
    FRANK C. BERTELMANN v. MARY N. LUCAS ET AL.
    No. 1462.
    Suggestions of Disqualification.
    Argued December 7, 1923.
    Decided December 12, 1923.
    Peters, C. J., Perry and Lindsay, JJ.
    
      Judges — disqualification—acting as counsel.
    
    When the terms of the employment of an attorney by a client are such as to authorize and require the attorney, until revocation or modification of that employment, to institute all legal proceedings necessary to attain the end desired by the client and to defend all legal proceedings instituted by an opponent seeking to frustrate the accomplishment of that desired end, any and all legal proceedings brought whether in furtherance of or by way of frustrating the desired end, are within the meaning of section 84 of the Organic Act the case in which the attorney was originally of counsel.
   OPINION OF THE COURT BY

PERRY, J.

For the purpose of suggesting his possible disqualification in this case, the chief justice has filed a statement of facts reading as follows:

“In or about the month of January, 1917, L. L. Mc-Candless, one of the respondents in the above entitled matter retained declarant generally to establish, settle and protect all the right, title, interest and estate acquired by the complainant Frank C. Bertelmann, under the circumstances and due to the matters and things as alleged in paragraphs 1 to 16, both inclusive, of the amended bill of complaint herein, in and to the certain lands described in paragraph 30 of said amended bill, of which Christian Bertelmann, father of the said complainant, died seized, testate, together with the rents, issues and profits therefrom from the time of the expiration of the lease to the Kilauea Sugar Company to which said lands were formerly subject, and at the same time the said L. L. McCandless did generally retain declarant to establish, settle and protect all the right, title, interest and estate acquired by him the said L. L. McCandless in and to said lands and the said rents, issues and profits thereof by reason of the certain agreement between himself and the complainant, Prank C. Bertelmann, and two of the other respondents, to-wit: John C. Lane and Noa W. Aluli, Esq., dated October 30, 1916, referred to in paragraph 17 of said amended bill, and the conveyance of the complainant and his wife to the said L.. L. McCandless, John C. Lane and Noa W. Aluli, Esq., dated November 22, 1916, and referred to in paragraph 19 of said amended bill.
“That pursuant to and in compliance with said retainer declarant as the attorney for the said Prank C. Bertelmann and the said L. L. McCandless instituted in the circuit court of the fifth judicial circuit, an action at law in ejectment for the restitution of the lands referred to in paragraph 21 of the complainant’s amended bill, and for mesne profits during the period of their possession by the defendants, the record of which said action has been withdrawn by declarant from the files of the circuit court of the first circuit to which it was transferred upon agreement of the parties, and is filed herewith and made a part hereof to all intents and purposes as if fully incorporated herein.”

Por the same purpose Mr. Justice Perry has filed the following statement:

“Prior to the institution of the above entitled suit in equity an action of ejectment was brought by the same Prank C. Bertelmann, John C. Lane, Noa W. Aluli and L. L. McCandless against Mary N. Lucas and Charles Lucas, her husband, in the circuit court of the fifth judicial circuit of this Territory to try the title to the same lands which are involved in the above entitled suit. Prior to the institution of the ■ aforesaid action of ejectment, I was engaged by the said Mary N. Lucas and Charles Lucas, her husband, as their attorney, to advise them with reference to the title to the said lands and to act in their behalf in defending for them any proceedings that might be brought by the said Prank C. Bertelmann relating to the title to the said lands. In pursuance of this engagement I was handed the papers in the action at law upon its institution and acted as attorney for the said Mary N. Lucas and Charles Lucas in the said action at law from the time of its institution until my appointment as associate justice of this court. Both prior and subsequent to the institution of the action at law I devoted much time and attention to the study of all of the issues of law and fact which, as it seemed to me, might arise in litigation concerning the title aforesaid. In that study were included some at least of the issues arising in the above entitled suit in equity.”

The Organic Act in section 84 provides that no person shall “sit as a judge in any case in which he has been of counsel.” It may be noted in passing that, so far as the reasons underlying the enactment of this section are concerned, these two justices, in view of their actual participation as counsel in the controversy as to the title of the lands in question, are as thoroughly and clearly disqualified in fact as any judge well could be. But that, of course, is not of itself determinative of the issue now before us. That issue is whether, as a matter of law, in view of the provision of the Organic Act, the justices are disqualified.

In Anderson v. Rawley, ante p. 60, it was held that “where a firm of attorneys is retained generally to represent the applicant upon an application made for a building permit * * to which a protest has been filed, and to secure the permit therein prayed, its employment includes the implied power to take any and all steps usually and reasonably necessary to secure the desired permit and when secured to oppose any steps that might be taken within a reasonable time after its issuance to revoke it or nullify the privileges granted under it” and that “where the protestor within a reasonable time after the issuance of the building permit institutes injunction proceedings .to prevent the exercise of the privileges granted under it upon the same grounds urged by her in support of her protest to the application such injunction proceeding is but a part of and a continuation of the original employment and within the meaning of section 84 of the Organic Act is the 'same case’ in which the attorneys -were originally 'of counsel’ ” and that “a member of said firm who prior to the institution of such injunction proceeding became a justice of this court is disqualified to sit upon any hearing involving the merits of said cause.” In other words it Avas there held that Avhen the terms of the employment of an attorney by a client are such as to authorize and require the attorney, until revocation or modification of that employment, to institute all legal proceedings necessary to attain the end desired by the client and to defend all legal proceedings instituted by an opponent seeking to frustrate the accomplishment of that desired end, any and all legal proceedings brought, whether in furtherance of or by way of frustrating the desired end are within the meaning of section 84 of the Organic Act the case in AAdiich the attorney was originally of counsel. The facts and circumstances of Anderson v. Rawley, supra, were in this respect very similar to those in the case at bar. It is apparent from the statements filed and the justices hereby reiterate, possibly a little more explicitly, that the terms of their respective employments were such as to authorize and require them, although first rendering services in the action of ejectment, to appear and act for their clients in any other legal proceedings that might be deemed necessary in behalf of their respective clients, or that might be brought by their antagonists, respecting the land title then in controversy. Within the rule laid down in Anderson v. Rawley, supra, a rule with which, although perhaps broader than that laid down in earlier Hawaiian cases, we are entirely satisfied, the case now at bar is the same case in which the two judges were of counsel. In our opinion both are disqualified to act in the case at bar.

N. D. Codbold of the firm of Hathaway & Codbold; E. M. Watson of the firm of Watson & Lymer, and G. F. Clemons for petitioner.

IF. F. Frear of the firm of Frear, Prosser, Anderson & Marx; A. Withington of the firm of Bobertson & Castle; U. E. Wild of the firm of Smith & Wild; E. A. Mott-Smith and N. W. Aluli for respondents.

Mr. Justice Lindsay before his appointment as a member of this court was directly and actively engaged as counsel in the above entitled cause, It is agreed by all parties to this suit in equity, and we are of the same opinion, that he is disqualified.  