The opinion
ROSSMAN, J.
(dissenting). I have read the record carefully and am convinced that we ought to go no further than to embrace the recommendations made by the trial committee and the board of governors; that is, suspend the accused for two years from the practice of law.
In resorting to complete disbarment, the majority indicate that they would have imposed a smaller penalty had the accused not given the explanation of his conduct which he made from the witness stand. Although I
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do not believe his explanation, I do not think that all of it is false. Augmenting the penalty on account of the explanation, I believe, is unwarranted. It is worthy of note that the answer filed by the defendant confessed virtually all of the facts upon which the charges against him are grounded; that is, he admitted that Hudson employed him to collect the note; that at the time of the employment $20 was advanced to defray expenses; that later an action was instituted upon the note; that still later a judgment was recovered; that August 27,1987, the accused signed and filed a satisfaction; that, concurrently with the filing of the satisfaction, the accused received from Donald A. Young $325 in full satisfaction of the judgment; and that still later, extending over a period of two and one-half years, he paid Hudson the small sums that are enumerated in the complaint. They total $115 and are mentioned in the majority opinion. By necessary implication, the defendant admitted that he kept all of the $325 which he received from Young except the $115 which he had remitted to his client. Thus, he virtually confessed that he converted Hudson’s money to his (the accused’s) own use.
As a witness, the accused freely conceded that he wrote the letters to Hudson which the majority describe. Possibly it is worthy of mention that he exculpated everyone else from responsibility for his wrong. He assumed full blame himself. His stenographer is the one that cashed Mr. Young’s check and hers is the last endorsement upon it. She was in South America at the time of the trial, and, had he cared to shift blame upon someone else, she seemingly would have been a ready victim. But the accused took pains to make it clear that she was a woman of excellent character and that he did not want anyone to believe
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that she had done any wrong with the cheek or its proceeds. He likewise stated repeatedly that, contrary to his general practice, the $325 check and its proceeds never reached his wife’s hands. In view of these circumstances, and the fact that I cannot say that his explanation (that he had confused this transaction with a debt owing him by Ealph Schwartz and the latter’s sister, Mrs. Esther Paine) is wholly untrue, I cannot concur in imposing an increased penalty on account of the explanation.
“It is easier to discover a deficiency in individuals, in states, and in Providence, than to see their real import and value.” So said a sage years ago. Let us endeavor to discover the real import of the deficiency in the defendant’s character upon which the majority depend for complete disbarment.
Mr. Smith is sixty-one years of age. Since 1910 he has practiced law continuously in the city of Salem. His practice has been fairly large and, according to the record, he handled large sums of money belonging to clients. In the period of nine years, for which figures were supplied, the sums ran into hundreds of thousands of dollars. Some of this money was left with him for investment and other sums came to him as the result of the collection of claims, judgments and other items. In this period of more than thirty years the local grievance committee twice received complaints against Smith. Upon investigation each charge was found to be without support and each was dismissed. A matter of no slight importance is the fact that the accused’s professional associations have been good. Twice he has had a partner each of whom was a lawyer who would be a credit to any firm. The one partnership was dissolved when the other member to it received a high judicial
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position, and the second was dissolved when the other partner became general counsel for a large corporation in Portland. ■
Pour members of the bar of very high standing testified that the defendant’s reputation as a practicing attorney was good. Each had known Smith for more than a score of years, and more than one of them swore that his reputation for integrity was likewise good. This testimony was neither questioned nor controverted. There is nothing about the accused that suggests that he is grasping, vicious or deficient in general standards. He is the father of three boys who would be a credit to any man. Their mother died when the eldest was scarcely more than a boy. The wife mentioned by the majority was married to the accused some time later.
As I have said,'Mr. Smith has practiced his profession in the city of Salem for close to a third of a century of time. Had he done any wrong warranting discipline, his guilt would surely have been discovered. The fact that this is the first instance in which a finding of guilt is warranted is an indication that there is nothing seriously wrong with the accused’s character.
I agree with the majority that in imposing a penalty we ought to handle this case in such a way that public confidence in the bar will be warranted. That is what this court seeks to do in every disbarment proceeding. Nevertheless, as our reports show, complete disbarment is rarely imposed. In all instances this court has been guided by the principle that in the imposition of a penalty, as in the discharge of all judicial functions, our primary duty is to be just.
The question, therefore, is: What does justice to the public, as well as to the defendant, demand should
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be done in this case ? How grave is the deficiency in the defendant’s character that the above-reviewed circumstances reveal? How it happened that the accused, on August 27, 1937, departed from the fairly high standards to which he had been faithful for more than a quarter of a century, I do not know. On that day he converted to his own use $325, less such part of it as he was entitled to keep as his fee. Previously he had faithfully handled hundreds of thousands of dollars. It has been said: ‘ ‘ The greatest flaw in life is that it is always imperfect. ’ ’ Possibly that is the explanation for Smith’s breach of Ms duty as a lawyer.
Undoubtedly, the pendency of this proceeding, which was begun three years ago, has already cost the accused many clients. In fact, the record indicates that a contract which he possessed with the Coast Indian tribes to represent them in an important claim against the United States government was canceled when this proceeding was instituted. A government agent assumed the initiative in the cancelation of the contract. Smith had already performed much work under that contract, which was contingent in nature, and it may be that that contract held out the greatest hopes for a large fee that Smith was ever warranted in indulging. The loss of that contract is, in itself, a penalty of major size.
Pull reparation has been made, and Hudson, the victim of the wrong, asks for no penalty upon Smith.
In the imposition of a penalty, as in appraising the value of a life, we ought to take into consideration, not a single act which is under criticism, but the life as a whole that was led by the person under scrutiny. When we balance the misdeed under investigation against the many years of reputable conduct which Smith led, I do
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not believe that complete disbarment is warranted. He is now sixty-one years of age. At the end of two years he will be approaching sixty-fonr. The chances of a sixty-fonr-year-old man accnmnlating a practice at the end of two years of suspension are meager. In all likelihood, as he looks back upon this incident and recalls the professional career which he had visioned for himself on the day he was admitted to the bar, he must be visited by a sense of humility and frustration.
It appears to me that we ought to follow the recommendations of the trial committee and of the Board of Governors. Our statutes expressly contemplate that those two bodies shall make recommendations. See §§ 47-213 and 47-216, O. C. L. A. I, therefore, dissent from the disposition which the majority propose to make of this case.