In re the Disbarment of Washington

Per Curiam: The alteration of the return of an officer after it is duly filed in the clerk’s office, without any order or sanction of the court, is so dangerous to the rights of the parties and so perilous to public records that comment upon it seems hardly necessary. The practice of applying for and obtaining an order for an amendment to be made by an officer, where an amendment is proper, is so usual that it must have been well known to the accused. The records of a court would be •of little value if subject to alteration' without leave by attorneys, who, because of the confidence reposed in them as officers of the court, have opportunities to do so. That the alteration in this instance was made without fraudulent intent palliates, but does not justify, the act. The manner in which the $139.89 was obtained and its retention for over five years without even an effort to pay it over to the party in whose name it had been claimed are alike reprehensible. That party had not appeared in the action, nor in any manner authorized the accused to claim or receive money in its behalf. It was a surplus fund remaining after the satisfaction of a judgment, and if the court had been informed of the true facts a proper order would have been made for its [837] disposition, but not the one that was prepared and presented to the court by the accused. The findings exonerate the accused from the third charge, and also from the sixth. With respect to the latter it seems unfortunate that the son, whose office appears to have been with the father, and with whom the father’s name had been associated in the real-estate business, purchased and held adversely a title which the father as an attorney had been employed to procure for a client. Although this was done innocently and without the father’s knowledge, the outward circumstances were such that the complainants probably were mistaken as to the real nature of the transaction when they made the charge. The reason given by the accused for not paying over a trust fund in accordance with the agreement upon which he held it until his son’s claim was first paid, namely, that he wished to save his son from a lawsuit, although it may appeal to parental feelings, was not. a sufficient excuse for a trustee for others. So far as the findings show, the son’s claim was just, but the father had not been appointed to judge of that matter, and the trust agreement made no provision for its payment. The addition of the item of interest in the account, and the insertion of the words “and interest” in the affidavit verifying it, referred to in the fifth finding, unlike the alteration of the coroner’s return, were done before the bill of particulars to which it was attached had been filed. The gravamen of the. charge consists in the fact that the verification was affected by the addition. The affiant had not sworn to the correctness of any claim for interest, but the added words made it appear that he had done so. The account, therefore, as filed, so far at least as the item of interest is concerned, was not a verified account, but as it was made to appear so the plaintiff in that action might have obtained an advantage to which he was not entitled. (Jus. Civ. Code, § 84.) While no injury resulted in [838] the particular case, such a practice can not be approved. In considering the eighth finding, upon the charge of offensive language and quarrelsome conduct, the following quotation from an opinion of this court seems pertinent : “True it is that a man is required to show upon his admission to the bar that he is of good moral character. His license to practice after he is admitted, however, will not be revoked on account of objectionable personal habits until it is shown that such habits have rendered him unable to attend properly to his duties as a lawyer, or have rendered him unworthy of the great trust and confidence generally accorded to the members of the profession, or that such habits have become so bad as to scandalize his profession or the courts in which he practices.” {In re Elliott, 73 Kan. 151, 157.) In the opinion of the commissioner the language and conduct referred to were provoked, in part at least, by that of two of the complainants. It is quite true that the speech and conduct of a man must be viewed in the light of any provocation given by others, and of all the attendant circumstances. Still, the complainants were not on trial. Their conduct, except so far as it explains the conduct of the person charged, or affects their own credibility, is not very important now in this case, if sufficient cause existed to warrant the proceeding. That a lawyer should use language which the commissioner reports is so regrettable a fact that we refer to it only because duty requires it, and an. omission might be thoughtlessly construed as an indication of indifference on the part of the court. It will be observed that the finding of the district court, upon the trial of the action between Cutler and Washington for the cancellation of securities, was contrary to that of the commissioner’s finding upon the seventh charge. In view of the findings, however, upon other charges, which are amply supported by the evi [839] dence, it is not deemed necessary to review the evidence relating to that one. We quite agree with the commissioner that an example is not required for the benefit of the legal profession, for happily offenses of the nature specified in these charges are rare indeed, and the bar has, as it fully deserves, the confidence of the people; yet in order that this confidence may continue unabated, and because the due administration of justice requires it, courts will not hesitate to apply sufficient correctives whenever willful violation of duty is shown. (In re Norris, 60 Kan. 649; In re Smith, 73 Kan. 743.) “If the accused has been, shown to be guilty of such misconduct that the public should be protected from the implied recommendation for integrity with which he is armed as a member of the bar, that recommendation should be withdrawn and he should be disbarred.” (In re Elliott, 73 Kan. 151, 159.) The care and patience of the commissioner called to perform an unpleasant duty, and the kindly manner in which it was performed, merit our grateful approval, but the penalty recommended seems to the court insufficient, and as there was good cause for the proceeding no costs should be imposed upon the complainants. Believing that the evidence and the facts reported authorize and require it, the judgment of the court is that the license of the accused to practice law in this state be revoked, and that he pay the costs.