In re Stump

• Citation: 114 S.W.2d 1094,272 Ky. 593
• Parties: In re STUMP.
• Decision Date: 15 March 1938
• Court: Court of Appeals of Kentucky

114 S.W.2d 1094

272 Ky. 593

In re STUMP.

Court of Appeals of Kentucky

March 15, 1938

Proceeding in the matter of the petition of O. A. Stump for reinstatement as an attorney at law, wherein the Board of Bar Commissioners filed a report recommending that the petition be denied and the petitioner filed exceptions to the report.

Report confirmed and petition denied.

J. J Moore and P. B. Stratton, both of Pikeville, for petitioner.

A Floyd Byrd, of Lexington, Hubert Meredith, Atty. Gen., and W Owen Keller, Asst. Atty. Gen., for respondent.

STANLEY Commissioner.

In obedience to the mandate of this court, the Pike circuit court entered a judgment on April 4, 1933, disbarring O. A. Stump from the practice of law. Commonwealth ex rel. Pike County Bar Association v. Stump, 247 Ky. 589, 57 S.W.2d 524. Subsequently, the statute was enacted providing for the organization of a State Bar Association and vesting authority in the Court of Appeals to promulgate rules of practice and procedure for the discipline, suspension, and disbarment of attorneys at law. Chapter 3, Acts 1934; section 101-1 et seq., Kentucky Statutes; Commonwealth ex rel. Ward v. Harrington, 266 Ky. 41, 98 S.W.2d 53; In re Sparks, 267 Ky. 93, 101 S.W.2d 194; Commonwealth ex rel. Buckingham v. Ward, 267 Ky. 627, 103 S.W.2d 117; Louisville Bar Association v. Clarke, 270 Ky. 315, 109 S.W.2d 619; Louisville Bar Association ex rel. Drane v. Yonts, 270 Ky. 503, 109 S.W.2d 1186. Under the authority of this act, the court has promulgated the following rule:

"All applications for reinstatement to the practice of law shall be made to the Court of Appeals and shall be filed in the office of the clerk of the court. Thereupon such applications will be referred to the board for hearing. After hearing the board shall make its recommendations, which shall be filed with the Court of Appeals for the entry of such orders thereon as the court may deem advisable. It matters not by what tribunal the applicant was disbarred, the method of reinstatement herein provided shall be exclusive."

Under this rule on July 27, 1936, Mr. Stump petitioned the court for reinstatement, setting forth what he deemed to be sufficient reasons. A response and protest were filed by one Alex Blackburn in which he stated that it was for himself and, at request, for and on behalf of other citizens of Pike county and a large number of the members of the Pike county bar. It consists of denials and affirmative allegations of improper conduct since the disbarment. A reply was filed to it. The application was thereupon referred to the Board of Bar Commissioners, which has been established for the purpose of considering such matters, for their examination and recommendation. Thereafter Mr. Blackburn asked to withdraw his response and protest, but his motion was overruled by the commissioners. Blackburn had previously sued Judge Stump for damages based upon alleged illegal and tyrannical judicial action affecting him. Hon. A. Floyd Byrd was appointed by the board to investigate the application and to see that the case was properly presented. This was eminently proper, for proceedings of disbarment and restoration are not adversary but inquisitorial. Mr. Byrd adopted the allegations of the Blackburn protest.

The bar commissioners designated two of their number, namely, Hon. L. J. Crawford and Hon. G. W. Hughes, as a trial committee. After hearing and considering much evidence, the committee filed a report of the law and the facts. It manifests diligent study of both those factors, which must determine the case, and shows a fair, impartial, and sympathetic hearing was given the application. This with their recommendation that the application be denied and the briefs of counsel were considered by the entire membership of the bar commissioners. That board has filed with the court a finding that the facts are not such as to entitle the petitioner to resume the practice of law, and a recommendation that the petition be denied. The respondent has filed exceptions to the report. The entire record is before us for final decision.

We first consider the law. It is a well-settled principle that disbarment is not res adjudicata or necessarily permanent, and that a disbarred attorney may be reinstated for reasons satisfactory to the court. 2 R.C.L. 1113; 5 Am.Jur. 443; 6 C.J. 615; 7 C.J.S., Attorney and Client, p. 814. It may be laid down as a general proposition that though the door to re-entrance into the profession is not forever closed, its opening is not a matter of grace or pardon for past offenses. If it is to be opened, it must be a matter of justice; albeit "mercy seasons justice." The courts have a serious duty to perform, not only to the erring lawyer, but to the legal profession and to the public as well. And of equal gravity is the duty of the courts to protect themselves from readmitting as an officer one who cannot command trust and confidence.

As another general proposition, we may say that unless restrained by statute--binding if it does not invade the independence of the judicial department as a separate body of magistracy, sections 27 and 28, Constitution of Kentucky--the courts have plenary power in these matters of restoration the same as they have of disbarment. Commonwealth v. Roe, 129 Ky. 650, 112 S.W. 683, 19 L.R.A.,N.S., 413; Chreste v. Commonwealth, 171 Ky. 77, 186 S.W. 919, Ann.Cas.1918E, 122; Lenihan v. Commonwealth, 165 Ky. 93, 176 S.W. 948, L.R.A.1917B, 1132; Commonwealth ex rel. Ward v. Harrington, supra; In re Sparks, supra. The only such limitation upon our authority is section 97, Kentucky Statutes, declaring that no person convicted of treason or felony shall be permitted to practice law in any court as counsel or attorney at law. We have held that though a lawyer so convicted may have been pardoned of the crime, he cannot be restored to his former professional status. This decision has not been placed alone upon the disqualification so mandatorily declared by the Legislature, but as well upon the broad ground that relief from the penal consequences of his act does not reinvest in the man those qualities of good character so essential for an attorney at law to possess. Nelson v. Commonwealth, 128 Ky. 779, 109 S.W. 337, 33 Ky. Law Rep. 143, 16 L.R.A.,N.S., 272; Commonwealth ex rel. Harris v. Porter, 257 Ky. 563, 78 S.W.2d 800. Excepting these two cases and that of McMath v. Maus Bros. Boot & Shoe Store, 15 S.W. 879, 12 Ky.Law Rep. 952, which incidentally involved the suspension of an attorney until he should pay over money to a client, it appears that the court has not hitherto had a reinstatement case before it.

As is stated by the trial committee of the Board of Bar Commissioners in their excellent analysis of the law, three rules have emerged from the many decisions involving the reinstatement of disbarred attorneys, namely, a lax rule, a strict rule, and what they term a reasonable middle rule, which they rightly declare to be the preferable one.

The very liberal rule is that a petition for reinstatement shall be treated as an original application for admission to the bar, so that if the applicant has produced evidence merely of present good moral character, he is readmitted. This without regard to any other record or circumstance. Under such a rule, the testimonials of good character are sufficient to insure reinstatement. It appears that this rule once prevailed in Florida and Mississippi, but has been departed from.

Branch v. State, 120 Fla. 666, 163 So. 48; Ex parte Marshall, 165 Miss. 523, 147 So. 791. Upon the authority of statements in Danford v. Superior Court, 49 Cal.App. 303, 193 P. 272, and In re Cate, Cal.App., 270 P. 968, that an application for reinstatement as an attorney constitutes an application for admission to the bar, the Supreme Court of New Mexico, In re Fleming, 36 N.M. 93, 8 P.2d 1063, laid down such a rule. Yet in that case in considering the application for restoration of an attorney whom it had disbarred and who had returned to Oklahoma and resumed the practice of law, although he had been previously disbarred in that state before coming to New Mexico, and was again the object of pending disbarment proceedings, in Oklahoma, the New Mexico court denied the petition for reinstatement upon the ground that the petitioner was not a bona fide resident of that state. It is of interest to note that the Oklahoma court reinstated him. In re Fleming, 167 Okl. 335, 29 P.2d 592. The petitioner at the bar relies upon the rule stated in the New Mexico case and asks that it be applied to him. We think the rule unsound in principle and is lacking in sufficient judicial sanction as an authority.

We may put aside with but little discussion the extreme or strict rule, which all but denies restoration, since neither the attorney representing the bar commissioners nor the Attorney General, who has also filed brief, contends for its application. We are not inclined to adopt it. We are not willing to say that no matter what a disbarred attorney's subsequent conduct may be; no matter how hard and successfully he has tried to live down his past and atone for his offense; no matter how complete his reformation--the door to restoration is forever sealed against him. Even wrongdoers convicted of crime are given another chance.

The fundamental consideration is the nature and degree of misconduct for which the attorney was disbarred and circumstances attending the offense. In sequence are his conception of the serious nature of his act and his previous and, what is of more importance, his subsequent conduct and attitude toward the courts and the practice. This involves the element of time since disbarment as constituting his testing period, for character is not developed or...