What seem to me to be the controlling facts in this matter are not in dispute. Chronologically stated, they are:
(1) April 23, 1931, one Sorenson executed and delivered to Friendly Finance Company a quitclaim deed to certain property in Pacific county.
(2) June 3, 1932, Sorenson commenced an action in the superior court of Pacific county to cancel the deed.
(3) Friendly Finance Company (Fred M. Bond appearing as its attorney) answered and, by way of cross-complaint, alleged that the deed was executed and delivered to secure certain monies to be advanced by it to Sorenson; that it did in fact advance $2,350.28 to him. It prayed that the deed be declared a mortgage and that it be decreed a lien on the property in that amount.
(4) Upon the trial of the cause, the issue arose as to whether Sorenson was liable for a deficiency judgment. The deed contained no such obligation. Bond became a witness on the issue, and testified under oath that Sorenson had executed another instrument, in connection with the transaction, whereby he obligated himself to pay any deficiency in case the property failed to bring the amount advanced by the Friendly Finance Company.
(5) On October 15, 1932, the court entered a decree declaring the deed to be a mortgage, adjudging it to be a lien on the property, and awarding foreclosure. The decree also provided:
"It is further considered, ordered and decreed that if there be any deficiency, that the same be paid by *Page 216 said plaintiff, Fred M. Sorenson, to the defendant, Friendly Finance Company."
(6) November 21, 1932, Sorenson filed a petition for modification of the decree. In this petition, he set up an instrument that was executed April 23, 1931, in connection with the transaction in which he had executed the deed. This instrument, however, was executed by Friendly Finance Company and others, and not by Sorenson. Its contents are not material here. It will suffice to say that the obligations under the instrument ran to Sorenson. In no aspect did it carry any obligation or condition to be performed or kept by him. The petition came on for hearing before the trial judge, the late Honorable Homer Kirby, who filed a memorandum opinion, from which the following quotation is taken:
"During the course of the trial it was admitted that this deed from Sorenson to the Finance Company was given as a mortgage . .. After this concession was made by Sorenson there remained only the question of whether or not the court in the present case could allow a deficiency judgment. It was conceded by counsel for both parties that unless there was a written promise on the part of Sorenson to pay the finance company that no deficiency judgment could be entered in the foreclosure, and that the finance company would be confined to whatever funds it derived from the sale of the property covered by the deed from Sorenson. Some latitude was allowed in the matter of the introduction of proof upon the question of whether or not there was such a written promise on the part of Sorenson. The finance company contended there was such a written promise but that it had been lost, destroyed or misplaced, and consequently the proof of the execution of such promise was entirely by parol. . . .
"It is contended by counsel for defendant finance company that the court has no authority to grant a modification or vacation of the judgment entered herein *Page 217 because the time for filing motion for new trial had expired before the filing of the original petition, and because the grounds set forth in the petition, to-wit, that fraud was committed by the defendant finance company at the trial of the suit is not substantiated by the proof. In support of this last contention counsel for defendant rely upon the assertion of counsel for plaintiff in the amended petition that he is relying upon section 464 of Remington's Code and particularly subdivision 4 thereof as follows: `for fraud practiced by the successful party in obtaining a judgment.' Counsel for defendant contends that the claim by plaintiff that perjured testimony was introduced at the trial by the defendant would not authorize the court to vacate the judgment under authority of 464 Rem., because perjury is not fraud, and that it has been held by our supreme court that perjured evidence is not a proper cause for vacation of a judgment. . . .
"I am inclined to believe that if the document attached to the amended petition as Exhibit B as above quoted had been before the court at the time the court passed upon the right of the defendant finance company to a deficiency judgment, that the information therein set forth would have received considerable attention. . . .
"In view of all of the record in this case I feel that the judgment should be vacated, and a new trial granted, to the end that many of the matters now presented and which were not in evidence at the time of the trial, may be considered in determining the rights of the parties to this litigation."
(7) Accordingly, on May 6, 1933, Judge Kirby entered an order vacating the decree and granting a new trial.
(8) The cause came on again for trial before the Honorable Chester A. Batchelor. Bond did not testify at this trial. In fact, no one testified to any writing whereby Sorenson obligated himself to pay a deficiency judgment. Judge Batchelor filed a memorandum opinion, in which he said: *Page 218
"I adhere to the view expressed by me at the time of trial, that the defendant and cross-complainant is not entitled to a deficiency judgment herein. This view is not only supported by the statute (Sections 1114 and 1119), the case of BradleyEngineering etc. Co. v. Muzzy, 54 Wn. 227, but also by the language of the instrument in question herein."
(9) Judge Batchelor accordingly entered a decree declaring the deed to be a mortgage, foreclosing it as such, and ordering the property sold to satisfy the amount advanced by the Friendly Finance Company to Sorenson. The decree did not contain any provision for a deficiency.
(10) After complaint had been made to the Washington State Bar Association of his conduct in testifying as he did in the trial before Judge Kirby, Bond wrote a letter containing the following:
"As explanatory of my testimony will say that I saw this instrument only once which was more than three months prior to the trial of said action. It developed at the trial that the instrument had been lost or misplaced. I gave my testimony in good faith and the facts as I honestly believed they were. I may have been mistaken as to Mr. Sorenson's signature. Yet I feel quite confident that if the lost instrument were produced, that it would have his signature thereon."
(11) Yet his testimony before Judge Kirby was positive and unequivocal on the issue. He testified:
"I saw a copy of this agreement at Mr. Abel's office one forenoon when we had our first conference. It was before the answers were prepared or any of the pleadings, and when the conference closed a short time before noon Mr. Abel was anxious to go to Aberdeen and we went over the several items pro and con and when we got down to this agreement I noticed the agreement was there and signed by the parties. . . . I know Mr. Sorenson's signature; it was there. I did not stop to read the agreement because we were in a hurry. . . . I know the contract was dated in April, 1931, *Page 219 and I know it had certain propositions in it as a guaranty but I did not read it through carefully; I glanced at it, but I know it had obligations on both sides, what Sorenson was to do and what the company was to do."
And again we find the following questions and answers:
"MR. ATWELL: Now you say you did see that and know it existed? MR. BOND: Absolutely and there is no question about it. Q. And you are sure it contained a promise to pay? A. Yes. Q. And you know Mr. Sorenson signed it? A. Absolutely I know his signature as well as any business man."
Now, in the light of these undisputed facts, it seems to me to require no argument to sustain the recommendation of the board of governors — suspension for one year. To exonerate Mr. Bond on the theory that there "must have been" or "might have been" still athird instrument by which Sorenson personally obligated himself to pay a deficiency judgment, is to invite reckless, if not false, testimony from attorneys who take the witness stand in behalf of their clients. The best proof that no such third instrument ever existed is the fact that neither Bond nor the officers of his client had the temerity to take the witness stand and swear to its existence in the trial before Judge Batchelor.
If the testimony given by Bond in the trial before Judge Kirby did not amount to perjury under Rem. Rev. Stat., § 2351 [P.C. § 9032], it was at least a flagrant violation of the canons of ethics. Archer, Ethical Obligations of the Lawyer, § 123; Code of Ethics, American Bar Association and Washington Bar Association, canons 19, 22.
At best, it is questionable practice for an attorney to testify on behalf of his client on any material issue in controversy. When he does so, it is his duty to the court, to his profession and to himself, to scrupulously *Page 220 keep his testimony within the bounds of truth. In his essay on Legal Ethics, p. 72, Judge Sharswood says:
"It need hardly be added that a practitioner ought to be particularly cautious, in all his dealings with the court, to use no deceit, imposition, or evasion — to make no statements of facts which he does not know or believe to be true — to distinguish carefully what lies in his own knowledge from what he has merely derived from his instructions — to present no paper-books intentionally garbled. `Sir Mathew Hale abhorred,' says his biographer, `those too common faults of misreciting witnesses, quoting precedents or books falsely, or asserting anything confidently; by which ignorant juries, and weak judges are too often wrought upon."
Considered in the most favorable light (under his own admission), Mr. Bond's testimony was given without knowledge of the facts to which he testified and in reckless disregard of the truth.
I think the recommendation of the board of governors should be sustained.
MAIN, J., concurs with BLAKE, J.