Bar Rules Comm. of the State of Ark. v. Richardson

McHaney, J. Appellant, the Bar Buies Committee of the state of Arkansas, filed charges of unprofessional conduct against appellee, a licensed attorney at law of Walnut Bidge, Arkansas, in the office of the clerk of the Lawrence chancery court and sought his disbarment as a member of the bar of this state. The charges consisted of two counts in the form of a complaint. We find it necessary to consider only the first count which is as follows: “Said Boy Bichardson, on or about September 5,1939, and during the term of circuit court at Walnut Bidge, in session about said date, represented E. G. Fooks, plaintiff, in a suit in the Lawrence circuit court for the eastern district, No. 1906, against D. F. Jones Construction Company, Inc., defendant, which suit resulted in a verdict for the plaintiff for personal injuries and an appeal was taken to the Supreme Court of Arkansas, where the cause was reversed on January 29, 1940, D. F. Jones Construction Co. v. Fooks, 199 Ark. 861, 136 S. W. 2d 487, the appeal being taken and the decision on appeal rendered in two consolidated canses covering the same alleged injury. “Also at the same term he represented one Hathcoat in a suit for personal injuries against one Sloan, which also resulted in a verdict and judgment from which an appeal was taken, and by said court decided, Sloan v. Hathcoat, 199 Ark. 530, 134 S. W. 2d 873, 136 S. W. 2d 1020, being affirmed on condition of remittitur. “Prior to convening of said court the said Boy Biehardson and his agents, Clyde Bobbins and others, approached prospective jurors offering inducements to such jurors to attend and act as jurors and not to seek excuse and promising remuneration and favors for verdicts favorable to said Boy Biehardson. For further details of such approaches and dealings with jurors, reference is made to the affidavits of Fred A. Isgrig, Harry C. Bobinson, C. F. Grigsby, H. C. (Pud) Hutchinson, W. M. Fallis, Dent Brady, and Clyde Bobbins, which are contained in the bill of exceptions in the case of Fooks v. D. F. Jones Construction Company, Inc., and such affidavits are further referred to in the opinion of Chief Justice Grieein Smith, MoHaney and Baker, Justices, concurring.” To this complaint appellee filed a general demurrer and motion to transfer to the circuit court, both of which were overruled at the conclusion of the evidence. Appellee answered with a general denial and a plea of res judicata on the grounds, 1, that the matters charged were adjudicated in the motions for new trials in the Fooks and Hathcoat cases; and, 2, had recently been investigated by the prosecuting attorney and grand jury, who refused to indict him. Trial before Chancellor J. M. Shinn, on exchange of circuits, resulted in a judgment dismissing the complaint for want of sufficient proof to support the charges laid, hence this appeal. This disbarment proceeding is the aftermath of two personal injury cases tried in the Lawrence circuit court and appealed to this court late in 1939 and early in 1940, the first being Sloan v. Hathcoat, 199 Ark. 530, 134 S. W. 2d 873, 136 S. W. 2d 1020, and the second being D. F. Jones Construction Co., Inc., v. Fooks, 199 Ark 861, 136 S. W. 2d 487. A reference to these cases and particularly to the latter, both the original and concurring opinions will be enlightening* and will obviate the necessity here of quoting the evidence produced in the trial below in ex-tenso. As stated in the brief of the Bar Rules Committee: ‘ ‘ The duty to present charges against lawyers is naturally most unpleasant and the committee approaches such matter with regret. However, in view of situation developed in the case of D. F. Jones Construction Company, Inc., v. Fooks, 199 Ark. 861, 136 S. W. 2d 487, it became very plainly the duty of the committee to file charges and in fact such charges were practically demanded by public sentiment of the profession.” We appreciate the sentiment of the committee thus expressed and were gratified to hear counsel for appellee say in oral argument that the committee had been very kind and considerate of them and their client" in the prosecution of the case, and that no rancor or ill feeling exists towards them. Clyde Robbins, the self-confessed tool of appellee, employed by him to fix jurors at the March, 1939, term of the Lawrence circuit court, testified substantially as he did on the motion for a new trial in the Fooks case, to the effect that appellee was to pay him $5 for every juror he interviewed and $5 more if the verdict was favorable; that he was employed “To talk to them and see if they were all right.” To “see if they were for the Richardsons.” He was asked and answered as follows: “Q. What promises did he have you to make them? A. That they would be treated right in some of the cases and in one case he promised two per cent, of the verdict.” The witness talked to prospective jurors Dent Brady, Pud Hutchinson and Peyton Lately, and Brady and Hutchinson told him they wquld stand “hitched.” This witness was very successfully impeached and the trial court apparently put no credence in his testimonj7’ and we cannot say that he should have been believed in view of his bad reputation and his criminal record, although he is corroborated in the fact that he did interview both Brady and Hutchinson in an attempt to “fix” them for appellee by both of them. Bnt he stands alone in saying he was employed to do so by appellee. Bnt conceding that Robbins is not worthy of belief, still we have the testimony of jurors Charley Grigsby and W. F. Fallis to consider. Grigsby testified that he is a school teacher, was in appellee’s office a few days before the March, 1939, term of circuit court convened, and talked with appellee in the office. He said: “Well, I was in there and he said something- about me being on the jury, and I told him ‘yes, I was, but I didn’t guess I would get to serve’ and he wanted to know the reason. I told him that I was teaching school and didn’t have any one to take my place. He suggested to me that I could let his wife take my place and me go ahead and serve, and I told him that I didn’t think they would do it. . . . He wanted to know if my wife could take my place. . . . I told him I didn’t know whether I could do it or not, that she needed to be at home, and what I would get up here wouldn’t justify me to stay out-of the schoolroom and let her leave her work.” He said he and appellee had always been good friends and that he had supported him in his campaigns for office. “He said he would like for me to serve if I could, that he felt like I was a friend to him and would treat him right ... I believe he said that he felt like I would be capable of rendering a fair verdict, and after I heard the evidence in the eases that he had, that he felt like that I . . . said that after I heard the testimony in the cases that he had that he felt sure I would see fit to render him a verdict. . . . He asked me if I knew any one else on the jury that was not a friend to him, that might not give him a fair trial; to let him know if there was any one else I could talk to that would not be fair, and to let .him know.” He testified he talked to juror- Fallis, a second cousin, and told him appellee had a case coming up for trial and would expect “us” to treat him right. He admitted that he had had a drink on that day, but denied he was drunk. Appellee denied that he had any such conversation with Grigsby, but admitted that the prospective juror was in his office and was drunk at the time. The fact that they were close personal and political friends is not disputed. The fact that Grigsby did serve on the jury panel is a matter of record and the fact that he did have such a talk with Fallis is corroborated by Fallis who said that Grigsby told him after the end of the first week of court that “Roy” had a case coming up next week and he “Roy” wanted the witness and Grigsby to help him out. Fallis served on the Fooks case. This witness is also a good friend of appellee. We think this evidence must be accepted as true. If not, why would these two friends perjure themselves to do him a great wrong? We are willing to accept the court’s implied finding that Robbins might perjure himself to injure appellee, because of the enmity and hatred that appellee says existed between them, even though his firm had represented Robbins and settled a claim for him against an oil company for personal injuries, and even though he had frequented appellee’s firm’s office in the company of 01 Davis who was also active as a jury fixer with Robbins, but who did not testify in this case. The only evidence of attempted bribery of jurors comes from Robbins and his activity with certain prospective jurors. There is no proof that either Grigsby or Fallis was offered a bribe. But the evidence is quite convincing that appellee was very much concerned that Grigsby serve on the jury and also serve as an informer to him of those on the jury who might be unfriendly to him. So great was his concern that he offered to have his wife teach school for the juror during his service on the panel. We think this conduct highly unethical, and unbecoming to a member of the bar. The statute, § 8314, Pope’s Digest, requires petit jurors to have the same qualifications as grand jurors, prescribed by § 8312, that is “persons of good moral character, of approved integrity, sound judgment and reasonable information.” By §§ 3244 and 3248 the administration of public justice is further sought to be protected by the imposition of heavy fines and imprisonment for the misconduct of jurors and for the corruption or the attempt to corrupt a juror. The fact that appellee himself talked to Grigsby as set out above shows a successful attempt to thwart the administration of justice and a contempt for or a disregard of its orderly procedure. The jury system is hoary with age. It is guaranteed by both the state and federal constitutions. It must and will be preserved, if trial courts will select jury commissioners with the qualifications prescribed for petit jurors as required by § 8306 of Pope’s Digest and require them to select petit jurors with the same qualifications — “persons of good moral character, of approved integrity, sound judgment and reasonable information,” will not permit lawyers, litigants or their agents to discuss pending litigation privately with them, and if the attempt is made it will be reported by such jurors to the court for proper punishment. A juror that is not fair is not worthy to be a juror, and a lawyer that will seek to gain an unfair advantage over his brother lawyer or the adverse litigant by secret contact or conversation with a juror or one summoned to be such so as to' render him unfair prostitutes his high calling to that of a shyster, and is deserving of punishment at the hands of the court. The power to- regulate the practice of law is vested in this court under amendment No. 28 to the constitution. Under rules adopted by this court, power to try disbarment proceedings is vésted in either the circuit judge or chan-, cellor and by this court on appeal de novo. For the violation of the rules of ethics hereinbefore stated we think appellee should be suspended as a member of the bar of the courts of this state for the period of one year from the date this opinion becomes final. The judgment of the trial judge is reversed and judgment as indicated will be entered here. It is so ordered. Humphreys and Mehaeey, JJ., dissent.