In Re McCue , 80 Mont. 537 ( 1927 )

I dissent from the majority opinion. I cannot accept the conclusions stated in that opinion. I think the conclusions of the referee should be rejected and that the court should find the accused guilty on every specification of guilt in the accusation.

As to the specification that the accused collected money on the Burns claim against the Gordon Campbell Petroleum Company and failed and neglected to remit the same, to my mind it is amply proven. I do not believe a word of his testimony that he collected $562.50 and forgot all about it and that he forgot it a second time, after being once reminded of it, months after he had collected it; and that he remembered it sufficiently to do his duty and remit only after he learned that disbarment proceedings had been started against him. It is repugnant to human credulity. I think it so absurd, incredible and improbable as to be unworthy of belief. I am not required to accept findings which are contrary to ordinary human experience and which are based on testimony which, inherently, within itself, is so improbable that I cannot believe it to be true. The inherent improbability of testimony may deny it all claim to respect. A court is not bound by mere swearing. It is swearing credibly that is to influence its judgment. This court is not bound by findings of trial court, jury or referee that are based on testimony which, inherently, is so improbable as to be incredible. It has been so held many times by this court. A few of the cases so holding are: Landsman v.Thompson, 9 Mont. 191, 22 P. 1148; Nelson v. Big BlackfootMilling Co., 17 Mont. 553, 44 P. 81; Moelleur v. Moelleur,55 Mont. 30, 173 P. 419; Casey v. Northern P. Ry. Co.,60 Mont. 56, 198 P. 141; First State Bank v. Larsen, 65 Mont. 404,211 P. 214. Testing testimony by that rule, I am to be a judge of it as much as is a referee. I consider the testimony of the accused about his remarkable forgetfulness to be testimony of that character. If an accused attorney is to be absolved of guilt, in such a matter, merely upon his naked testimony that he forgot all about the incident, it will be impossible to disbar any attorney for collection and conversion of his client's money, in any sum; he can simply swear he collected and spent the money and forgot all about it, even to the receipt, for collection, of the claim, no matter how large. A simple process!

As to the specification of issuance of worthless bank checks, the attempted explanation of the accused makes the offense worse, I consider, than did the unexplained proof of the prosecution. A lawyer, a person who attends to the business of others and, at times, handles money of others, has no business, drunk or sober, issuing worthless checks. One who does it, intoxicated or otherwise, is unfit to practice law. The circumstances under which the accused did it, as explained by him (doing it while under the influence of bootleg whisky, in a gambling joint, with intent, apparently, to fleece somebody and get some dishonest money in a crooked card game), only aggravates his offense, in my opinion.

As to the specification of perjury by the accused, admittedly he swore to an unqualified statement as being true, when he did not know it to be true and when he could have ascertained easily it was not true. That is the best construction that can be put upon it for him. There is no doubt about the facts. The only thing to do is to draw a conclusion. His testimony in question constituted perjury. He did not have to know it to be false. (Sec. 10887, Rev. Codes 1921.)

As to the specification that the accused collected money, which he failed to remit, for Wyman, Partridge Company, his sworn statement that, after the preferment of the charge, he sent that firm $555.48, which he did not owe, as he claimed, upon condition that the firm drop the charge, is sufficient to disbar him. In other words, according to him, he sent the firm $555.48, he did not owe, to buy it off. That is the unvarnished effect of his testimony; what it amounts to. Upright men, innocent men, do not buy off prosecutions. To do so is simply to use vicious and corrupt methods to pervert the administration of justice; to corrupt and prostitute the courts, the fountains of justice. A lawyer who would do such a dishonest thing, who has no higher sense of integrity, is unfit to practice law and is a disgrace to his profession. True, the accused is not charged with giving a bribe to buy off a prosecution but his confessed act in sending the money, to have the charge dropped, convinces me it was the money of the claimant and that he was guilty of the charge of collecting the money for the claimant and failing to remit it. I think that the only reasonable conclusion to be drawn.

As I view it, this record is full of insincerity of the accused, trifling with justice, trifling with this court, perjury, evidence of lack of integrity, evidence of guilt. I think for the accused to be allowed to continue to practice law will be a reproach to the profession, a menace to the public.

In my opinion, when disbarment charges are referred, for hearing, to a referee, the testimony heard should be reported to this court and the court should make its findings and draw its conclusions. I think that should be made the rule. If we have not adequate rules to rid the profession of the law of unworthy and unfaithful practitioners, it is time we should make some, within constitutional and statutory limits. This court is the institution entrusted with the duty of purging the profession of unfit members; not a referee; ours is the responsibility. It is the duty of this court to pass on the facts in disbarment proceedings and I favor doing it, even though some procedural rules must be altered. However, in this case, I do not believe that necessary. Even under the precedents of our prior decisions in disbarment proceedings, I believe the evidence in this case amply sufficient to require disbarment; believe the undisputed facts such that inevitably conclusions of guilt as to all specifications should be drawn from the facts. I believe the accused should be permanently disbarred.