Ex parte Redmond

• Decision Date: 27 January 1930
• Docket Number: 28044
• Citation: 125 So. 833,155 Miss. 439
• Court: Mississippi Supreme Court
• Parties: EX PARTE REDMOND

125 So. 833

155 Miss. 439

EX PARTE REDMOND

No. 28044

Supreme Court of Mississippi

January 27, 1930

Division A

1. ATTORNEY AND CLIENT. Proof in disbarment proceeding must be clear and convincing.

Disbarment proceeding, though not strictly either a civil or criminal proceeding, is akin to both, and proof must be clear and convincing to warrant disbarment of attorney in accordance to rule even in ordinary civil cases where defendant is charged with fraudulent conduct.

2 EVIDENCE. Attorney in disbarment proceeding must be presumed innocent of misconduct.

An attorney at law must in disbarment proceeding be presumed innocent of misconduct with which he is charged.

3. ATTORNEY AND CLIENT. Evidence relative to attorney's attempt to collect larger fee than allowed in administration proceedings held insufficient to justify disbarment.

Evidence in proceeding for disbarment of attorney at law relative to attempt to collect a greater fee in administration proceedings than that allowed by court held insufficient to justify disbarment.

4. ATTORNEY AND CLIENT. Evidence of attorney's misrepresentation as to agreement with district attorney held insufficient to warrant disbarment.

Evidence in proceeding for disbarment of attorney at law relative to misrepresentation as to agreement with district attorney for hearing and disposal of motion held insufficient to warrant disbarment.

5. ATTORNEY AND CLIENT. "Misbehavior," as used in law relating to disbarment, must be restricted in meaning to accomplishment of purpose of statute (Hemingway's Code 1927, section 202).

"Misbehavior," as used in Code 1906, section 223 (Hemingway's Code 1927 section 202), relating to disbarment of attorneys at law, must be restricted in its meaning to accomplishment of purpose for which statute was intended.

6. ATTORNEY AND CLIENT. "Misbehavior," as used in law relating to disbarment, refers only to misbehavior demonstrating attorney's unfitness attending particular relationship (Hemingway's Code 1927, section 202).

"Misbehavior," as used in Code 1906, section 223 (Hemingway's Code 1927 section 202), relating to disbarment of attorneys at law referred only to such misbehavior as demonstrates attorney's unfitness to confidence and trust which attend relation of attorney and client and practice of law before the courts.

7. ATTORNEY AND CLIENT. Attorney's contract to obtain appointment of another to public office was not of itself sufficient to warrant disbarment (Hemingway's Code 1927, section 202).

Contract of attorney to obtain appointment of another to public office, though void on ground of public policy and reprehensible, was not of itself sufficient to warrant disbarment under Code 1906, section 232 (Hemingway's Code 1927, section 202).

HON. V. J. STRICKER, Chancellor.

APPEAL from chancery court, of Hinds county, First district HON. V. J. STRICKER, Chancellor.

Proceeding for the disbarment of S.D. Redmond as an attorney at law. From a decree of disbarment, the attorney appeals. Reversed, and cause dismissed.

Decree reversed and cause dismissed.

Hughes, Nobles & Lane, May, Sanders, McLaurin & Byrd and R. H. & J. H. Thompson, all of Jackson, for appellant.

The court should never disbar a lawyer on testimony of a doubtful character.

Tudor v. Com., 84 S.W. 522, 27 Ky. 87; Dempsey v. Wells, 109 Mo.App. 470, 84 S.W. 1015.

Where the evidence on proceedings for disbarment is substantially conflicting the accused will be given the benefit of the doubt.

In re Stephens, 84 Cal. 77, 24 P. 46; In re Mashbir, 44 A.D. 632, 60 N.Y.S. 451; Zachery v. State, 43 So. 925; State ex rel. Rude v. Young, 30 Fla. 85, 11 So. 514; State ex rel. Fowler v. Finley, 30 Fla. 325, 11 So. 674, 18 L.R.A. 401; State v. Fourchy, 31 So. 325; Re Newby (1908), 82 Nebr. 235, 117 N.W. 691; Ex parte Gadsen, 89 S.C. 352, 71 S.E. 952; Oklahoma Case of Re F. H. Reily, 183 P. 728, 7 A.L.R. 89; Re Sitton, 177 P. 555; Re Parsons, 35 Mont. 478, 90 P. 163; People ex rel. Healy v. Thorton, 228 Ill. 42, 81 N.E. 793; State ex rel. Schufeldt v. Barker, 56 Ill. 299; Williams v. Sullivan, 35 Okla. 745, L.R.A. 1915D, 1218, 131 P. 703.

The chancellor erred in not specifying the particular charges upon which guilt was pronounced.

2 R. C. L. 1110; 95 Am. Dec. 342 and note; 2 Am. State Rep., 860 and note; 4 Cyc. 916; Perry v. State, 3 Greene (Ia.) 550; State v. Watkins, 30 Mo. 480.

J. H. Cook, of Clarksdale, for appellant.

Criminal charges in disbarment proceedings must be proved beyond a reasonable doubt.

People v. Bither, 165 N.E. 798, 334 Ill. 263.

The power (to disbar) is not an arbitrary and despotic one to be exercised at the pleasure of the court or because of passion, prejudice or personal hostility.

Ex parte Secombe, 19 How. 9, 15 L.Ed. 565; In re Durnat, 80 Conn. 150, 67 A. 497, 10 Ann. Cas. 539; Peol v. Amos, 246 Ill. 299, 92 N.E. 857, 138 A. S. R. 239; State v. Stiles, 48 W.Va. 425, 37 S.E. 620; State v. Shumate, 48 W.Va. 359, 37 S.E. 618.

The power to disbar is rather to be used with moderation and caution and should be used for only the most weighty reasons.

There was no such proof in Redmond's case whatever.

Broadway v. Fisher, 13 Wall (U.S.) 335, 20 L.Ed. 646; Matter of Stern, 137 A.D. 909, 121 N.Y.S. 948; Re Campell, 32 U.S. 2B. 444.

A disbarment charge being criminal or quasi-criminal, the charges should be proven beyond a reasonable doubt.

People v. Alder, 263 Ill. 319, 104 N.E. 1060; Matter of Mashbir, 44 A.D. 632, 60 N.Y.S. 451.

Most authorities hold that where the disbarment charge is not of criminal nature it should be established by more than a preponderance of the evidence and we submit that the state didn't furnish anything like a preponderance of evidence on a single charge.

In re Houghton, 67 Cal. 511, 8 P. 52; Matter of Naluss, 28 Minn. 507; In re O, 73 Wis. 602, 42 N.W. 221; Matter of Houghton, 76 Cal. 511, 8 P. 52; People v. Humbert, 51 Colo. 60, 117 P. 139; People v. Robinson, 32 Colo. 241, 76 P. 922; People v. McCaskrum, 335 Ill. 156, 156 N.E. 328; People v. Ader, 263 Ill. 319; State v. Catlip, 202 P. 782, 83 Okla. 183; State v. Estes, 209 P. 487, 105 N.E. 222; In re Dunham, 214 P. 628, 124 Wash. 418.

The practice of making no finding in connection with a judgment suspending an attorney from practice is not to be commended.

In re Kling, 186 P. 152, 44 Cal.App. 267.

Powell, Harper & Jiggitts, of Jackson, for appellant.

This proceeding was inaugurated under Section 202 of Hemingway's Code 1927.

This court, in the case of Ex parte Brown, 1 How. 303, and Ex parte Cashin, 128 Miss. 224, said:

The extreme judgment of expulsion from the bar is not intended as a punishment inflicted upon the individual but as a measure necessary to the protection of the public.

In the case of Ex parte Secombe, 19 How. 9, 15 L.Ed. 565, the supreme court of the United States said:

The power to disbar is not an arbitrary and despotic one to be exercised at the pleasures of the court, or because of passion, prejudice or personal hostility.

Broadway v. Fisher, 13 Wall. 335, 20 L.Ed. 646, the court said:

The power to disbar is one to be used with moderation and caution and should be used only for the most weighty reasons and upon clear proof.

Chas. M. Bryan, of Memphis, Tenn., for appellant.

The power of disbarment is one which should be exercised only in cases where the misconduct is gross in character.

Ex parte Brown, 1 Howard (Miss.) 303; Ex parte Cashin (Miss.), 90 So. 850; State v. Ebbs, 150 N.C. 44, 63 S.E. 190.

The power to disbar is not an arbitrary and despotic one to be exercised at the pleasure of the court or because of passion, prejudice or personal hostility.

Ex parte Secombe, 19 How. 9, 15 L.Ed. 565; In re Durant, 80 Conn. 140, 67 A. 497, 10 Ann. Cas. 539; People v. Amos, 246 Ill. 299, 92 N.E. 857, 138 Am. St. R. 239; State v. Stiles, 48 W.Va. 425, 37 S.E. 620; State v. Shumate, 48 W.Va. 359, 37 S.E. 618; Broadway v. Fisher, 13 Wall (U.S.) 335, 20 L.Ed. 646; Matter of Stern, 137 A.D. 909, 121 N.Y.S. 948; Re Campell, 32 U.S. 2B. 444; People v. Ader, 263 Ill. 319, 104 N.E. 1060; Matter of Mashbir, 44 A.D. 632, 60 N.Y.S. 451, 7 N.Y. Ann. Cas. 1; In re Houghton, 67 Cal. 511, 8 P. 52; In re O, 73 Wis. 602, 42 N.W. 221; Ex parte Wall, 107 U.S. 265, 2 S.Ct. 569, 27 L.Ed. 552; Matter of Houghton, 67 Cal. 511, 8 P. 52; People v. Humbert, 51 Colo. 60, 117 P. 139; Peol v. Robinson, 32 Colo. 241, 76 P. 922; Note 90 of C. J., p. 607.

The court should never disbar an attorney on testimony of a doubtful character.

Tudor v. Com., 84 S.W. 522, 27 Ky. 87; Dempsey v. Wells, 109 Mo.App. 470, 84 S.W. 1015; In re Stephens, 84 Cal. 77, 24 P. 46; People v. Jackson, 153 N.E. 621, 322 Ill. 618; Deneen v. Mathews, 217 Ill. 94, 75 N.E. 444; State ex rel. Shufield v. Barker, 56 Ill. 299, 142 N.E. 554; Ex parte Gadson (1911), 89 S.C. 352; In re Welcome, 23 Mont. 450, 59 P. 455; In re Newby, 82 Neb. 235, 117 N.E. 691; Re Haymond, 121 Cal. 385, 53 P. 899; In re Reily (Okla.), 183 P. 728; In re Kone, 97 A. 307, 90 Conn. 440; In re Wilmarth, 172 N.E. 921. 42 S.D. 76; State Bar Association, ex rel. Williams, v. Sullivan, 131 P. 703; State ex rel. McLaughlin v. Graves, 144 P. 484; People v. A. Brunswick, 146 N.E. 483, 315 Ill. 442.

It is only for official conduct as an attorney that disbarment lies. His personal conduct is not sufficient to justify forfeiture of his right to practice.

6 C J., page 599; Baker v. Commonwealth, 73 Ky. 592; In re John Percy, 9 Tiffany (N.Y.); People ex rel. Higgs v. Appelton, 105 Ill. 474; People ex rel. Noyes v. Allison, 65 Ill. 151; Dickens Case, 5 Am. Rep. 420; In re Catron, 43 P. 724; In re Renehan, 145 P. 111; People ex rel. Black v. Smith, 124 N.E. 807; 2 R. C. L., par. 192, Title Attorneys; People ex rel....