December, 1975, respondent was charged with unprofessional conduct, malpractice, and conduct prejudicial to the administration of justice in his office as an attorney and counselor-at-law. He was first alleged to have entered a plea of nolo contendere to a charge of willful failure to file income tax returns for the years 1970 and 1971, upon which plea he had been found guilty and imposition of sentence was suspended on terms of probation. He was next alleged to have pled guilty to a charge of driving a motor vehicle while under the influence of intoxicating liquor on the streets of Sturgis, Meade County, South Dakota. The complaint further detailed six instances over a period of some fourteen years wherein the clients had complained of the respondent's handling of causes and legal transactions on their behalf. We do not detail these claims here, suffice it to say that, if true, they would demonstrate a pattern of unconcern, neglect, procrastination and untruths which singly and collectively constitute unprofessional conduct and conduct prejudicial to the administration of justice as was charged in the complaint.

To this formal charge the respondent filed an answer which denied that the allegations of misconduct as detailed in the complaint constituted grounds for disciplinary action. He further affirmatively asserted that any such conduct predated the 2nd day of August, 1974, on which date he alleged that he had been diagnosed as afflicted with the disease of acute chronic alcoholism and began a course of treatment for the arrest of the said disease. The Honorable George W. Wuest, Senior Circuit Judge for the Fourth Circuit, was duly appointed as referee to take and hear the testimony in this matter and to make and file with this court findings of fact and recommendations thereon. Hearing on the complaint was held in the Pennington County Courthouse on January 20 and 21, 1977, and the referee's report filed on February 3, 1977. The matter was brought on for argument before this court on March 18, 1977.

The referee's report reviewed in detail the charges of the formal complaint. He found that the respondent had in fact entered the pleas as charged in the matter of the income tax returns and the DWI offense. With respect to the some six various complaints about handling clients' matters he found that in two cases there was insufficient evidence to demonstrate any fault on the part of the respondent. With respect to three other instances, while respondent had let statutes of limitation run and an appeal be abandoned, the circumstances indicated so little chance of success in securing any return for his client that the referee found there could be nothing more than minimal damage sustained by the client; but nevertheless criticized the respondent for his procrastination and his failure to fully advise the clients of the situation before permitting the statutes to run or the appeal to be abandoned. In the sixth instance, a divorce matter, respondent lost or mislaid some stock certificates that he was supposed to have transferred to his client's name. While this was simply a matter of securing replacement certificates, properly registered, his procrastination over a period of years did cause his client to lose approximately $50.00 in dividends. The referee's report further detailed that the respondent testified in his own behalf at the hearing and admitted to being an alcoholic and having deceived his law partner, his clients and his family. The referee then stated: "IF THIS WAS THE END OF THE STORY, it would be my opinion that Hermon Walker was unfit to be an attorney and should be promptly 'DISBARRED'." However, the findings went on to report that the respondent was so addicted to alcohol that he had become a problem for himself and his parents while still in high school, continuing and as usual becoming progressively worse, until it reached a point where he lost his law partner and his wife divorced him. It was the referee's opinion that the respondent's drinking was the main or "proximate" cause of the misconduct alleged in the complaint. The report further found that beginning August 2, 1974, the respondent has undertaken and carried on a course of treatment to arrest his alcoholism including a twenty-eight day institutional course of treatment at River Park in Pierre, South Dakota, and since discharged from that institution he has participated actively in Alcoholics Anonymous and returned on numerous occasions to lecture at the River Park institution. In the two and one-half years since beginning this course he has striven to straighten out his social and professional problems and most important he has abstained from the use of alcoholic beverages. In the light of his efforts to correct his drinking problem and his apparent success in these efforts the referee concluded that the respondent should be given an opportunity to continue the practice of law conditional upon his continued abstinence of alcohol.

In a disciplinary proceeding against an attorney the findings of fact of the referee if not conclusive are nevertheless entitled to the careful consideration of this Court which is mindful of the fact that the referee saw and heard the witnesses with all the advantage that is gained from such personal contact. This Court has consistently refused to disturb the findings of the referee where they are supported by the evidence. In re Schmidt, 1944, 70 S.D. 161, 16 N.W.2d 41. We find nothing in the record that would dispute the findings of the referee. Indeed at the hearing upon the findings counsel for the respondent did not in any manner take issue with them. The sole question remaining before us is the disposition to be made.

The Code of Professional Responsibility (appendix to Chapter 16-18 SDCL) as adopted by the South Dakota Bar Association on June 20, 1970 and approved by this Court on July 21, 1970, provides the standards by which to judge the transgressor. Under Canon I, Disciplinary Rule 1-102, "Misconduct", states that:

"(A) A lawyer shall not:

(1) Violate a Disciplinary Rule.

(2) Circumvent a Disciplinary Rule to actions of another.

(3) Engage in illegal conduct involving moral turpitude.

(4) Engage in conduct involving dishonesty, fraud, deceit or misrepresentation.

(5) Engage in conduct that is prejudicial to the administration of justice.

(6) Engage in any other conduct that adversely reflects on his fitness to practice law."

A willful violation by an attorney of any of these rules constitutes sufficient cause for revocation or suspension of the attorney and counselor's license under the provisions of SDCL 16-19-2. This court has previously held that the violation of the federal statute for failure to file federal income tax returns is not a misdemeanor necessarily involving moral turpitude within the purview of the disbarment statute and does not necessitate disbarment, In re Weisensee, 1975, S.D., 224 N.W.2d 830; nor do we find that driving a motor vehicle while under the influence of intoxicating liquor involves moral turpitude within the purview of the statute. We then turn to the various charges of mishandling, neglect, procrastination and untruths involved in handling clients' affairs.

We acknowledge...