No. 13542 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1978 

IN THF: MA= OF JOSEPH M. GOLDMAN, 

an Attorney and Counselor at law, 

Respondent. 

Counsel of Record: 

For Appellant: 

Douglas Allen argued, Great Falls, Pbntana 

Thomas Clary argued, Great Falls, Montana 

Arnold Huppert, Livingston, Montana 

Neil Ugrin, Great Falls, Montana 

For Respondent: 

Douglas Drysdale argued, Bozeman, Montana 

Robert J. Ehanons argued, Great Falls, Montana 

Joseph Goldrnan, ~~ssoula, Montana 

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 Commission 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, - in camera, with counsel appearing for both 

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. 

-4- 
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. 

-5- 
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 representing 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 Assiniboine as permanently disabled, that this was not true and he 

-6- 
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 substantiated. 

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 

-7- 
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 30 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 

30 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 

-8- 
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. 

-10- 
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 attributable 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. 

-11- 
He also told the Grand Jury had he related these facts to 

the attorney at the time he delivered the ~edical re~ort. 

Neither Dr. Schemm nor the attorney were asked specifically 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~.d stopped 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 compensation; 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 

-17- 
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 Eichenlaub 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 investigation 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 

(Pecos and N. T. Railway Company v. Coffman exas as TW 1913), 

d 

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 ( lveston H & a2 rfhc,~w 

Railway Company et al. v. Alberti (Texes 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. 54, 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 substantive 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 crossexamination concerning it." 112 Mont. at 

355, 116 P.2d at 688. 

FTo 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 ~riz. 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 crossexamination 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 investigators 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 contribution 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 consideration 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 inappropriate. 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 surrounds 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 transgressions. 

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, sufficient 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. Justice Gene B. Daly specially concurring: 

I fully appreciate the problems attendant to the resolution of this case and must therefore concur in the result but 

not in all that has been said. 

I have very strong feelings concerning the information 

given to this Court about the conduct of one Lawrence Taylor, 

special assistant prosecutor hired from California and 

active during the time the grand jury alluded to in this 

opinion was in session. His method of obtaining the testimony of Dr. Hogan, in the first instance, is nothing short 

of reprehensible and should not be condoned by the State of 

Montana. Taylor demonstrated his total lack of ethics at a 

televised news conference with the then attorney general on 

Friday, June 11, 1976, with his now infamous statement, "an 

incestuous relationship between some judges and some lawyers, etc." Then, he fled the State of Montana. This 

entire mess is so tainted it is difficult to imagine that 

any of its fruit be used, of a11 places, in a forum which is 

charged with the determination of a man's ethical quality. 

I can find no better words than those used by Mr. 

Justice Holmes and Mr. Justice Brandeis in Olmstead v. 

United States (1927), 277 U.S. 438, 48 S.Ct. 564, 72 L.ed. 

944, as they spoke of the acceptance of tainted evidence by 

the courts, i.e., the "silver platter doctrine": 

". . . But there is another consideration-- 

the imperative of judicial integrity. It was 

of this that Mr. Justice Holmes and Mr. Justice 

Brandeis so eloquently spoke in Olmstead v. 

United States, 277 U.S. 438, at 469, 471, more 

than 30 years ago. 'For those who agree with 

me,' said Mr. Justice Holmes, 'no distinction 

can be taken between the Government as prosecutor and the Government as judge.' 277 U.S. 

at 470. (Dissenting opinion.) 'In a government of laws,' said Mr. Justice Brandeis, 

'existence of the government will be imperilled 
if it fails to observe the law scrupulously. 

Our Government is the potent, the omnipresent 

teacher. For good or for ill, it teaches the 

whole people by its example. Crime is contagious. If the Government becomes a lawbreaker, 

it breeds contempt for law; it invites every 

man to become a law unto himself; it invites 

anarchy. To declare that in the administration 

of the criminal law the end justifies the means 

--to declare that the Government may commit 

crimes in order to secure the conviction of a 

private criminal--would bring terrible retribution. Against that pernicious doctrine this 

Court should resolutely set its face.' 277 

U. S., at 485. (Dissenting opinion. ) " Elkins 

v. United States (1960), 364 U.S. 206, 222-23, 

80 S.Ct. 1437, 1447, 4 L Ed 2d 1669, 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 respectfully 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 subjected to severer scrutiny by the public. 

It is well, that it is so. The things we 

hold dearest on earth,--our fortunes, reputations, 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 - on Professional Ethics (1854), reprinted 

in Selected Readings -- on the Legal Profession, assembled by a 

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 fiduciary 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 standard of behavior. As to this there has developed 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 fiduciaries 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 fiduciary--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 temptations 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 painful 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 proceedings, 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 ~aintenance of Professional 

Standards: Dutyandon of -- the Courts, 

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 purposes of removal of an attorney are 

to purge the profession of those who lower its 

high standards and bring an honorable calling 

into disrepute and contempt, and to protect 

the public at large, and the courts, from the 

acts of the unscrupulous. As was said in Re - 

Thresher, 33 Mont. 441, 114 Am. St. Rep. 834, 

8 Ann. Cas. 845, 84 Pac. 876: 'This proceeding 

is in no sense a criminal prosecution, nor is 

it in aid of a criminal investigation. Its 

purpose is to ascertain whether the accused is 

worthy of confidence and possessed of that good 

moral character which is a condition precedent 

to the privilege of practicing law and of continuing the practice thereof. * * * '"The end 

to be attained is not punishment, but protection. " ' " 

Repeatedly it has been said that, by admitting an 

attorney to practice, a court endorses him to the public as 

worthy of their confidence in professional matters, and if 

he becomes unworthy, it is the duty of the court to withdraw 

the endorsement. We have committed ourselves to this: 

"'[Tlhere is no duty imposed upon a court more important 

than that of preserving to the best of its power and ability 

the professional integrity and purity of its bar.'" (Emphasis added.) In re Young (1926), 77 Mont. 332, 347, 250 P. 

957, 962. There, too, we said: 

"'The position of an attorney and counselor at 

law is that of an officer of the court. His 

relation to the court, the bar, and the public 

is one of trust and confidence. To his integrity and ability are not infrequently intrusted 

the lives, the liberty, and property of the citizen. Years of time, arduous labor, and constant 

application are required to elevate him to that 

professional standing which enables him to discharge with fidelity the responsible duties intrusted to his care. If dishonest practices and 

unprofessional conduct have caused him to forget 

his obligations, and lead him to a violation of 

the sacred trust, his name should be stricken 

from the roll, and he should be removed from a 

place in the ranks of the profession which he is 

found unworthy to fill.' (In re Catron, 8 N.M. 

253, 43 Pac. 724.)" 77 Mont. at 347-48, 250 P. 

at 962. 

With regard to disbarment, intended to protect the public, 

McCracken offers these noteworthy observations: 
"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 official body in American life, has carefully examined into this man's character and is prepared 

to advise the public that he is worthy of confidence. His clients rely upon that endorsement, 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." 29 S.Cal.L.Rev. at 75. 

Although " [p] rotection the public, and nothing else, 

lies at the basis of [disbarment]" and although "this doctrine 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." 29 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 Practice] 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, separated 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 critical 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 reflection of some general evil; nor are they so competent to estimate the effect of a particular 

penalty either on the individual attorney accused or as a check upon the more general evil, 

when such evil exists.'" 29 S.Cal.L.Rev. at 76. 
The reasons advanced above are sufficient to commend 

this Court to follow the recommendations made by the Commission 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 egregious 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 reluctance 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." 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 inclined to impose upon him the burden of persuading 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 otherwise 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 practice 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 administration 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 -- of Law 50 (1971). That understatement is underscored by D. Melinkoff in - The Conscience -- of a Lawyer 15 

(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 Association 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 integrity 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 admitted 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 Goldman, 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 Commission. Our judgment, says the Court, is that the Commission 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 

of Dr. Hogan; yet the Court accepts:. -- in toto the findings of 

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' Compensation investigation have not been visited with disbarment; 

but it must be remembered that each case is decided individually, and properly so. Surely it is illogical and 

unjust and contrary to our principles of fair play to proclaim that because others have been disbarred, the one more 

lately before the court, deserving or not, should be disbarred 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 recommendation 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 abortive and controversial handling of the Workers' Compensation 

investigation itself". Intending no disresf?~3ct,I submit 

that the handling of that investigation has - no relevance to 

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 dishonesty 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 sanction 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 offense], where the proof establishes it as a fact." In re 

Wellcome (1899), 23 Mont. 450, 471, 59 P. 445, 453. ~otwithstanding a clean record, if the evidence points to professional 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 continuing -- in the practice is possession of good moral character 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 forfeited 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 exercised 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 discretion, 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 relation 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 position 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. Before 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 necessary as that of admission for a due administration of law. By admitting him the court presents him to the public as worthy of its confidence in all his professional duties and relations. 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 omitted, 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 application 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 admission 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 professional character is one of them. Compliance 

with that condition is essential at the moment 

of admission; but it is equally essential afterwards. [Citations omitted.] Whenever the condition is broken the privilege is lost. To 

refuse admission to an unworthy applicant is 

not to punish him for past offenses. The examination 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 omitted.]" 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, therefore, that one who aspires to this high position should be of upright character, and should 

hold, and deserve to hold, the respect and confidence of the community in which he lives and 

works. [Citations omitted.] 

"'No profession,' says Mr. Robbins in his American 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 business secrets and difficulties, his family relationships 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 members such unparalleled confidence the duty of 

maintaining the honor and integrity of that profession 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.