In re the Proceedings for the Discipline of Foster

Grady, J.

(dissenting)—I am not in accord with the majority opinion. The only testimony upon which a finding of unprofessional conduct can be based comes from a four-time loser in the criminal courts, and who was sentenced to the penitentiary as an habitual criminal. His specialty was that of armed robbery. There is nothing in the record to indicate that respondent is other than a reputable member of the bar of this state of many years standing. The hearing was had approximately five years after the transactions occurred upon which this proceeding is based. The transactions were of such a character it should cause no surprise that the respondent was able to remember some of the occurrences better than. others. I accept the testimony of respondent in preference to that of the complaining witness.

Norman J. Sanford and Roy F. Arnold were inmates of the state penitentiary. Respondent had transacted some business for Sanford, and through him came in contact with Arnold. Respondent was employed to sue out a writ of habeas corpus challenging the validity of Arnold’s incarceration in the penitentiary. Realizing the character of the people he was dealing with, respondent requested that his attorney’s fee and expenses be paid in advance. Arnold was without funds, but had some leather wallets which he had manufactured, and proposed that if Sanford would advance the money he would send the leather goods to respondent to hold as security. Sanford paid respondent the sum of six hundred dollars. Arnold then desired to have a private conference with respondent, and Sanford absented himself. Arnold informed respondent that he had some property interests in Spokane and wished to employ an attorney to look after them for him. The whole matter was very vague, and of such a character that respondent prudently requested that financial arrangements be made for a *15preliminary investigation and for his fees. An inmate was available who could operate a typewriter, and the document of September 1, 1945, was typed by him. It does not appear that any of the money called for by this document was ever paid to respondent or that he ever did anything further. The leather goods were sent to respondent, but he did not open the packages. Later he was directed to send them to a party whose name he did not recall, and complied with the request. Sanford located some of the goods and applied what he realized upon the sale of them to the indebtedness Arnold owed him.

It is clear from the testimony of respondent that the receipt of August 18, 1945, and the agreement of September 1, 1945, refer to two separate and distinct transactions and have no relation to each other whatsoever. The instruments were prepared at different times and by different persons. The one relating to the habeas corpus matter is a receipt for six hundred dollars representing the amount of money advanced by Sanford for the benefit of Arnold. It appears to be in the handwriting of respondent. The instrument relating to the Spokane matter is an agreement between Arnold and respondent that his fee for legal services in that case would be five hundred dollars, plus the sum of fifty dollars for expenses. It contemplates that two hundred fifty dollars should be paid as a retainer fee. The other two hundred fifty dollars was to be held as an escrow and paid to respondent when Arnold was released from the penitentiary. I do not see how any other conclusion can be reached than that the time of payment fixed was when Arnold was released on the successful termination of the habeas corpus proceeding.

Respondent instituted the habeas corpus proceeding, but there was much delay in getting a trial date fixed at which he could appear. Arnold became impatient and directed that the habeas corpus proceeding be dismissed. Although respondent was of the opinion that he was not legally or morally bound to return any of the money advanced by Sanford for Arnold, he informed the trial committee that *16if its members felt that he should do so he would accept their advice and act accordingly.

1 The hearing before the trial committee was first conducted upon the theory that the two instruments related to the habeas corpus proceeding, and inasmuch as respondent was discharged by his client before his services were completed, it was unethical for him to retain two hundred fifty dollars of the money he had received from Sanford. During the progress of the hearing, the document prepared by the inmate at the penitentiary was exhibited to respondent. At that time, respondent had forgotten that the transaction indicated thereby had occurred. Nothing had been done by respondent with reference to the Spokane transaction. A period of five years had elapsed. When respondent saw the document, he recognized his signature. He became quite confused. Instead of asking for time to examine the document and refresh his recollection, he endeavored to reconstruct the matter to which it referred. He assumed that he must have drawn the instrument and the document shown him was a carbon copy thereof. It apparently did not occur to him that by reason of the misspelled words and the style of writing it was not one he would prepare. He assumed that the original must have been written on one of his letterheads. He did not recall of ever having delivered the document to Arnold. He further concluded that the carbon copy must have been taken from his files unknown to him and have gotten into the possession of Arnold. It evidently appeared to the trial committee that respondent was not telling the truth when he claimed the document related to a transaction different from the habeas corpus proceeding and that it was a carbon copy of an instrument he had prepared. Respondent was questioned closely by a member of the committee, as well as its counsel, and became quite positive of his assertions. It seems to me under all of the circumstances the trial committee should have realized respondent was laboring under a mistake rather than wilfully falsifying, and might well have taken time to investigate rather than having the complaint amended to charge per*17jury. Later, when respondent had an opportunity to check his files and refresh his recollection, he concluded he was mistaken in his testimony and so advised the trial committee. A later hearing was had on the perjury charge. Findings and recommendations were made as set forth in the majority opinion.

I am in accord with the views expressed in the majority opinion that the charge of perjury was not sustained and that it should have been dismissed. I prefer to accept the testimony of respondent to the effect that he had two separate and distinct employments—one with reference to habeas corpus, and another relating to the Spokane matter—rather than that of Arnold. I am satisfied respondent was honestly mistaken when he testified with reference to exhibit “B,” and think the trial committee should have accepted his later explanation when he had an opportunity to refresh his recollection from his files.

The respondent was not permitted by his client to complete the habeas corpus proceeding. Nothing was paid on the Spokane transaction and no services were performed. Notwithstanding this, respondent offered to return to Arnold two hundred fifty dollars of what he had received on the habeas corpus employment if the trial committee felt there should be a refund. This offer was not accepted.

I am unable to agree with any finding that respondent has received any money from either Sanford or Arnold which he should return or refund, or that he has been guilty of any unethical conduct in his transactions with either of them.

The proceedings should be dismissed.