In re Duncan

¶1The opinion of the Court was delivered by

¶2This proceeding comes up on information and petition in the original jurisdiction of this Court. The petitioner, D. W. Robinson, Esq., is a member of the bar of South Carolina, as is also the respondent, John T. Duncan, Esq. Mr. Robinson charges that Mr. Duncan “has been guilty of deceit, malpractice and conduct unbecoming a lawyer,” in certain matters of professional business placed in his hands. He, therefore, prays that Mr. Duncan “be disbarred from further continuance in the practice as an attorney and counsellor at law.”

¶3*4761 This forum has not been made familiar with proceedings of this character. So far as the writer of this opinion is aware, this is the first petition of the kind which has been preferred at the bar of this Court. Such proceedings, fortunately, very few in number in this State, have usually been instituted in the Circuit Courts. But there is no question concerning the jurisdiction of this Court, and we have no hesitation in entertaining the petition.

¶42 There is another feature of this case which is somewhat novel — the proceeding was instituted by only one member of the bar, who is the sole petitioner, acting in his individual capacity. It has been customary in cases such as this to call a meeting of the members of the bar to which the respondent belongs, and in a proper case, after due and thorough deliberation on the accusations brought against him, to select one or more brethren of that bar to institute proceedings for disbarment. By this usual method charges against a respondent are more thoroughly sifted; the serious step of moving to disbar is only taken when a majority of the respondent’s brethren of the bar are satisfied that his name should be stricken from the roll of attorneys; and the proceeding is happily relieved of all suspicion of personal or private animosity and prejudice. We do not wish to be understood to condemn the course pursued by Mr. Robinson in this case nor to question the purity of his motives; we simply wish to indicate the more commendable method. We know of no previous deviations except when an attorney general or a circuit solicitor moved for the disbarment of an attorney who had been convicted of a felony or an infamous offense, submitting the record as the ground of the motion.

¶5The petition in this case was submitted on the 19th May, 1902. On motion of Mr. Robinson, a rule was issued forthwith, requiring Mr. Duncan to show cause on the 2d June, “why his name should not be stricken from the roll of attorneys.” On that day the respondent made his *477return, and a hearing was had. It appeared from the petition and the accompanying exhibits that the accusations of deceit and malpractice and unprofessional conduct brought against Mr. Duncan were based upon matters arising in two suits in the Circuit Court in which Mr. Robinson and the respondent had been opposing counsel; and especially upon the findings of fact in a report of the master of Richland County filed in one of these cases. It would overload this opinion to embody those records. But we ask the Court Reporter to set out in his report the petition, the return, the master’s report and the order of his Honor, Judge Buchanan, confirming that report. It is enough in this opinion to state briefly the main grounds relied on by the petitioner. He charges that the respondent, Mr. Duncan, as the attorney of one Ella Taylor, received from one M. Frank, the sum of $250, as a loan made upon the faith and security of a mortgage of real estate given by Ella Taylor at the time of the loan. That the loan was made for the purpose of paying the purchase price of the lot of land mortgaged. That the loan was made upon the positive statements of the respondent, Mr. Duncan, that the title to the mortgaged lot was in Ella Taylor and that it was a good title. That the title never was in Ella Taylor, and that the respondent, Mr. Duncan, knew this when the loan was made. That the money was paid to Mr. Duncan, as Ella Taylor’s attorney, for the purpose of being applied to 'the purchase price of the lot, and that he received the money with full knowledge of that purpose. That the money was never so applied, but was placed by Mr. Duncan in bank, and was by him checked out and used for his own purposes. That when the note and mortgage became due and demand had been made and refused, an action for 'the recovery of the money was brought. That'the master, to whom the matter was referred, found the charges made to be true, and reported Mr. Duncan liable for the amount, with costs. That Mr. Duncan consented to an order confirming the master’s report, which was signed by Judge Buchanan, said order requiring *478him to pay the amount due into Court within ten days. That Mr. Duncan failed to comply with this order. That thereafter, upon a rule to show cause, issued by his Honor, Judge Gage, Mr. Duncan was adjudged in contempt of Court, and ordered 'to be imprisoned until he complied with the terms of Judge Buchanan’s order. That the money, though paid by Mr. Duncan, was not paid until after Judge Gage made the order already referred to. That by reason of these various facts and matters, John'T. Duncan has been guilty of deceit and malpractice and conduct unbecoming a lawyer, and that he should be disbarred.

¶6To these grave charges the respondent in his return made an emphatic denial as to all that accused him of improper or unprofessional conduct or of any intentional wrong doing. He denied that he had made any false or deceitful representations as to the title to the land. He admitted having mixed and used the money borrowed from Drank with his own in the bank, but claimed that he was able at any time to replace the same. .He claimed that the several damaging findings of fact contained in the master’s report were based upon testimony which was untrue, and that to all of them he had duly excepted. He claimed that when the proposed decree confirming the master’s report was submitted to him, he consented only to an order directing him to pay the money; that he, therefore, returned the original to Mr. Robinson, with a note stating that he declined to subscribe his consent unless the words confirming and approving the master’s findings of fact were left out; that Mr. Robinson then erased the words “his findings of fact and his findings and conclusions of law,” and sent the decree back to the respondent, who, before signing it, took his pen and erased the words “be and the same,” and also the words “in all things.” The concluding words of the decree had originally read, “That the report of the master, his findings of fact and his findings and conclusions of law, be and the same is hereby in all things confirmed and approved.” As signed by Mr. Duncan, after the erasure referred to, the *479order, he declared, read: “That the report of the master is hereby confirmed and approved;” and he claimed that he never intended by his consent to admit the correctness of any finding of the master beyond his conclusion that he, the respondent, should pay Frank the money.

¶73 When the petition and the return had been read, the petitioner, Mr. Robinson, proposed to offer in support of his accusations not only the pleadings in the actions in Circuit Court, and the report of the master and the order confirming the same, but also the testimony taken in writing before the master- upon which his findings of fact were founded. Counsel for the respondent objected to the introduction of that written testimony, and claimed for their client that he was entitled to see the petitioner’s witnesses face to face at the hearing, that they might be examined and cross-examined in the presence of the Court; and that he might, if necessary, adduce testimony in rebuttal. The Court very properly allowed this claim, taking the reasonable view, which.is well sustained by authority, that in proceedings for disbarment it is not safe to rely upon testimony taken before a referee or master, or any other tribunal, but that the Court or Judge that hears the petition should also hear the witnesses examined in the presence of the respondent. In such proceedings the Court or Judge decides the issues of fact as well as of law, and to do so satisfactorily and in justice and fairness to the attorney accused, the same opportunity should be given which is given to a jury to determine the credibility of witnesses by observing their demeanor as well as by hearing what they say (see Fowler v. Finley, 30 Fla., 331 S. C., 18 L. R. A., 405, and cases cited). Besides, in this case the respondent had pleaded in his return that the master had based several of his findings of fact upon untrue testimony. That this rule is a wise and salutary one was clearly shown in this very case when, under -the cross-examination of the respondent’s counsel, two of the petitioner’s witnesses, M. Frank and Ella Taylor, varied materially in the statements they *480made before this Court from what they had said before the master as to what occurred at the execution of the note and mortgage.

¶8This decision of the Court to hear oral testimony caused a suspension of the hearing until the afternoon of the next day, when the hearing was resumed and witnesses were examined on both sides. At the conclusion of the arguments the Court reserved its decision until the next morning, when the following short order was filed: “It is the judgment of this Court, that the prayer of the petition herein be refused, and the said petition dismissed. The reasons for this judgment will be filed hereafter. Y. J. Pope, senior Associate Justice, presiding. 3d day of June, 1902.”

¶94 We shall now proceed to state the reasons for the foregoing judgment. Proceedings in disbarment have been and still are of very rare occurrence in the annals of the bar of South Carolina. One can tell perhaps on the fingers of one hand all the instances of similar accusations on record in our Courts. This is greatly to the credit of the legal profession of this State, showing that the high standards of honor and integrity appropriate to the profession of the law have been maintained by the lawyers of South Carolina with extremely few exceptions. This deservedly high reputation should be jealously preserved. It is the duty of the brethren of the legal profession throughout the State, those on the bench as well as those at the bar, to uphold the good name of the South Carolina lawyer and guard it with jealous care. It has been the just pride of the legal fraternity from the earliest days 'that theirs is an honorable profession as well as a learned and liberal profession. As far back as the days- of Edward the First of England, the Statute of Westminster enacted that if any sergeant, barrister, pleader or other, do any manner of deceit or collusion in the King’s Court, or beguile the Court or a party and be thereof attainted, he shall be imprisoned for a year and a day, and from thenceforward shall not be heard to plead in that 'Court for any man. From that time to the *481present day the legal fraternity has exercised the right in a proper case to accuse a brother of unprofessional conduct or of dishonorable practices, and to demand, if he be a Judge, his removal by impeachment; if he be a lawyer, his dismissal by the Court. Nor should Courts hesitate to order disbarment in a case made out, not by way of punishment so much as by way of showing that the man whom they have admitted into the ranks of an honorable brotherhood has proved himself unworthy of his high calling, and that his name should be expunged from the roll of attorneys, which can only thus be justly regarded a roll of honor.

¶10Of great importance to the bench and the bar, the disbarment of an unworthy brother is of hardly less importance to the public at large. It is to the dearest interest to a layman that the lawyer he employs should not only be a man learned in the law, but also a man of honor and uprightness of character. The client places himself in his lawyer’s hands when it may be his life, his liberty or his property is at stake. In business difficulties and in family troubles he confides in his legal counsellor, and imparts to him information which he would not dream of giving to any other. It is all important to the layman, therefore, that his attorney should be a man of honor as well as a man of law. Not for literary embellishment, but because of its peculiar appropriateness and as embodying the sound and sensible views of a learned lawyer and a high judicial officer, Sir Walter Scott, we make the following extract from The Antiquary. He puts the words in the mouth of his hero, the Baird of Monkbarns: “In a profession where unbounded trust is necessarily reposed there is nothing surprising that fools should neglect it in their idleness, and tricksters abuse it in their knavery. But it is the more to the honor of those — and I will vouch for many — who unite integrity with skill and attention, and walk honorably upright where there are so many pitfalls and stumbling blocks for those of a different character. To .such men their fellow-citizens may safely entrust the care •of protecting their patrimonial rights, and their country the *482more sacred charge of her laws and privileges.” The Antiquary, vol. 2, cap. 43.

¶11When a Court is asked to exercise its summary jurisdiction over an attorney to the extent of expelling him from the profession, as in the case before us, it is proper to consider what the Courts have the right to require of a lawyer. All the books and authorities that treat of this subject agree that the three main requisites are learning, diligence, integrity ; but that the greatest of these is integrity. Ignorance of law and neglect of business may keep a lawyer in the lowest ranks of his profession, and render him liable in damages to his clients for any loss caused thereby; but such would afford no ground for disbarment. But the man who is lacking in integrity and who does not deal honestly and fairly with his client, the Court and the other party, but who practices deceit, or fraud, or dishonesty, or overreaching craft, no matter how learned and diligent he may be, is unworthy of his profession and should be disbarred. It has, therefore, been held that the Court may strike the name of an attorney from the rolls for fraudulent conduct, although it may not be so gross as to be criminally punishable (United States v. Porter, 2 Cranch (C. C. C.), 60). Gross misconduct is always good and sufficient ground for disbarment — Tidd, 60; State v. Holding, 1 McCord, 238,, and cases therein cited. But the case must be clear against the attorney, not only as to the act charged, but that it was committed with a bad or fraudulent motive — State v. Finley, 18 L. R. A., 412, and cases cited. This is all the more necessary, because, though a proceeding such as this is, strictly speaking, a civil one, yet it is highly penal and in the nature of a criminal forfeiture in its possible consequences— 6 Ency. Pl. & Pr., 709, note and cases cited. “The consequences of striking an attorney from the roll are so severe, both in degrading him in the eyes of the community and in depriving him of the means of living to which he may have devoted most of his mature life, that Courts have taken that step only when the misconduct of the attorney might prop*483erly be characterized as gross.” Re Carl Lents, 50 L. R. A., 415. We read, on the other hand, in 2 Chitty’s Practice, 33, that in cases of mistake, even upon a point of practice and in cases of negligence, the Court will not interfere summarily against an attorney. “But when an attorney has been guilty of a want of integrity, then … the Court will interfere summarily.” The same wholesome doctrine is laid down in 1 Tidd’s Pr., 85, where the author quotes from Lord Mansfield.

¶12We shall now consider and determine whether the evidence in the case at bar justifies the conclusion that the respondent, Mr. Duncan, was guilty of gross misconduct and should, therefore, be disbarred. The petitioner, Mr. Robinson, charges generally, but only inferentially, that Mr. Duncan was “guilty of deceit, malpractice and conduct unbecoming a lawyer.” But Mr. Robinson specifically charges that when the money was borrowed from M. Frank, and the note and mortgage were executed, Mr. Duncan knew that the mortgagor had no title to the land, and yet he, as the mortgagor’s attorney, assured the mortgagee that the title was good. If this were established by the testimony, it would certainly amount to fraudulent and gross misconduct such as would clearly justify the Court in striking his name from the roll. The testimony fell far short of proving this charge. True, the master had found it proved and had so reported, but the witnesses upon whose testimony he based his findings, namely, Frank, the mortgagee, and Ella Taylor, the mortgagor, so contradicted themselves and each other when examined before this Court, that this charge — much the most serious charge made — fell to the ground.

¶13The accusation that Mr. Duncan failed to keep his client’s money separate from his own in bank, but that he checked k out and used it for his own purposes — this the respondent admitted to be true, but asserted that he was always ready and able to raise and replace the amount. ' Such conduct in an attorney may be and is, we think, reprehensible for its *484laxity, but it is not necessarily fraudulent, and it does not furnish ground for disbarment. This has been distinctly held by the English Courts in the case of Guilford v. Sims, 76 E. C. L., 369.

¶145 Great stress was laid by the petitioner on the fact that Mr. Duncan, the respondent, consented to the decretal order confirming and approving the master’s report, which, it will be remembered, had in effect found as a matter of fact that Mr. Duncan had committed fraud and acted deceitfully. The petitioner seemed to interpret the respondent’s consent as equivalent to a plea of guilty of fraud and deceit. Mr. Duncan’s consent, if nothing else appeared to explain it, would certainly amount to a most damaging admission. But the record and the testimony abundantly prove that he did not consent until the order was so modified in his opinion by erasures that it did not confirm and approve all the master’s findings of fact, but only the finding and conclusion that the respondent should pay Frank the money. The respondent’s uncontradicted testimonjr on this point was not a little corroborated b}? a statement made by the petitioner, Mr. Robinson, in open Court at the hearing. It corroborated Mr. Duncan’s testimony that the erasures were made before the report was confirmed. The intention of the respondent in having the erasures made was stated by him in his testimony, and when we consider the statement made by Mr. Robinson, we see no reason for disbelieving Mr. Duncan’s account of the matter. “A consent order is the mere agreement of the parties under the sanction of the Court, and is to be interpreted by an agreement” — Allen v. Richardson, 9 Rich. Eq., 56; Jones & Parker v. Webb, 8 S. C., 206. And such an agreement is certainly binding in -the principal cause, and the consenting parties would be estopped from showing the motive or the intention in that cause. But they would not be estopped in another cause, especialty one penal in its nature, from showing the motive and intention of the consent, and thus prevent its being regarded as a conclusive ad*485mission of guilt. We have thus disposed of the three gravest accusations brought by the petitioner against the respondent. Having decided them in favor of the respondent, we see no reason for taking up and considering at length the charges of lesser weight. It is enough to say that in our opinion the petitioner failed -to make out a case for the order of disbarment prayed for. The testimony signally failed to prove that gross misconduct or want of integrity on the part of Mr. Duncan, which should be clearly proved before a Court is justified in striking an attorney’s name from the roll. And, therefore, as already stated, this Court immediately after the hearing filed its judgment, that the prayer of the petitioner be refused and the petition be dismissed. It is not improper to add that, while pronouncing judgment against the petitioner, we are as far from condemning his action in this matter as we are from commending the conduct of the respondent. We are satisfied that Mr. Robinson brought his petition believing that as a member of an honorable profession it was his duty so to do. And we hope that Mr. Duncan’s unenviable experience in this proceeding will prove a warning, especially to the young members of the bar, so as to acquit themselves as attorneys at law as to avoid even the appearance of evil.