Ex parte Marshall

• Citation: 165 Miss. 523,147 So. 791
• Decision Date: 17 April 1933
• Docket Number: 30529
• Court: United States State Supreme Court of Mississippi
• Parties: Ex PARTE MARSHALL

147 So. 791

165 Miss. 523

Ex PARTE MARSHALL

No. 30529

Supreme Court of Mississippi

April 17, 1933

APPEAL from chancery court of Hancock county HON. D M. RUSSELL, Chancellor.

(In Banc.)

1. ATTORNEY AND CLIENT.

Attorney after being disbarred, may rehabilitate himself and re-establish his moral character so as to entitle him to reinstatement (Laws 1932, chapter 121).

2. ATTORNEY AND CLIENT.

Requirements for reinstatement of disbarred attorney are same as for original admission to bar, except that court may require greater degree of proof (Laws 1932, chapter 121).

3. ATTORNEY AND CLIENT.

In determining whether disbarred attorney, seeking reinstatement, possesses good moral character, court may consider conduct prior to disbarment (Laws 1932, chapter 121).

4. ATTORNEY AND CLIENT.

Main question on application by disbarred attorney for reinstatement, is whether he possesses necessary character to guarantee faithful discharge of duties as lawyer and assistant In administration of justice (Laws 1932, chapter 121).

5. ATTORNEY AND CLIENT.

Evidence held to support finding that disbarred attorney has lived exemplary life, has rehabilitated himself since disbarment and is worthy of being reinstated (Laws 1932, chapter 121).

6. ATTORNEY AND CLIENT.

In determining moral character of disbarred attorney seeking reinstatement, opinion of public, when settled and deliberate, is highest evidence thereof (Laws 1932, chapter 121).

7. ATTORNEY AND CLIENT.

In determining moral character of disbarred attorney seeking reinstatement, estimate of witnesses intimately acquainted with attorney is admissible (Laws 1932, chapter 121).

8. ATTORNEY AND CLIENT.

Fact that disbarred attorney, seeking reinstatement, refused to go into matter involved in disbarment trial, held not indication of insufficient repentance, where to do so would require admission that he committed criminal offense (Laws 1932 chapter 121; Const. 1890, section 26).

9. ATTORNEY AND CLIENT.

On appeal from judgment of chancellor reinstating disbarred attorney, trial is not do novo, but review is on record with right to require additional evidence, if necessary (Laws 1932, chapter 121, sections 26, 27; Code 1930, section 3378).

10. APPEAL AND ERROR.

Decisions of chancellor are presumptively correct until contrary appears from consideration of whole record, though court may review findings of fact and is not bound by findings on conflicting evidence.

11. APPEAL AND ERROR.

Concurrence of majority of judges of supreme court is necessary to reverse judgment.

12. ATTORNEY AND CLIENT.

It is competent for legislature to confer exclusive jurisdiction of disbarring or reinstating attorneys (Laws 1932, chapter 121; Const. 1890, sections 33, 103).

13. ATTORNEY AND CLIENT.

Reinstatement of disbarred attorney is not surrender of power to discipline such attorney upon becoming false to his duties (Laws 1932 chapter 121).

SMITH, C. J., and McGOWEN and ANDERSON, JJ., dissenting.

HON. D. M. RUSSELL, Chancellor.

APPEAL from chancery court of Hancock county HON. D. M. RUSSELL, Chancellor.

Petition by Carl Marshall for reinstatement to practice law in the courts of Mississippi. From a judgment reinstating the petitioner, the Mississippi State Bar appeals. Judgment affirmed.

See, also, 160 Miss. 874, 134 So. 67.

Affirmed.

J. H. Price, of Magnolia, and W. W. Venable, of Clarkdale, for appellant.

The practice of law is not the exercise of an absolute right, but is the exercise of a privilege or franchise and is limited to persons of good moral character, with peculiar qualifications as prescribed and certified by law.

People v. Baker, 311 Ill. 66, 31 A.L.R. 737; Werrmont v. State, 101. Ark. 210, Ann. Cas. 1913D, 1156; In re Durant, 80 Conn. 140, 10 Ann. Cas. 539; In re Maddox, 93 Md. 727, 55 L.R.A. 298; Matter of Cooperative Law Co., 198 N.Y. 471, 139 A. S. R. 839.

The duty resting on the lawyer to attain the qualifications and to keep them is a continuing one, for the failure of which the privilege can and will be withdrawn.

Ex parte Brown, 1 How. 303; sec. 3703, Miss. Code 1930.

The purpose and motive for the disbarment of an attorney is not to punish him. That is merely incidental. The purposes are to protect the courts from the official ministration of untrustworthy persons, to protect the public from being victimized by men who are untrustworthy, but upon whom people rely and whom they employ by virtue of the fact that the State by admitting them to the Bar represents that they are fit to perform their functions, to inspire in the public confidence in and respect for the courts and to preserve and maintain in the Bar the standards of conduct and ethics which human experience has shown to be necessary.

Ex parte Redmond, 156 Miss. 439; In re Thatcher, 190 F. 969, affirmed, 212 F. 801; Warrmont v. State, 101 Ark. 210, Ann. Cas. 1913D, 1156; In re Durant, 80 Conn. 140, 10 Ann. Cas. 539; State v. McRae, 49 Fla. 389, 6 Ann. Cas. 580; In re Platz, 42 Utah 439; In re Lentz, 65 N.J.L. 134, 50 L.R.A. 415.

The question on petition for reinstatement must be confined to the question whether on the facts in evidence, the readmission of the disbarred attorney is compatible with the safety of courts and public, the maintenance in people and Bar of proper respect for proper standards of professional conduct and maintenance of the idea in public and Bar that the courts intend to enforce the proper standards, which belief is the sanction which alone give life to professional ethics and inspires that respect which is the parent of the voluntary moral sanction in the members of the Bar.

In re Palmer, 90 Ohio Cir. Ct. 55, 70; In re Wellcome, 25 Mont. 131, 60 P. 836; In re Pemberton, 63 P. 1043; In re Clark, 128 A.D. 348, 350, 112 N.Y.S. 777; In re Simpson, 11 N.D. 526, 98 N.W. 918; In re Enright, 69 Vt. 317, 37 A. 1046.

It is held by the courts that the purpose of disbarment is not punishment.

In re Cato, 212 P. 694, 60 Cal.App. 279; In re Thatcher, 83 Ohio St. 246, Ann. Cas. 1912A, 8110; In re Wellcome, 25 Mont. 131, 69 P. 836; In re Pemberton, 66 P. 1043; In re Clark, 128 A.D. 348, 350, 112 N.Y.S. 777; In re Kone, 97 A. 307, 90 Conn. 440.

In the matter of disbarring an attorney the question is not what punishment the offense may warrant, but what does it require as a penalty to the offender as a deterrent to others and as an indication to laymen that the court will maintain the ethics of the profession.

In re Reifshneider, 60 A.D. 478, 69 N.Y.S. 1069.

Like all those who seek to set the court in motion, the burden of persuading it to take action is upon Mr. Marshall. He has the burden of proof of showing his fitness to be a member of the Bar.

Petition of Morrison, 186 N.W. 556; In re Enright, 37 A. 1046, 69 Vt. 317; In re Recordia, 222 P. 625, 64 Cal. 673.

By the judgment in the disbarment proceeding the type of character was fixed as of that time and petitioner's proof must be sufficient to overcome the court's former adverse judgment as to it.

In re Weed, 28 Mont. 264, 72 P. 653; In re Simpson, 11 N.D. 526, 98 N.W. 918; In re Egan, 24 S.D. 301, 123 N.W. 478.

The exercise by a court of the power to disbar is judicial in character.

In re Garland, 4 Wall 333, 18 La. 366.

While the effect of a judgment is limited to matters involved in litigation, it is equally conclusive whether the point decided was of itself the ultimate vital point or only incidental, if its determination was necessary to the judgment.

Wright v. Griffey, 147 Ill. 496; Lutien v. City of Kewanee, 151 Wis. 607, 139 N.W. 312; Fayerweather v. Rich, 195 U.S. 276, 49 L.Ed. 193; National Foundry, etc., Works v. Water Supply Co., 183 U.S. 216; Dean v. Board of Supervisors, 135 Miss. 268; Vinson v. Colonial, etc., Mfg. Co., 116 Miss. 59; Hardy v. O'Pry, 102 Miss. 197.

The courts as one of their reasons for so doing will not reinstate an attorney where his application follows closely on disbarment, and where rectitude of life is principally relied upon.

Ann. Cas. 1912A 814.

Another method by which reformation could be proven would be by producing evidence of the existence of that without which reformation is impossible, and which is necessarily the first step towards rehabilitation, repentance. To do this it would be necessary to evidence repentance. From the nature of the case this could be done only by confession, and restitution, if possible. Confession of wrongdoing is so natural a product of repentance that its absence argues that repentance does not exist. The sinning soul confesses its wrongs to its God, the child pricked by remorse over some wrongful act finds no relief from the stinging pain until the balm of confession at its mother's knee salves the wound.

The Apostle James seemed to think confession no unnatural process for the human spirit. "Confess your faults one to another, etc." James--5-16.

The theologians of the Christian Bible did not look upon confession other than natural.

"If we confess our sins, he is faithful and just to forgive us our sins, etc." 1 John 9.

The representatives of the State Bar, feeling that acknowledgment of guilt was the proper and natural expression of repentance which in turn was the essential basis of reformation, and being charged with the official duty of seeing to it that petitioner produced adequate evidence of reformation before readmission, asked the specific question whether or not he admitted his guilt. This question was objected to and the court ruled that Mr. Marshall did not have to answer it. It seemed to us germane to the inquiry and fundamentally material.

In view of the fact that this court had already adjudicated him guilty of the offenses it would seem that these considerations...