Ex parte Redmond

• Decision Date: 14 July 1919
• Docket Number: 20692
• Citation: 82 So. 513,120 Miss. 536
• Court: Mississippi Supreme Court
• Parties: EX PARTE REDMOND

82 So. 513

120 Miss. 536

EX PARTE REDMOND

No. 20692

Supreme Court of Mississippi

July 14, 1919

1. ATTORNEY AND CLIENT. Attorneys as officers of court.

The courts have universally held that an attorney is an officer of court.

2. ATTORNEY AND CLIENT. Disbarment. Reinstatement.

A court which has power to disbar an attorney has power to reinstate him.

3 ATTORNEY. Disbursement and reinstatement. Powers of board of law examiners.

The state board of law examiners, created by Laws 1916, chapter 107, has no jurisdiction as to reinstatement of a disbarred attorney.

4 ATTORNEYS. Disbursement. Reinstatement of disbarred attorney. Power of court. Statutes.

A Court may act on the merits of a petition by a disbarred attorney for reinstatement, and may restore such attorney to his privileges, notwithstanding Code 1906, section 223 (Hemingway's Code, section 200), provides that a disbarred attorney shall never afterwards be permitted to act as attorney or counsellor in any court of the state.

HON. W H. POTTER, Judge.

APPEAL from the circuit court of Hinds county, HON. W. H. POTTER Judge.

Proceedings by S.D. Redmond for reinstatement as an attorney at law after a judgment of disbarment. A demurrer by the county attorney to the petition was sustained and petitioner appeals.

The facts are fully stated in the opinion of the court.

Reversed and cause remanded.

G. G. Lyell, for appellant.

The only question in this case raised in the lower court, or here, is whether a member of the bar of the state of Mississippi who has been disbarred from the practice can ever be reinstated.

The appellant contends that the order of disbarment is not final and conclusive for all time to come, but that upon a proper showing, based upon a proper petition for reinstatement, the statute of this state does not preclude reinstatement. The facts are undisputed. The transcript shows the petition in proper form by S.D. Redmond to be reinstated as a member of the bar of Mississippi. The application is to the court that disbarred him. The law requires this.

There was exhibited with the petition a certified copy of the order of the circuit court of the first district of Hinds county, Mississippi, in June, 1915, disbarring him. A demurrer was interposed to the petition of appellant for reinstatement, which demurrer was predicated upon the contention that an attorney of this state, once disbarred, is forever disbarred and cannot ever thereafter be reinstated. The demurrer was sustained and the petition dismissed.

The pertinent code section, the construction of which is involved in this case, is section 223 of the Code of 1906, section 200 of Hemingway's Code, and reads as follows: "Penalty for Misconduct--If any attorney or counselor at law is in default of record, or otherwise guilty of any deceit, malpractice, or misbehavior, or shall willfully violate his duties, he shall be stricken from the roll and disbarred, and his license revoked by any court in which he may practice; and such person shall never afterward be permitted to act as an attorney or counselor in any court in this state." The section above quoted does not preclude reinstatement. Practically all the law seems to be found in 6 Corpus Juris, under "Attorney and Client," as to the operation and effect of disbarment: 6 C. J., page 614, sec. 95. As to reinstatement, see Ib. 615, sec. 97. As to procedure, see, Ib., sec. 98. No question is raised in the instant case as to the proper procedure, or whether the petition is in proper form, for admittedly, it is.

By section 95, above cited, as to the operation and effect of disbarment, the meaning of certain clauses in our statute is made obvious. One might think that a disbarment by one court would operate to disbar an attorney from practicing in any other court, but such is not uniformly held, as is demonstrated by the authorities cited under section 95, supra. It there appears that disbarment in a state court does not, ipso facto, deprive the attorney of the right to practice in the federal courts. See also Weeks on Attorneys, sec. 82, page 154, 2 R. C. L., p. 1113, sec. 205.

Our statute provides that for malpractice or misbehavior, etc., the attorney "shall be stricken from the roll and disbarred and his license revoked in any court in which he may practice; and such person shall never afterward be permitted to act as an attorney or counselor in any court of this state." The last clause of this statute simply means that so long as the order of disbarment stands, the disbarred attorney cannot, or may not, practice in any Mississippi court. The statute merely states the general rule upon the subject. Just as statutes merely state the common law without it being intended that any different construction shall be given to the particular statute than the common law. See 1 Coke's Inst. 213, so. holding upon earliest. English Statute, Westminister, quoted in 6 Corpus. Juris., page 581, bottom of first column of notes (b) (3 Ed.), 1, ch. 29.

The provision that the license be revoked, is simply in keeping with the rest of the statute, and with our privilege tax laws, and with section 230 of the Code of 1906, Section 207, Hemingway's Code, making it unlawful to practice law without a license. The language of the statute that "such person shall never afterwards be permitted to act as an attorney or counselor in any court," simply means that the courts are closed to him as an attorney until such time as he may be reinstated; in other words, so long as the fomer order of disbarment remains in force.

See the very recent case decided by the supreme court of Alabama, upholding the contention of the appellant. Ex parte Peters, (1915 Ala.), 70 So. 648. For the disbarment case see Peters v. State, 69 So. 576.

I submit that it is clear that the court erred in sustaining the demurrer and that the judgment should be reversed and the cause remanded for further proceedings upon the petition of appellant.

Earl N. Floyd, for appellee.

This case comes to this court on an appeal from a judgment sustaining the demurrer of the state to the petition of the appellant herein. The single question presented by the case, is "whether an attorney once disbarred from practicing in the courts of this state can be re-instated by the same or any other court in the state."

Section 223 of the Code of 1906, provides as follows: "Penalty for misconduct.--If any attorney or counselor at law be in default of record, or otherwise guilty of any deceit, malpractice or misbehavior, or shall willfully violate his duties, he shall be stricken from the roll and disbarred and his license revoked by any court in which he may practice; and such person shall never afterward be permitted to act as an attorney or counselor in any court in this state."

From the evolution of this statute, we find an expressed provision at one time for suspension. Looking again to section 23, page 283, Code of 1842, we find another provision for the reinstatement of an attorney by the high court of appeals upon satisfactory evidence of his reformation. Subsequent to the Code of 1842 provision for any reinstatement or suspension has been omitted, and the law has appeared in the language of section 223, Code of 1906, in the Codes of 1871, 1880 and 1892. Therefore, the only question for this court to decide is the meaning of section 223.

It is the contention of the state that the provision that "such person shall never afterwards be permitted to act as an attorney or counselor in any court in this state" constitutes an absolute prohibition against his reinstatement. This view as based on the omission in all codes subsequent to 1842 of any provision for a reinstatement or suspension. It may be conceded that at common law a court disbarring an attorney has the implied right to reinstate him upon proper showing, but the common law has been changed in this state, first, by changing the method of reinstatement in requiring a petition to the high court of errors and appeals and afterwards by making disbarment absolute. What the legislative intent in so providing was, we are not called upon to answer. The law and constitution of this state forbids anyone guilty of certain crimes from exercising any franchise right, and also forbids a person impeached for malfeasance or misfeasance in office from further holding office in this state.

In our view, this statute was intended to work a light prohibition against anyone found guilty of conduct unbecoming a person who is an officer of the court. If the legislature had intended that he could be reinstated upon a showing of reformation, it seems more than probable that it would have so provided, but having omitted to so provide, it seems to us to be the better view that a court is without authority to reinstate, and that the legislature of the state alone can change the statutes of a disbarred attorney.

The learned counsel for the appellant has elaborately argued the law on both sides of the case, and has quoted the law and practice pertaining to the disbarment of attorneys from ancient days to the present, and shows that in recent years other states have readmitted attorneys after once disbarring them. As stated above, this may be done under the common law when there is no provision whatsoever relative to the jurisdiction of the court in the premises, or it may be done when the statute expressly so provides. But I submit that the statute in this state has expressly provided the contrary, and the badge of dishonor attaching to a disbarred attorney can only be removed by the legislature of the state.

COOK, P. J. ETHRIDGE, J. dissenting. SMITH, C. J., dissenting.

OPINION

COOK, P.J.

The proceedings in this case originated in the first district of Hinds county....