In re Keenan

• Decision Date: 31 October 1941
• Parties: In re KEENAN.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

310 Mass. 166

37 N.E.2d 516

In re KEENAN.

Supreme Judicial Court of Massachusetts, Suffolk.

Oct. 31, 1941.

Report from Superior Court, Suffolk County; Buttrick, Judge.

Proceeding by Wilfred B. Keenan for admission to the bar. Order overruling an objection by the Bar Association of the City of Boston to the Superior Court's jurisdiction, and jurisdictional question reported to the Supreme Judicial Court.

Order affirmed, with direction that case stand for hearing in the Superior Court.

Argued before FIELD, C. J., and DONAHUE, DOLAN, COX, and RONAN, JJ.

P. N. Jones and J. S. Dawson, both of Boston, for Boston Bar Ass'n of City of Boston.

K. D. Johnson, of Boston, for petitioner.

FIELD, Chief Justice.

This is a petition for admission to the bar by a person who was disbarred by a judgment of the Supreme Judicial Court, entered by a single justice of the court on October 19, 1934, after rescript from the full court. See Matter of Keenan, 287 Mass. 577, 192 N.E. 65, 96 A.L.R. 679. The petition was filed in the Superior Court. An order of notice was issued thereon to the Bar Association of the City of Boston. Upon objection by the association to the jurisdiction of the Superior Court to hear the petition a judge of that court ruled that it had jurisdiction of the petition and entered an order overruling the objection. The judge reported the jurisdictional question to this court under G.L.(Ter.Ed.) c. 231, § 111. In these circumstances, no question is presented of the right of the association, not technically a party to the proceeding, see Bar Association of City of Boston v. Casey, 211 Mass. 187, 97 N.E. 751, 39 L.R.A., N.S., 116, Ann.Cas.1913A, 1226; Id., 213 Mass. 549, 556, 100 N.E. 658, to except. See Matter of Mayberry, 295 Mass. 155, 160, 3 N.E.2d 248, 105 A.L.R. 976. The jurisdictional question is here upon the report of the trial judge.

1. The judgment of the Supreme Judicial Court entered on October 19, 1934, was that the present petitioner ‘is removed from the office of an attorney at law in the courts of this Commonwealth.’ This judgment, as is apparent, was not restricted to exclusion of the present petitioner from practice before the court entering it. It is too late to contend, and it is not contended, that the Supreme Judicial Court did not have jurisdiction to enter a judgment in this broad form. See Bar Association of City of Boston v. Greenhood, 168 Mass. 169, 182, 183, 46 N.E. 568;In re O'Connell, Petitioner, 174 Mass. 253, 262, 53 N.E. 1001,54 N.E. 558. And the judgment was absolute without limitation of time. See Bar Association of City of Boston, v. Greenhood, 168 Mass. 169, 183, 46 N.E. 568. It was final and subject to review only in accordance with principles applicableto the review of final judgments. Bar Association of Boston v. Casey, 227 Mass. 46, 51, 116 N.E. 541;Matter of Keenan, 287 Mass. 577, 582, 192 N.E. 65, 96 A.L.R. 679. Compare Matter of Mayberry, 295 Mass. 155, 161, 3 N.E.2d 248, 105 A.L.R. 976. Nevertheless, a party so removed from the office of attorney is not, by force of such a final judgment, though unreversed, precluded from applying ‘for readmission if his offense was of such a kind that, after a lapse of time, he can satisfy the court that he has become trust-worthy.’ Bar Association of City of Boston v. Greenhood, 168 Mass. 169, 183, 46 N.E. 568, 574. This is in conformity with the general principle that the control of membership in the bar rests exclusively in the judicial department. See Opinion of the Justices, 279 Mass. 607, 609, 611, 180 N.E. 725, 81 A.L.R. 1059;Id., 289 Mass. 607, 612, 615, 194 N.E. 313. The jurisdiction of the judicial department with respect to membership of a particular person in the bar is not exhausted by a final judgment, favorable or adverse to such person, in a proceeding for his disbarment. See Matter of Mayberry, 295 Mass. 155, 160, 3 N.E.2d 248, 105 A.L.R. 976. The present petitioner does not seek by his petition review of the final judgment of removal from his office as an attorney at law, but, in accordance with the statement just quoted, seeks readmission to the bar.

2. The present proceeding is a new proceeding for admission to the bar, subject to the limitations of procedure and substance resulting from the fact that the petitioner by a final judgment has been ‘removed from the office of an attorney at law in the courts of this Commonwealth.’ The present proceeding is not a continuation of the prior proceeding culminating in such a final judgment. It is brought under the jurisdiction of the judicial department to control membership in the bar, which continues though a particular proceeding has been terminated by a final judgment. This conclusion is in accord with the decision in Matter of Mayberry, 295 Mass. 155, 160, 161, 3 N.E.2d 248, 250, 105 A.L.R. 976. That case was a proceeding for disbarment in which an order for judgment was entered on October 5, 1933, that the proceeding be dismissed. Subsequently the case was heard de novo. This court held that the order for judgment was not final and that the later action of the court ‘in ordering a hearing de novo was a step in the further progress of the case which the court had power to take.’ But the court further said that ‘we need not rest this decision upon technical niceties of practice, for even if the order of October 5, 1933, had been a final judgment, it would not follow in a case of this kind that the court was without jurisdiction to entertain the later proceedings. * * * If, as the respondent contends, the order of October 5 was a final judgment in his favor ending the original proceeding against him’ the further action including the assignment of the matter ‘for hearing de novo was the commencement of a new proceeding against the respondent. That proceeding was within the general jurisdiction of the court. * * * The existence of a former judgment in favor of the respondent could not affect the jurisdiction of the court to hear the second proceeding. At most it could be no more than an affirmative defence in the nature of res judicata to be seasonably set up and proved by the respondent.’ This principle is equally applicable when a final judgment in a proceeding for disbarment is adverse to the respondent.

A petition of a disbarred person for admission to the bar is not to be regarded as a continuation of the proceeding in which he was disbarred, on the ground that such admission would be a modification of punishment imposed by the judgment of disbarment. A judgment of removal from the office of an attorney in the courts is not properly or technically to be considered as in the nature of punishment, though it may have that practical effect. Its purpose is to exclude from the office of an attorney in the courts, for the preservation of the purity of the courts and the protection of the public, one who has demonstrated that he is not a proper person to hold such office. In re Randall, Petitioner, 11 Allen 473, 480; Bar Association of City of Boston v. Greenhood, 168 Mass. 169, 183, 188, 46 N.E. 568;Matter of Carver, 224 Mass. 169, 172, 112 N.E. 877;Matter of Ulmer, 268 Mass. 373, 393, 167 N.E. 749;Matter of Keenan, 287 Mass. 577, 582, 192 N.E. 65, 96 A.L.R. 679. A final judgment of removal from such office rendered by a court of competent jurisdiction is binding upon all the courts of the Commonwealth and constitutes an adjudication that, at the time it was rendered, the attorney so removed was not a proper person to hold such office. A subsequent petition for admission to the bar involves a new inquiry as to whether, in the interval following the rendering of the judgment of removal, the petitioner has become a proper person to hold such office. Bar Association of City of Boston v. Greenhood, 168 Mass. 169, 183, 46 N.E. 568.

It is to be observed, by way of analogy, that even statutory proceedings for review of final judgments are regarded as new and independent proceedings, though the statutes in some instances, but not in all, provide that such a proceeding for review shall be brought in the court in which the judgment was entered. See G.L.(Ter.Ed.) c. 250, §§ 13, 15, 22; Clarke v. Bacall, 171 Mass. 292, 50 N.E. 614;Perkins v. Bangs, 206 Mass. 408, 412, 92 N.E. 623;Lee v. Fowler, 263 Mass. 440, 443, 161 N.E. 910;Lynch v. Springfield Safe Deposit & Trust Co., 300 Mass. 14, 16, 13 N.E.2d 611. Compare, however, G.L.(Ter.Ed.) c. 250, § 14; Boston v. Santosuosso, 308 Mass. 189, 194, 31 N.E.2d 564;Boston v. Santosuosso, 308 Mass. 202, 211-213, 31 N.E.2d 572.

The conclusion that the present proceeding is a new and independent proceeding, and not a continuation of the proceeding in which the judgment of disbarment was rendered, is in accord with cases in some other jurisdictions. See In re Newton, 27 Mont. 182, 183, 70 P. 510, 982;Vaughan v. State Bar of California, 208 Cal. 740, 742, 284 P. 909;In re Lavine, 2 Cal.2d 324, 328, 41 P.2d 161. So far as there are decisions and expressions in opinions in cases in some other jurisdictions in conflict with what is here decided we cannot follow them. See Ex parte Peters, 195 Ala. 67, 68, 70 So. 648;In re King, 54 Ohio St. 415, 417, 43 N.E. 686.

We conclude that the Superior Court is not without jurisdiction of the present petition on the ground that it is a continuation of the proceeding in the Supreme Judicial Court in which the judgment of disbarment was rendered.

3. Treating the present proceeding for admission to the bar, therefore, as a new proceeding, independent of the proceeding in which a final judgment of disbarment was rendered against the present petitioner, the questions arise (1) whether the Superior Court has any jurisdiction of petitions for admission to the bar by persons who have been disbarred, and (3) whether, if it has any such jurisdiction, that jurisdiction extends to a petition of a person who has been disbarred by a judgment of the Supreme Judicial Court.

4. Control of membership in the bar...