Page images

party, the court may, if it find the allegation true at any stage of the proceedings, relieve the party for whom the attorney has assumed to appear from the consequences of his acts. [L. 1862; D. Cd. § 1008; H. C. § 1040.]

One who was elected president of a corporation, and appointed its managing agent and attorney, in 1877, and to whom no successor was ever elected or appointed, will, in 1893, be presumed to have authority, in the name of the corporation, to maintain an action in its behaif: Lucky Queen Min. Co. v. Abraham, 26 Or. 282, 38 Pac. 65.

In a proceeding to restrain the enforcement of a judgment on the ground that the only appearance of an unserved defendant was by an unauthorized attorney, it is competent to hear evidence aliunde offered for the special purpose of rebutting the presumption of authority in the attorney:

Handley v. Jackson, 31 Or. 552, 50 Pac. 915, 65 Am. St. Rep. 839.

The enforcement of a judgment dependent upon the appearance of an unauthorized attorney for a party who was not served with summons, may be restrained in equity, irrespective of whether the attorney is responsible financially, or acted by collusion with the other party: Handley v. Jackson, supra.

A judgment rendered against a defendant under an unauthorized appearance by attorney is not ratified by a conditional but unaccepted offer to pay a certain sum in full satisfaction of the judgment: Handley v. Jackson, supra.

§ 1060. Attorney for Adverse Party, when May be Required to Show his Authority.

The court or judge thereof may, on motion of either party and on showing reasonable grounds therefor, require the attorney for the adverse party, or for any one of several adverse parties, to produce or prove the authority under which he appears, and until he does so, may stay all proceedings by him on behalf of the party for whom he assumes to appear. [L. 1862; D. Cd. § 1009; H. C. § 1041.]

See notes to preceding sections.



§ 1061. Attorney, how Changed.

The attorney in an action, suit, or proceeding, may be changed at any time before judgment or decree, or final determination, as follows:

1. Upon his own consent, filed with the clerk or entered upon the journal; or,

2. Upon the order of the court or judge thereof, on the application of the client or the attorney, for sufficient cause. [L. 1862; D. Cd. § 1010; H. C. § 1042.]

§ 1062. Notice of Change.

When an attorney is changed as provided in the last section, written notice of the change and of the substitution of a new attorney, or of the appearance of the party in person, shall be given to the adverse party. Until then he is bound to recognize the former attorney. [L. 1862; D. Cd. § 1011; H. C. § 1043.]

A notice of appeal is sufficient, although signed by attorneys who were not the attorneys of appellant in the court below, and no substitution has been made in the manner provided by this and the preceding section: Shirley v. Burch, 16 Or. 2, 18 Pac. 351.

§ 1063. Lien of Attorney.

An attorney has a lien for his compensation, whether specially agreed upon or implied, as provided in this section,—

1. Upon the papers of his client which have come into his possession in the course of his professional employment;

2. Upon money in his hands belonging to his client;

3. Upon money in the hands of the adverse party, in an action, suit, or proceeding in which the attorney was employed, from the time of giving notice of the lien to that party;

4. Upon a judgment or decree to the extent of the costs included therein, or if there be a special agreement to the extent of the compensation specially agreed on, from the giving notice thereof to the party against whom the judgment or decree is given, and filing the original with the clerk where such judgment or decree is entered and docketed.

This lien is, however, subordinate to the rights existing between the parties to the action, suit, or proceeding. [L. 1862; D. Cd. § 1012; H. C. § 1044.]

Where money is specially deposited with an attorney to be used as cash bail for a client, and to be returned as soon as that purpose shall be accomplished, the attorney can not acquire any lien thereon for his services. He is simply a special bailee, and responsible as such: State v. Lucas, 24 Or. 172. 33 Pac. 538.

An attorney's lien that has been perfected against a judgment in a law action for services rendered therein, extends to and covers a decree obtained in a suit supplemental to the action and intended to provide funds for the payment of such judgment, even though the notice of the

lien is not served or filed in connection with the decree: Stoddard v. Lord, 36 Or. 416, 59 Pac. 710.

An attorney's lien does not attach to a judgment or become binding on a judgment debtor until the attorney has given notice of his lien to such debtor, and filed the original with the clerk of the court where the judgment was entered. If a debtor pays or settles the judgment before notice or the lien is served, the lien will not attach, rgardless of whether satisfaction has been entered or not: Day v. Larsen, 30 Or. 247, 47 Pac. 101.



§ 1064. Attorney's Resignation, how made, and Effect Of.

An attorney may at any time file in the office of the county clerk of the county in which he resides a written resignation; and after the filing thereof he is not entitled to the rights nor subject to the disabilities or prohibitions incident to the relation, except that he is still subject to the power of the court in respect to matters arising while he was an attorney. [L. 1862; D. Cd. $ 1013; H. C. § 1045.]

The resignation of an attorney without the consent of the court is ineffectual to preclude his disbarment, when proceedings therefor were pending at the time of his resignation: Ex parte Thompson, 32 Or. 499, 52 Pac. 570, 40 L. R. A. 195.

A voluntary resignation does not remove an attorney's name from the rolls, unless

the court approves such action, and he remains amenable to the orders of the court by which he was admitted for actions committed prior to the resignation: Ex parte Thompson, supra. See the statements in Ex parte Garrigus, 28 Or. 587; also Ex parte Pilkington, 28 Or. 587.

§ 1065. Certified Copy of Resignation to be Filed in Supreme Court — May be Readmitted.

The clerk of the county with whom such resignation is filed shall immediately forward a certified copy thereof to the clerk of the supreme court, who shall file the same in his office. An attorney who has resigned may, at any time thereafter, be readmitted to practice as such in the same manner as if he had never been so admitted. [L. 1862; D. Cd. § 1014; H. C. § 1046.]



§ 1066. An Attorney May be Disbarred for Unprofessional Conduct.

Any member of the bar of this state shall be disbarred by the supreme court, upon proper proceedings for that purpose, whenever it shall be made. to appear to that court that if he were then applying for admission to the bar his application should be denied because of unprofessional conduct. [L. 1901, p. 67, § 1.]

$ 1067. Supreme Court May Remove or Suspend an Attorney, for what Cause. An attorney may be removed or suspended by the supreme court for either of the following causes, arising after his admission to practice:

1. Upon his being convicted of any felony or of a misdemeanor involving moral turpitude, in either of which cases the record of his conviction is conclusive evidence;

2. For a willful disobedience or violation of the order of a court requiring him to do or forbear an act connected with or in the course of his profession;

3. For being guilty of any willful deceit or misconduct in his profession; 4. For a willful violation of any of the provisions of section 1057. [L. 1862; D. Cd. § 1015; H. C. § 1047.]

Upon a charge against an attorney for misconduct, although involving matter for which he might be indicted, the inquiry is directed to the truth of the accusation only so far as it affects his character for trustworthiness or want of integrity. The jurisdiction acts upon the officer, or the facts which show him unfit to hold such office, and is exercised for the protection of the court: State ex rel. v. Winton, 11 Or. 456, 5 Pac. 337, 50 Am. Rep. 486.

The court will not refuse to exercise its jurisdiction to disbar an attorney in a proper case, merely because the offense charged is indictable, and the accused has not been indicted or prosecuted thereon: State ex rel. v. Winton, supra.

On the question whether the court can disbar an attorney for the commission of an indictable offense, committed outside the line of his professional duties, without his first having been indicted and convicted, there is some conflict in the authorities; but the better rule seems to be that where the crime charged affects the general moral character of the attorney, and his general fitness to practice his profession, and is admitted or clearly proven, the court may proceed in a summary manner to disbar him. Where, however, the charge is of a single criminal act, committed in his private capacity, and any doubt of the party's guilt exists, a court should not proceed summarily, but should leave the case to be determined by a jury: Ex parte Cowing, 26 Or. 572, 38 Pac. 1090. If an attorney commit a felony, the nature of which is calculated to injure his reputation for the performance of his duties. he should be removed: Ex parte Thompson. 32 Or. 500, 52 Pac. 570, 40 L. R. A. 195.

The court has a discretion in regard to

the punishment of an attorney, and although the record of the conviction of the attorney for a felony or misdemeanor involving moral turpitude is cónclusive evidence of his guilt, yet the court may, at its option, examine the facts in order to determine the extent and severity of the punishment: Ex parte Mason, 29 Or. 25, 43 Pac. 651, 54 Am. St. Rep. 772.


Proceedings against an attorney quasi criminal in their nature, that is, the penalty is fixed, and must follow a finding of guilt: Ex parte Mason, supra.

An attorney who has advised and assisted his client to disobey an order of court requiring her presence before the judge, after the order has been served on the client, and she has generally appeared in answer thereto, is guilty of intent to cause a failure of justice, and should be disbarred: Ex parte Miller, 37 Or. 304, 60 Pac. 999.

In disbarment proceedings based upon a criminal conviction of the attorney, the information must set out the offense of which the attorney was convicted. Where the conviction is of a misdemeanor, the offense must be one involving moral turpitude, and the information must so aver; while in the case of a felony, the mere conviction of the felony is sufficient for disbarment: United States v. Clark, 76 Fed. 560.


courts possess the inherent power to purge the bar, an order of disbarment rendered upon information which is defective will be set aside: United States v. Clark, supra.

The publication of a libel is a misdemeanor involving moral turpiture within the meaning of this section: Ex parte Mason, 29 Or. 18, 43 Pac. 651, 54 Am. St. Rep. 772.

The offense of forging checks, letters, affidavits, and signatures thereto, and using them to injure and defraud a client, is such as to imperatively require the revocation of an attorney's license: Ex parte Kindt, 32 Or. 474, 52 Pac. 187.

An attorney is guilty of "willful misconduct" in his profession in affixing his official jurat as notary public to purported affidavits which were not in fact sworn to before him, and causing them to be filed for use in an action in which he was attorney for one of the parties: Ex parte Finn, 32 Or. 519, 52 Pac. 756, 67 Am. St. Rep. 550.

In such a case it is immaterial that the statements contained in the affidavits were true, nor is his action excused by the fact that the affidavits were not of use because the case was decided on other grounds: Ex parte Finn, supra.

An attorney can not palliate willful misconduct in his profession on the ground that such conduct was customary in the community where he resided: Ex parte Finn, supra.

In a proceeding for disbarment it appeared that the defendant, being employed to resist the probate of a will, drew up a petition for his client's appointment as administrator, and prepared a typewritten form of journal entry for the clerk, naming therein three persons as appraisers; that defendant then had the petition filed, and sent the same, with the entry, to the county judge, who lived at some distance; that, after filing the petition, defendant learned that a petition for the probate of the will was on file, but did not inform the judge, who approved the petition sent him by defendant, signed the journal en

try, and returned the papers to defendant: that the latter then went to the clerk's office with the appraisers named, to have them qualify, but, one of them declining to act, defendant drew his pencil across his name in the entry, and wrote above it the name of another, the change being made in accordance with a custom of the bar, and in the presence of the three appraisers finally chosen, the clerk, and attorneys for proponents. Held, that there was nothing in defendant's conduct warrant disbarment: Ex parte Tongue, 29 Or. 48, 43 Pac. 717.


Resignation of an attorney, without the consent of the court, is ineffectual to preclude his disbarment, when proceedings therefor were pending at the time of his resignation: Ex parte Thompson, 32 Or. 499, 52 Pac. 570, 40 L. R. A. 195. See. however, cases of Ex parte Garrigus, 28 Or. 587, and Ex parte Pilkington, 28 Or. 587, in which cases the attorneys were allowed to resign.

The right to meet the witnesses face to face and to cross-examine them is waived by stipulating that the testimony of such persons may be taken by deposition, reserving only questions as to the relevancy, materiality, and competency of the evidence: Ex parte Kindt, 32 Or. 474, 52 Pac. 187.

Proceedings for the disbarment of attorneys for misconduct are not for the purpose of punishment, but are entertained for the protection of the court, the proper administration of justice, the dignity and purity of the profession, the public good. and the protection of clients: Ex parte Finn, 32 Or. 519, 52 Pac. 756, 67 Am. St. Rep. 550.

§ 1068. By Whom Proceeding to be Instituted.

The proceeding to remove an attorney, as provided in the last section, shall be taken by the court, of its own motion, for matters within its knowledge, or that of any of the judges thereof; otherwise, it may be taken upon the information of another. [L. 1862; D. Cd. § 1016; H. C. § 1048.]

$ 1069. Accusation Against Attorney, how Made.

If the proceedings be upon the motion of the court or judges thereof, for matters within its knowledge, the accusation shall be made by an order of the court reciting the facts charged. If upon the information of another, the accusation must be presented to the court in writing, and verified by the oath of the person making it, or of some other person, to the effect that the charges therein contained are true, as he believes. [L. 1862; D. Cd. § 1017; H. C. § 1049.]

$ 1070. Order for Accused to Appear and Answer.

After the accusation has been made or received, the court shall forthwith make an order requiring the accused to appear and answer the accusation at a specified time in the same or a subsequent term, and shall cause a copy of the order and of the accusation to be served upon the accused, within a prescribed time, before the day appointed in the order to appear and answer; but when the proceeding is upon the information of another, the accusation shall be dismissed at once, unless it appear therefrom that the accused should be required to appear and answer the same. [L. 1862; D. Cd. § 1018; H. C. § 1050.]

§ 1071. If Accused do not Appear, Court to Proceed.

The accused must appear at the time appointed in the order and answer the accusation, unless for sufficient cause the court assign another day for that purpose. If he do not appear, the court may proceed and determine the accusation in his absence. [L. 1862; D. Cd. § 1019; H. C. § 1051.]

§ 1072. Accusation May be Demurred to or Controverted.

The accused may demur to the accusation for insufficiency, or controvert it by answer. The demurrer and answer shall be in writing, and the latter shall be verified by the oath of the accused in the same manner as a pleading in an action at law. [L. 1862; D. Cd. § 1020; H. C. § 1052.]

§ 1073. Must Answer Forthwith, when-Judgment for Want of Answer or After Trial.

If a demurrer for insufficiency be not sustained, the accused shall answer forthwith. If he plead guilty or refuse to answer the accusation, the court shall proceed to judgment of removal or suspension. If he controvert the matters charged, the court shall then, or at such time as it may appoint, proceed to try the accusation, and give a judgment of removal, suspension, or acquittal, according to law and the right of the case. [L. 1862; D. Cd. S1021; H. C. § 1053.]

[merged small][ocr errors][merged small]

When an accusation is made upon the knowledge of the court or the judges thereof, the facts therein stated are presumed to be true; but if the accused controvert the accusation, he is allowed, on the trial, to overcome such presumption by the introduction of any proper or pertinent evidence therefor. [L. 1862; D. Cd. § 1022; H. C. § 1054.]

$1075. Circuit or County Court May Suspend Attorney.

Any circuit or county court may suspend an attorney from practicing therein for any of the causes mentioned in section 1067, for a period not beyond the adjournment of the next term of the supreme court. The mode of proceeding shall be the same as provided in like proceedings in the supreme court. The court giving the judgment of suspension shall cause a certified copy of the judgment, pleadings, and proceedings to be transmitted to the supreme court at the next term thereof, and thereupon such court shall proceed against the party suspended as if the proceeding had originated in that court. [L. 1862; D. Cd. § 1023; H. C. § 1055.]

$ 1076. Attorney May be Required to Deliver Money or Papers.

When an attorney refuses to deliver over money or papers to a person from or for whom he has received them in the course of professional employment, whether in a judicial proceeding or not, he may be required by an order of the court in which a judicial proceeding was prosecuted or defended,

« PreviousContinue »