Brown, In re

• Decision Date: 30 July 1973
• Docket Number: No. 13338,13338
• Parties: In re Bonn BROWN, a member of the West Virginia State Bar.
• Court: West Virginia Supreme Court

Page 814

197 S.E.2d 814

157 W.Va. 1

In re Bonn BROWN, a member of the West Virginia State Bar.

No. 13338.

Supreme Court of Appeals of West Virginia.

Submitted April 24, 1973.

Decided July 3, 1973.

Rehearing Denied July 30, 1973.

Syllabus by the Court

1. 'Under the provisions of Section 24, Part E, Article VI of the By-Laws of the West Virginia State Bar, as amended, upon proof that an attorney has been convicted of a crime involving moral turpitude warranting the annulment of the attorney's license to practice law and such conviction is appealed, the attorney's license will be suspended pending the disposition of the appeal.' Point 2 Syllabus, In re Berzito, W.Va., 192 S.E.2d 227 (decided October 24, 1972).

2. Where the provisions of Section 23 and Section 24 of the By-Laws of the West Virginia State Bar originally provided that upon conviction of a crime of moral turpitude an attorney's license to practice law would be annulled upon the expiration of the appeal time or the affirmance of the conviction upon appeal, and where Section 24 was subsequently amended to provide for the suspension of said license during the pendency of an appeal of such conviction, the application of the amended portion of Section 24, relating to the suspension of a license during an appeal, to an attorney who was convicted after the approval of the amendment violates no ex post facto constitutional provision or rule prohibiting the retroactivity of statutes, although the offenses charged to the attorney and his indictment occurred prior to the effective date of the amendment.

John O. Kizer, Edmund C. Stone, Jr., Bluefield, for Committee on Legal Ethics.

John E. Busch, Elkins, James L. Rider, Washington, D.C., for Bonn Brown.

PER CURIAM:

This is a proceeding instituted by the Committee on Legal Ethics of the West Virginia State Bar, pursuant to its authority under Section 24 of Part E of Article VI of the By-Laws of the West Virginia State Bar (sometimes hereinafter referred to as Section 24) against Bonn Brown, an attorney at law living and practicing his profession at Elkins, Randolph County, West Virginia, and an active member of the West Virginia State Bar. The Committee seeks an order of this Court suspending the license of Brown to practice law in this State until the final disposition of his appeal from a conviction of a crime involving moral turpitude in the United States District Court for the Western District of Virginia.

The complaint together with a certified copy of an indictment returned in the United States District Court for the Southern District of West Virginia, charging Brown with conspiracy to commit bribery and bribery of a juror was properly filed in this Court on February 24, 1970. Also filed was a certified copy of the order of the United States District Court for the Western District of Virginia entered pursuant to a jury verdict, convicting Brown of the offenses charged in the indictment. This Court on February 27, 1973, issued a rule returnable before this Court on April 24, 1973, commanding Brown to appear before this Court at that time to show cause against the entry of an order suspending his license during the pendency of his appeal.

On February 10, 1973, Brown had filed a petition with the Court as permitted by Section 24, stating that he had appealed his conviction to the United States Court of Appeals for the Fourth Circuit and praying that his license to practice law be not suspended until the final determination of his appeal. On February 12, 1973, the prayer of the petition was refused by the Court.

Upon the return day of the rule, this proceeding was submitted for decision upon the complaint with its exhibits, upon the petition previously submitted by the respondent, the respondent's exhibits, the answer filed in behalf of the respondent attorney, and upon briefs and oral argument of counsel.

The respondent attorney, Bonn Brown, was jointly indicted with William Wallace Barron and Robert G. Perry on March 24, 1971, in the United States District Court for the Southern District of West Virginia upon three counts of conspiracy to commit bribery and the bribery of Ralph Buckalew, a juror impaneled in the case of United States v. William Wallace Barron, et al., in violation of Title 18, Sections 2, 201(b), 201(c), 1503 and 371 of the United States Code. The charges alleged in the indictment constituted a felony under the aforementioned provisions of the United States Code.

Brown pleaded not guilty to all counts of the indictment and, upon his motion, the case was transferred for the purposes of trial to the United States District Court for the Western District of Virginia. The trial was held in September, 1972, and Brown was found guilty by a jury of all three counts contained in the indictment.

By an order dated February 2, 1973, the trial court entered judgment on the jury verdict and sentenced Brown to imprisonment for a period of five years and fined him $10,000.00. Brown filed a notice of intent to appeal on February 8, 1973, in the United States District Court for the Western District of Virginia.

Conviction of a charge of conspiracy to commit bribery and a charge of bribery of a jury is, of course, a conviction involving moral turpitude. In re Robertson, W.Va., 194 S.E.2d 650; In the Matter of Barron, W.Va., 181 S.E.2d 273. In the Barron case, this Court said (In the Matter of Barron, Supra at 275):

'It is clear beyond question that each of the crimes of conspiracy to commit bribery and bribing a juror is a crime which involves moral turpitude. It is difficult to consider an offense which is more destructive or corruptive of the legal system of West Virginia than bribery of a juror, especially when such crime is committed by an attorney who is an officer of the Court. Bribery of a juror is a perversion of justice and strikes at the foundation of the judicial system of this State; manifestly the crimes of which Barron has been convicted upon his plea of guilty and for which he has been sentenced to imprisonment involve moral turpitude. Conviction of a charge of wilfully, unlawfully and knowingly conspiring to commit bribery and of a charge of bribery of a juror in violation of Title 18, Sections 1503, 371, 201(b) and 2, United States Code, is a conviction involving moral turpitude.'

The Legal Ethics Committee of the West Virginia State Bar, as required, has transmitted to this Court conclusive evidence of the respondent's conviction of a crime involving moral turpitude.

The duty of this Court in this respect is stated in the second point of the syllabus of In the Matter of Mann, 151 W.Va. 644, 154 S.E.2d 860:

'Section 23, Part E., Article VI of the By-Laws of the West Virginia State Bar imposes upon any court before which an attorney has been qualified a mandatory duty to annul the license of such attorney to practice law upon proof that he has been convicted of any crime involving moral turpitude.'

The fact of conviction is not contested by the defendant and it is, therefore, the mandatory duty of this Court to suspend the license of the respondent unless he can demonstrate that the provisions of Section 24 do not apply to him or unless the defendant demonstrates good cause why his license should not be suspended pending appeal. In re Berzito, W.Va., 192 S.E.2d 227; In re Robertson, Supra; In the Matter of Barron, Supra; In the Matter of Trent, W.Va., 175 S.E.2d 461; In the Matter of Mann, Supra.

The respondent attorney on February 10, 1973, presented to this Court his petition pursuant to the provisions of Section 24, alleging good cause why his license to practice law should not be suspended pending appeal. In summary, the reasons assigned by the respondent attorney as grounds for good cause are first, that he has never been disciplined in any matter by any bar association during his many years of the practice of law in the State of West Virginia; secondly, that he has a large practice which is his sole means of support and that his practice will be irreparably damaged if his license to practice law is suspended; third, that he is innocent of the charges of which he was convicted; and fourth, that he has appealed the conviction and circumstances indicate that he has a good chance of prevailing upon appeal. It is not felt that these assigned reasons constitute 'good cause' for suspending disciplinary action under the provisions of Section 24.

The respondent's principal remaining contention is that the provisions of Section 24 providing for suspension of a license pending the outcome of an appeal do not apply to him because such application of the rule would be retroactive. He contends, and it is not disputed, that both the occurrence of the offenses and the indictment occurred prior to the enactment of the amended Section 24.

Before its amendment on December 7, 1971, Section 24, Part E, Article VI of the By-Laws of the West Virginia State Bar was in part as follows:

'* * * An attorney shall not be deemed to have been 'convicted' or there shall not be deemed to have been a 'conviction' within the meaning of section twenty-three, except the first paragraph thereof, or this section twenty-four, until the time for appeal has expired, if no appeal has been taken, or until the judgment of conviction has been affirmed on appeal, or has otherwise become final. * * *.'

In other words, under the provisions of this Section as it existed prior to December 7, 1971, the license of an attorney convicted of a crime involving moral turpitude would not be suspended or annulled until after his conviction became final after appeal.

On December 7, 1971, this Court approved an amendment to that section of the By-Laws, providing in substance that the license could be suspended pending appeal. The pertinent part of the amendment is as follows:

'* * * An...