No 14342
IN THE SUPREME COURT OF THE STATE OF MONTANA
1979
IN RE THE MATTER OF
ROBERT L. JOHNSON, Attorney at law,
Respondent.
ORIGINAL PROCEEDING:
Counsel of Record:
For Appellant:
Richard F. Cebull, Billings, Montana
Arnold Huppert, Jr., Livingston, Montana
For Respondent:
Robert L. Johnson and Torger Oaas, Lewistown, Montana
Submitted: April 25, 1979
Decided: ?yL 18 1919
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Filed:
Mr. Justice John C. Sheehy delivered the Opinion of the
Court.
On June 8, 1978, the Commission on Practice (established
by this Court in 1965 to aid the Court in its duty to discipline
attorneys) filed a complaint against Robert L. Johnson, of
Lewistown, Montana. Johnson has been admitted to practice
in Montana since 1957.
The complaint is framed in two counts. The first count
relates to Edward V. Brabender and his wife Frances Brabender,
who allege that they hired Johnson (hereafter "attorney") to
represent them in connection with difficulty they were
having with their mobile home which they had recently purchased.
The Brabenders allege they were informed by the attorney
that he had commenced a lawsuit on their behalf but that in
fact the suit was not commenced until after the running of
the statute of limitations; and that on a motion for summary
judgment their suit was dismissed on that ground and others.
The second count of the complaint relates to Lester J.
Heller and his wife, Virginia Ann Heller of Winifred,
Montana, who had in 1967 entered into a contract for deed as
sellers with Arthur S. Osburnsen and Lucille F. Osburnsen,
husband and wife, for the sale of a ranch located in Fergus
County. The complaint alleges that a problem arose in
interpreting the language of the contract. The Hellers had
brought an action for declaratory judgment to determine the
amount of money owed by Osburnsens to Hellers for the purchase
of the ranch. The Hellers had prevailed in the District Court,
and on three subsequent trips to the Montana Supreme Court as well
as the Federal District Court in Montana and thereafter, on appeal
to the Ninth Circuit Court of Appeals of the United States.
The Hellers contend that the attorney violated the Canons of
Professional Ethics by asserting a position and conducting defenses
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on behalf of his clients which he knew would serve merely to
harass or maliciously injure the Hellers.
The attorney filed his answer to the complaint against
him on June 29, 1978. He denied the essential allegation
made by the Brabenders as to his representation of them, and
with respect to the Hellers, denied their allegations and
further contended that count 2 did not conform to the procedural
requirements before the Commission on Practice and that the
complaint had been filed against him at the sole instigation
of Bradley B. Parrish, attorney for the Hellers, and not for
any legitimate purpose of the Hellers.
The hearing was set before the Commission on Practice
in Great Falls, Montana, on Thursday and Friday, November 9
and 10, 1978. Thereafter the Commission rendered its report,
findings of fact and recommendations with the Clerk of this
Court on March 16, 1979. In its report, the Commission
found that the charges leveled against the attorney were
substantially true and recommended that the attorney receive
a public censure in open court from this Court at a date and
time to be set hereafter. The attorney filed his exceptions
to the report, in essence denying the factual findings of
the court, and denying that any of the findings of the
Commission stated sufficient facts to constitute breaches of
the Canons of Professional Ethics.
What we said in Matter of Goldman (19781, Mont .
, 588 P.2d 964, 974, 975, 35 St.Rep. 934, has pertinence
here :
"Ultimately, the discipline of a member
of the Bar falls upon this Court. We have
that power and duty inherently and by virtue
of constitutional provisions (1972 Mont.
Const., Art. VII, 52). It was to aid us
in the exercise of that power and the performance
of that duty that the Commission on Practice
was established in 1965. Once the Commission
has made its report and findings to us, it is
still our duty to weigh the evidence upon which
the findings rest.. .
. It is the burden of the
attorney to demonstrate that the findings are
not supported by the evidence or the recommenda-
tions are erroneous or unlawful. The attorney has
the burden to show the charges are not sustained
by convincing proof and to a reasonable certainty.
"When, as here, the findings rest on testimonial
evidence, we are reluctant to reverse the
decision of the Commission, which is in a better
position to evaluate conflicting statements after
observing the demeanor of the witnesses and the
character of their testimony. (Citing a case.)"
We have reviewed the findings of fact of the Commission
and the transcript and exhibits upon which those findings
are based. The findings of the Commission are solidly
supported in the evidence.
Briefly, it appears that the Brabenders hired the
attorney when they purchased a mobile home manufactured by
Kit Manufacturing Company of Caldwell, Idaho, the purchase
order agreement being made with Falls Mobile Home Center,
Inc., of Great Falls, Montana. The mobile home was defective
and in early December 1971 the Brabenders employed the
attorney in connection with their difficulties over the
mobile home. Representatives of the manufacturer and the
mobile home dealer met and proposed repairs with the respondent
Johnson. Brabenders contend that they were dissatisfied
with the suggested repairs and wanted a lawsuit commenced
respecting this. In the years subsequent to December 1,
1971, the Brabenders made frequent telephone calls and
personal visits to learn the status of their supposed lawsuit.
They were told by the attorney in 1972 that the lawsuit had
been filed and in October 1972 the attorney told them it
was "on the steps of the courthouse." The attorney told
them to be patient, that the case was on the calendar, that
the attorney was trying to "hurry it up" in the courts. On
October 8, 1976, when the Brabenders were advised that there
had been a levy on their bank account arising out of the
mobile home contract, they got in touch with another attorney
and learned that no lawsuit had been filed on their behalf
until February 20, 1976.
The Brabenders lost the suit in District Court. On
appeal to this Court, in Brabender v. Kit Mfg. Co. (1977),
Mont . , 568 P.2d 547, 34 St-Rep. 1004, they lost
their appeal. The reasons given in our Opinion on that
case relate to the statute of limitations, laches and failure
to properly make recission as grounds for denying relief to
the Brabenders. All of these defenses can be laid at the
feet of the attorney here.
The record shows that the Brabenders, concerned about
their case, frequently made telephone calls and otherwise
communicated with the attorney about the progress of their
lawsuit. They were assured that an action had been filed,
but that it was being delayed in the courts. As we indicated,
the attorney did not institute a lawsuit on behalf of the
Brabenders until after the applicable statute of limitations
had run.
In the Hellers' case, a dispute arose between the
Hellers and the Osburnsens as to the amount that was due
under the contract for the purchase of real estate. The
Hellers commenced a declaratory judgment action in Fergus
County against Osburnsens, who were represented by the
attorney. The District Court rendered judgment which the
Osburnsens, represented by the attorney, appealed to the
Montana Supreme Court. There, this Court affirmed the
District Court in Heller v. Osburnsen (1973), 162 Mont. 182,
510 P.2d 13. Thereafter, the Hellers petitioned the Fergus
County District Court for an accounting. Osburnsens, represented
by the attorney, again resisted. The Fergus County ~istrict
Court rendered its findings of fact, conclusions and judgment
which was again appealed by the Osburnsens through the
attorney. The District Court was again affirmed in Heller
v. Osburnsen (1975), 168 Mont. 232, 541 P.2d 1032.
After this affirmance, a disagreement arose between the
counsel representing Hellers, and this attorney, concerning
the scope and meaning of the stipulation intended to facilitate
settlement. This resulted in a third appeal, in 1976,
wherein this Court again held in favor of the Hellers.
Heller v. Osburnsen (1976), 169 Mont. 459, 548 P.2d 607. In
that case, this Court assessed damages for a frivolous
appeal in favor of Hellers' attorney in the sum of $1,000.
The decision was rendered on April 12, 1976. Johnson refused
payment on August 12, 1976, and on August 18, 1976, the
attorney for Hellers filed a Motion for Disciplinary Action
against the attorney. The $1,000 was then paid, as ordered,
and those proceedings apparently terminated.
On February 9, 1977, the attorney prepared a complaint
the
verified by his clients as plaintiffs, againsyHellels, The
First National Bank of Lewistown, the District Court of the
Tenth Judicial District and the Supreme Court of the State
of Montana, its then Chief Justice, and caused it to be
filed in the District Court of the United States for the
District of Montana. The attorney asserted federal jurisdiction
claiming deprivation of civil rights. He charged the Montana
Supreme Court with being coercive and arbitrary, and disputed
the findings in the previous Heller actions which related to
the amount due under the Heller contract. The complaint was
dismissed on the merits and with prejudice. Osburnsen v.
Heller (1977), 34 St.Rep. 193.
In addition to the findings by the Commission on Practice
of this Court, the local Grievance Commission also examined the
BrabenderS' cause, and found that this attorney had been employed
by the Brabenders in late 1971, that he misled them in the
belief that he had actually filed a case, and he represented
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the delay in bringing it to trial was because of crowded
dockets and court calendars. The Commission on Practice
further found that the attorney failed to obtain full factual
knowledge of the Brabender case as required by Canon 8,
Canons of Professional Ethics, that he handled a legal
matter without preparation adequate in the circumstances and
he fully neglected a legal matter entrusted to him, both in
violation of Disciplinary Rules 6-101 (A)(2) and ( 3 ) .
The Commission found, in connection with Hellers, no
factual or legal justification for the actim which he filed in
Federal Court other "than a vitriolic venting of his anger".
It found that in spelling out a diatribe against lawyers in
his oral testimony and, in his various letters and pleadings,
he did likewise with respect to fellow lawyers, the district
judge, and the Supreme Court. Thereby he violated the
Preamble in Canon 1, Canons of Professional Ethics and his
actions were prejudicial to the administration of justice in
violation of Disciplinary Rule 1-102(A)(5), Canons of Professional
Ethics; that he violated Disciplinary Rule 7-102 (A)(1) and
(2) by taking action that served merely to harrass or maliciously
injure another and by advancing a claim or defense that is
unwarranted under existing laws; that he apparently violated
Disciplinary Rule 7-106(A) by advising that his client
should disregard the rulings of the courts made in the
course of a proceedings; that he violated Disciplinary Rule
7-106(C)(6) by engaging in undignified or discourteous
conduct which is degrading to the Court; and that he violated
the spirit at least of Disciplinary Rule 8-102(B) by making
accusations against judges with no showing that they were
true and that he was not making false accusations.
In Goldman, we stated:
"We start with the proposition that an attorney
must during the period of his authority to
practice before the Bar of this State so conduct
himself that he evinces a good moral character,
a trustworthy nature and a true commitment to
fair dealing with his clients, and with others on
behalf of his clients. Fair dealing and honesty
should be the trademarks of an attorney.. ..
These are the qualities which are essential
for admission to the Bar, and if the attorney
lapses from or ceases to possess those qualities,
he or she is subject to our discipline, even to
removal from the Bar." 588 P.2d at 974.
The matters brought out in the record in this case
indicate that the attorney does not possess, or has lapsed from,
the qualities of honesty and fair dealing. It is certain
that he was not honest in his representations to the Brabenders.
It is equally certain that he lost his sense of fair dealing
and trustworthiness in the Hellers case. The purpose of a
lawsuit is to end the dispute among the parties, not to
prolong it. When an attorney refuses to accept the decisions of
the courts in which he practices, and by frivolous appeals
and other actions, he continues to stir up new or fancied wrongs,
he does not serve the best interests of his own clients, and
he visits unnecessary expense and anxiety upon the adverse
parties. Such actions call into question the temperamental
fitness of the attorney to practice law. The Commission on
Practice, having an opportunity to observe him, decided that
the punishment of public censure in open court should be sufficient.
It is apparent that the Commission on Practice is hopeful that
an otherwise talented lawyer will have learned from the results
of his own indiscretions. The attorney has no previous
disciplinary record. We concur, therefore, in the findings
and conclusions contained in the report of the Commission on
Practice, and will order public censure of the attorney at a
date and place to be set by us with a warning to the attorney
that he is now on his good behavior as to his dealings with
his clients, and as to his respect for the orderly disposal
of legal proceedings.
IT IS ORDERED, and it is the judgment of this Court
that the attorney, Robert L. Johnson, of Lewistown, Montana,
shall receive a public censure in open court on a date and at
a time to be set hereafter.
Justice u
We Concur:
Chief Justice
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Justices
Mr. Justice John C. Harrison did not participate in this
action.