No 14342 INTHE SUPREME COURT OF THE STATE OF MONTANA 1979

IN RE THEMATTER OF ROBERT L. JOHNSON,Attorney at law, Respondent.

ORIGINAL PROCEEDING:

Counsel of Record: ForAppellant: Richard F. Cebull,Billings,Montana Arnold Huppert, Jr., Livingston,Montana For Respondent: Robert L. Johnson and Torger Oaas, Lewistown,Montana

Filed: Submitted: April 25, 1979 Decided:

## ?yL1 8

## 1919 -Mr. Justice John C. Sheehy delivered the Opinion of the Court.

On June 8, 1978, the Commission on Practice (established by this Court in 1965 to aid the Court in its duty to discipline attorneys) filed a complaint against Robert L. Johnson,of Lewistown,Montana. Johnson has been admitted to practice in Montana since 1957. The complaint is framed in two counts. The first count relates to Edward V. Brabender and his wife Frances Brabender, who allege that they hired Johnson (hereafter "attorney") to represent them in connection with difficulty they were having with theirmobile home which they had recentlypurchased. The Brabenders allege they were informed by the attorney that he had commenced a lawsuit on their behalf but that in fact the suitwas not commenced until after the running of the statuteof limitations;and that on a motion for summary judgment their suitwas dismissed on that ground and others. The second count of the complaint relates to Lester J. Heller and his wife,Virginia Ann Heller of Winifred, Montana,who had in 1967 entered into a contract fordeed as sellers with Arthur S. Osburnsen and Lucille F. Osburnsen, husband and wife, for the sale of a ranch located in Fergus County. The complaint alleges that a problem arose in interpreting the languageof the contract. The Hellers had brought an action fordeclaratory judgment to determine the amount of money owed by Osburnsens to Hellers for the purchase of the ranch. The Hellers had prevailed in the District Court, and on three subsequent trips to the Montana Supreme Court aswell

as the Federal District Court inMontana and thereafter,on appeal to theNinth Circuit Court of Appeals of the United States. The Hellers contend that the attorney violated the Canons of Professional Ethics by asserting a position and conducting defenses -2-on behalf of his clients which he knewwould servemerely to harass ormaliciously injure the Hellers. The attorney filed his answer to the complaint against him on June 29, 1978. He denied the essential allegation made by the Brabenders as to his representationof them, and with respect to the Hellers, denied their allegations and further contended that count 2did not conform to the procedural requirementsbefore the Commission on Practice and that the complainthad been filed againsthim at the sole instigation of Bradley B. Parrish,attorney for the Hellers, and not for any legitimatepurpose of the Hellers. The hearing was setbefore the Commission on Practice in Great Falls,Montana, on Thursday and Friday,November 9 and 10, 1978. Thereafter the Commission rendered its report, findings of fact and recommendations with the Clerk of this Court onMarch 16, 1979. In its report,the Commission found that the charges leveled against the attorneywere substantially true and recommended that the attorney receive

a public censure in open court from this Court at a date and time to be sethereafter. The attorney filed his exceptions to the report, in essence denying the factual findings of the court, and denying that any of the findings of the Commission stated sufficient facts to constitutebreaches of the Canons of ProfessionalEthics. What we said inMatter of Goldman (19781, Mont

# .

, 588 P.2d 964, 974, 975, 35 St.Rep. 934,has pertinence here:"Ultimately,the discipline of amember of the Bar falls upon this Court. We have that power and duty inherently and by virtue of constitutionalprovisions (1972Mont. Const., Art. VII, 52). Itwas 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 hasmade its report and findings to us, it is still our duty to weigh the evidence uponwhich the findingsrest.. 

# .. It is the burden of the attorney to demonstrate that the findings are not supportedby 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 findingsrest 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. (Citing a case.)" We have reviewed the findings of fact of the Commission and the transcript and exhibitsupon which those findings

are based. The findings of the Commission are solidly supported in the evidence. Briefly, it appears that the Brabenders hired the attorneywhen they purchased a mobile homemanufactured by Kit Manufacturing Company of Caldwell, Idaho,the purchase order agreementbeing made with FallsMobile Home Center, Inc., of Great Falls,Montana. Themobile home was defective and in early December 1971 the Brabenders employed the attorney in connection with their difficulties over the mobile home. Representativesof the manufacturer and the mobile home dealer met and proposed repairs with the respondent Johnson. Brabenders contend that they were dissatisfied with the suggested repairs and wanted a lawsuit commenced respecting this. In the years subsequent to December 1, 1971,the Brabenders made frequent telephone calls and personal visits to learn the status of their supposed lawsuit. They were told by the attorney in 1972 that the lawsuithad been filed and in October 1972 the attorney told them it

was "on the stepsof the courthouse." The attorney told them to be patient, that the casewas on the calendar,that the attorneywas trying to "hurry itup" in the courts. On October 8, 1976, when the Brabenderswere advised that there had been a levy on their bank account arising out of the mobile home contract, they got in touch with another attorney and learned that no lawsuithad been filed on their behalf until February 20, 1976.The Brabenders lost the suit in District Court. On appeal to this Court, in Brabender v. Kit Mfg. Co. (1977), Mont

# . , 568 P.2d 547, 34 St-Rep.1004, they lost their appeal. The reasons given in our Opinion on that

case relate to the statute of limitations, laches and failure to properly make recission as grounds for denying relief to the Brabenders. All of these defenses can be laid at the feet of the attorney here. The record shows that the Brabenders, concerned about their case, frequently made telephone calls and otherwise communicatedwith the attorney about the progress of their lawsuit. Theywere assured that an action had been filed, but that itwas being delayed in the courts. As we indicated, the attorney did not institute a lawsuit on behalf of the Brabenders until after the applicable statute of limitations had run. 

### In the Hellers' case,

### a dispute arose between the Hellers and the Osburnsens as to the amount that was due under the contract for the purchase of real estate. The Hellers commenced a declaratory judgment action in Fergus County against Osburnsens,who were represented by the attorney. The District Court rendered judgment which the Osburnsens, representedby the attorney, appealed to the Montana Supreme Court. There, this Court affirmed the District Court in Heller v. Osburnsen (1973),162Mont. 182, 510 P.2d 13. Thereafter,the Hellers petitioned the Fergus County District Court for an accounting. Osburnsens,represented by the attorney,again resisted. The Fergus County ~istrict Court rendered its findings of fact, conclusions and judgment which was again appealed by the Osburnsens through the attorney. The District Courtwas again affirmed in Heller



### v. Osburnsen (1975),168Mont. 232, 541 P.2d 1032.After this affirmance, a disagreement arose between the counsel representing Hellers,and this attorney, concerning the scope and meaning of the stipulation intended to facilitate settlement. This resulted in a third appeal, in 1976, wherein this Court again held in favor of the Hellers. Heller v. Osburnsen (1976),169Mont. 459, 548 P.2d 607. In that case, this Court assessed damages for a frivolous appeal in favor of Hellers' attorney in the sum of $1,000. The decision was rendered on April 12, 1976. Johnson refused payment onAugust 12, 1976,and onAugust 18, 1976,the attorney for Hellers filed a Motion for Disciplinary Action against the attorney. The $1,000was then paid, as ordered, and thoseproceedings apparently terminated. On February 9,1977,the attorneyprepared a complaint the verified by his clients as plaintiffs, againsyHellels,The FirstNational Bank of Lewistown, the District Court of the Tenth Judicial District and the Supreme Court of the State of Montana, its then Chief Justice, and caused it to be filed in the District Court of the United States for the District of Montana. The attorney asserted federal jurisdiction claiming deprivation of civil rights. He charged the Montana Supreme Court with being coercive and arbitrary, and disputed the findings in the previous Heller actions which related to the amount due under the Heller contract. The complaint was dismissed on the merits and with prejudice. Osburnsen v. Heller (1977), 34 St.Rep. 193. In addition to the findings by the Commission on Practice of this Court, the local Grievance Commission also examined the BrabenderS'cause, and found that this attorneyhad been employed by the Brabenders in late 1971, that he misled them in the belief that he had actually filed a case, and he represented -6-the delay in bringing it to trialwas because of crowded dockets and court calendars. The Commission on Practice further found that the attorney failed to obtain full factual knowledge of the Brabender case as required by Canon 8, Canons of ProfessionalEthics, that he handled a legal matter without preparation adequate in the circumstances and he fully neglected a legalmatter entrusted to him, both in violation of Disciplinary Rules 6-101(A)(2)and (3)

# . The Commission found, in connection with Hellers, no factualor legal justification for the actimwhich he filed in Federal Court other "thana vitriolic venting of his anger". It found that in spelling out a diatribe against lawyers in his oral testimony and, in his various letters and pleadings, he did likewisewith respect to fellow lawyers, the district judge, and the Supreme Court. Thereby he violated the Preamble in Canon 1,Canons of Professional Ethics and his actions were prejudicial to the administrationof justice in violation of Disciplinary Rule 1-102(A)(5), Canons of Professional Ethics; that he violated Disciplinary Rule 7-102(A)(1) and

(2)by taking action that served merely to harrass ormaliciously injure another and by advancing a claim or defense that is unwarranted under existing laws; that he apparently violated DisciplinaryRule 7-106(A) by advising that his client should disregard the rulings of the courtsmade in the course of a proceedings; that he violated Disciplinary Rule 7-106(C)(6) by engaging in undignified or discourteous conduct which isdegrading to the Court; and that he violated the spirit at least of Disciplinary Rule 8-102(B) by making accusations against judges with no showing that theywere true and that he was notmaking false accusations. In Goldman,we stated: "We startwith 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.. 

# . .These are the qualitieswhich are essential for admission to the Bar, and if the attorney lapses from or ceases topossess those qualities, he or she is subject to our discipline,even to removal from the Bar." 588 P.2d at 974. Thematters brought out in the record in this case indicate that the attorney does not possess, or has lapsed from, the qualities ofhonesty and fair dealing. It is certain that he was not honest in his representationsto the Brabenders. It is equally certain that he losthis sense of fair dealing and trustworthiness in the Hellers case. Thepurpose of a lawsuit is to end the dispute among the parties, not to prolong it. When an attorney refuses to accept the decisions of the courts inwhich he practices, and by frivolous appeals and other actions, he continues to stir up new or fanciedwrongs, he does not serve the best interests of his own clients, and he visits unnecessary expense and anxiety upon the adverse parties. Such actions call into question the temperamental fitness of the attorney topractice law. The Commission on Practice,having an opportunity to observe him,decided that thepunishment of public censure in open court should be sufficient. It is apparent that the Commission on Practice is hopeful that

an otherwise talented lawyer will have learned from the results of his own indiscretions. The attorney has no previous disciplinary record. We concur, therefore, in the findings and conclusions contained in the report of the Commission on Practice, and will order public censure of the attorney at a date and place to be set by us with a warning to the attorney that he is now on his good behavior as to his dealingswith his clients,and as to his respect for the orderly disposal of legalproceedings. IT IS ORDERED,and it is the judgment of this Court that the attorney, Robert L. Johnson, of Lewistown,Montana, shall receive a public censure in open court on a date and at a time to be set hereafter.We Concur:

Chief Justice



## --

........................... Justices Justice 

# u

Mr. Justice John C. Harrison did not participate in this action.