Daniel, In re

• Decision Date: 17 March 1970
• Docket Number: No. 12945,12945
• Citation: 173 S.E.2d 153,153 W.Va. 839
• Court: West Virginia Supreme Court
• Parties: In re Application For License To Practice Law by John W. DANIEL.

Page 153

173 S.E.2d 153

153 W.Va. 839

In re Application For License To Practice Law by John W. DANIEL.

No. 12945.

Supreme Court of Appeals of West Virginia.

Submitted Jan. 27, 1970.

Decided March 17, 1970.

Syllabus by the Court

1. Although an annulment of a license to practice law forever terminates the license held by the attorney at the time if was annulled, it does not prohibit the application by such an attorney for a new license to practice law as if he had never been issued a license.

2. Disbarment of an attorney to practice law is not used solely to punish the attorney but is for the protection of the public and the profession.

3. A final judgment annulling an attorney's license to practice law does not preclude him subsequently from applying for a new license to practice law which may be granted if he meets requirements thereof and if he can satisfy the court that during the interval between licenses he has been rehabilitated and is now trustworthy.

Herbert H. Henderson, Huntington, for petitioner.

Charles V. Renner, Parkersburg, John O. Kizer, Charleston, for Committee on Legal Ethics, The W. Va. State Bar.

BERRY, Judge.

This is a proceeding involving an application of John W. Daniel of Cabell County to obtain a second license to practice law in the State of West Virginia and involves the inherent power of the Supreme Court of Appeals over such matters. The case was submitted for decision of this Court on January 27, 1970, upon arguments and briefs on behalf of both the applicant and the West Virginia State Bar.

The applicant's license to practice law was revoked and annulled by an order of this Court entered July 14, 1964. The order resulted from a complaint filed in the Supreme Court on May 14, 1964 by the Committee on Legal Ethics of the West Virginia State Bar to which complaint Daniel filed an answer denying the allegations contained in the complaint. The complaint was accompanied by exhibits and transcripts of the hearings held before such Committee with regard to the charges of professional misconduct. Daniel did not appear before the Committee but filed a request with this Court to have the matter referred to a Special Commissioner and for additional hearings, which request was denied, and the findings and conclusions of the Legal Ethics Committee were adopted and his license to practice law annulled. It is not necessary at this time to go into the datails of the charges contained in the complaint except to say that they consisted of three instances in which he failed to pay over money collected for his clients and the failure to institute proceedings for which he had received money from his clients so to do.

In the year in which the charges were filed Daniel left Huntington, West Virginia, where he had lived and practiced law, and went to Nashville, Tennessee, where he remained for quite a few years. Later, he returned to Huntington where he had formerly lived.

On March 4, 1969 he filed an application with the Supreme Court of Appeals for reinstatement of his license to practice law in this State. In his petition he admitted that the annulment of his license by this Court was proper, but set up certain statements in mitigation which were in effect that he had repaid all of the monies involved other than $150 for which he could not find the owner, and he tendered this item to the Court. He endeavored to explain the reasons for the difficulty which resulted in his resigning from the Bench of the Common Pleas Court of Cabell County in 1958 and resuming the practice of law which he later gave up in 1962 and left the state.

He further stated that he was rehabilitated, and attached to his petition several letters from prominent members of the profession in Huntington recommending his reinstatement.

The Committee on Legal Ethics of the West Virginia State Bar filed a report with this Court on June 12, 1969 in accordance with the by-laws of the West Virginia State Bar in which it took the position that inasmuch as his license had been annulled it was forever terminated and it could not be reinstated. Its position was based on Article VI, Part H. Section 31 of the bylaws of the West Virginia State Bar which was approved by this Court and which provides as follows: 'The annullment of a license to practice law by any court of competent jurisdiction shall revoke and forever terminate such license, and shall constitute a disbarment.' However, in the report the Committee made the following statement to the Court. 'This Committee further submits that as the result of his disbarment the Petitioner has the same status with respect to the practice of law as if no license had ever been issued to him and may obtain a license to practice law only by compliance with the Rules Relating to Admission to the Bar adopted by this Court.' The report concluded with a statement that Daniel's petition failed to state a claim upon which relief coud be granted. This Court then refused without prejudice the application for reinstatement on June 16, 1969.

On November 12, 1969 the present application for a new license to practice law in this state was filed in this Court by Daniel, in accordance with the statement contained in the report of the Committee on Legal Ethics of the West Virginia State Bar to this Court in connection with his application for reinstatement of his license to practice law. Attached to this application was an order of the Circuit Court of Cabell County reciting that the Committee on Admissions to Practice Law had been duly appointed by that Court to investigate the qualifications of the applicant to obtain a license to practice law and that the applicant is a person of good moral character, over twenty-one years of age, and had resided in such county for one year next preceding the date of his appearance before the court, all in accordance with the provisions of Code, 30--2--1. This order was entered on October 31, 1969.

Two hearings were held in connection with this matter. After the first hearing on November 25, 1969, this Court was of the opinion that the matter should be further developed and a final hearing was held on January 27, 1970.

It is the contention of the applicant that he has complied with all of the requirements with regard to the obtaining of a new license to practice law as contained in Code, 30--2--1, dealing with such matter; that another license should be granted to him because the State Bar does not deny the allegations that said requirements have been complied with as stated in the order of Cabell County or does not contest the finding of the good moral character of the applicant by such Court.

In response to this effort of Daniel to have himself treated as a new applicant, the State Bar now takes the position that Section 31, Part H, Article VI of the by-laws of the West Virginia State Bar prohibits him from applying for another license to practice law and that Code, 30--2--1 does not apply to a person who has once obtained a license which has later been annulled. The present view of the State Bar is thus contra to the suggestion it made when the matter was before the Court on an attempted reinstatement.

The Supreme Court of Appeals has the inherent power to supervise, regulate and control the practice of law in this State, which includes the inherent power to grant or refuse to grant the license to practice law, In Re Eary, 134 W.Va. 204, 58 S.E.2d 647; West Virginia State Bar v. Earley, 144 W.Va. 504, 109 S.E.2d 420, and both parties agree as to this power.

The only question involved in this proceeding is whether this Court after having once revoked and annulled a license heretofore granted to practice law can grant another one after it had promulgated and adopted Section 31, Part H. Article VI of the by-laws of the West Virginia State Bar dealing with annulment of license to practice law. There is no question but that this Court has the inherent power to promulgate and adopt such rules and to change such rules if it sees fit and proper to do so. Re Application of J. T. Daniel, (Okl.) 315 P.2d 789, 70 A.L.R.2d 265; In Re Nevius, 174 Ohio State 560, 191 N.E.2d 166.

It is true that if a license to practice law has been annulled it can not be reinstated because such license is gone. It has been so held by this Court. Ex Parte Mitchell, 123 W.Va. 283, 14 S.E.2d 771. The adoption of Section 31, Part H, Article VI did not in any manner change the law in this State with regard to the annulment of license to practice law. The above rule adopted by this Court merely states that an annullment of a license to practice law Shall revoke and forever terminate such license. The wording of this rule specifically refers to such license and not to another or new license.

On June 14, 1948, upon the application for a new license to practice law by one Jackson B. Blair, who had heretofore had his license to practice law annulled because of a conviction in a Federal District Court of West Virginia, a new license was granted, he having shown to the Supreme Court that he had been rehabilitated, pardoned by the President of the United States, was of good moral character and had the requisites of age and residency required by Code, 30--2--1. In the case of In Re Eary, Supra, decided by this Court in 1950, it was clearly indicated that in such cases a new license could be granted, if the Court saw fit to do so, wherein it was stated that: 'The petitioner stands on this petition as if he were making an original application for a...