In re Whittemore

Thornton, J. In this case, the facts are the same as in In re Cowdery, ante, p. 32, except that Whittemore was the employer, and in the other case just mentioned Cowdery was the employee.

[68]Whittemore, an attorney and counselor of this court, employed Cowdery with a knowledge of the relations which Cowdery bore to the cases of Bonnet and Barker against the city and county of San Francisco. He was, when he retained Cowdery, fully aware of the public capacity in which Cowdery had charge of the causes above named, and that Cowdery when he accepted a retainer from him was changing sides in the litigation. In employing Cowdery, he violated his duties as an attorney and counselor at law.

Ordinarily, when an attorney calls on another attorney and asks him if there is anything in the way of his being employed in a cause, and he replies that there is nothing in the way of his accepting such employment, we should hold that there would be no impropriety in his employing him. But it is different here. Whittemore knew Cowdery’s relation to the causes as above stated, and we are of opinion that it was a violation of his duties to the court in so doing.

In this cause, the following order will be entered:—

This cause having been heard on the pleadings and proofs, and considered by the court, and the court having come to the conclusion that Whittemore has violated his duty as an attorney and counselor of this court in employing J. F. Cowdery as attorney and counsel, it is hereby ordered that said D. H. Whittemore be and is hereby suspended, for the period of six months from this date, from appearing or acting as attorney or counselor at law in all the courts of this state.

Ross, J., McKee, J., and McKinstry, J., concurred.

Mr. Justice Sharpstein was not present at the hearing.

Mr. Justice Myrick dissented, and filed as his opinion herein his dissenting opinion in The Matter of J. F. Cowdery, ante, p. 66.

Rehearing denied.