Opinion
No. 39546.
March 28, 1955.
1. Appeal — disbarment proceedings — duty of Supreme Court.
On appeal from decree disbarring attorney from practice of law, it is Supreme Court's duty, under applicable statute to consider evidence as disclosed by record and decide all questions of law and fact and render such final judgment as Court may consider proper, the Supreme Court being the final judge of the facts and of the judgment to be rendered thereon. Sec. 8715, Code 1942.
2. Attorney and client — disbarment — evidence required — to warrant.
In disbarment proceeding, proof of respondent's guilt of misconduct must be clear and convincing to warrant disbarment.
3. Attorney and client — Supreme Court — modified disbarment decree — appealed from.
In disbarment proceeding, Supreme Court held, under evidence, that nature of the charges against respondent were not so serious as to warrant his permanent disbarment, but that ends of justice would be met by suspending respondent from practice of law for period of one year from date of Supreme Court's judgment, and required respondent to make restitution of fee collected from named client.
Headnotes as approved by Hall, J.
APPEAL from the Chancery Court of Hinds County; L. ARNOLD PYLE, Chancellor.
W.W. Pierce, Jackson, for appellant.
I. The Supreme Court is the final arbiter of both the law and the facts in a disbarment proceeding. Sec. 8715, Code 1942.
II. From the wording of the statute, it appears that the responsibility and power ultimately to determine the guilt of an accused attorney and to fix the penalty to be imposed are lodged in the Supreme Court.
III. Under the law applicable to disbarment proceedings, the evidence in this case is insufficient to warrant the Court in finding the appellant guilty of unprofessional conduct. Ex parte Redmond, 156 Miss. 439, 125 So. 833.
IV. It seems to be almost a universal rule of law that where the evidence in a proceeding to disbar an attorney is substantially conflicting, the accused attorney will be given the benefit of the doubt. Ex parte Gadsen, 89 S.C. 352, 71 S.E. 952; In re Mishbir, 60 N.Y.S. 451; In re Novo, 200 La. 833, 9 So.2d 201; In re Parsons, 35 Mont. 478, 90 P. 163; In re Riley, 183 P. 728; In re Stephens, 84 Cal. 77, 24 P. 46; People ex rel. Healy v. Thornton, 228 Ill. 42; State ex rel. Fowler v. Finley, 11 So. 674; State ex rel. Rude v. Young, 11 So. 514; State ex rel. Schufeldt v. Baker, 56 Ill. 299; State v. Fourchy, 31 So. 325; Williams v. Sullivan, 35 Okla. 745; Zachery v. State, 43 So. 925.
V. There are many authorities holding that the proof must be clear, both as to the act charged against an attorney for misconduct, and as to the corrupt motive in committing the act. In re Newby, 82 Neb. 235; In re Novo, supra; In re Petersen, 208 Cal. 42, 280 P. 124; In re Smith, 365 Ill. 11, 5 N.E.2d 227; State ex rel. Fowler v. Finley, supra; State ex rel. Rude v. Young, supra.
VI. The attorney's integrity is presumed, and that presumption must be overthrown by clear and convincing evidence. Ex parte Gadsen, supra; Ex parte Redmond, supra; People for Use of Chicago Bar Assn. v. Brunswick, 315 Ill. 442, 146 N.E. 486; People v. Barrios, 237 Ill. 527, 86 N.E. 1075; People v. Pio, 308 Ill. 128.
VII. The proof must be such as to clarity as to show a case of conduct which affects the standing and character of the attorney as a lawyer, or such conduct as may be characterized as gross and shocking to the conscience of the Court. Ex parte Wall, 107 U.S. 265, 27 L.Ed. 552; In re Lentz, 65 N.J.L. 134.
VIII. It is only those infractions of duty committed by a lawyer that involve moral turpitude, and demonstrate a depraved character that will warrant the disbarment of an attorney. Disciplinary proceedings are not for the purpose of destroying but for the purpose of correcting abuses by members of the legal profession. May we say here, that disbarment is the full measure of penalty that may be imposed in any case; and under our statute it is within the power of the Court to do anything less than permanent disbarment. Bradley v. Fisher, 13 Wall 335, 355, 20 L.Ed. 646; Ex parte Wall, supra; In re Novo, supra.
IX. In disbarment proceedings, the evidence not only as to the act which forms the basis of the attorney's unprofessional conduct, but also as to the motive with which the act was done, must be clear and convincing. Bradley v. Fisher, supra; Ex parte Wall, supra; In re Evans, 22 Utah 366, 62 P. 913, 53 A.L.R. 952; In re Lacy, 234 Mo. App. 71, 112 S.W. 594; In re Lynch, 227 App. Div. (N.Y.) 477, 238 N.Y.S. 947; In re Mishbir, supra; In re Newby, supra; In re Petersen, supra; In re Roepiecki, 282 N.Y.S. 947; In re Welcome, 23 Mont. 450, 59 P. 445; People v. Barker, 56 Ill. 299; People v. Hammond, 356 Ill. 581, 191 N.E. 215; People v. Harvey, 41 Ill. 94; People v. Kirker, 315 Ill. 572, 146 N.E. 439; People v. Lotterman, 353 Ill. 399, 187 N.E. 424; People v. McCaskerin, 325 Ill. 149, 156 N.E. 328; People v. Mathews, 217 Ill. 94, 75 N.E. 444; Ring v. State Bar of California, 218 Cal. 747, 24 P.2d 821.
X. That if we are mistaken in the position that the evidence adduced against appellant is insufficient to warrant the Court in finding the appellant guilty of unprofessional conduct, such facts do not warrant the Court in adjudging permanent disbarment of appellant, but a lesser degree of punishment, such as reprimand, suspension, or probation for a reasonable length of time would be sufficient punishment, and would meet the ends of justice. Barton v. State Bar of California, 209 Cal. 677; Bradley v. Fisher, supra; Dorsey v. Kingland, 173 F.2d 405; Holland v. Flournoy, 142 Fla. 459, 195 So. 138; In re Bruener, 178 Wn. 165, 34 P.2d 437; In re Craven (La.), 15 So.2d 861; In re Diesen, 173 Minn. 297; In re Gill, 104 Wn. 176; In re Harrell, 156 Fla. 327, 23 So.2d 92; In re McDonald, 204 Minn. 61; In re Novo, supra; In re Power, 407 Ill. 525; Kelly v. State (Fla.), 183 So. 484; Lenihan v. Commonwealth, 165 Ky. 93, 176 S.W. 948; People ex rel. v. McCallum, 173 N.E. 827; Richardson v. State (Fla.), 192 So. 876; State v. Cannon (Wis.), 226 N.W. 385; United States v. Costen, 38 Fed. 24.
Thomas H. Watkins, Jack H. Ewing, M.B. Montgomery, Stokes V. Robertson, Sr., George F. Woodliff, Robert Burns, Ray Edwards, C.B. Snow, Robert E. Perry, Garner W. Green, Jr., D.W. Morse, Jackson, for appellee.
I. This Court can review the findings of fact made by the Chancellor or Circuit Judge and we are not bound by such findings on conflicting evidence, and it was there said: "But this does not prevent the presumption of rightfulness of the decision from being indulged until the contrary appears from a consideration of the whole record." Ex parte Marshall, 165 Miss. 523, 147 So. 791.
II. When the conduct of an attorney becomes such that it tends to bring in disrepute the courts and the legal profession and jeopardizes the rights of those who entrust their affairs and money into his hands, he should be disbarred. Such action is necessary for the protection of the public, the courts, and the legal profession. Punishment of such attorney is not the purpose sought to be accomplished by his disbarment. Petition for Disbarment of John R. Poole, 222 Miss. 678, 76 So.2d 850.
III. The nearest approach to a precise definition which will cover the entire subject may be stated thus: an attorney is guilty of misconduct whenever he so acts as to be unworthy of the trust and confidence involved in his official oath, and is found to be wanting in that honesty and integrity which must characterize members of the Bar in the performance of their professional duties. The misconduct, however, must be willful; but it need not be corrupt, or of a criminal nature. 5 Am. Jur., Attorneys at Law,, Sec. 261; Vol. II, Thornton on Attorneys at Law, p. 1187.
IV. Any conduct on the part of any attorney evidencing his unfitness for the confidence and trust which attend the relation of attorney and client and the practice of law before the courts, or showing such a lack of personal honesty or of good moral character as to render him unworthy of public confidence, constitutes a ground for his disbarment. In re Dahl, 159 Minn. 481, 199 N.W. 429; In re Jones, 147 N.Y. Supp. 583, 163 App. Div. 880; In re Kenney, 140 N.Y. Supp. 314, 155 App. Div. 890; In re MaKay, 203 N.Y. Supp. 15, 208 App. Div. 44; People ex rel. Black v. Smith, 290 Ill. 241, 124 N.E. 807; People ex rel. Chicago Bar Assn. v. Kwasigroch, 296 Ill. 542, 130 N.E. 344; People ex rel. Colorado Bar Assn. v. Farnum, 72 Colo. 549, 212 P. 825; 7 C.J.S., Attorney and Client, Sec. 19.
V. Incompetency or inattention to duty as ground for disbarment of attorney. Anno. 69 A.L.R. 707.
VI. Deception of Court and obstruction of justice. 7 C.J.S., Attorney and Client, Sec. 23(e) p. 753.
VII. The evidence clearly shows appellant violated his oath. Secs. 8664, 8665(3), Code 1942.
This is an appeal from a decree of the chancery court permanently disbarring L. Percy Quinn, Sr., from the practice of law. The charges were preferred by a committee appointed by decree of the chancellor for that purpose and consisted of three specifications, all of which the chancellor found were sustained by the proof.
(Hn 1) Under Section 8715, Code of 1942, it is our duty to consider the evidence as disclosed by the record and decide all questions of law and fact and render such final judgment as we may consider proper, we being the final judge of the facts and of the judgment to be rendered thereon. (Hn 2) The proof of guilt must be clear and convincing. Ex Parte Redmond, 156 Miss. 439, 125 So. 833.
(Hn 3) We have carefully reviewed the entire evidence and we are of the opinion that the proof is sufficient to sustain two of the charges and insufficient to sustain one of them, but the nature of the charges in this case are not so serious as in our judgment to warrant a permanent disbarment of appellant for the protection of the public. After a most careful consideration of the charges and the evidence we are of the opinion that the ends of justice will be met by requiring appellant to pay back to Mrs. Mary Frances Smith the sum of $150.00 which was collected from her as a fee for prosecuting her appeal in a divorce case from the chancery to the Supreme Court and by suspending appellant from the practice of law for a period of one year from the date of final judgment herein, and it is so ordered.
Affirmed in part and reversed in part and final judgment entered here.
All the justices concur except Gillespie, J., who dissents.
I agree with the majority in all respects except that in my opinion the judgment of the lower court should be affirmed as entered. This would permit the respondent to file an application for reinstatement with the chancery or circuit court, as provided by statute.