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In re Disciplinary Proceedings

March 22, 1956


Proceedings filed in the supreme court August 29, 1955, for the discipline of an attorney, upon findings of the board of governors of the state bar association recommending suspension.

En Banc. Rosellini, J.

Author: Rosellini

This is a disciplinary proceeding against James O. Ballou, an attorney at law. Mr. Ballou was born at Fort Wayne, Indiana, in 1909, was graduated from Indiana University law school in 1934 with an LL.B. degree. He was admitted to practice in Indiana, July 27, 1934, and in

the state of Washington, on March 19, 1946. Since that time he has resided and practiced in Cowlitz county, Washington.

The charges against Mr. Ballou grew out of his conduct in the trial of the case of In re Ross in the juvenile department of the superior court. The subject matter of that case was before this court in In re Ross, 45 Wash. 2d 654, 277 P.2d 335.

The case against Mr. Ross was closed at the end of the hearing on June 29th, and was continued for the presentation of the defense to July 8, 1954. The matter was under way for only a few minutes, July 8th, when the prosecuting attorney asked leave to reopen the case against Mr. Ross and was permitted to do so over objection by Mr. Ballou. The prosecuting attorney called Mr. Ross as an adverse witness, and after fifteen or twenty minutes of questions and objections by Mr. Ballou, the incident, complaint of which was later made to the board of governors of the state bar association, occurred as follows:

"Mr. Ballou: Mr. Ross, you not having been sworn under oath, I advise you that you may lie as freely as you wish. The Witness: That's what the rest of them have been doing. Mr. Reed: I object to the remarks of counsel advising the witness to lie. The Witness: I haven't got a fair trial out of this any time. Mr. Ballou: Never mind; let me be the one getting into trouble, Mr. Ross.

"Q. When was it you saw your wife the last time? Mr. Ballou: He has been asked the question three times. A. I told you I don't know, and that is the truth. The Court: What month was it? Mr. Reed: Approximately when? The Witness: It was last month sometime. Q. Didn't you send her some money to return to Washington? Mr. Ballou: I object, it isn't material. The Witness: What's that got to do with my case? Mr. Ballou: Never mind. Lie to him."

Shortly after the above, the following occurred:

"Q. Are you lying now, Mr. Ross? A. No. Q. Your counsel just told you to lie. A. I'm not lying. Mr. Ballou: Never mind. I told you to go ahead and lie if you want to. The Court: Do you think that is professional conduct, Mr. Ballou? Mr. Ballou: Yes, with the purpose of -- The Court: That is your conception of professional conduct as a lawyer?

Mr. Ballou: If your Honor will let me explain. The Court: I am asking you, do you consider that professional conduct as a lawyer in advising your client to lie in this court? Mr. Ballou: I want to point out, -- The Court: I am asking you a question. Mr. Ballou: I ask permission to defend myself. The Court: You have no defense on an issue of that type. You have no defense on an issue of that type, to advise your client in open court to lie to the Court. Mr. Ballou: I wanted to point out to your Honor that in the defense of this matter we have not had the slightest bit of protection against the stories of the people on the other side because they have not been sworn. The Court: That is no justification for advising your client to lie in open court. I think your conduct is contemptuous and I think you should be subject to punishment therefor. Now, that is my thought."

The trial committee of the state bar association found that, although Mr. Ballou's conduct could not be excused, condoned, or sanctioned, it had occurred while he had been under great mental and emotional strain, and that there was some basis or reason for his being upset because of the things that had occurred in the trial, which were improper and were damaging to his client. It found that, more than a month after the above mentioned trial, there appeared in the Kelsonian Tribune, a newspaper published at Kelso, Washington, an article entitled, "Disciplinary Action Asked on J. O. Ballou"; and that the statements made therein had caused Mr. Ballou considerable embarrassment, had adversely affected his standing and position in the community, and had a depreciating effect upon his income from the practice of his profession. The trial committee concluded that Mr. Ballou had suffered great damage and injury, which were sufficient punishment for his misconduct, and recommended that any further proceedings in the disciplinary matter be dismissed.

The board of governors of the Washington bar association approved the findings of the trial committee, but disagreed with the committee's final conclusion that further disciplinary proceedings be dismissed, and recommended that Mr. Ballou should be ...

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