Summary
drafting of will, power of attorney, deeds, mortgages, etc., involve the exercise of legal skill and training and constitute practicing law
Summary of this case from In re BlakeOpinion
No. 34597.
Filed November 10, 1961.
1. Attorney and Client. A suspension from the practice of law differs from disbarment in that the latter is the severance of the status and privileges of an attorney, whereas the former is the temporary forced withdrawal from the exercise of office, powers, prerogatives, and privileges of a member of the bar. 2. ___. A suspended lawyer is under the same obligation to comply with the Canons of Professional Ethics as is a lawyer in the active practice. 3. ___. The preparation of deeds, mortgages, releases, and income tax returns is a province of a lawyer and constitutes the practice of law, whether or not, under some circumstances, such service might properly be performed by persons not admitted to the bar. 4. ___. Advertising in the public press for income tax work by a suspended lawyer is violative of Canon 27 of the Canons of Professional Ethics adopted by this court. 5. ___. The drafting of a will and the supervision of its execution constitutes the practice of law since it requires legal training and skill. 6. ___. The drafting of a power of attorney constitutes the practice of law since it also requires legal training and skill. 7. ___. The character of the respondent in a disciplinary proceeding and the question of his reformation as to his previous unethical conduct are of great importance in determining whether or not a reinstatement should be granted. 8. ___. The burden is upon a suspended lawyer seeking reinstatement to show his present fitness to again exercise the privileges and functions of an attorney in view of his previous conduct, the discipline imposed, and any reformation of character wrought thereby, or otherwise, as shown by his more recent conduct.
Original action. On motion of respondent for reinstatement to practice law. See 169 Neb. 119, 98 N.W.2d 714, for original opinion. Reinstatement denied. Respondent disbarred.
Clarence A. H. Meyer, Attorney General, and Gerald S. Vitamvas, for relator.
Chambers, Holland, Dudgeon Hastings and Jesse L. Dougherty, for respondent.
Heard before SIMMONS, C.J., CARTER, MESSMORE, YEAGER, SPENCER, BOSLAUGH, and BROWER, JJ.
This is a proceeding to secure the reinstatement of an attorney to the practice of law after the termination of a suspension order issued by this court in a disciplinary action.
The respondent was suspended from the practice of law on October 23, 1959, the order becoming effective 30 days thereafter. State ex rel. Nebraska State Bar Assn. v. Butterfield, 169 Neb. 119, 98 N.W.2d 714. In accordance with the order respondent on June 1, 1960, filed his application for reinstatement. On June 7, 1960, the Attorney General filed a report suggesting that respondent had engaged in the practice of law during the period of his suspension and had not therefore complied with the order of suspension, and that he was not therefore entitled to be reinstated. The matter was referred to Donald F. Sampson, referee, for hearing, with instructions to report his findings of fact and conclusions of law. The referee filed his report with this court on January 20, 1961, finding against the respondent and recommending that this court make such further order as it deemed appropriate. The matter is before this court on the record made before the referee, the referee's report, and the exceptions taken thereto.
Two questions are for the determination of the court in this proceeding. The first is whether or not respondent has violated the order of suspension by engaging in the practice of law, and the second is whether or not respondent has made a sufficient affirmative showing that he will not in the future, if reinstated, engage in any practice offensive to the profession of the law.
Relator contends that respondent has not complied with the order of suspension in that he has engaged in the practice of law during the period that it was in effect. The record shows and the respondent admits that he drew deeds, mortgages, and releases. The record shows that he made out income tax returns and advertised his availability for such work. The record also shows that he on one occasion drafted a will and supervised its execution. It further shows that on one occasion he drafted a power of attorney. Relator contends that the doing of these acts during the period of respondent's suspension, when previously performed in his capacity as a lawyer, constitutes the practice of law. Respondent contends that the conveyances and releases were made in his capacity as a licensed real estate broker, notary public, abstracter, and loan agent.
The Supreme Court of this state has the inherent power to define and regulate the practice of law in this state. State ex rel. Johnson v. Childe, 147 Neb. 527, 23 N.W.2d 720. While an all-embracing definition of the term "practicing law" would involve great difficulty, it is generally defined as the giving of advice or rendition of any sort of service by a person, firm, or corporation when the giving of such advice or rendition of such service requires the use of any degree of legal knowledge or skill. State ex rel. Hunter v. Kirk, 133 Neb. 625, 276 N.W. 380. In an ever-changing economic and social order, the "practice of law" must necessarily change, making it practically impossible to formulate an enduring definition. Grand Rapids Bar Assn. v. Denkema, 290 Mich. 56, 287 N.W. 377. In determining what constitutes the practice of law it is the character of the act and not the place where the act is performed that is the controlling factor. State ex rel. Hunter v. Kirk, supra. Whether or not a fee is charged is not a decisive factor in determining if one has engaged in the practice of law. State ex rel. Wright v. Barlow, 131 Neb. 294, 268 N.W. 95.
The drafting of a will and the supervising of its execution constitutes the practice of law. Gardner v. Conway, 234 Minn. 468, 48 N.W.2d 788; People ex rel. Committee on Grievances of Colorado Bar Assn. v. Denver Clearing House Banks, 99 Colo. 50, 59 P.2d 468; Biakanja v. Irving, 49 Cal.2d 647, 320 P.2d 16, 65 A.L.R. 2d 1358; Grand Rapids Bar Assn. v. Denkema, supra. The drafting of a power of attorney constitutes the practice of law since the drafting of such an instrument involves the exercise of legal skill and training. The respondent clearly engaged in the practice of law in these two instances.
Disbarment is the severance of the status and privileges of an attorney, whereas suspension is the temporary forced withdrawal from the exercise of office, powers, prerogatives, and privileges of a member of the bar. In re Oliver, 97 Utah 1, 89 P.2d 229; State ex rel. The Florida Bar v. Evans (Fla.), 109 So.2d 881. A suspended lawyer is therefore under the same obligation to comply with the Canons of Professional Ethics as is a lawyer in the active practice. The conduct of the respondent, in advertising in the public press his availability to prepare income tax returns, is therefore violative of Canon 27 of the Canons of Professional Ethics adopted by this court.
The respondent admits that he prepared deeds, mortgages, releases, and income tax returns during the period of his suspension. Admittedly respondent performed such work prior to his suspension. Some were performed in relation to real estate transactions in which he was the real estate broker, but in others he was not. It seems clear to us that the doing of such work is within the province of a lawyer to do. It is properly identified as the practice of law, whether or not it might under some circumstances be properly performed by others not admitted to the bar. An order of suspension deprives the suspended lawyer from performing any service recognized as the practice of law and which is usually performed by lawyers in the active practice of law. It is the contention of respondent that these services were performed in his capacity as a licensed real estate broker, notary public, abstracter, and loan agent. It is not necessary for us to determine in this case if and under what circumstances others might perform such services, although not admitted to the bar. A suspended lawyer, who in connection with his law office engages in other activities, is in no different position than the active lawyer who confines himself solely to the practice of law in determining if the suspension order was violated. Where one is generally known in a community as a lawyer, it might well be impossible to divorce two occupations closely related if the rule were otherwise. A suspended lawyer will not be heard to say that services recognized as within the practice of law were performed in some other capacity when he is called to account.
It is contended that the violations, if any, were isolated in character and cannot be said to constitute the practice of law within the meaning of the order of suspension. In this respect we point out that one objection to the reinstatement of respondent is that he engaged in the practice of law in violation of the order of suspension. Even if the violations were isolated ones, and the record shows they were not, they constitute the practice of law and are violative of the court's suspension order. People v. Ring, 26 Cal.App.2d 768, 70 P.2d 281.
A suspended lawyer is required to affirmatively show, as the order of suspension provides, that he will not in the future engage in any practice offensive to the practice of law. Whether or not such a showing is sufficient is dependent upon the record before us and his prior conduct as reflected in the records of this court. See In re Riccardi, 80 Cal.App. 66, 251 P. 650. The character of the respondent in a disciplinary proceeding, and the question of his reformation as to his previous unethical conduct, are of great importance in determining whether or not a reinstatement should be granted.
The records of this court show that respondent was punished for contempt in 1944. Butterfield v. State, 144 Neb. 388, 13 N.W.2d 572, 151 A.L.R. 745. The opinion in that case shows that respondent abstracted a page of a pleading and substituted another with intent to deceive and mislead the court. Respondent also made false statements to the court in that case with intent to deceive the court. Respondent was found guilty of the foregoing charges and punished for contempt. The respondent denied the charges throughout the trial. So far as the records show, respondent has never admitted any wrongdoing, but has in fact explained it as the work of fellow lawyers who bore him ill will, with the implication that he had done no wrong.
Discipline was imposed in the instant case for unprofessional conduct in that respondent falsely acknowledged a warranty deed and testified falsely in court with reference to the same. On June 1, 1960, respondent filed his application for reinstatement, asserting that he had complied with the suspension order and if reinstated in the practice of law he would not engage in any practice offensive to the legal profession. We find nothing in his application that indicates that he had any feeling of wrongdoing on his part, or that he was repentant of his conduct. His application is supported by many affidavits, most of them by laymen. Most of these affiants assert the high character and good reputation of respondent and state that the discipline imposed by this court was the result of the personal animosity of other lawyers in Antelope County. While the record does not disclose who prepared these affidavits, respondent attached them to his application, thereby adopting their contents as being in support of his application.
On the hearing of the matter of respondent's reinstatement before the referee, respondent excused his conduct by asserting that certain attorneys and a district judge in a neighboring district were after him and were working for his disbarment. Several of the affiants who had made similar statements in their affidavits were called as witnesses at the hearing before the referee. Neither the respondent nor these affiants were able to disclose one shred of evidence as to the truth of these statements. Three lawyers gave supporting affidavits. One lawyer from a neighboring county stated that respondent was of good character, was a good lawyer, and in his opinion should be reinstated. The other two lawyers merely stated that so far as they knew the respondent had not practiced law during the period of his suspension.
The evidence shows that at the hearing before the referee the respondent did at one time state that he realized what he had done was wrong and that if readmitted to the practice he would do his best to comply with the rules of court and the ethics of the profession. At no time prior to the hearing, and not until the last day of the trial, did respondent express any regret for his conduct. We point out that his attitude can best be arrived at from his acts rather than his self-serving declarations required by the exigency of the occasion.
The record discloses that on the morning of the effective date of the suspension order respondent made certain changes on the windows of his law office. From the sign "Law Office" he removed the letters "L" and "w" from the word "Law." On another window he removed the letters "At" and "ey" from the word "Attorney." The signs thereafter read "a Office" and "torn." While we do not say that what he there did was in violation of the suspension order, it indicates the intent and state of mind of respondent. When a friend called it to his attention that the bar association would question the manner in which the signs were left, he assumed an attitude of defiance. The effect of what he did was to make light of his suspension and to taunt other members of the bar. At no time did respondent, prior to or at the hearing before the referee, apologize for or express any regret for the manner in which he left these signs throughout the period of his suspension.
There are many affidavits by laymen stating that his general reputation for honesty and good character in the community was good. Lay witnesses at the hearing before the referee likewise testified to this fact. Not one, however, had any knowledge of the acts committed by the respondent. They appeared to accept the statement of respondent that he was the victim of jealous, greedy, and unprincipled fellow lawyers and judges. By this method he excused his own misdeeds and cast aspersions upon reputable fellow lawyers. Such affidavits can have little weight, if any, in determining the issues before this court in the present case. Personal popularity does not purge professional delinquency.
We find that respondent has not affirmatively shown that he would in the future abstain from unethical practices and conduct himself as an ethical member of the profession. The contempt proceeding brought against him in 1944 indicates a complete disregard for honesty and ethics. The proceeding resulting in his suspension in 1959 showed that he executed a false acknowledgment of a deed and testified falsely in court when the deed became involved in litigation. And now, in the proceeding for his reinstatement he admits to the performance of acts which constitute the practice of law, contends that he is the victim of jealous lawyers, and infers that this is the sole cause of his troubles without fault on his part. It is evident that respondent has never admitted any dereliction on his part, and has justified and condoned his conduct in his home community by asserting that certain judges and lawyers are out to get him because of jealousy and personal dislike. During the period of his suspension he has maintained an attitude of defiance, he has held up his suspension to public ridicule, and he has taunted other members of the bar by his affirmative acts. He has been willing to justify his own unethical conduct by falsely charging that judges and other members of the bar engaged in a conspiracy to deprive him of his right to practice. His success in thus capitalizing upon his own misconduct is evidenced by the numerous affidavits of laymen who testify to his good character and reputation, some of which appear almost fanatical in their approach. Not until the last day of the hearing before the referee, and after many opportunities to do so, did respondent ever acknowledge any wrongdoing on his part or express any regret therefor. The record shows that he has no regrets for what he has done, except when the exigencies of litigation require, and is willing to condone his acts by false countercharges against others. His attitude is one of defiance rather than submission to the final judgment of this court. He has chosen to flaunt his suspension and to demonstrate contempt for other lawyers and the courts of which he is an officer. He has shown that previous proceedings against him have been ineffective as corrective measures. It cannot be overlooked that this is the third time that respondent has been called upon to answer as to his conduct before this court. We submit that the evidence shows respondent has no regard for the ethics of the legal profession and if he is reinstated we have no reasonable assurance that he would conduct himself any differently than he has in the past.
A primary question for determination on an application for reinstatement to the bar of one suspended from active practice under a suspension order such as we have here is the present fitness of the applicant to again exercise the privileges and functions of an attorney, as an officer of the court and confidential adviser in the affairs of others entrusted to his care and keeping, in view of his previous conduct, the discipline imposed, and any reformation of character wrought thereby, or otherwise, as shown by his more recent conduct. Respondent's previous conception of the serious nature of his acts and, what is more important, his subsequent conduct and attitude toward the courts and the practice of law do not appear to have undergone any change. He must affirmatively demonstrate his reformation. Lawyers are regarded as officers of the court. A lawyer has an obligation to uphold the integrity and dignity of the courts. He has a responsibility to the public to assist in bringing about the proper administration of justice. It is of utmost importance that the honor and integrity of the legal profession should be preserved and that its members be without reproach. The malpractice of one reflects dishonor not only upon the legal profession but upon the courts themselves, and creates among the people a distrust of the courts and the bar. One proven to have violated these conditions of good behavior and professional integrity, in applying for reinstatement, has the burden of overcoming by persuasive evidence the former judgment of his disqualification. In re Stump, 272 Ky. 593, 114 S.W.2d 1094; In re Smith, 220 Minn. 197, 19 N.W.2d 324; In re Egan, 52 S.D. 394, 218 N.W. 1. There is nothing in this record tending to show an appreciation by the respondent of the serious nature of his misconduct, or any acknowledgment of error, except in the one instance when it appeared necessary for the success of his case. We cannot in good conscience certify to the bench and bar and to the public generally that respondent has shown himself worthy of reinstatement.
The application for reinstatement is denied and, pursuant to the terms of the order of suspension, respondent is disbarred and his name ordered stricken from the roll of attorneys in this state.
REINSTATEMENT DENIED.
RESPONDENT DISBARRED.