How later courts described this case
- “Rule 65(a) does not require service of process, but rather requires notice to the 12 adverse party.” (citation modified)
- “A trial court can only consider admissible evidence in ruling on a motion for 12 summary judgment.”
Written by the judges who cited it.
The opinion
Myrick, J., dissenting.
Mr. Cowdery, after the expiration of his term of office, owed duties to the city and county as follows: to impart to his successor,on request, whatever information he possessed in regard to the cases; and not to impart to opposing counsel information detrimental to the interests of the city. He did not violate his duty in either of these respects. There is no evidence that he declined to give to his successor in office any information, or that the city and county desired his services. He accepted a retainer not to appear in the cases as attorney for the city and county. He was not in duty bound to accept a retainer from the city and county. However, it was unwise for him to accept the retainer from the opposing counsel, for two reasons: 1. By so doing, he subjected himself to a kind of criticism which no attorney should willingly subject himself to; 2. He received a fee with the understanding that he was to render no services therefor. If immediately upon his attention being called to the doubtful propriety of his acceptance of the money he had at once returned it, he would have saved himself and the Bar Association much unpleasant feeling. In regard to criminal prosecutions, the legislature has by law forbidden an attorney who has prosecuted an action from taking any part in the defense, and has declared that by such act he should forfeit his license to practice law. The wisdom of applying the same rule to civil cases may be for the consideration of the legislature; as may also be the question whether attorneys should accept retainers without expectation of being actively employed.
In view of the whole case, as no harm occurred to the city and county, and none was attempted, I think suspension or revocation of the license a severity not called for.
Mr. Whittem ore’s position is in substance as follows: After the expiration of Mr. Cowdery’s term of office, he asked the latter if he was free to accept a retainer not to appear in the cases against him (Whittemore), and was *67 informed that he was; and thereupon the fee was paid. I think whatever responsibility there was in the transaction, and the decision as to its propriety, was with Mr. Cowdery. Mr. Whittemore did not ask Mr. Cowdery to violate any duty he owed to the city and county, nor to give any information detrimental to its side of the cases. Rehearing denied.