Opinion

State Ex Rel. Nebraska State Bar Ass'n v. Butterfield

  • 172 Neb. 645
  • 111 N.W.2d 543
  • 1961 Neb. LEXIS 122
Court
Nebraska Supreme Court
Filed
Nov 10, 1961
Status
Published
Author
Simmons
On the bench
Simmons, Carter, Messmore, Yeager, Spencer, Boslaugh, Brower
Cited by
33 cases
Authority
More cited than 4.9%

The respondent admits that he prepared deeds, mortgages, releases, and income tax returns during the period of his suspension [from the practice of law]. Admittedly respondent performed such work prior to his suspension. Some were performed in relation to real estate transactions in which he was the real estate broker, but in others he was not. It seems clear to us that the doing of such work is within the province of a lawyer to do. It is properly identified as the practice of law, whether or not it might under some circumstances be properly performed by others not admitted to the bar.

How later courts described this case

  • The respondent admits that he prepared deeds, mortgages, releases, and income tax returns during the period of his suspension [from the practice of law]. Admittedly respondent performed such work prior to his suspension. Some were performed in relation to real estate transactions in which he was the real estate broker, but in others he was not. It seems clear to us that the doing of such work is within the province of a lawyer to do. It is properly identified as the practice of law, whether or not it might under some circumstances be properly performed by others not admitted to the bar.
  • “A suspended lawyer is required to affirmatively show ... that he will not in the future engage in any practices offensive to the practice of law.”
  • drafting of will, power of attorney, deeds, mortgages, etc., involve the exercise of legal skill and training and constitute practicing law
  • drafting of will, power of attorney, deeds, mortgages, ete., involve the exercise of legal skill and training and constitute practicing law

Written by the judges who cited it.

The opinion

Simmons, C. J.,

concurring in dissent.

I concur in Judge Yeager’s dissent. I desire to add a bit thereto.

In connection with Judge Yeager’s discussion of the evidence, I desire to direct attention to the standard of quality of evidence which we have stated is applicable in this type of case. It is: “The findings to sustain disbarment must be sustained by a higher degree of proof than that required in civil actions, yet falling short of the proof required to sustain a conviction in a criminal action.” State ex rel. Nebraska State Bar Assn. v. Richards, 165 Neb. 80 , 84 N. W. 2d 136 .

It now appears that when the respondent was suspended we left him with a sword of Damocles hanging over his head in that we deprived him of all the rights of a lawyer while suspended but now hold him subject to all the standards of a lawyer during that period.

A suspended lawyer has to live and do and earn. Respondent is now being disbarred for doing those things which it is common knowledge are done by laymen without citations for contempt for practicing law. He *662 should not be held to have forfeited being restored to the status of a lawyer because of it.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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