DISSENTING OPINION OF
GALBRAITH. J.I am compelled to dissent from many of the findings made- and the judgment pronounced in the foregoing opinion, although I do concur in the finding that the respondents were guilty of professional misconduct and impropriety in appearing-against John K. Sumner in the Ropert suit after having appeared of record for him in the guardianship proceedings. However, I am not convinced that the respondents can be properly charged with turpitude for so doing. It is not found that there was any contractual relation existing between Sumner and the respondents or that the relation of attorney and client existed between them to its “full extent” and the evidence-wholly fails to show that by reason of their connection with the *208■guardianship case they obtained any secrets or special information that, was used against Sumner in the Kopert case. There was no betrayal of confidence, for Sumner reposed no confidence in either of them, nor does it appear that they gained any advantage in the latter suit by reason of their connection with the former.
The difference in opinion between the majority and the minority of the court in this instance is due largely, I believe, to the difference in the conclusions drawn from the evidence. Still I do not consider it necessary to go into a minute analysis of the •voluminious evidence in the record but shall content myself in a .large measure with a statement of the conclusions of fact that I believe should be drawn from the evidence so far as the same .may be considered material to the issue here presented.
It appe'ars that Ilenry E. Highton was retained in the suit of the Railroad Company against the Bishop, as Trustee, and .John II. Sumner for specific performance of the option for the sale of the reef property, by the Ellises, prior to the return of Mr. Sumner to the islands, on August 20, 1902, and that this employment was ratified by Sumner shortly after his arrival; that Mrs. Buffandeau paid Highton $125 on his retainer fee of $500; that the relation of attorney and client did exist between Mr. Highton and the Ellises (and when I refer to the Ellises I mean to include Mrs. Buffandeau); that Mr. Highton advised the Ellises shortly after his employment that the will of John 3L Sumner, referred to in the trust deed to the Bishop, was a part of the deed and that the deed was irrevocable and that the Ellises were beneficiaries under the trust therein created, and had an in-trest in the property and suit; that Mr. Highton afterwards «hanged his mind on the revocability of the deed and concluded that the trust deed was revocable but he did not advise the Ellises ■of this change of mind; that on October 10, 1902, he wrote a letter to Sumner and the Ellises in which there was a rather veiled statement of his changed views relative to the trust deed and .also wrote an answer' to this letter and procured it to be signed *209by Sumner and tbe Ellises in wbicb it was stated tbat they thoroughly understand his letter and that the facts therein contained were correct; that Mr. Highton did not advise his associate counsel for the Ellises, the respondents, that he had written such letters until long afterwards; that Mr. Highton, on September 4, 1902, acting for Sumner and the Ellises, had practically agreed upon terms of settlement of the railroad suit — then the only suit pending against Sumner — and for the conveyance of the reef property to the company on the payment of $102,500; that there was a meeting on that day at Highton’s office and that Sumner and the Ellises and R. W. Cathcart were present and that prior to that date Sumner and' the Ellises were very friendly; that there was a disagreement between Sumner and the Ellises as to the disposition of the money expected to be received from the railroad company; that while this meeting was in progress and as a result of the dissatisfaction of the Ellises with a proposition to place the expected proceeds of the sale of the property in trust for the benefit of the Ellises, W. S. Ellis telephoned for the respondent, Humphreys, who came over to the meeting and after being advised of the situation announced that he had been employed by the Ellises and as their attorney advised against the proposed trust and the sale of the property for the $102,500 for the reason that the property was worth much more money than that amount; that on the same day Humphreys and Highton went to see the attorneys for the railroad company to find out if a greater sum would not be paid for the property and the proposition was taken under consideration by the attorneys for the company; that afterwards, and during the night of September 4, the suit to place John K. Sumner under guardianship’ and the injunction suit to restrain the sale of the reef property were commenced; that Highton treated the Ellises as interested parties in all this litigation although none of them were parties to the record in any one of the three suits; that when service’ was made on Sumner in these latter suits the Ellises and Sum*210-ner took tbe papers to Higbton and Higbton in turn took them lo tbe office of tbe respondents for tbe purpose of a conference -relative to tbe line of defense; that Humphreys refused at first -to have anything to do with these suits but on being reminded Jay Higbton that tbe Ellises and Sumner bad a common interest -as against tbe parties bringing these actions and that if Sumner was declared insane that would block tbe sale of tbe land and -prevent tbe Ellises from realizing any part of tbe proceeds; that tbe respondent Humphreys then consented that tbe respondent Thompson might assist Higbton in conducting tbe defense in tbe guardianship suit with tbe distinct understanding between tbe respondents and Higbton that be did so representing tbe .-supposed interest of tbe Ellises; that tbe reason for tbe employment of tbe respondents on September 4, was tbe disagreement between .Sumner and the Ellises over tbe disposition to be made of tbe proceeds from tbe sale of tbe reef property, •the Ellises believing that tbe greater amount realized from tbe sale tbe more money they would get from it; that Higbton prepared the answer in tbe guardianship suit and submitted it to tbe . -respondent Thompson wbo signed tbe firm name “Humphreys, Thompson & Watson” under that of Henry E. Higbton as attorneys for John X. Sumner; that Thompson appeared in court during tlie trial of that cause with Higbton, as one of Sumner’s lawyers and was also active in negotiating tbe compromise tbat result in a settlement of tbe suits; that it does not appear ibat.the respondent Humphreys knew tbat bis firm name bad been signed to tbe answer of John K. Sumner in tbat suit but it does appear that be bad sufficient knowledge of Thompson’s connection in tbe case to put him upon inquiry before taking the inconsistent position be did in tbe Hopert case. Tbe respondent Thompson, of course, bad actual knowledge of tbe part be bad taken in tbe guardianship suit and tbat be bad app-peared therein as attorney for John K. Sumner, there was for that reason, less excuse for bis appearance against Sumner in .the Hopert case than for tbe respondent Humphreys. .
*211Although this court found in the decision of the Bopert case that it was understood by the parties present and interested, at the so called settlement and partial distribution, at Mr. Highton’s office, October 13, 1902, that the balance of the fund ($48,025) should go to John K. Sumner free from the trust, in the light of the evidence given in this proceeding I am not sure that that finding is correct. This question is material in this proceeding as it affects the motive of the respondents and should in a large measure determine the punishment to be inflicted.
Mr. Highton in whose office the transaction occurred and who was the senior counsel for all parties, neither wrote a letter to himself stating what the understanding of the parties was nor did he enter it in his diary — where, it seems, he keeps a record of his daily business transactions, but testifies that his “impression” is that it was a final settlement and so understood by all parties. He also said “He” (Sumner) “was determined that he would give them $10,000. I remember of one occasion he said, ‘when you have lost your $10,000 1 will have the remainder to give you something to eat.’ ” Sumner says that he understood that he was to be free of the Ellises and the Davises forever afterwards. Against this evidence is the testimony •of every other person present, namely, the Ellises, the respondent Thompson and B. W. Cathcart. And in behalf of Mr. Cathcart I will state that he has no professional reputation to sustain in these proceedings and is apparently a disinterested witness and impressed me, in his manner of testifying, that he wanted only to state the exact truth. These witnesses are supported by the allegation in the sworn petition of Bishop Bopert, the trustee, in the Bopert suit, wherein after reciting the conveyance of the land for the consideration of $110,000 it is alleged “and thereafter by mutual agreement a portion of said sum of money was divided among the said Victoria Ellis Buffandeau, William Sumner Ellis, John S. Ellis and Maria S. Davis, leaving a balance in your petitioner’s hands •of forty-eight thousand ($48,025) dollars, which it was under*212stood and agreed should he subject to the trust in said deed mentioned
It may be pertinent to inquire if this petition does not state the understanding of the parties why did not Hr. Highton in the letter directing the Bishop to pay the several sums agreed upon, also direct the payment of the balance of the money to-Sumner? Why was it necessary for Sumner to employ J. Alfred Magoon to go with him to the Bishop to get the money ? Neither of these questions have been answered to my satisfaction.
Neither the evidence in the record nor “inferences/’ however skillfully deduced from collateral incidents in the case, produces in- my mind a belief that it was the understanding of all of the parties, at the October 13 meeting, that the “rest” of the money in the hands of the Bishop should go to Sumner free from the trust. The evidence rather justifies the inference that this was an afterthought — possibly suggested to Sumner-after the meeting and payment to the other parties.
As to the allegation in Sumner’s answer in the guardianship case that the property was Sumner’s and he could do what he pleased with it and the repetition of that statement in Highton’s-letter, I do not attach any particular importance to either. Neither was a correct statement either of fact or law. At the time the answer was filed and the letter written Sumner did not own the property. It belonged to Bishop Ropert, as trustee, and had been so held since September, 1898, and the deed under which the Bishop held the property was on its face irrevocable. This court said on this question in the In re Humphreys decision ante p. 161, “the deed was prima fade irrevocable and it was only in view of extraneous evidence taken in connection with the terms of the deed that the court was led to its conclusion and as to whether such extraneous evidence was sufficient the court was divided.” So at the time that answer was prepared and the letter written no careful lawyer could have advised that the deed was revocable and that the property *213belonged to Sumner and that he could do what he pleased with it. He had already conveyed it in September, 1898.
I do not think it necessary in this proceeding either to vindicate the courage of any witness or to defend the prowess of the respondents. This is a side issue that may be properly relegated to the “ring side.” I respectfully decline to act as referee on such a question.
Looking at the facts from the respondents’ view point, and that is the view point the court should assume in passing on the propriety of their conduct in the presence of the court, it is not surprising that the respondents should have shown some feeling towards Henry E. Highton and J. Alfred Magoon. Since from such view point the former had been guilty of gross duplicity towards them and the látter, during the hearing, was firing on them from ambush. Why should not the respondents “shell the wood” for Magoon ? It was J. Alfred Magoon who filed the charges with the Attorney General and who at the hearing, not in the open but “from the side line,” was furnishing the greater part of the evidence introduced in support of the charges, after he had procured from the Attorney General a certificate of the rectitude of his conduct in the Sumner litigation. I do not condemn them, under such trying circumstances, for the acrimony exhibited. Nor do I believe that they abused the privilege of free speech that should be allowed attorneys when defending before the court charges so seriously affecting their personal and professional reputations.
Prima facie, the Ellises were beneficiaries under the trust deed and will of John K. Sumner and had-an interest in the property and any suits affecting it or him. They had a right to employ counsel to protect this interest. They did employ the respondent and the respondents were faithful to their interest throughout the litigation. The serious mistake the respondents made is that they became attorneys of record for John K. Sumner in the guardianship suit and in the Ropert case, a related suit, they were 'against him. This is a position that no lawyer should permit himself to be placed in.
*214I concur in tbe finding of tbe court that under tbe law there is no difference in tbe degree of guilt of tbe respondents on thN charge — they both are equally guilty although one had actual and the. other constructive knowledge.
While the individual charge against the respondent, Hum-phreys, and of which the court finds him guilty, namely, of “attempting to pursuade” J. Alfred Magoon to betray his client, John K. Sumner, is a very grave one, I find great difficulty in considering it seriously on account of the character of the evidence by which it is found to be supported.
Judge Cooly said of a disbarment proceeding, “While not strictly a criminal prosecution, it is of that nature, and the punishment, in prohibiting the party following his ordinary occupation, would be severe and highly penal.” (Matter of Hamilton Baluss, an attorney, 28 Mich. 507, 508.)
The Supreme Court of Illinois held that in order to disbar an attorney, “The case must be clear and free from doubt, not only as to the act charged, but as to the motive.” (People v. Harvey, 41 Ill. 277-8.)
It has been held in California that to disbar an attorney is to “deprive him of personal and property rights. Unless we are clearly satisfied of respondent’s guilt we ought not to remove or suspend him from the practice of his profession.” (In re Luce, et al., 23 Pac. (Cal.) 350, 354.)
The only direct evidence in support of the charge is the testimony of the witness J. Alfred Magoon. He is flatly contradicted by the respondent Humphreys. The court finds that the former is sustained by certain collateral incidents and inferences, and that the respondent is discredited in like manner and finds that the charge is sustained. One of the reasons given for believing Magoon and disbelieving Plumphreys is that Ma-goon could easily have made the story “worse.” Again it is found that Magoon had no motive to falsify and that his manner on the stand was such as to indicate that he was only performing an unpleasant duty.
*215In considering tbis question I cannot overlook tbe fact that: tbe charge against tbe respondent is made by Mr. Magoon and-' tbat he did not make tbe charge for amusement and that having made it be would like very much if it were sustained.
To me, Mr. Magoon, as a witness in tbis case, assumed two different and distinct attitudes, one tbat of the ready and willing witness with a fairly good memory, tbe other tbat of the-baiting and unwilling witness with bad memory.
In order to illustrate these different attitudes I am compelled to quote from tbe transcript, and I hesitate to do tbis for tbe reason tbat I know tbe transcript to be inaccurate in some, respects and it may be in others.
Tbe witness appears in tbe first attitude when testifying t©a conversation with a guest .at bis home some months before.
“But I knew when my attention was first called to it by Mr. Humphreys. It was at my place at Kaalawai, round Diamond Head, where Mr. Humphreys was staying with me. Q. When, was that, in what month ? A. I don’t remember tbe month, it was while be was still on tbe bench. Q. What conversation, was bad between you and Mr. Humphreys at tbat time, Mr» Magoon ? A. He stated to me in talking about tbe matter tbat there were proceedings taken or to be taken and tbat be bad been approached and could be called into tbe case if be wanted to be in it. Q. Representing whom ? On what side or what case, please ? A. Tbe case was to be brought by tbe Oahu Railway & Land Company against Ropert, Trustee, under the deed, of trust to enforce tbe conveyance of tbe property to tbe company under tbe lease. We talked tbe matter over quite generally. He said at that time tbat he knew of a matter which be thought was a good defense to tbe action or would be beneficial-to tbe trustee and tbat was with reference to tbe affidavit which Mr. Dillingham bad signed when tbe lease bad been executed,. Mr. Dillingham signed an affidavit which appears of record and: which I bad forgotten about until be called my attention to it j tbat in getting — having tbe lease — in having tbe option to the-lease call for tbe conveyance of all tbe land when Mr. Sumner-only owned a half of it; Mr. Dillinghom bad filed an affidavit tbat be knew tbat the title was in Mr. Sumner only to balf o£ tbe land and therefore be could not oblige Mr. Sumner to give-*216him a good deed or good lease to more than half. That recalled the matter to my mind, which I had forgotten, and in talking over the matter I said I didn’t see why he could not take it, take the case. He was about to go off the bench and I told him I did not see what objection there was to his coming into the -case, if he went off the bench, in behalf of Mr. Sumner. He said he did not know as there was any objection to it, that he would be called in the case.”
Also the following:
“George A. Davis, desired me to assist him in the case which was then pending before Judge De Bolt. Upon reeciving that information I telephoned to Mr. Humphreys, because the matters which we had talked about I considered confidential and private and I telephoned him to see if there was any reason why I should not be called into the case. Q. What was this case that you were to be called in ? A. I didn’t know what the ■case was. I was informed that there was a case on trial'affecting Mr. Sumner’s interest, I didn’t know what it was. I was requested to appear, I think it was in the afternoon, about 1:30 I received the message from Mr. Davis, verbal message from Mr. Light-foot, — I had not seen Mr. Davis, — to the effect that I was to be called into the case to assist him. I didn’t know anything about the status of the case at that time. I didn’t want to take it, I didn’t want to take hold of it without referring to Mr. Humphreys to see if there was any objection to my going on. Q. Going on into the case? A. Going on into the case. I telephoned him to know if there was any reason, because of the matters we had talked 'about, against my going into the case. He said he had no objections whatever, that was over the telephone. I came into the court room here and sat beside George A. Davis and he made a request accordingly to enter me as associate counsel with him. That was before Judge Robinson. I declined and said I would only sit there during the afternoon and prompt him as to certain matters within my knowledge and that I would decide whether I would come in the case later. Q. Who was conducting the case on the other side at that time ? A. Mr. Highton and E. E. Thompson were conducting th ecase. Q. What was that case ? A. Next morning I looked at the records and found out that it was the application or effort of Mrs. Maria S. Davis to put Mr. Sumner under guardianship *217as a person non compos. I didn’t know that until I looked at tbe record next morning.”
The second attitude is illustrated in the evidence of the same witness testifying about a power of attorney executed to himself, at a later date than either of the events above referred to, as follows:
“Q. Had Mr. Sumner at any time executed a power of attorney to you? A. I think that he executed a paper to me about that same time, a little prior to that general power of attorney. Q. Well, what was it ? A. A special power of attorney, authorizing me to do certain things for him. Q. What, for instance? A. I cannot remember. Q. Did it authorize you to sign checks ? A. I don’t remember the contents of the power of attorney. Whatever my action was it was to be approved by some other persons. I didn’t have any power to do anything of my own accord. Q. Who was the person ? A. R. W. Davis. Q. Wallie Davis was a client of yours ? A. I don’t know whether be was particularly. Q. Can you say — can’t you saw whether he was or not, particularly or unparticularly ? A. I don’t know what proceedings he was a client of mine in. A. You can state whether he was a client or not. A. I have done work for him. I have had no retained. When he had things to do he has come to me and to George A. Davis, I don’t know that he was’a client of mine. Q. Have you the power of attorney now ? A. I have not. Q. Can you say what has become of it ? A. It was returned to Mr. Sumner. Q. When ? A. I don’t know. Q. Didn’t you return it to Mr. Sumner after you found out I knew you had it ? A. I don’t know. Q. I ask you whether or not this power of attorney authorized you io sign checks in Sumner’s name ? A. I think not. Q. What did it authorize you to do ? Being the subject you must have some recollection as to its contents. A. I think it was in contemplation of Mr. Sumner going to Tahiti, he left me power to act upon request or approval of Mr. Davis. Q. Did you— act in what matters ? A. In all his matters. Q. Then it was a general power of attorney ? A. No, I could invest his money for him. Q. So that he didn’t desire to take his money to Tahiti, he proposed to leave it here for you to invest ? A. No, he wanted to take some of it and the rest he wanted to leave. <Q. How can you name one single thing you were authorized to do by that power of 'attorney? A. No, I don’t remember *218any special thing — to attend to his business except — certain of his business, subject to the approval of Mr. Davis. Q. You say certain of his business, you must remember what business it was. A. To invest his money, as I remember. Q. To invest his money you would have to release mortgages, to invest money you would have to foreclose mortgages, let me refresh your memory to that extent; what other power did Sumner in this power of attorney confer upon you other than investing money ? A. I don’t remember, I think collect rents and invest his money. That is all. Q. You have stated you could not recollect anything and you subsequently stated, to uoiiect rents. Can’t you state something further as to the particulars of what it was ? A. I don’t remember. Q. Bring suits ? A. I think so, yes. ■ Q. Defend suits ? A. I think so, yes. Q. Deposit his own money in your name ? A. I don’t remember anything said with reference to that. Q. Was there anything said in the power about the disposition of money after you had collected it? A. I don’t remember. Q. Was your commission fixed? What warrant of attorney ? A. I think so. Q. You think it was? A. Yes. Q. How much? A. I think it was 5% on the gross income. I don’t remember distinctly. The power of attorney was returned. I am giving it to the best of my remembrance. Q. Occurred last October? A. Yes.”
It is absolutely impossible for me to believe the testimony of Mr. Magoon when he swears that he “sat beside Geo. A. Davis,” attorney for the petitioner, for one entire afternoon “and prompted him” and still did not know whether the cause on trial was a suit in equity to restrain the sale of land or an action in probate to declare John K. Sumner non compos mentis, until the “néxt morning” when he looked at the record “and found out that it was the application or effort of Mrs. Maria S. Davis to put Mr. Sumner under guardianship as a person non compos. I didn’t know that until I looked at the record next morning.” In this instance Mr. Magoon either was mistaken as to his knowledge or he swore falsely. In either event his credibility, with me is very much weakened and I cannot feel sure that he is not mistaken or is not falsifying in his story about the respondent “attempting to pursuade” him to betray his client.
*219It may not be improper in this connection to state that notwithstanding the many insinuations made in the opinion of the court against the credibility of the respondent, Humphreys, I do not recall a single instance in the entire record that in any way approaches so near to a demonstration of the unreliability of his testimony as the above incident does that of J. Alfred Ma-goon.
Again if Mr. Magoon is to be believed he entertained the proposition made to him by the respondent to the extent of submitting it to this client and the venture was not successful for the reason that the client rejected it. Does this not make J". Alfred Magoon equally guilty with the respondent? Under the law the seducer and the seduced are equally infamous. (In re Cowdery, 69 Cal. 32 and In re Whittemore, id. 67.)
Will justice be done in this case by disbarring the respondent and by giving Magoon a certificate of character for the virtuous indignation he did not show when approached by the tempter ?' Not by the standard announced by the Supreme Court of California in the cases above cited.
In concluding this discussion I feel justified in stating that I would not convict a cat of stealing cream on the evidence offered in support of this individual charge against the respondent, Humphreys, much less pronounce judgment of disbarment against an attorney who has spent the best years of his life in qualifying himself to adorn the profession, who has heretofore borne an honorable name in the community, and who has been entrusted with high judicial position in this Territory by the President of the United States.
It would be useless to state what punishment to me would seem proper under the charge that has been proven against the respondents but I will state that, in my opinion, the judgment of the court against the respondent, Thompson, is unnecessarily severe and that against th erespondent, Humphreys, is not justified by the law or the evidence.