Warkentin v. Kleinwachter , 166 Okla. 218 ( 1933 )

I am not satisfied with the conclusion reached in this case by the majority opinion. It appears to me that the misconduct of respondent in the instant action was gross and unbecoming an attorney at law, and sullies professional honor. In my opinion, this is not a case of an attorney conducting a transaction at arm's length with a third person. I am impressed with the fact that respondent at least invited a presumption that he was employed by his nephew, and that he took advantage of his professional position to deceive complainant by uttering his check payable to his nephew for the amount of indebtedness which his nephew owed to complainant in an effort to secure a release of the automobile which complainant had attached in a proceeding before a justice of the peace for the purpose of liquidating the indebtedness said nephew owed to complainant.

Attorneys in the conduct of their profession are sworn and bound to uphold the laws whether these are administered by the justice of the peace or the highest courts of our land.

In the case of Ex parte Wall, 107 U.S. 265, Mr. Justice Bradley, speaking for the Supreme Court of the United States, said:

"Of all classes and professions, the lawyer is most sacredly bound to uphold the laws. He is their sworn servant; and for him, of all men in the world, to repudiate and override the laws, to trample them under foot, and to ignore the very bands of society, argues recreancy to his position and office, and sets a pernicious example to the insubordinate and dangerous elements of the body politic. It manifests a want of fidelity to the system of lawful government which he has sworn to uphold and preserve."

Mr. Justice Field, in dissenting in that case, said:

"Attorneys and counsellors-at-law — and the two characters are in this country generally united in the same person — are officers of the court, admitted to be such by its order upon evidence that they possess sufficient learning to advise as to the legal rights of parties, and to conduct proceedings in the courts for their prosecution or defense and that they have such fair private characters as to insure fidelity to the interests intrusted to their care. The order of admission, as said in the Garland Case, is the judgment of the court that they possess the requisite qualifications of learning and character, and are entitled to appear as attorneys and counsellors and to conduct causes therein. Thenceforth they are responsible to the court for professional misconduct and entitled to hold their offices during good behavior. 4 Wall. 333, 387. * * *

"When the proceeding to disbar an attorney is taken for misconduct outside of his profession, the inquiry should be confined to such matters, not constituting indictable offenses, as may show him unfit to be a member of the bar; that is, as not possessing that integrity and trustworthiness which will insure fidelity to the interests intrusted to him professionally, and to the inspection of any record of conviction against him for a felony or a misdemeanor involving moral turpitude. It is not for every moral offense which may leave a stain upon character that courts can summon an attorney to account. Many persons, eminent at the bar, have been chargeable with moral delinquencies which were justly a cause of reproach to them; some have been frequenters of the gaming table, some have been dissolute in their habits, some have been indifferent to their pecuniary obligations, some have wasted estates in riotous living, some have been engaged in broils and quarrels disturbing the public peace; but for none of these things could the court interfere and summon the attorney to answer, and if his conduct should not be satisfactorily explained, proceed to disbar him. It is only for that moral delinquency which consists in a want of integrity and trustworthiness, and renders him an unsafe person to manage the legal business of others, that the courts can interfere and summon him before them. He is disbarred in such case for the protection both of the court and of the public. * * *

"To disbar an attorney is to inflict upon him a punishment of the severest character. He is admitted to the bar only after years of study. The profession may be to him the source of great emolument. If possessed of fair learning and ability, he may reasonably expect to receive from his practice an income of several thousand dollars a year, — equal to that derived from a capital of one or more hundred thousand dollars. To disbar him having such a practice is equivalent to depriving him of this capital. It would often entail poverty upon himself, and destitution upon his family. Surely the tremendous power of inflicting such a punishment should never he permitted to be exercised unless absolutely necessary to protect the court and the public from one shown by the clearest legal proof to be unfit to be a member of an honorable profession."

In the case of In re Wilson, 79 Kan. 450, 100 P. 75, the Supreme Court of Kansas said:

"It is said that the courts are not the curators of the morals of the bar, and it is probably true that the courts should not take cognizance of a solitary immoral act, not amounting to a crime and unconnected with his duties in court, of a member of the bar. It is however, one of the requisites for admission to the practice that the candidate should present evidence to the court that he is a person of good moral character, and it would be a great stigma upon an honorable profession if the members of it were powerless to purge it of any who may have been improvidently received into its fold and whose after life is offensively corrupt, or whose business transactions, even outside of the courts, are characterized by dishonesty: in short, that the profession is compelled to harbor all persons of whatever character who have gained admission to it and are fortunate enough to keep out of jail or the penitentiary. This court, at least, is not prepared to say that persons of such character have a legal right to officiate as advocates of right in our courts which ought to be and generally are temples of justice. This ground of disbarment may not be included in any of the causes therefor specified by the statute, but the court has the inherent power to require of its officers at least common honesty and decency."

In the case of In re Smith, 73 Kan. 743, 85 P. 584, on page 586, the Supreme Court of Kansas, said:

"It is generally held that the enumeration of the grounds for disbarment in the statute is not to be taken as a limitation on the general power of the court, but that attorneys may be removed for common-law causes as well when the exercise of the privileges and functions of their high office is inimical to the due administration of justice. Farlin v. Sook, 30 Kan. 401, 1 P. 123, 46 Am. Rep. 100; In re Norris, 60 Kan. 659, 57 P. 528; Boston Bar Association v. Greenhood, 108 Mass. 169, 46 N.E. 569; In re Matter of Mills. 1 Mich. 392; Laughlin's Case, 10 Mo. App. 1, 31 S.W. 889; State v. Harber, 129, Mo. 271. 31 S.W. 889; State v. Gebhardt, 87 Mo. App. 542; In re Boone (C. C.) 83 Fed. 944; 4 Cyc. 905, 906. The nature of the office, the trust relation which exists between attorney and client, as well as between court and attorney, and the statutory rule prescribing the qualifications of attorneys, uniformly require that an atttorney shall be a person of good moral character. If that qualification is a condition precedent to a license or privilege to enter upon the practice of the law, it would seem to be equally essential during the continuance of the practice and the exercise of the privilege. So it is held that an attorney will be removed not only for malpractice and dishonesty in his profession, but also for gross misconduct not connected with his professional duties, which show him to be unfit for the office and unworthy of the privileges which his license and the law confer upon him. Ex parte Wall, 107 U.S. 265, 2 Sup. Ct. 569, 27 L.Ed. 552; Ex parte Burr, Fed. Cas. No. 2186; 1 Wheeler, Cr. Cases 503; In re 0 ___, 73. Wis 602, 42 N.W. 221; Delano's Case,58 N.H. 5, 42 Am. Rep. 555; O'Connell, Petitioner, 174 Mass. 253, 53 N.E. 1001, 54 N.E. 558. * * *"

In the case of In re Kalisky, 169 App. Div. 531, 155 N.Y. S. 550, it is said in the syllabus:

"Respondent was attorney for the borrowers in connection with the procuring of a loan. At the closing of the transaction one of the lender's attorneys presented their bill and demanded payment, and refused respondent's offer to pay later, insisting upon immediate payment, in default of which the loan would be declared off. Respondent thereupon drew his check for the amount of the bill, but subsequently stopped payment and withdrew his balance from the bank to meet other demands, and failed to pay the check until judgment was recovered thereon. The facts indicated that it was not his intention to pay the check until the receipt of funds from one of his clients, and that by the concealment of this intention the lender's attorney was misled into accepting the check as full payment, Held, that respondent should be suspended from practice for one year, as it was clear that he did not give the check in good, faith, but for the purpose of misleading the lender's attorney, and even though he intended to deliver the check as an immediate and unconditional obligation, his subsequent acts in stopping payment, using the money in the bank for other purposes, thus rendering himself unable to pay, and then delaying payment until compelled by legal proceedings, constituted official misconduct."

The Supreme Court, Appellate Division, First Department, in that case said:

"We have examined the evidence with care, and entirely concur with the referee, both in his findings as to the facts and In his deductions therefrom. We consider it perfectly clear that respondent did not give the cheek in good faith, but solely for the purpose of misleading the attorney for the bank. It is impossible to overlook conduct of this character. The honor of the profession requires that we should mark our disapproval by imposing adequate discipline.

"The respondent is suspended from practice for one year, with leave to apply at the expiration of that period for reinstatement, upon showing compliance with the conditions to be recited in the order to be entered hereon."

As I read this record, I conclude that respondent was guilty of unethical and professional misconduct. I am unable to put my stamp of approval upon the record in this case. He failed to honor the check, which unquestionably under the record, should have been honored. He stood before complainant as a member of the bar of this state, reppresenting his nephew by reason of his profession. This profession was known to complainant, when the respondent obtained a release of the automobile. Respondent knew that complainant relied upon the check which respondent had given, and that complainant had satisfied himself by long distance telephone inquiry that the check was good before complainant accepted said cheek and released said automobile from the attachment proceedings. It was not accepted by complainant upon the theory that respondent's nephew would repay respondent.

The office of an attorney should be, a badge of respectability. In my opinion the transaction was not honest, and respondent practiced a deceit upon complainant such as to constitute professional misconduct. Such misconduct does not bespeak integrity and trustworthiness in the profession of law and for such want and disregard of integrity and trustworthiness this court, in my opinion should and ought to interfere and discipline said respondent for such gross misconduct which unquestionably casts a reflection on the profession of law. On the contrary, no discipline of any kind or character has been administered to respondent by this court.