No 14342 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1979 

IN RE THE MATTER OF 

ROBERT L. JOHNSON, Attorney at law, 

Respondent. 

ORIGINAL PROCEEDING : 

Counsel of Record: 

For Appellant: 

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: ?yL 1 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 their mobile home which they had recently purchased. 

The Brabenders allege they were informed by the attorney 

that he had commenced a lawsuit on their behalf but that in 

fact the suit was not commenced until after the running of 

the statute of limitations; and that on a motion for summary 

judgment their suit was 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 for deed 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 language of the contract. The Hellers had 

brought an action for declaratory 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 as well 

as the Federal District Court in Montana and thereafter, on appeal 

to the Ninth 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 

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on behalf of his clients which he knew would serve merely to 

harass or maliciously 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 representation of them, and 

with respect to the Hellers, denied their allegations and 

further contended that count 2 did not conform to the procedural 

requirements before the Commission on Practice and that the 

complaint had been filed against him at the sole instigation 

of Bradley B. Parrish, attorney for the Hellers, and not for 

any legitimate purpose of the Hellers. 

The hearing was set before 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 on March 16, 1979. In its report, the Commission 

found that the charges leveled against the attorney were 

substantially true and recommended that the attorney receive 

a public censure in open court from this Court at a date and 

time to be set hereafter. 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 constitute breaches of 

the Canons of Professional Ethics. 

What we said in Matter of Goldman (19781, Mont . 

, 588 P.2d 964, 974, 975, 35 St.Rep. 934, has pertinence 

here : 

"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.. . . 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. (Citing a case.)" 

We have reviewed the findings of fact of the Commission 

and the transcript and exhibits upon which those findings 

are based. The findings of the Commission are solidly 

supported in the evidence. 

Briefly, it appears that the Brabenders hired the 

attorney when they purchased a mobile home manufactured by 

Kit Manufacturing Company of Caldwell, Idaho, the purchase 

order agreement being made with Falls Mobile Home Center, 

Inc., of Great Falls, Montana. The mobile home was defective 

and in early December 1971 the Brabenders employed the 

attorney in connection with their difficulties over the 

mobile home. Representatives of 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 lawsuit had 

been filed and in October 1972 the attorney told them it 

was "on the steps of the courthouse." The attorney told 

them to be patient, that the case was on the calendar, that 

the attorney was trying to "hurry it up" in the courts. On 

October 8, 1976, when the Brabenders were 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 lawsuit had 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 

communicated with the attorney about the progress of their 

lawsuit. They were assured that an action had been filed, 

but that it was 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, represented by the attorney, appealed to the 

Montana Supreme Court. There, this Court affirmed the 

District Court in Heller v. Osburnsen (1973), 162 Mont. 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 Court was again affirmed in Heller 

v. Osburnsen (1975), 168 Mont. 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), 169 Mont. 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 on August 12, 1976, and on August 18, 1976, the 

attorney for Hellers filed a Motion for Disciplinary Action 

against the attorney. The $1,000 was then paid, as ordered, 

and those proceedings apparently terminated. 

On February 9, 1977, the attorney prepared a complaint 

the 

verified by his clients as plaintiffs, againsyHellels, The 

First National 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 attorney had 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 

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the delay in bringing it to trial was 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 Professional Ethics, that he handled a legal 

matter without preparation adequate in the circumstances and 

he fully neglected a legal matter entrusted to him, both in 

violation of Disciplinary Rules 6-101 (A) (2) and (3) . 

The Commission found, in connection with Hellers, no 

factual or legal justification for the actim which he filed in 

Federal Court other "than a 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 likewise with 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 administration of 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 or maliciously 

injure another and by advancing a claim or defense that is 

unwarranted under existing laws; that he apparently violated 

Disciplinary Rule 7-106(A) by advising that his client 

should disregard the rulings of the courts made in the 

course of a proceedings; that he violated Disciplinary Rule 

7-106(C)(6) by engaging in undignified or discourteous 

conduct which is degrading 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 they were 

true and that he was not making false accusations. 

In Goldman, we stated: 

"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.. . . 
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." 588 P.2d at 974. 

The matters brought out in the record in this case 

indicate that the attorney does not possess, or has lapsed from, 

the qualities of honesty and fair dealing. It is certain 

that he was not honest in his representations to the Brabenders. 

It is equally certain that he lost his sense of fair dealing 

and trustworthiness in the Hellers case. The purpose 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 in which he practices, and by frivolous appeals 

and other actions, he continues to stir up new or fancied wrongs, 

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 to practice law. The Commission on 

Practice, having an opportunity to observe him, decided that 

the punishment 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 dealings with 

his clients, and as to his respect for the orderly disposal 

of legal proceedings. 

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 

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........................... Justices 

Justice u 

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

action.