Matter of Goldman

No. 13542

I N THE SUPREME C U T O THE STATE O MONTANA
OR F F

1978

I N THF: MA= O JOSEPH M. GOLDMAN,
F
an Attorney and Counselor a t law,

Respondent.

Counsel of Record:

For Appellant:

Douglas Allen argued, Great Falls, Pbntana
Thomas Clary argued, Great F a l l s , Montana
Arnold Huppert, Livingston, Montana
N e i l Ugrin, Great F a l l s , Montana

For Respondent:

Douglas Drysdale argued, Bozeman, Montana
R o b e r t J. Ehanons argued, Great F a l l s , Montana
Joseph Goldrnan, ~ ~ s s o u l Montana
a,

Sukmitted: August 25, 1978

6 Clerk
Mr. Justice John C. Sheehy delivered the Opinion of the
Court.

On September 27, 1976, a citation was issued out of
this Court to Joseph Goldman, of Missoula, Montana, an
attorney admitted to practice before this Court since 1948,
directing Goldman to answer charges leveled against him in a
complaint filed on the same date by the Commission on Practice.
The Commission on Practice acts under the aegis of
this Court (Order Establishing Commission on Practice, Cause
No. 10910, January 5, 1965) for the purpose of receiving,
investigating, and reporting on allegations of misconduct of
lawyers in the State of Montana.
The complaint against Goldman (hereafter "attorney")
stated 11 counts of misconduct by him in the practice of
law. He filed his answer on November 12, 1976. He set up
3 defenses: first, he stated the charges as a whole and on
their face did not constitute grounds to warrant discipline
against him; second, he denied outright the charges of the
complaint against him; and, third, he alleged the charges
should be dismissed because of unreasonable delay in the
filing of the charges, citing that: (1) there were indictments
pending against him, (2) charges had been made that he had
been engaged in a homicide conspiracy and (3) the lapse of
time prevented him from having a fair opportunity to defend.
On September 6, 1977, after proceedings in the usual
course before the Commission on Practice, the Commission
filed its report, findings and recommendations. The Com-
mission had dismissed the allegations of counts 1, 2 and 9
against the attorney; and sustained in full the charges against
him in all other counts. It recommended the attorney be
disbarred from the practice of law in the State of Montana.
The report, findings and recommendations were unanimously
signed by all members of the Commission.
The report came on for hearing before this Court on
August 25, 1978, - camera, with counsel appearing for both
in
the Commission on Practice and the attorney.
Now, having fully considered the arguments of counsel,
the said Commission report, findings and recommendations,
and the underlying transcript and record, we conclude the
report and findings of the Commission should be accepted and
adopted by this Court and punishment fixed as hereafter
provided. In the paragraphs following, we shall discuss our
reasons in detail.
First, we will discuss the counts under which the
attorney is charged, the evidence we find in the record with
respect to those counts and contentions of the parties
with respect to the evidence. Second, we shall discuss the
applicable law and our reasons for accepting the report and
findings of the Commission. Third, and lastly, we shall fix
the punishment and explain our reasons for so doing.
Count Three
Here it is charged the attorney, representing Raymond
J. Johns, on January 29, 1971, submitted to the Industrial
Accident Board a medical report from Dr. Henry W. Hogan,
which was false in that it greatly exaggerated the claimant's
degree of disability. It is further alleged the attorney
knew of the falsity of the report at the time the report was
submitted.
In his answer, the attorney admits he represented Mr.
Johns, and that he submitted a report on January 29, 1971
from Dr. Henry W. Hogan but denies remaining allegations of
count 3.
Dr. Hogan testified before the Commission that he
examined Johns once on January 26, 1971 in Dr. Hogan's
office. Claimant had received a back injury when a large
scraper he was operating hit a bump and Johns landed quite
hard on the seat. Dr. Hogan's examination revealed that
though he could bend forward easily, the claimant had difficulty
straightening up; he had pain on percussion over the left
lumbrosacral joint, muscle spasm area bilaterally and a
decrease of pinprick perception on the left sacral nerve
distribution. The rest of the examination was normal. On
that basis, Dr. Hogan determined the claimant was suffering
from a partially herniated lumbar disc and gave him a 25
percent disability of the body as a whole.
Before the Commission, Dr. Hogan testified the disability
was not permanent and that he did not mean to indicate a
permanent disability in his report. But Hogan also testified
he did not relate to the attorney that in his opinion claimant
did not have any permanent disability.
Thereupon, the witness Hogan was confronted with his
testimony before the Grand Jury in Lewis and Clark County,
on December 10, 1975, where Dr. Hogan had testified claimant
did not have any permanent disability, and that he had
related this to the attorney. Dr. Hogan said in his Grand
Jury testimony that the attorney said, "Well . . . give
him something." This was said before the doctor wrote the
report, according to the Grand Jury testimony.
At this point, the Chairman of the Commission interrupted
the interrogation to state the Commission would consider the
Grand Jury testimony as substantive evidence. We will
discuss the legal aspects of this ruling further in this
opinion.
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 The attorney himself testified before the Commission.
When asked about the Johns medical report, the attorney
testified, "I believe it to be true."
The Commission also called Dr. Walker Schemm, as an
expert, who testified that the symptoms contained in the
Johns report, that is, stiffness and numbness, which were
worse when claimant was inactive, were not typical symptoms
for a herniated disc. He also testified in 85 percent of
the cases involving a herniated disc, he would expect to
find abnormalities on examination such as weakness, or loss
of sensation or reflex changes, none of which he found in
Dr. Hogan's report.
The evidence is clear the medical report on claimant
Johns was materially exaggerated. The conflict in the
evidence as to whether the attorney knew of the material
misrepresentation was resolved by the Commission in concluding
that count 3 had been substantiated. The Commission is
supported by substantial evidence in the record. It had a
right to view the attorney's credibility on this point in
the light of all the other facts and circumstances of the
case.
Count Four
This count charges the attorney represented Joe Assiniboine
and in the course of that representation, he presented to
the Industrial Accident Board a false medical report dated
February 27, 1971, written by Dr. Henry W. Hogan and at the
time the report was prepared and submitted, the attorney
knew the report was false in that it exaggerated and overstated
the disability of claimant.
In his answer, attorney admits the representation of
Joe Assiniboine, and that he submitted the medical report
dated February 27, 1971, written by Dr. Henry W. Hogan,-but
denies every other charge against him in the count.
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 In his testimony before the Commission, Dr. Hogan
brought out that he had written 2 medical reports on Joe
Assiniboine on October 19, 1970, because two industrial
accidents and two carriers were involved. One medical report
referred to a disability of the right ankle and the other to
a disability of the right knee. With respect to the particular
accident of July 10, 1970 for which the attorney was repre-
senting claimant, the doctor found claimant had a probable
lumbar disc herniation. He found the ankle condition to be
subacute with no likely improvement within the next 18
months and the necessity of some surgical intervention in
the form of vein stripping. He found him totally incapacitated
for usual activities.
Dr. Hogan examined claimant again on February 4, 1971
and wrote his second report on February 27, 1971 on which
the charges are based. Again, he found a probable lumbar
disc herniation with serious doubt as to whether any treatment,
medical or surgical would have a curative effect. He considered
claimant permanently disabled and did not know which disc
had herniated, though he felt it was high in the lumbar
region.
Before the Commission, Dr. Hogan denied he had ever
told the attorney claimant Assiniboine was not so

badly injured or damaged as his reports indicated.
Again Dr. Hogan was confronted with his testimony
before the Grand Jury. There, on December 10, 1975, the
doctor had testified that before he had sent his written
evaluation over to the attorney, he had talked to the attorney
on the telephone, and told him the claimant Assiniboine was
not so badly damaged or injured as the report indicated. He
further told the attorney that Assiniboine could have worked
as a supervisor at his job. The doctor also testified
before the Grand Jury that although he had rated Assini-
boine as permanently disabled, that this was not true and he
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and the attorney had discussed a way of justifying this by
relating the alleged permanent disability to the job he
liked to do rather than the job he could do. He further
testified he felt the diagnosis of a lumbar disc herniation
was probably not a true diagnosis.
The attorney, in his testimony, denied he had ever
submitted any report from any doctor that was false.
With respect to the Assiniboine claim, Dr. Schemm
testified since there was no neurological deficit when Dr.
Hogan checked claimant and where basically the patient had
complaints of back pain and right ankle pain, the normal
course would be, before coming to a final conclusion of
herniated disc, to investigate further.
The evidence is conflicting, but its weight sustains
the conclusion of the Commission that count 4 had been sub-
stantiated.
Count Five
Here it is alleged that the attorney represented Richard
Pearce and on his behalf submitted a false medical report
dated February 9, 1972, signed by Dr. Henry W. Hogan.
The falsity is alleged to be in the statement that claimant
was 30 percent disabled, and incapacitated as a result of
migraine headaches. It is further charged the attorney knew
the report was false.
The answer of the attorney admits the allegations of
count 5 but denies the falsity or knowledge of the falsity.
Dr. Hogan testified before the Commission that claimant
Pearce was injured when he was struck alongside the head on
December 4, 1970. Dr. Hogan made his report on February 9,
1972. He had not treated claimant Pearce for the injuries
immediately after he had sustained them and it was Dr. Hogan's
recollection that he had seen Pearce only once. Dr. Hogan's
neurological findings were entirely normal with the exception
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of tenderness of the occipital nerve, a common finding with
respect to migraine headaches. He reported a history from
claimant of episodic events, excruciating headaches which
were incapacitating, lasting from 12 hours to 3 days. Dr.
Hogan reported a fracture involving the foramen magnum and
a chipped fracture in the posterior border of this portion
of the skull. He did not have X-rays at the time he reported
the chipped fracture. Before the Commission, Dr. Hogan claimed
he must have called the X-ray Department of St. Patrick's
Hospital in Missoula and gotten such a report from that
department, but he had no record of such a telephone call,
or any written report respecting X-rays. The only knowledge
he had of a chipped fracture was in a letter he had received
from the attorney, dated December 1, 1971. Dr. Hogan rated
the claimant 3 0 percent disabled from a medical viewpoint
because of his migraine attacks. Dr. Hogan further testified
he would relate the migraine headaches to the industrial
accident and denied he had ever told the attorney at the
time he submitted the report to him, that he could not
relate the migraines to the industrial accident.
Again, Dr. Hogan was faced with his testimony before
the Grand Jury. From that, it appeared on December 10,
1975, he had told the Grand Jury, although it was stated
otherwise in his report, he could not positively relate the
migraines to the industrial accident and with respect to the
3 0 percent incapacity figure, he stated, "it was just a

guess. It was better than nothing."

Also the evidence of Dr. Schemrn was to the effect that
the migraines would not be brought about by trauma or injury;
the description of the headaches did not sound like the usual
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description for migraine headaches; he did not think it was
logical to assume the patient was disabled because he had
such headaches.
The attorney's denial in his testimony before the
Commission that he submitted any false medical reports
applies to this charge also.
Again, the Commission determined the charge against the
attorney with respect to claimant Pearce was substantiated
by the evidence. We agree.
Count Six
In count 6 it is charged that the attorney represented
Leo F. Staat, and in connection with that representation
submitted to the Industrial Accident Board a medical report
dated November 10, 1970, signed by Dr. Henry Hogan. It is
charged the attorney knew at the time he submitted the
document that it was false in that it greatly exaggerated
and overstated the amount of disability of claimant, and
that the disability, if any, was work related.
In his answer, the attorney admitted representing
claimant Staat, and submitting the medical report, but
denied every other charge against him.
Dr. Hogan, testifying before the Commission, stated
claimant Staat had suffered burn injuries. When he first
examined Staat, in October 1970, he found extensive
burns and scarring on the right side of the body, but also
found weakness, clumsiness, and numbness in the left forearm
and deltoid muscles. Dr. Hogan made two reports respecting
claimant Staat. In his first report, he indicated the
scarring of the right side and the weakness or paralysis on
the left side. He testified he made it known to the attorney
that the neurological abnormalities on the left was not work-
-9-
related or injury related. Dr. Hogan examined claimant
Staat later, and made his report of November 30, 1970 in
which he indicated claimant was an ironworker and was
unable to carry on in his capacity because of a limp arm and
hand weakness and rated him at 50 to 60 percent disabled
with the implication the disability was work-related. Dr.
Hogan admitted before the Commission that his disability
figure included the paralysis which was a major contribution
to the disability figure and the work-related disability
should have been 25 to 30 percent. He denied indicating to
the attorney that there was little, if any, disability
related to the work accident.
At this point, Dr. Hogan was again asked about his
testimony before the Grand Jury. In that testimony, on
December 10, 1975, he had stated there was little if any
disability in claimant Staat, relating to the accident; that
the 50 to 60 percent disability figure was a fraudulent
conclusion and that he had informed the attorney of this.
With respect to claimant Staat, and the medical reports
submitted for him, Dr. Schemm testified before the Commission
that where a person is injured by an explosion from a tank,
as was this claimant, and the person is burned, it would not
be medically possible that the burn, in and of itself, would
affect the spinal column so as to cause paralysis.
The attorney's testimony before the Commission, as with
the other counts, was a general denial that he had knowingly
submitted a false report to the Industrial Accident Board;
however, the file in the Workers' Compensation Division
contained an interoffice communication reporting that the
attorney had read over the telephone to James Carden the medical
report of Dr. Hogan reflecting Staat.
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 The weight of evidence supports the conclusion of the
Commission that the attorney was guilty of the charges in
count 6.
Count Seven
In this count, attorney is charged with representing
one Clarence W. Petersen and that in connection with his
representation submitted to the Industrial Accident Board on
April 9, 1971, a false report dated April 1, 1971 signed by
Dr. Henry W. Hogan, which alleged claimant was 30 percent
disabled and which was false in that the disability was
substantially less, was not permanent, and was not attribut-
able to a work-related accident.
In his answer, attorney admits the representation,
admits submitting the report, but denies every other charge.
Claimant Petersen had been injured while employed as a
heavy equipment operator. He was helping to start a tractor
engine by pushing the crank with his right foot which slipped
off the crank, so that his foot struck against the ground
with great force with his right heel. Dr. Hogan testified
the injuries resulted in a tear of the Achilles' tendon and
that at the same time, claimant had probably broken off an
overgrown arthritic process in his sciatic notch which
affected his nerve distribution and gave him pain and discomfort
in his legs. His medical report indicated a 30 percent
disability which, before the Commission, the doctor contended
was work related.
In Dr. Hogan's testimony before the Grand Jury, on
December 10, 1975, he had testified with respect to claimant
Petersen, that the 30 percent disability figure was highly
inflated and that he could not relate the medical problem to
the industrial accident. He had also stated in the medical
report the condition was permanent, whereas before the Grand
Jury, he gave his opinion the condition was not permanent.
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He also told the Grand Jury had he related these facts to
the attorney at the time he delivered the ~edicalre~ort.
Neither Dr. Schemm nor the attorney were asked speci-
fically about the Petersen report, but we assume the gene al
denial of the attorney that he submitted any false reports
would cover the Petersen case also.
The conclusion of the Commission was th2.t the charges
on count 7 were sustained. Th2.t conclusion is supported by
substantial evidence.
Count Eight
This count presents a different factual situation and
charge than contained in earlier counts. In count 8, attorney
is charged with attempting on or about December 1974 to
persuade Patrick McDonald, a client he represented before
the Industrial Accident Board, to present to the Workers'
Compensation investigators false evidence and testimony with
regard to his representation of McDonald in connection with
the claim. The specific charges are; (1) that the attorney
attempted to get McDonald to te1.l the investigators the
attorney had been contacted by McDonald's wife after McDonald
was in the hospital as a result of the industrial accider:t:
(2) McDonald h~.dstopped in the attorney's office, filled
out the Workers' Compensation claim form with respect to his
injury which happened that day, and then proceeded to the
hospital; (3) he importuned his client along this line on
several occasions but; (4) subsequently, when the publicity
attending the Workers' Compensation investigation increased,
he then advised McDonald to tell the truth.
In his answer, the attorney alleged: (1) he represented
Patrick McDonald with respect to an industrial accident
and that on numerous occasions he was contacted by and he
did contact Patrick McDonald; (2) that McDonald stopped by his
office to fill out the original documents and questionaires
submitted to him in connection with the claim; (3) the
attorney denies he ever importuned McDonald or any other
person to give a materially false statement to such investigators
and; (4) denied generally every other allegation of count
8.
Claimant McDonald testified before the Commission that
on May 5, 1971 he had fallen from a scaffold while working
on an overpass finishing cement. Immediately following the
fall, he had gone to the office of the attorney, having
first stopped at his own house to pick up his wife. The
attorney recommended he go to the emergency room at St.
Patrick's Hospital, which claimant did. It appears from other
testimony and documentary evidence, the claim forms regarding
his accident were mailed out on the same day as the injury
was received, and the forms were executed before claimant
went to the hospital. Subsequently he received a settlement
for his injury. After the completion of his claim, when
investigators from the Attorney General's office appeared
in Missoula in connection with Workers' Compensation cases,
McDonald testified the attorney called him. The attorney
was concerned the McDonald claim had been filed on the
same day he fell off the bridge and he was further concerned
it would look bad if McDonald was injured enough to go
to the hospital that he stopped at the lawyer's office
first. McDonald then testified the attorney suggested that
he report to the investigators that he went directly to the
hospital and had his wife contact the attorney and thereafter
McDonald had come to see the attorney. McDonald testified
he agreed to do this and that later the attorney contacted
him on two or more subsequent occasions to the same effect.
On the fourth contact however, the attorney told McDonald to
tell the truth. The problem, as McDonald understood it,
was that the attorney was worried about the appearance of
"ambulance chasing". McDonald did testify to the truth when
he appeared before the Grand Jury.
The testimony of the attorney before the Commission on
this point was he had received in the mail the forms from
investigators which should have been directed to McDonald.
He called Mr. Zanto, then head administrator of the Workers'
Compensation Division and Zanto advised the attorney the
forms should be filled out and sent in. The attorney
stated he then mailed the forms to McDonald with instructions
he should execute and return them to the investigators.
After that, McDonald came to the attorney's office on two
occasions and each time refused to fill out the forms,
although the attorney urged it should be done. The attorney
also testified he told McDonald that in filling out the
forms, he should tell the truth.
The Commission, in finding against attorney on this issue,
stated the answers of the attorney in his testimony on
this point was evasive and unsatisfactory. It appears
from the attorney's testimony that on the date McDonald was
injured, the attorney did know McDonald had come to him
before he had gone to any hospital or sought other medical
help and the claim to the Workers' Compensation Division had
been filled out before McDonald went to the hospital. It is
further undeniable from the testimony, the attorney knew when
the investigation commenced that this fact would become
public knowledge and it is quite apparent from the testimony
that the attorney was anxious to avoid the possible charge
of "ambulance chasing". From those facts it appears
quite acceptable that the testimony of McDonald is true that
the attorney had importuned him that he te1.l the investigators
he had gone to the hospital first before he got in touch
with his attorney. In other words, attorney requested
McDonald to give false testimony or false information to the
investigators.
Count Ten
This charge relates to the representation by the
attorney of Michael Eichenlaub. This count alleges that on
February 19, 1970 the attorney submitted to the Industrial
Accident Board a report from Dr. Henry V7. Hogan datee. February
19, 1970 which was false in that it represented the worker,
Eichenlaub, was disabled and unable to work when in fact he
was attending school and employed part-time. It is also
charged that on September 8, 1970, the attorney submitted to
the Industrial Accident Board a medical report of Dr. Henry
W. Hogan which falsely alleged the condition of Eichenlaub
had deteriorated in order to make a second claim for compen-
sation; and the attorney had approached claimant to make
such second claim.
The answer of the attorney admits the representation of
Eichenlaub and the submission of the Eichenlaub reports, but
denies every other allegation of the count.
Claimant Eichenlaub testified before the Commission.
He stated he sustained an injury on July 3, 1969 when he was
working on a pile construction and was cleaning up underneath
a bridge when a rock hit him on the left ankle. He was
treate? by a doctor with cortisone shots, a cast was applied
and he was disabled for some time. Later in the fall of
1969, he was advised by his doctor that he could return to
work. There was no construction work available at the time,
however, so he worked in his home doing taxidermy.
When Eichenlaub's compensation payments stopped, he
went to see the attorney who then began to represent him. He
was examined by Dr. Hogan in February 1970 at the suggestion
of the attorney. He described his examination by Dr. Hogan
thusly :
"A. Well, I sat down on a chair and Mr. Hogan
was behind a desk and I took my boot off
and elastic bandage and then he checked
my foot and checked my reflexes and made me
walk at the most I'd say 10 feet or 15
and then back and sit down. Then we started
talking, you know, hunting and fishing and
stuff.
"Q. Before you started talking about hunting
and fishing, how much time had elapsed from
the time that you first saw Dr. Hogan? A. I
would say no more than 15, 20 minutes at
the most."
At the time, he described his ankle as being tender and
"I couldn't do no running or anything like that it would
spring it again, but I was walking."
In September 1970, he was examined again by Dr. Hogan
in connection with his ankle injury. A point in issue is
whether he came to Dr. Hogan the second time because of a
worsened condition or whether he in fact was brought to Dr.
Hogan by the attorney, at his instigation. Claimant Eichenlaub
testified the attorney called him, and Eichenlaub then went
to see the doctor. At the time of the call, he was working
in his home shop. The condition of his ankle at that time was
no worse than the first time he went to see Dr. Hogan.
The examination by Dr. Hogan was much the same as the
first, except the time involved was shorter. Eichenlaub did
not indicate to Dr. Hogan in any way that the condition of
his left foot had worsened since he was first examined by Dr.
Hogan in February 1970. Shortly following this examination,
he received another $3,000 as a second settlement.
 Cross-examination of Eichenlaub revealed his ankle was
still disabled some 7 years after the accident. It also
developed he had been examined the second time by Dr. Hogan
before the college year had started but that it was his
intention at the time he was examined to begin his'college
education when the university opened for the fall quarter.
The attorney, in his testimony before the Commission,
stated that Eichenlaub had come to his office on August 18,
1970. There Eichenlaub informed the attorney his ankle was
still hurting him, and he had tried to work for 3 days but
could not continue working because of the pain and tenderness
in his left ankle. The attorney stated that Eichenlaub was
wearing an Ace bandage at the time, to give stability to his
ankle. The attorney informed Eichenlaub if the condition had
become worse, he would be entitled to further settlement from
the Industrial Accident Board.
At the time of the first settlement, claimant Eichenlaub
was a minor. The attorney testified his father and mother
participated in handling the first settlement. In fact, he
had them execute an instrument entitled Authority to Attach
Funds. In effect, this instrument recites the father and
mother, as parents of claimant Eichenlaub, refused to sign a
petition for guardianship for the appointment of a guardian
for the minor. The reason for refusing to seek the guardianship
as given was because of the existence of creditors who could
attach the funds of the minor. The instrument contains a
hold harmless agreement to the law firm of the attorney from
any criticism of any possible nature. There is a recitation
that the parents have been advised "very carefully" by the
attorney that the funds should be placed in a guardianship
estate. The testimony does not indicate clearly the reason
for the execution of such an instrument or the wording of its
title.

The attorney also testified that Eichenlaub's mother,
between the first and second settlements, had talked to him
about the injured ankle of claimant and the mother advised
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him the boy's foot had gotten worse. He stated the mother
had indicated she felt the boy was entitled to more money.
However, Mrs. Myrtle Ann Eichenlaub, mother of the boy,
also testified before the Commission. She denied talking to
the attorney or making the statements attributed to her by
the attorney.
Dr. Hogan's testimony before the Commission was to the
effect that upon his first examination of Eichenlaub, he had
found continuing signs of tendonitis, post-traumatic, which
interfered with his activities and assigned a 30 percent
disability. He testified his second examination of Eichen-
laub occurred because he received a letter from the attorney,
dated August 18, 1970, in which the attorney informed Dr.
Hogan, that since the last time he saw Eichenlaub, claimant's
complaints were greater than at the time of the first
examination. Dr. Hogan examined Eichenlaub on August 18,
1970 and wrote the second report dated September 8, 1970, in
which he stated the tendonitis was serious enough to rate
Eichenlaub 40 to 50 percent disabled, considering his body
as a whole; that Eichenlaub hoped to attend college but the
doctor did not see how claimant could ambulate around the
campus and that his foot and ankle were considerably worsened
over their conditions in February 1970. Dr. Hogan did not
recall Eichenlaub had told him the ankle was much worse, but
he relied on the statement and letter of the attorney for
that fact.
Dr. Schemm, in his testimony before the Commission,
questioned the value of the medical reports in that the diagnoses
of tendonitis are orthopedic matters, and he did not think
Dr. Hogan, a neurologist, would logically be able to decide
this kind of disability.
The Commission found the charges on count 10 had been
substantiated. The evidence speaks out loudly and clearly
in support of that finding.
 Count Eleven
This count differs from the other charges against the
attorney, because in this count, a pattern of activity is
charged against the attorney in that he, knowing Dr. Henry
Hogan was in severe financial distress, and addicted to drugs,
sought and obtained from Dr. Hogan a series of medical reports
which were false in their conclusions. They were false because:

(1) claimant was not disabled but the medical report indicated
he was, or (2) the disability was not work related by Dr. Hogan
indicated it was, or (3) the extend of disability was
exaggerated and over-rated. It is also alleged this pattern
was part of a scheme of the attorney to obtain from the
Industrial Accident Board, or its successor, the Workers'
Compensation Division, significant sums of money for claimants
who were not lawfully entitled thereto. It is charged that
the pattern of conduct reveal a gross disregard for the
highest standards of honesty, justice and morality and that
he had demeaned the profession and practice of law and
brought discredit to the Bar.
The answer of the attorney admits he obtained medical
reports of Dr. Hogan but denies otherwise every charge
brought against him in count 11.
A considerable portion of the record before the Commission
on Practice relates to the financial and physical condition
of Dr. Hogan, during the time he was issuing medical reports
for the clients of the attorney, and the doctor's deterioration
as a medical professional by reason of his addiction to
drugs. It is a sorry record. Out of respect to the doctor,
we will not recite in detail what this record reveals,
except to state the findings of the Commission on count 11
are fully substantiated in the following:
". . . Specifically, the Commission finds that
respondent (attorney) knew that Dr. Hogan
was seriously addicted to dangerous drugs
and alcohol, which adversely affected his
health, his ability to function as a competent
medical practioner, his moral judgment and
that as a result thereof, Dr. Hogan was
in dire financial straits. Respondent (attorney)
 preyed upon the weaknesses and deficiencies of
this medical practitioner. The Commission
further finds respondent guilty of a pattern
of conduct consisting of deceit, collusion,
false representations, and lacking in candor
and fairness in his representation of clients
before the Workers' Compensation Division of
the State of Montana which would result in
exorbitant sums of money extracted from public
funds .. ."
We have nothing to add to those conclusions, nor could
they be better stated.
Applicable Law--Reasons For Accepting The
Commission Report
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. In the Matter of Paddock (1967),
150 Mont. 59, 430 P.2d 361. 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.
In Re Hansen (1936), 101 Mont. 490, 54 P.2d 882.
The duty of an attorney is broader than that of a
trustee because the persons entitled to rely on the attorney
cover a broader range. A trustee is responsible to his
beneficiary, or persons claiming through his beneficiary, but
an attorney's responsibility runs to his clients, the Bar
itself, the court and the general public. His duty of
honesty and fairness toward all is at least that of a trustee,
however, in the sense we pointed out recently, quoting Mr.
Justice Cardozo:
"Not honesty alone, but the punctilio
of an honor the most sensitive, is the
standard of behavior." Meinhard v. Salmon
(1928), 249 N.Y. 458, 164 N.E. 545, 546,
547, 62 A.L.R. 1; Murphy v. Redland, et
al., (Cause no. 13941, decided August 22,
1978. )
 That standard of duty applies to activities in and out
of the profession, as this Court said in its Advisory Opinion
to the Commission on Practice (1971), 159 Mont. 541, 495 P.

"Any acts committed by an attorney, contrary
to the highest standards of honesty, justice
or morality, including but not limited
to those outlined in section 93-2026,
[R.C.M. 19471, and the violations of duties
outlined in chapter 91, Title 93, whether
committed in his capacity as an attorney,
or otherwise, may constitute cause for
discipline. "
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. We have
done that in the preceding paragraphs. It is the burden of
the attorney to demonstrate that the findings are not supported
by the evidence or the recommendations 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. See Zitny v. State
Bar of California (1966), 51 Cal.Rptr. 825, 415 P.2d 521.
With that background, we proceed now to examine the
legal contentions of the attorney in opposing report of the
Commission.
 In general, the attorney contends there was insufficient
evidence before the Commission to establish the falsity of
the medical reports and the attorneys knowledge of that
falsity. It is also generally contended if the proof failed
in those particulars, then the allegations in count 11,
relating to the pattern of misconduct by attorney, must also
fail, because the pattern cannot be established.
It is contended the evidence is insufficient to establish
falsity of the medical reports and knowledge on the part of
the attorney in that:(l) Dr. Hogan's testimony is "tainted";
(2) impeachment testimony was used as substantive evidence

by the Commission; and (3) the Commission disregarded the
testimony of the attorney himself in denying the allegations.
It is also contended in connection with the falsity of the
medical report the Commission should not have considered the
evidence of Dr. Schemm. Regarding count 11, the pattern of
misconduct, it is contended that the evidence is insufficient
to establish background for all of the reasons foregoing and
for the further reason that the evidence is insufficient to
establish that Dr. Hogan was, at the time he was making the
reports in question, addicted to drugs so as to affect his
judgment in any way, or to establish he was in financial
trouble.
It is further contended that because the testimony
which was given before the Grand Jury and by affidavit of
Dr. Hogan occurred outside the presence of the attorney or
his representatives, that thereby the attorney has been
denied the right to confront the witnesses, the right of
cross-examination, and he has been denied procedural and
substantive due process and the equal protection of the
laws.
There are other contentions not directly related to the
evidence which we will discuss later.
 It is to be admitted the contention with respect to Dr.
Hogan's testimony is a troublesome point. He testified
before the Grand Jury in the Workers' Compensation investi-
gation as we have indicated above; he repeated that testimony
in an affidavit supplied for the investigators in that
investigation. He told investigators for the Commission on
Practice a story agreeing with his Grand Jury testimony.
When he was testifying before the Commission he recanted his
earlier statement.^ to the Commission investigators and in

effect testified against what he had stated before the Grand
Jury. Thus, regarding Dr. Hogan's testimony, the Commission
had before it a problem to determine when in fact Dr. Hogan
was telling the truth. They resolved that problem by deciding
he was being truthful in his testimony to the Grand Jury.
Here, the rule that on testimonial evidence we will regard
with great respect the findings of the Commission holds
true. The members of the Commission, having an opportunity
to observe the demeanor of the witnesses on the stand and to
relate the other evidence of the case to the testimony being
given by the witnesses, have reached conclusions which we do
not think or find to be erroneous, much less clearly erroneous.
For the same reason, even though the attorney himself
testified directly opposite the Grand Jury testimony of Dr.
Hogan, it is clear the Commission, in judging the credibility
of the attorney in relation to the totality of the evidence,
found against him. Again, we agree with the conclusion of
the Commission on this point. We find no basis upon which
to set aside the findings of the Commission simply because
the attorney himself denied the charges that were made
against him. We recognize in so stating we are in effect
accepting the "tainted" evidence of Dr. Hogan and rejecting
the testimony of the attorney.
 Our judgment is the Commission is supported by all
of the facts and circumstances that appear in the evidence
in this case.
Part of the totality of the evidence upon which we rely
tc sustain this judgment lies in the medical reports themselves.
Most lawyers and judges have some experience with medical
reports and have some knowledge of what they ordinarily
contain in order to establish the conclusions reached by the
medical persons involved. These reports, on their face,
fall short of what practicing attorneys and trial judges
would expect to find in such medical reports. While we are
bound by the record evidence and the testimony relating
thereto, as is the Commission on Practice, we are nonetheless
in the same position as trial jurors: we are not bound to
believe from the evidence what we would not otherwise believe
as ordinary men and women, or in this case, as ordinary
lawyers.
Turning to the evidence of Dr. Walter Schemm, once we
accept the grand jury testimony of Dr. Hogan, and the falsity
of the reports, the testimony of Dr. Schemm is merely cumulative
in support of our judgment. However, Dr. Schemm's testimony
is also very helpful in determining the falsity of the
medical reports that were submitted from Dr. Hogan. The
attorney attacked Dr. Schemm's testimony on the basis it is
speculation and hearsay and an opinion based on an opinion,
or perhaps an opinion based upon an opinion based upon an
opinion. The attorney argues no expert should be allowed to
advance an opinion as to what another man should observ
Wd
(Pecos and N. T. Railway Company v. Coffman exasTas 1913),
160 S.W. 145, 149); that is error to ask a doctor whether
he concurs or disagrees with the opinion of another doctor
regarding the extent and nature of injuries
h c , ~ a2
r( f lveston H & w
Railway Company et al. v. Alberti ( T e x e s 1907), 103 S.W. 699); and
i
-24-
that opinions based. upon opinions are improperly received in
evidence and immaterial (Mount Royal Cab Company v. Dolan
(Maryland 1935), 179 A. 5 4 , 98 A.L.R. 1106). Those cases
and other cases cited by the attorney in support of this
contention are distinguishable from the issue in the case at
hand. In those cited cases the issue was the extent of the
disability of an injured person. The courts held in those
cases that an expert should reach his own conclusions based
upon his own observations of the injured person and that it
was improper to allow the expert to testify as to whether or
not his conclusion agreed or disagreed with another doctor.
In this case, the issue is different, whether the medical
reports submitted by Dr. Hogan, on their face, met acceptable
standards or provided sufficient medical information to
substantiate the conclusions that Dr. Hogan was drawing as
to the disability the respective claimants suffered, and
whether the disabilities were work related. In other words,
the issue to be decided was not the actual injuries sustained
by claimant, but whether the medical reports that Dr. Hogan
prepared could be substantiated on the symptoms and histories
he reported. Thus the issue here is entirely different, and
the Commission followed a proper procedure in obtaining an
expert to determine the validity of the conclusions set out
in the Hogan reports.
The remaining question to be discussed with respect to
the evidence is whether the Commission and this Court have the
right to accept the Grand Jury testimony of Dr. Hogan as sub-
stantive evidence. While, as we have said, the totality of +he
evidence supports accepting the testimony of Dr. Hogan before
the. Grand Jury, it is obvious the Commission has accorded
substantive status to the Grand Jury testimony. The attorney
attacks this, saying that since the hearing was held in June
1977, before the adoption of the Montana Rules of Evidence,
which became effective on July 1977, the law of this State
at that time was that impeachment evidence could not be
considered as substantive. He cites a number of cases,
including Wise v. Stagg (1933), 94 Mont. 321, 330, 22 P.2d
308; State v. Kinghorn (1939), 109 Mont. 22, 39, 93 P.2d
964; Batchoff v. Craney (1946), 119 Mont. 157, 162, 172 P.2d
308; Siebel v. Byers and Yurick (1959), 136 Mont. 39, 48,
344 P.2d 129; and State v. Jolly (1941), 112 Mont. 352, 355,

The Commission admits in its brief that prior to Jolly,
supra, previous inconsistent statenents of a witness were
admissible for impeachment purposes only and did not constitute
substantive evidence. The Commission, however, contends
Jolly is a cross-roads opinion because it is the last case
which critically analyzed the permissible use of prior
inconsistent statements. In Jolly, this Court said:
"While the weight of authority would limit
such evidence to the impeachment of the
witness' subsequent testimony on the
stand (2 Wigmore on Evidence, 2nd ed.,
459, sec. 1018), the better reasoning
would seem to support the other view (3
Wigmore on Evider-ce, 3rd ed., 687, sec.
1018), since the prior statement is not
properly subject to objection as hearsay,
the witness being present in court for cross-
examination concerning it." 112 Mont. at
355, 116 P.2d at 688.
F T o civil cases following State v. Jolly, supra, Batchoff
v. Craney, supra, and Seibel v. Burns and Yurick, supra,
adhered to the old rule instead of following the suggestion
in Jolly that the better view permits the consideration of
prior inconsistent statements as substantive evider.ce where
the witnesses are present for cross-examination. However,
in 3 subsequent criminal cases, State v. Longacre (19751,
168 Mont. 311, 542 P.2d 1221, State v. Borchert (1970), 156 Mont.
315, 479 P.2d and State v. Mally (1961), 139 Mont. 599,
366 P.2d 868, the Court permitted and considered the use of
prior inconsistent statements favorably to support criminal
convictions.
With this background, the Commission on Rules of Evidence
in proposing the new Rules of Evidence for this Court felt prior
inconsistent statements were admissible as substantive evidence,
and suggested for adoption, Rule 801 (d)(1)(A), accordingly.
This Court had approved those rules prior to the hearing hereunder,
even though the effective date would not begin until July 1,
1977.
The foregoing cases would indicate the law in Montana on
this point was in flux, but the Court was moving toward a change
in the rule of Wise v. Stagg, supra. The matter is now settled
with the adoption of the Montana Rules of Evidence. Such testimony
is now clearly admissible for substantive purposes.
The testimony of Dr. Hogan was taken on May 7, 1977.
In cross-examination before the Commission, Dr. Hogan testified
that when he was being interrogated before the Grand Jury,
he was lying. The Commission decided however, that when Dr.
Hogan recanted before the Commission his Grand Jury testimony,
he was actually lying before the Commission.
It is a syllogism beyond our grasp to agree with the
attorney that the Commission could use Dr. Hogan's prior
inconsistent statements before the Grand Jury to determine
he was lying before the Commission but the Commission could
not use that same testimony before the Grand Jury as substantive
evidence to determine the gist cf this case.
Dr. Hogan's testimony before the Grand Jury does not
stand alone. It is buttressed, as we have said, by Dr.
Schemm's testimony, by the inherent improbability of the
reports themselves, and by the pattern of misconduct of the
attorney which the evidence in this case establishes. But
-27-
even if Dr. Hogan's Grant Jury testimony did stand alone, it
would be sufficient and could be considered as substantive by
the Commission. This, because the attorney's authority to
practice law is a continuing question, and a determination of
this particular attorney's fitness to practice law, could have
been considered by the Commission or this Court before or after
July 1, 1977. What we are concerned with in discipline cases
is the protection of the public. Strict rules of evidence cannot
be used to defeat considerations of public welfare. In Re
Wilson (1953), 76 ~ r i z .49, 258 P.2d 433.
The attorney has contended that because Dr. Hogan's testimony
was considered substantively by the Commission, the attorney
hasbeen deprived of due process, procedural and substantive, and
the equal protection of the laws. Apparently the attorney means
by this that because Dr. Hogan testified before the Grand
Jury in the absence of the attorney, with no possibility of
cross-examination by the attorney, he has thereby been
deprived of Constitutional rights. All due process requires
however, is the attorney be given a fair hearing before the
Commission. He has received this. Every opportunity has
been given to him to establish the charges against him were
not true. That the Commission chose to believe Dr. Hogan's
testimony before the Grand Jury, rather than the testimony
of the attorney and of Dr. Hogan before the Commission, is a
matter relating to credibility and not to constitutional
rights. If the attorney's contention on this point were to
be sustained, it would in effect negate any use of prior
inconsistent statements, in any case, because rarely are
prior inconsistent statements uttered at a time when cross-
examination is available, except in discovery depositions.
Other Contentions of the Attorney
We have considered other contentions raised by the
attorney on which he argues the report of the Commission
should not be accepted. Chiefly, the other contentions also
relate to the testimony of Dr. Hogan, but 2 of the contentions
relate to the Commission itself.
-28-
 The additional contentions with respect to Dr. Hogan's
testimony involve the claim that he was coerced by the investi-
gators from the Attorney General's office to give his testimony
before the Grant Jury by threats of prosecution and loss of his
medical license. It is also contended by the attorney that at
the time of the medical reports here in question, he was no longer
addicted to drugs; and further his financial situation had improved
so he was not dependent upon this attorney for a material con-
tribution to his support arising out of the medical reports.
These contentions were before the Commission, which considered
them, and by its decision rejected them. We do not find the
Commission to be clearly erroneous in this respect. This is true
also of the admission of exhibit No. 10, an affidavit which
Dr. Hogan had given to the investigators corroborating his
Grand Jury testimony.
The attorney contends it is improper for the chairman
of the Commission on Practice to act as both the person in
charge of the hearing, and as the trier of the facts. It is
contended that instead of having the chairman determine
rulings on evidence in hearings before the Commission, it
would be proper that a law officer be appointed, to whom
would be relegated the function of deciding matters of law
and who would be prohibited from deliberations based upon
the evidence.
In our order establishing the Commission on Practice
(January 5, 1965, Cause No. 10910) we provided that the
chairman of the Commission shall act as a presiding officer
where the Commission on Practice itself conducted any hearing.
We see no prejudice accruing to the attorney arising
out of this provision, or out of this fact that the Commission
followed it in conducting the hearing. The decision of the
Commission was unanimous which is a significant aid on this
point to determine that no prejudice occurred.
During oral argument in this matter, it was contended
by one of the counsel for the attorney, that the makeup of
the Commission on Practice was such that it was "defense"
-29-
oriented, and that an attorney whose business related to a
"plaintiff's" practice was not as likely to get a fair result
from this Commission. We answer that contention in 2 ways:
first, this Court has put it in the power of the Bar itself to
determine who shall be the members of the Commission on Practice.
We provided in our order establishing the Commission a term of
4 years for each member and further that the members shall be
selected from lists of 3 attorneys elected by their peers in
8 different districts throughout this State. This Court has
followed the practice of appointing the person who received
the highest number of votes in each district. There has
been no "stacking" of the Commission on Practice because the
members ~f the Commission are determined by the Bar itself.
Second, we interpret this statement about the members of the
Commission as one not attacking their integrities, but
rather their predilections. If the contention were meant as
an attack on the integrity of the members, we would not
countenance such an attack in the slightest or for a moment.
If it is a comment upon their predilections, then we state
that their basic integrity would require them in spite of
any leanings they may have, to overcome such tendencies, and
to decide this matter fairly and impartially, based upon the
evidence they received. In our firm opinion, this is what
the members of the Commission did.
As an offshoot from the foregoing contention, it was
also contended by counsel for the attorney that the attorney
in this case was simply "playing the game"; that is, plaintiff's
attorneys have certain doctors to which they refer their
clients for examinations and medical reports, and the defense
attorneys in the same manner have conservative doctors whom
they consistently use to obtain medical opinions that accord
with their slant on the case. We are not blind to the fact
that experts vary widely in their opinions, particularly in
medical disability cases; and that lawyers, in representing
their clients, will seek out experts more favorable to
their side of the case. As long as the experts so acquired
express their honest convictions, true advocacy is thereby
served. An entirely different issue is presented when the
expert's opinions are dishonest, false or exaggerated, and the
attorney with knowledge thereof submits such opinions to the
trier of fact. Then the mills of justice are corroded.
Permissible advocacy cannot in any sense be extended that
far.
It is also contended we should take into consideration
the fact the criminal indictments which were issued against
the attorney were dropped. We were informed during oral
argument that the State, after receiving the results of

polygraph tests taken of the attorney, determined it could
not prove the criminal charges against the defendant and so
these were dismissed. These facts however, are no bar to
our determination as to whether discipline should be applied
to the attorney.
"A state bar disciplinary proceeding may
be maintained even though the accused
attorney has been acquitted on criminal
charges covering the same facts or
has obtained a dismissal of such charges."
Wong v. State Bar (Cal. 1975), 125 Cal.Rptr.
482, 542 P.2d 642.
The attorney raised a number of other arguments, but
none significant enough to require comment here.
Determination of Punishment
Fixing the punishment of the attorney in view of the
charges against him has been a source of great difficulty in
this case. The Commission on Practice recommended disbarment.
Some members of the Court felt the record warranted following
that recommendation. Other members of the Court felt con-
sideration should be given to other factors, including
these: the strongest evidence against the attorney is the
"tainted" evidence of Dr. Hogan; other persons also involved
in disciplinary proceedings arising out of the Workers'
Compensation investigation have not been visited with disbarment;
the abortive and controversial handling of the Workers'
Compensation investigation itself; no dishonesty as between

-31-
the attorney and his clients was revealed; and no previous
record exists involving this attorney in disciplinary matters
since his admission in 1948. All members of the Court however,
accept the findings of the Commission, as we have above stated.
Having in mind all of the factors above recited, and the
record in this case, and mindful of our duty that the public
in all events must be protected, and to demonstrate to our
fellow attorneys the concern of this Court for the preservation
of the high standards of conduct in our noble profession,
it is the judgment of this Court that the attorney, Joseph
M. Goldman, shall receive a public censure in open court on a
date and at a time to be set hereafter, and that for a
period of 3 months, commencing on the date of said censure,
the said attorney shall be suspended and prohibited from
the practice of law in any form.
ADDENDUM
During the oral argument before the Court in this case,
an incident occurred that marred the otherwise orderly
proceedings.
Before the hearing, counsel for respondent contended
the oral arguments were an extension of the proceedings
before the Commission on Practice so that the right of
privacy prevails. Therefore respondent petitioned for
arguments to be heard in camera before the Court. There
being no objection from opposing counsel, this Court ordered
a private hearing. Reporters and others who had gathered in
the courtroom were so informed, and they withdrew. However,
2 reporters stationed themselves in a hallway outside the

courtroom, at an air vent that opened from the courtroom.
There one reporter attempted to tape the oral arguments
as they proceeded, and the other took notes of what he
overheard. When their presence at the air vent was revealed
to the Court, the oral arguments were interrupted and the two
reporters were escorted into the well of the Court. There
the Acting Chief Justice advised the reporters that any use
-32-
of the information gained by them through the vent was
forbidden until the decision of the Court in this case.
Later that day, a written order of the Court informed reporters
that any such forbidden use of the information would be
considered a contempt of the Court.
In first light, the attempt of the two reporters to
thwart the purpose of the Court's order seems most inap-
propriate. However, we measure their actions considering
their evident concern for the public's right to know. We
are gratified the reporters have not used the information
they overheard and have thereby avoided a confrontation with
this Court that would be distasteful and undesirable. The
occurrence however, requires the Court to state publicly
again the reasons underlying the confidentiality that sur-
rounds proceedings before the Commission on Practice.
It may be observed that perhaps more than in any other
profession, the high repute of a lawyer is his only asset.
Against the shocking revelations of lawyers' didoes in high
places in recent years, there remains the solid fact that
literally hundreds of thousand of lawyers in this country
dutifully serve their clients in the conduct of their affairs.
Still, a lawyer, otherwise reputable, might have his reputation
smeared by unfounded charges or allegations.
There is no yardstick to measure the damage through
loss of reputation done to a lawyer who is accused of unethical
practices, either falsely, intemperately or sensationally.
No retraction, withdrawal, or apology will restore his
repute when, as in most cases, the accusations are found to
be false or groundless.
Recognizing this, when the Commission on Practice was
established by this Court, we provided a means to protect
the lawyer's reputation as long as his reputation deserved
to be protected, but no longer. This case is one in point.
Here the factors that have led us to our decision today are
spread out for the press to quote and the public to know.
The judicial process of dissecting the issues of fact and
law and deciding the punishment could not have been adequately
or fairly reported by the press if the proceedings had been
open from the beginning. This fact does not spring from any
intentional fault of the press, but from limitations over
which it has no real control--limitations of space, manpower,
proportion, legal expertise, and in the end, the limited
news value of an individual lawyer's reputation, once the
case has lost its sensational aspect.
On the other hand, had respondent been cleared by the
Court of the charges against him, we would have deemed his
right of privacy and reputation more important to the conduct
of the business of the Court than publication of the fact
that charges against him were found wanting. In other
words, we hold that public confidence in the judicial system
requires privacy in such proceedings, but that publicity is
necessary when the lawyer is found guilty of serious trans-
gressions.
In those cases (they are not numerous) where private
censures of attorneys have occurred, the transgressions have
not been serious and most usually have been the result of
thoughtlessness not sufficient to warrant public condemnation.
In the manner of theologians, we require publication and
public punishment for transgressions of grave matter, suf-
ficient reflection and full consent of the will.
We trust the press and public will grant we are determined
to police effectually and resolutely the dealings of attorneys
to assure the high standards of ethics to which we have
pledged to the Bar.
The right of the press and therefore the right of the
public to know the underlying business of the Court clashes
in these instances with the right of our citizens to a fair
and effective justice system, obtained through competent
courts, aided by competent attorneys. As in all such cases
involving great public issues, a careful balancing of the
rights of all parties is necessary. We have found such a
balance in providing privilege to the internal workings of
the Commission on Practice. We are no more willing to yield
that privilege than the press is willing to yield its claim
of right to protect its sources of information. Neither
side can fault the other for that.

,/ / Justice v

We Concur:

Hon. Leonard Langen
District Court Judge,
Sitting in for Mr. Chief
Justice Frank I. Haswell

Hon.Lk. James Sorte
District Court Judge,
Sitting in for Mr. Justice
Daniel J. Shea
Mr. J u s t i c e Gene B. Daly s p e c i a l l y c o n c u r r i n g :

I f u l l y a p p r e c i a t e t h e problems a t t e n d a n t t o t h e r e s o l u -

t i o n of t h i s c a s e and must t h e r e f o r e concur i n t h e r e s u l t b u t

n o t i n a l l t h a t h a s been s a i d .

I have v e r y s t r o n g f e e l i n g s c o n c e r n i n g t h e i n f o r m a t i o n

g i v e n t o t h i s C o u r t a b o u t t h e c o n d u c t of o n e Lawrence T a y l o r ,

s p e c i a l a s s i s t a n t p r o s e c u t o r h i r e d from C a l i f o r n i a and

a c t i v e d u r i n g t h e t i m e t h e grand j u r y a l l u d e d t o i n t h i s

opinion w a s i n session. H i s method o f o b t a i n i n g t h e t e s t i -

mony of D r . Hogan, i n t h e f i r s t i n s t a n c e , i s n o t h i n g s h o r t

of r e p r e h e n s i b l e and s h o u l d n o t be condoned by t h e S t a t e of

Montana. T a y l o r d e m o n s t r a t e d h i s t o t a l l a c k of e t h i c s a t a
t e l e v i s e d news c o n f e r e n c e w i t h t h e t h e n a t t o r n e y g e n e r a l on

F r i d a y , J u n e 11, 1976, w i t h h i s now infamous s t a t e m e n t , "an

i n c e s t u o u s r e l a t i o n s h i p between some judges and some l a w -

yers, etc." Then, h e f l e d t h e S t a t e of Montana. This
e n t i r e m e s s i s s o t a i n t e d it i s d i f f i c u l t t o imagine t h a t

any of i t s f r u i t be u s e d , of a11 p l a c e s , i n a forum which i s

c h a r g e d w i t h t h e d e t e r m i n a t i o n o f a man's e t h i c a l q u a l i t y .

I c a n f i n d no b e t t e r words t h a n t h o s e used by M r .

J u s t i c e Holmes and M r . J u s t i c e B r a n d e i s i n Olmstead v .

U n i t e d S t a t e s ( 1 9 2 7 ) , 277 U.S. 438, 48 S.Ct. 564, 72 L.ed.

944, a s t h e y spoke of t h e a c c e p t a n c e of t a i n t e d e v i d e n c e by

t h e courts, i.e., the "silver p l a t t e r doctrine":

". . . But t h e r e i s a n o t h e r c o n s i d e r a t i o n - -
t h e imperative of j u d i c i a l i n t e g r i t y . I t was
of t h i s t h a t M r . J u s t i c e Holmes and M r . J u s t i c e
B r a n d e i s s o e l o q u e n t l y spoke i n Olmstead v .
U n i t e d S t a t e s , 277 U.S. 438, a t 469, 471, more
t h a n 30 y e a r s ago. ' F o r t h o s e who a g r e e w i t h
m e , ' s a i d M r . J u s t i c e Holmes, 'no d i s t i n c t i o n
c a n b e t a k e n between t h e Government as p r o s e -
c u t o r and t h e Government a s j u d g e . ' 277 U.S.
a t 470. (Dissenting opinion.) ' I n a govern-
ment of l a w s , ' s a i d M r . J u s t i c e B r a n d e i s ,
' e x i s t e n c e of t h e government w i l l b e i m p e r i l l e d
if i t f a i l s t o o b s e r v e t h e l a w s c r u p u l o u s l y .
Our Government i s t h e p o t e n t , t h e o m n i p r e s e n t
teacher. F o r good o r f o r ill, it t e a c h e s t h e
whole p e o p l e by i t s example. C r i m e i s c o n t a -
gious. I f t h e Government becomes a l a w b r e a k e r ,
it b r e e d s c o n t e m p t f o r law; it i n v i t e s e v e r y
man t o become a l a w u n t o h i m s e l f ; i t i n v i t e s
a n a r c h y . To d e c l a r e t h a t i n t h e a d m i n i s t r a t i o n
o f t h e c r i m i n a l l a w t h e end j u s t i f i e s t h e means
- - t o d e c l a r e t h a t t h e Government may commit
crimes i n o r d e r t o s e c u r e t h e c o n v i c t i o n o f a
p r i v a t e criminal--would b r i n g t e r r i b l e r e t r i b u -
tion. Against t h a t pernicious d o c t r i n e t h i s
Court should r e s o l u t e l y set i t s f a c e . ' 277
U. S . , a t 485. (Dissenting opinion. ) " Elkins
v . U n i t e d S t a t e s ( 1 9 6 0 ) , 364 U.S. 206, 222-23,
80 S . C t . 1437, 1 4 4 7 , 4 L Ed 2d 1 6 6 9 , 1680-81.
Mr. Justice John C. Harrison dissenting:
While I recognize the difficulty of the task before
this Court and while I fully acknowledge the integrity of my
brothers in meeting the challenge here presented, I respect-
fully dissent.
"There is no profession, in which moral
character is so soon fixed, as in that of
the law; there is none in which it is sub-
jected to severer scrutiny by the public.
It is well, that it is so. The things we
hold dearest on earth,--our fortunes, repu-
tations, domestic peace, the future of those
dearest to us, nay, our liberty and life
itself, we confide to the integrity of our
legal counsellors and advocates. Their
character must be not only without a stain,
---
but without suspicion. " (Emphasis gdded .)
G. Sharswood, Essays - Professional Ethics (1854), reprinted
on
in Selected Readings - - Legal Profession, assembled by a
on the
committee of the Association of American Law Schools (1962).
Disciplinary proceedings inevitably bring to mind the
oft-quoted words of Justice Cardozo:
". . . Many forms of conduct permissible in
a workaday world for those acting at arm's
length, are forbidden to those bound by fidu-
ciary ties. A trustee is held to something
stricter than the morals of the market place.
Not honesty alone, but the punctilio of an
honor the most sensitive, is then the stan-
dard of behavior. As to this there has de-
veloped a tradition that is unbending and
inveterate. Uncompromising rigidity has
been the attitude of courts of equity when
petitioned to undermine the rule of undivided
loyalty by the 'disintegrating erosion' of
particular exceptions. [Citation omitted. 1
Only thus has the level of conduct for fidu-
ciaries been kept at a level higher than that
trodden by the crowd. It will not consciously
be lowered by any judgment of this court."
Meinhard v. Salmon (1928), 249 N.Y. 458, 164
N.E. 545, 546.
AS has been noted often enough, this language is cited
when the boom is lowered on the offending fiduciary--and let
us not forget that, by definition, an attorney is a fidu-
ciary--but is conspicuously absent when the offense is
deemed absent, too. Nonetheless, this is the standard which
shines as our polestar and guides us through the moral
morasses, which disciplinary proceedings inevitably become.
The majority opinion recites and adopts the factual
findings of the Commission on Practice. I have no quarrel
with the adoption of the findings, and the majority opinion
is well done in this respect. But after wholeheartedly
concurring in the findings, the majority then discards the
recommendation of disbarment made by that same Commission.
With this rejection of the recommendation of disbarment I take
exception.
It has been recognized that there is a great reluctance
on the part of courts to impose discipline.
"This ...
is understandable. It is in these
proceedings that the human side of the judge
appears most strikingly. Judges are lawyers.
Many of them have recently been practicing at
the bar. They know something of the tempta-
tions from which they have been removed by
elevation to the bench. They have maintained
friendships, social and sometimes political,
with many practicing lawyers. It is a pain-
ful task to sit in judgment upon the conduct
on one's friends. Theirs is the final word.
The grievance committee proposes, but the
court must dispose. Its duty is, therefore,
the most unpleasant to perform.
"Moreover, there seems to persist a strange
confusion as to the nature of disciplinary
proceedings. Over and over the courts have
stated that the end and purpose of such pro-
ceedings, particularly where disbarment is
under consideration, is not punishment of
the offender, but protection of the public.
Yet somehow the idea of punishment creeps in."
McCracken, The ~aintenanceof Professional
Standards: D u t y a n d o n - - Courts,
of the
29 S.Cal.L.Rev. 65, 73 (1955).
This Court has repeatedly confirmed the principle that
discipline of a wayward attorney is for the protection of
the public. In In re Peters (1925), 73 Mont. 284, 288, 235
P. 772, 774, for example, we stated:
 "The p u r p o s e s o f removal of a n a t t o r n e y are
t o p u r g e t h e p r o f e s s i o n of t h o s e who lower i t s
h i g h s t a n d a r d s and b r i n g an h o n o r a b l e c a l l i n g
i n t o d i s r e p u t e and contempt, and t o p r o t e c t
t h e p u b l i c a t l a r g e , and t h e c o u r t s , from t h e
a c t s of t h e u n s c r u p u l o u s .
- A s was s a i d i n Re
T h r e s h e r , 33 Mont. 4 4 1 , 1 1 4 Am. S t . Rep. 834,
8 Ann. Cas. 845, 84 Pac. 876: 'This proceeding
i s i n no s e n s e a c r i m i n a l p r o s e c u t i o n , n o r i s
it i n a i d of a criminal i n v e s t i g a t i o n . Its
p u r p o s e i s t o a s c e r t a i n whether t h e accused i s
worthy of c o n f i d e n c e and p o s s e s s e d of t h a t good
moral c h a r a c t e r which i s a c o n d i t i o n p r e c e d e n t
t o t h e p r i v i l e g e o f p r a c t i c i n g law and o f con-
t i n u i n g t h e p r a c t i c e t h e r e o f . * * * '"The end
t o be a t t a i n e d i s n o t punishment, b u t p r o t e c -
tion. " ' "

R e p e a t e d l y i t h a s been s a i d t h a t , by a d m i t t i n g an

a t t o r n e y t o p r a c t i c e , a c o u r t e n d o r s e s him t o t h e p u b l i c a s

worthy of t h e i r c o n f i d e n c e i n p r o f e s s i o n a l matters, and i f

he becomes unworthy, i t i s t h e d u t y of t h e c o u r t t o withdraw

t h e endorsement. W have committed o u r s e l v e s t o t h i s :
e

" ' [ T l h e r e i s no d u t y imposed upon a c o u r t more i m p o r t a n t

t h a n t h a t of p r e s e r v i n g t o t h e b e s t of i t s power and a b i l i t y

t h e p r o f e s s i o n a l i n t e g r i t y and p u r i t y of i t s b a r . ' " (Empha-

s i s added.) I n r e Young ( 1 9 2 6 ) , 77 Mont. 332, 347, 250 P.

957, 962. There, t o o , w e s a i d :

" ' T h e p o s i t i o n o f a n a t t o r n e y and c o u n s e l o r a t
law i s t h a t o f a n o f f i c e r o f t h e c o u r t . His
r e l a t i o n t o t h e c o u r t , t h e b a r , and t h e p u b l i c
i s one of t r u s t and c o n f i d e n c e . To h i s i n t e -
g r i t y and a b i l i t y a r e n o t i n f r e q u e n t l y i n t r u s t e d
t h e l i v e s , t h e l i b e r t y , and p r o p e r t y of t h e c i t i -
zen. Years of t i m e , a r d u o u s l a b o r , and c o n s t a n t
a p p l i c a t i o n a r e r e q u i r e d t o e l e v a t e him t o t h a t
p r o f e s s i o n a l s t a n d i n g which e n a b l e s him t o d i s -
charge with f i d e l i t y t h e responsible d u t i e s in-
trusted t o h i s care. I f d i s h o n e s t p r a c t i c e s and
u n p r o f e s s i o n a l c o n d u c t have c a u s e d him t o f o r g e t
h i s o b l i g a t i o n s , and l e a d him t o a v i o l a t i o n of
t h e s a c r e d t r u s t , h i s name s h o u l d b e s t r i c k e n
from t h e r o l l , and h e s h o u l d b e removed from a
p l a c e i n t h e r a n k s o f t h e p r o f e s s i o n which he i s
found unworthy t o f i l l . ' ( I n r e C a t r o n , 8 N.M.
253, 43 Pac. 7 2 4 . ) " 77 Mont. a t 347-48, 250 P .
a t 962.

With r e g a r d t o d i s b a r m e n t , i n t e n d e d t o p r o t e c t t h e p u b l i c ,

McCracken o f f e r s t h e s e noteworthy o b s e r v a t i o n s :
 "Herein lies the essential foundation upon which
rests the entire structure of the bar. In no
other field, save perhaps that of the clergy,
does a man bear so powerful an endorsement when
he enters into the practice of his vocation.
The court, undoubtedly the most respected offi-
cial body in American life, has carefully ex-
amined into this man's character and is prepared
to advise the public that he is worthy of con-
fidence. His clients rely upon that endorse-
ment, consciously or unconsciously. So does the
bar; so do the courts themselves. If he proves
himself unworthy of this confidence, there is
only one thing to do--that is revoke his license.
The practice of the law is a privilege, and while
it has been said that privilege may ripen into
a property right, it is nevertheless a right
which is held in sufferance. It may be lost by
misuse." 2 9 S.Cal.L.Rev. at 75.
Although " [p]rotection the public, and nothing else,
lies at the basis of [disbarment]" and although "this doc-
trine is the sole justification for discipline of a lawyer
for actions other than contempt of court,"
"[tlhis philosphy has not always been followed.
Indeed, the leniency of courts, even in the
face of well-supported recommendations by the
examining committee or board, has become almost
proverbial." 2 9 S.Cal.L.Rev. at 75.
This Court should not aid in the making of such a proverb,
especially in the face of a well supported recommendation
such as that made by the Commission in this matter.
McCracken quotes this penetrating observation:
"'The recommendations of the Board of Governors
[a body similar to Montana's Commission on Prac-
tice] represent the judgment of an experienced
body of representative lawyers, familiar from
daily contact with the conditions of practice
and the standards of conduct currently prevailing
at the bar. Judges of the Supreme Court, sepa-
rated from practice by long terms not only in
their own court but often in courts below, cannot
possibly have the same intuitive judgment as to
degrees of misconduct, or know so well the criti-
cal reaction of the bar, or of public opinion.
Such judges are not likely to be able so well to
discern in the particular dereliction a reflec-
tion of some general evil; nor are they so com-
petent to estimate the effect of a particular
penalty either on the individual attorney ac-
cused or as a check upon the more general evil,
when such evil exists.'" 2 9 S.Cal.L.Rev. at 76.
 The reasons advanced above are sufficient to commend
this Court to follow the recommendations made by the Commis-
sion in the matter before us.

I believe that the majority opinion fails to give
credit where credit is due. The Commission attorneys who
investigated this matter spent many trying hours in pursuit
of the truth of the allegations and charges, and doubtless
spent much time fashioning a recommendation which would
fairly comport with the findings. I would defer to the
recommendations of the Commission, in the absence of egre-
gious error unsupported by the record, much as Court defers
to the district courts in the absence of manifest error. The
majority acknowledges that as well, for it proclaims reluc-
tance 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 charac-
ter of their testimony." It is precisely because that -
is
the best possible reason for relying on the Commission's
recommendation that I would adopt it and disbar appellant
Goldman.
The following observation is meet:
"Every representative of a grievance committee
or examining board who has appeared more than
once before a court with a recommendation for
disbarment has had the experience of finding
the court in a hostile frame of mind and in-
clined to impose upon him the burden of per-
suading it. Of course, that should not be
the case. When a group of members of the bar
has performed the painful duty, often at great
sacrifice to themselves, it would seem that
the court would be in frame of mind to accept
their recommendations unless persuaded other-
wise by the offending lawyer. Curiously
enough, more frequently than not, this is not
the attitude of the court. Rather, it appears
to assume the attitude that a man is being
persecuted by his fellow lawyers and that he
needs the court's assistance and protection."
29 S.Cal.L.Rev. at 77.
 Again, it is the public which is in need of protection,
and it is the court which ultimately provides the protection
in policing those who are its officers. Yes, it would seem
that a court would be in a frame of mind to accept the
recommendations made by the members of the Commission,
members of the bar who have performed a painful duty. This
Court should accept the recommendation of disbarment, for
appellant Goldman has not persuaded it to do otherwise.
As a prelude to the Canons of Professional Ethics,
which govern the conduct of all attorneys admitted to prac-
tice in this state, we have said:
"The Supreme Court of Montana recognizes that
the stability of courts and of all departments
of government rests upon the approval of the
people. The future of those engaged in the
practice of law depends upon the maintenance
of absolute confidence in the integrity of the
Bar and the efficient and impartial administra-
tion of justice. This cannot be accomplished
unless the conduct and motives of lawyers are
such as to merit the approval of all just men."
These remarks mesh with the policy that disbarment of
an errant attorney is for the protection of the public.
Unless we keep clean our own house--and "[ilf the house is
to be cleaned, it is for those who occupy and govern it,
rather than for strangers, to do the noisome work," People
ex rel. Karlin v. Culkin (1928), 248 N.Y. 465, 162 N.E. 487,
493 (Cardozo, C.J.)--we cannot expect the public to have
confidence in the integrity of the bar and in our system
of justice.
"The attitude of the public toward the [legal] profession is
not friendly[.]" L.R. Patterson and E.E. Cheatham, -
The
Profession - - 50 (1971).
of Law That understatement is under-
scored by D. Melinkoff in - Conscience - -a Lawyer 15
The of
(1973): "[Tlhe mystery is not that people hate lawyers, but
that there are any left to hate."
 All attorneys are bound by Canon 9 of the Code of
Professional Responsibility, which mandates that "a lawyer
should avoid even the appearance of impropriety." The first
ethical consideration articulated by the American Bar Asso-
ciation in conjunction with this canon urges lawyers to
promote confidence in our legal system and in the profession
so the public may have faith that justice can be obtained
within our government of laws. Again, we hear the theme of
the public good, of protecting the public and the system
which all lawyers have sworn to serve as persons of inte-
grity and good moral character. It has been said time and
time again; one court has phrased it thus:
"No matter how learned in the law a man may be,
nor how skillful he might be in the conduct of
suits at law, or equity, he can never be ad-
mitted to the bar until he can satisfy the
court that he possesses that first requisite
to admission to the bar, - -
a good moral character.
Such character he must have when he knocks at
the door of the profession for admission, and
such character he must have while enjoying the
privilege and right to remain within the fold.
When he ceases to be a man of good repute, he
forfeits his right to continue as a member of
the bar." (Emphasis in original.) Ex parte
Thompson (1933), 228 Ala. 113, 124, 152 So.
229, 238, 107 A.L.R. 671, 684.
The majority opinion recites that the members of the
Commission, having observed the witnesses on the stand,

--
reached conclusions which are not erroneous, much less
clearly erroneous. It is acknowledged and affirmed by the
majority that the Commission found against appellant Gold-
man, that the Commission, in judging the credibility of
Goldman, found against him. As the majority itself states,
simply because Goldman denied the charges made against him
is no basis on which to set aside the findings of the Com-
mission. Our judgment, says the Court, is that the Com-
mission is supported by all the facts and circumstances in
this case. With this, I thoroughly agree.
 The majority firmly opines that the members of the
Commission decided the matter "fairly and impartially, based
upon the evidence they received." I join in that assessment.
It is clear that the members performed a difficult task with
the utmost integrity, with fairness of mind and with decency
and sensitivity. Their findings have been accepted by this
Court; logic dictates that their recommendation cannot
thereafter be disregarded.
The Court expresses concern for the "tainted" evidence
in toto the findings of
of Dr. Hogan; yet the Court accepts:. - -
the Commission, whose members observed the demeanor of both
Hogan and Goldman and chose to find against Goldman. The
majority expresses concern that other persons involved in
disciplinary proceedings arising out of the Workers' Compen-
sation investigation have not been visited with disbarment;
but it must be remembered that each case is decided indi-
vidually, and properly so. Surely it is illogical and
unjust and contrary to our principles of fair play to pro-
claim that because others have been disbarred, the one more
lately before the court, deserving or not, should be dis-
barred because the others were; it is quite as illogical and
unjust and contrary to our principles of fair play to say
that because no one else has been disbarred, a person who
merits disbarment should not be disbarred. Each case is
different; each must be decided on its own unique facts.
The facts of this case dictate that the Commission's recom-
mendation be adopted and enforced by this Court. As in
State ex rel. Hartman v. Cadwell (1895), 16 Mont. 119, 133,

"[tlhe question presented by this proceeding is
not whether the respondent is guilty of a crime
of which he has been or ought to be convicted,
 but whether, under all the facts of the case,
he is a fit person to be permitted to practice
as an attorney and counselor at law in this
state."

The majority opinionexpressesconcern about "the abor-
tive and controversial handling of the Workers' Compensation
investigation itself". Intending no disresf?~3ct,I
submit
that the handling of that investigation has - relevance to
no
this, a disciplinary proceeding of a member of the state
bar.
Again, with no disrepect, I take exception to the
concern for the lack of revelation of dishonesty between the
attorney and his clients. There is ample evidence of dis-
honesty elsewhere in Goldman's dealings in his capacity as
an attorney. I repeat, with due credit to Mr. Chief Justice
Sands, if a lawyer is not an honest man, he will not be an
honest attorney, and honesty is an essential qualification
for admission to and remaining in the bar. The bar, indeed
the system of justice, cannot afford to have dishonest men
practice under its banner, and the public is entitled to
insurance that dishonest men are not knowingly, under sanc-
tion of the bar and with the apparent blessing of this
Court, permitted to prey upon it. In Re Hansen (1936), 101
Mont. 490, 503, 54 P.2d 882, 888 (Sands, C.J., dissenting).
Finally, the majority opinion notes that the attorney
has no previous record of disciplinary action taken against
him. We have heard such arguments before and have dismissed

them. "[A] spotless reputation is no defense for [an of-
fense], where the proof establishes it as a fact." In re
Wellcome (1899), 23 Mont. 450, 471, 59 P. 445, 453. ~otwith-
standing a clean record, if the evidence points to profes-
sional violations, as it does in this case, then the findings
must comport with the evidence. As a defense, a lack of a
prior record here cannot withstand the overwhelming evidence
of professional impropriety on the part of Joseph Goldman.
This Court has always adhered to the dictum that a condition
precedent to the privilege of practicing law - - -
and of con-
tinuing - - practice is possession of good moral charac-
in the
ter such that the practitioner is worthy of confidence
placed in him by the public and by the courts and their
officers.
"A character for honesty and integrity is as
necessary, to justify his retention of the
privilege after he has acquired it, as it was
to acquire it in the first place; and when his
conduct is such that he has forfeited his right
to the confidence of the public, he has for-
feited his right to the privilege also." In
re O'Keefe (1918), 55 Mont. 200, 204, 175 P.
593, 594.
When it becomes evident that one enjoying the privilege
of practicing law is unworthy of that confidence and no
longer possesses that good moral character, it is the duty
of this Court to remove that individual.
"[Ilt has been well settled, by the rules and
practice of common-law courts, that it rests
exclusively with the court to determine who is
qualified to become one of its officers, as an
attorney and counsellor, and for what cause he
ought to be removed. The power, however, is
not an arbitrary and despotic one, to be exer-
cised at the pleasure of the court, or from
passion, prejudice, or personal hostility; but
it is the duty of the court to exercise and
regulate it by a sound and just judicial dis-
cretion, whereby the rights and independence
of the bar may be as scrupulously guarded and
maintained by the court, as the rights and
dignity of the court itself." Ex parte Secombe
(1856), 60 U.S. (19 How.) 9, 13, Chief Justice
Taney delivering the opinion of the Court.
Almost a century ago, the Pennsylvania Supreme Court
explained: .

"An attorney-at-law sustains an important rela-
tion in the administration of justice. He
possesses certain powers and privileges from
which others are excluded, and assumes impor-
 tant duties and obligations towards both court
and client. He is an officer of the former,
and a representative of the latter. His posi-
tion is so responsible, his opportunites for
good and for evil are so many that both statute
and common law have united in throwing all
reasonable safeguards around his conduct. Be-
fore he can be admitted to the bar, the [Court]
requires him to take an oath or affirmation,
inter alia, that he will behave himself in the
office of attorney within the court, according
to the best of his learning and ability, . ..
The court also requires satisfactory evidence
or proper knowledge of the law, and of the good
moral character of the applicant.
"The power of a court to admit as an attorney
to its bar, a person possessing the requisite
qualifications, and to remove him therefrom
when found unworthy, has been recognised for
ages and cannot now be questioned. In fact
the power of removal for just cause is as neces-
sary as that of admission for a due administra-
tion of law. By admitting him the court pre-
sents him to the public as worthy of its confi-
dence in all his professional duties and rela-
tions. If afterwards it comes to the knowledge
of the court that he has become unworthy it is
its duty to withdraw that endorsement, and
thereby cease to hold him out to the public
as worthy of professional employment." In re
Samuel Davies (1880), 93 Pa. 116, 120-21.
This Court has said likewise, quoting Lord Chief Justice
Cockburn, In r.e Hill, L.R. 3 Q.B. 543:
"'When an attorney does that which involves
dishonesty, it is for the interest of the
suitors that the court should interpose and
prevent a man guilty of such misconduct from
acting as attorney of the court. * * * I
should add, there is one consideration I omit-
ted, and which I think is entitled to great
weight. It is that put to us in the course of
the discussion, namely, that if these facts
had been brought to our knowledge upon the ap-
plication for this gentleman's admission, we
might have refused to admit him; and I think
the fact of his having been admitted does not
alter his position. Having been admitted, we
must deal with him as if he were now applying
for admission; and as, in the case of a person
applying for admission as an attorney, we should
have considered all the circumstances, and either
have refused to admit or have suspended the ad-
mission for a certain time, so, where a person
has once been admitted, we are bound, although
he was not acting in the precise character of
an attorney, to take notice of his misconduct.'"
In re Wellcome (1899), 23 Mont. 213, 225, 58
P. 47, 51-52.
 Justice Cardozo phrased the concept thus:

"Membership in the bar is a privilege burdened
with conditions. A fair private and profes-
sional character is one of them. Compliance
with that condition is essential at the moment
of admission; but it is equally essential after-
wards. [Citations omitted.] Whenever the con-
dition is broken the privilege is lost. To
refuse admission to an unworthy applicant is
not to punish him for past offenses. The ex-
amination into character, like the examination
into learning, is merely a test of fitness. To
strike the unworthy lawyer from the roll is not
to add to the pains and penalties of crime. The
examination into character is renewed; and the
test of fitness is no longer satisfied. For
these reasons courts have repeatedly said that
disbarment is not punishment. [Citations omit-
ted.]" In re Rouss (1917), 221 N.Y. 81, 116
N.E. 782, 783.
See also Application of President of Montana Bar Ass'n
(1974), 163 Mont. 523, 525, 518 P.2d 32, 33.
I quote these legal authorities at great length to
emphasize what may be summarized thus:
"Consider for a moment the duties of a lawyer.
He is sought as counselor, and his advice comes
home, in its ultimate effect, to every man's
fireside. Vast interests are committed to his
care; he is the recipient of unbounded trust
and confidence; he deals with his client's
property, his reputation, his life, his all.
An attorney at law is a sworn officer of the
court, whose chief concern, as such, is to aid
in the administration of justice. In addition,
he has an unparalleled opportunity to fix the
code of ethics and to determine the moral tone
of the business life of his community. Other
agencies, of course, contribute their part,
but in its final analysis, trade is conducted
on sound legal advice. Take, for example, a
commercial center of high ideals, another of
low standards, and there will invariably be
found a difference between the bars of the two
localities. The legal profession has never
failed to make its impress upon the life of the
community. It is of supreme importance, there-
fore, that one who aspires to this high posi-
tion should be of upright character, and should
hold, and deserve to hold, the respect and con-
fidence of the community in which he lives and
works. [Citations omitted.]
"'No profession,' says Mr. Robbins in his Ameri-
can Advocacy, 251, 'not even that of the doctor
or preacher, is as intimate in its relationship
 with people as that of the lawyer. [T]o his
lawyer he unburdens his whole life, his busi-
ness secrets and difficulties, his family rela-
tionships and quarrels and the skeletons in
his closet. To him he often commits the duty
of saving his life, of protecting his good name,
of safeguarding his property, or regaining for
him his liberty. Under such solemn and sacred
responsibilities, the profession feels that it
owes to the people who thus extend to its mem-
bers such unparalleled confidence the duty of
maintaining the honor and integrity of that pro-
fession on a moral plane higher than that of
the merchant, trader or mechanic.'" In re
Farmer (1926), 191 N.C. 235, 131 S.E. 661, 663.
My position here and that of Mr. Chief Justice Sands in
In re Hansen, 101 Mont. at 503-04, 54 P.2d at 888, bear some
comparison. He offered this explanation for his dissent:
the findings of the majority were such that, if correct,
showed the lawyer to be unfit for the duties of an attorney.
Yet, even with such findings the Court recommended a "penalty
. . . wholly inadequate". 101 Mont. at 504, 54 P.2d at 888.
The penalty recommended by this Court, too, is inadequate
given the findings of fact which have been made. I would
act on the Commission's recommendation and disbar Joseph
Goldman.