In Re Carter

86 P.2d 162, 59 Idaho 547, 1938 Ida. LEXIS 88

• Court: Idaho Supreme Court
• Decided: December 5, 1938
• Docket: No. 6546.
• Status: Published

Opinions

GIVENS, J.

Disciplinary charges were filed against D. L. Carter, a member of this bar. The commission, after a prosecution before it by a special prosecuting committee, found petitioner guilty of a violation of his duties as an attorney, and recommended a suspension of one year and assessment of $340.20 costs of the proceedings against petitioner (secs. 3-408, 3-412, I. C. A.) who filed a petition for review thereof.

The charge involves two separate situations: First, for some years prior to July 6, 1933, Mrs. Lelia H. Thompson, then Buchanan, had been petitioner’s intermittent client and he had, both as attorney and agent, handled various business for her. On that date petitioner arranged a loan for Mrs. Thompson of $265 to one Abernathy, who gave her a note secured by a chattel mortgage on twelve head of cattle and three horses. Thereafter, the note not having been paid when due, without Mrs. Thompson’s knowledge or consent, petitioner took possession of the cattle and horses from Abernathy, giving him a full release as follows:

“Mr. Eddie Abernathy:

“This is to make a record of our agreement that I take the fourteen head of cattle and calves covered by mortgage and three horses in full settlement of note secured by the mortgage. You can keep the horses & work them until you have put in your crop.

“Sept 11 1934.

“D. L. CARTER.”

He did not notify Mrs. Thompson of so doing but continued to lead her to believe the note had not been paid, and she did not find out the true facts of the situation until she employed Cunning & Brewster, lawyers of Redmond, Oregon, and Herman Welker, an attorney at Weiser, to collect the note and mortgage, and Mr. Welker was told by Mr. Abernathy that he had paid the note, as shown by Committee’s Exhibit 11, as follows:

“I am now informed by Welker that Abernathy has a receipt showing that he paid you the note in full during September, 1934. Mrs. Thompson tells me that as late as March 1935 you informed her that Abernathy would be ready to take up his note in a few days. You did not tell her you had collected the note nor did you pay her the proceeds of your collection. You as an attorney know that you had no right to collect any note unless you had it in your possession. ’ ’

Various offers of compromise or partial payment were made by petitioner but no complete tender until after these disci plinary proceedings were commenced, then full payment was made and accepted. The record discloses Mrs. Thompson was put to considerable expense to secure her money, but the exact amount, and whether she was reimbursed for them is not disclosed by the record, though it details negotiations to that end.

Petitioner’s only excuse for not notifying Mrs. Thompson was in substance that he had been ill, she would have worried if she had known he had taken the security (she evidently had just cause so to do) and that he felt himself morally if not legally obligated to secure her loss, but that he had no explanation even satisfactory to himself.

Petitioner was unable to testify when such agreement (of being responsible to make good any loss for loans made by him) was made, and Mrs. Thompson denied that such agreement had been made and the commission found that there had been none.

The second situation is that about May 11, 1933, Mrs. Thompson delivered her check for $240 to petitioner with the understanding that it was to be applied on a loan which she was making to one Ed. Buchanan. Petitioner accepted the cheek, indorsed it and deposited it to his own account, and finding that he had other sufficient funds belonging to Mrs. Thompson to complete the Buchanan loan, the funds represented by the $240 check were never applied on the loan, but were drawn on by petitioner as his own funds. About October 7, 1933, petitioner submitted a written statement to Mrs. Thompson purporting to be a complete accounting of transactions between them, and noting that she had not been given credit for the $240 check she called his attention to the same. At first he stated that he did not remember having received the cheek, but upon her presentation of the check with his indorsement he agreed to pay her for it, and some months later gave her his note therefor.

The entire conduct of petitioner in his dealings with Mrs. Thompson indicates great laxity and carelessness, and a positive violation of 3-301 subsecution 5, I. C. A., and Rule 175 of the Supreme Court and Board of Commissioners of the Idaho State Bar, and while the evidence does not defi nitely establish willful misconduct or fraudulent intent it clearly shows deceit and a breach of the confidential relationship between attorney and client — a fiduciary relationship of the highest character, binding him with the strictest accountability and fidelity to his client’s interest. (Marsh v. State Bar of California, 210 Cal. 303, 291 Pac. 583; State ex rel. McCourt v. Farrin, 81 Or. 489, 160 Pac. 124; In re Bailey, 30 Ariz. 407, 248 Pac. 29; San Francisco Bar Assn. v. McClellan, 40 Cal. App. 630, 181 Pac. 231; People ex rel. Colorado Bar Assn. v. Webster, 31 Colo. 43, 71 Pac. 1116; In re Veeder, 11 N. M. 43, 66 Pac. 545; Schaffer v. State Bar of California, 212 Cal. 367, 298 Pac. 994; State Board of Law Examiners v. Brown, 42 Wyo. 108, 290 Pac. 1013.)

Bearing in mind that the purpose of suspension and disbarment proceedings is not to punish, but to protect the public from those who are found unfit to perform the duties of an attorney at law (In re Kerl, 32 Ida. 737, 188 Pac. 40, 8 A. L. R. 1259; In re Burns, 55 Ida. 190, 196, 40 Pac. (2d) 105; In re Wourms, 31 Ida. 291, 170 Pac. 919) the evidence justi fied the bar commission in taking disciplinary measures against petitioner and supports its findings, but because the evidence fails to show willful and fraudulent intent, and in consideration of petitioners apparent illness during the time the misconduct occurred, we feel the recommendatory order of the commission should be modified to reduce the period of suspension to four months commencing from the judgment herein becoming final (Lyders v. State Bar of California, 12 Cal. (2d) 261, 83 Pac. (2d) 500; In re Mitchell, 189 Wash. 612, 66 Pac. (2d) 300.)

Petitioner contends no costs at all may be assessed, but there is authority sustaining the allowance of costs in proceedings of this character under statutes similar to 12-101 I. C. A. (In re Washington, 82 Kan. 829, 109 Pac. 700; In re Wilcox, 90 Kan. 646, 135 Pac. 995; In re Connell, 79 Okl. 212, 192 Pac. 546; In re Hanson, 48 Utah, 163, 158 Pac. 778; In re Barclay, 82 Utah, 288, 24 Pac. (2d) 302; In re Zinn, 39 N. M. 161, 42 Pac. (2d) 776; In re Hanson, 101 Mont. 490, 54 Pac. (2d) 882.) The assessment of costs, how ever, will be reduced to $100. (Simmons v. Simmons, 23 Ida. 485, 130 Pac. 784.)

It is therefore ordered and adjudged that petitioner be and hereby is suspended from the practice of law for four months commencing from the time this judgment becomes final and pay $100 of the costs of the proceedings herein.

Holden, C. J., and Ailshie, J., concur. Morgan, J., deeming himself disqualified, did not sit at the hearing nor participate in the opinion.

Petition for rehearing denied.