Opinion
No. 17,956.
Decided July 1, 1957.
Original Proceeding in Disbarment.
Respondent Suspended.
1. ATTORNEY AND CLIENT — Disbarment — Discipline. Every disbarment proceeding should be considered and treated as the facts and circumstances move the conscience of the court, and where there is a comparable case it should be resorted to for guidance in order that uniformity in the administration of justice be achieved as nearly as possible.
2. Disbarment — Referee — Recommendation. Where a recommendation of disbarment submitted by the referee in a disbarment proceeding seems too harsh, the court will cast upon the scales nearly nineteen years of honorable service in the profession, as against respondent's serious violation of the law.
Original Proceeding.
Mr. DUKE W. DUNBAR, Attorney General, Mr. FRANK E. HICKEY, Deputy, for relator.
Mr. PERCY S. MORRIS, for respondent.
RESPONDENT, to whom we will refer as Weinstein, was informed against by "Complaint in Original Proceedings for Disbarment" filed in this court by the Attorney General of the State of Colorado.
The pertinent facts alleged in the complaint are: That respondent at all times mentioned therein was an attorney at law, duly licensed as such by the Supreme Court of Colorado; that in 1953 an action was filed against Weinstein and others to recover treble damages on a claim for excess interest in the sum of $950.61, allegedly collected by defendants in connection with a loan made by them to the plaintiffs in that action; that defendants filed an answer therein alleging facts, which if established would defeat the claim of plaintiff; that upon trial of said action Weinstein became a witness and testified at length; that during his testimony he gave evidence that the loan in question actually was made by one Bert Harris for whom Weinstein acted as attorney; that he (Weinstein) had issued the check on behalf of Harris to the order of the borrowers and that Harris had advanced the money in the form of a check which was deposited by Weinstein in his own account. Weinstein further testified that on the same day the loan was made Harris sold the note to Weinstein's father for $1,900.00 which was delivered in cash by the latter in the presence of Weinstein, and that Harris received the cash and endorsed the note; that in truth there was no such person as Bert Harris and that the loan was made by respondent as agent for his father; that his father was never at any time a holder in due course for value of the note in question, but actually was the person who demanded and received the excess charges of interest, all of which respondent well knew because he handled the entire transaction and received fees in connection therewith.
Weinstein has filed an answer here, which reads in pertinent part as follows:
"Comes now the respondent and, confessing the truth of the charges against him which are contained in the Complaint herein, throws himself upon the mercy of the Court and asks the indulgence of the Court in respect to the discipline to be administrated by it to him.
"And respondent submits to the Court that, during the eighteen years that he has been practicing law pursuant to his admission to the bar by this Court, he had borne an unblemished reputation as an attorney and that he has devoted large amounts of his time to working on communal and charitable activities and he asks that he be given an opportunity to submit evidence in support of the statements contained in this paragraph."
A Referee was appointed to conduct a hearing and report his findings to the court. A hearing was held by the Referee at which Weinstein called ten witnesses, all of whom testified that respondent had theretofore borne a good reputation. It was established that he had been active in various fraternal, religious and benevolent organizations. He freely admitted that he had committed the perjury charged against him in the complaint. His only jurisdiction for the false testimony given in the action mentioned was:
"I can't give any explanation other than that fact; of course, of this family situation, of attempting to protect my father in this particular matter. * * *
"I felt * * * that if he were a holder in due course of these notes, that he in turn would not be liable for treble damages."
Weinstein has been a practicing lawyer for eighteen years. The attorney for the parties who filed the action against him and his co-defendants in which the perjured testimony was given, states for himself and his clients with reference to these proceedings in disbarment:
"I think it not inappropriate to express the feelings that the Barnabes and I share with reference to disciplinary measures which may be taken against him.
"We believe that in good conscience and all humility we should join in your appeal to the Justices of the Supreme Court for the extension to Sam Weinstein of the utmost degree of leniency which they, in the exercise of their discretion, feel can be justified under all the circumstances of the case.
"Mr. and Mrs. Barnabe, as parents, are all too aware that the sufferings of the father are necessarily visited upon the children, that disbarment of an attorney is extremely severe, and that whatever discipline may be accorded to Mr. Weinstein will be suffered not only by him, but also by his wife and five children."
Counsel for Weinstein had filed briefs in which he pleads eloquently for disciplinary action short of disbarment. We have given careful consideration to the record and the argument of counsel. We fully realize that every disbarment proceeding should be considered and treated as the facts and circumstances move the conscience of this court, Gould v. State, 99 Fla. 662, 127 So. 309, 69 A.L.R. 699; yet, where there is a comparable case, it should be resorted to for guidance in order that uniformity in the administration of justice be achieved as nearly as possible. We have precedent for suspension, the ruling in which should be a touchstone for this case. We refer to the case in 123 Colo. 390, 229 P.2d 665, involving a conviction in the United States District Court for Colorado of two separate offenses of "making, or causing to be made, to a governmental lending agency false statements, and also of conspiring to do the same."
The recommendation of disbarment seems too harsh in view of all the circumstances. As has been done in other disbarment proceedings, we should cast on the scales nearly nineteen years of honorable service in the profession, together with the weight of commendable participation in civic and charitable works, as against his serious violation of the law. 88 Colo. 394, 297 Pac. 998.
Viewing the beam of the scales under these circumstances, we adjudge that respondent should be, and he hereby is, suspended from the practice of law in this state for a period of two years, at the conclusion of which, in the absence of any showing of further dishonorable conduct on his part, his reinstatement will automatically ensue.
MR. JUSTICE HOLLAND and MR. JUSTICE HALL dissenting.