Fox, In re, 47972

• Decision Date: 13 May 1974
• Docket Number: No. 47972,47972
• Citation: 296 So.2d 701
• Parties: In re Disbarment of John P. FOX.
• Court: Mississippi Supreme Court

Page 701

296 So.2d 701

In re Disbarment of John P. FOX.

No. 47972.

Supreme Court of Mississippi.

May 13, 1974.

Rehearing Denied June 4, 1974.

Frank T. Williams, Satterfield, Shell, Williams & Buford, Jackson, L. G. Fant Jr., Fant, Crutcher, Moore & Spencer, Holly Springs, for appellant.

Lester F. Summers, New Albany, Armis E. Hawkins, James S. Gore, James M. Hood, Jr., Houston, Walter M. O'Barr, John D. Sibley, Kenneth Coleman, Okolona, for appellee.

ROBERTSON, Justice:

On September 2, 1972, six members of the local bar, all in good standing, filed a petition for disbarment against John P. Fox in the Circuit Court of Chickasaw County. Fox was charged with unethical and dishonest conduct arising principally from his handling of collections and stock purchases for his client, David Kouba, while Kouba was a commercial pilot in Laos.

The circuit court sustained a motion for a subpoena duces tecum, and ordered the Bank of Houston to produce all of its records of deposits in, and withdrawals from, the John P. Fox Trust Account from June 1st, 1969, through May 25, 1971.

On October 11, 1972, the Mississippi State Bar petitioned for leave to 'Join the Petition to Disbar John P. Fox'. The court granted the petition and authorized Honorable Lester F. Summers of the New Albany bar and Honorable James Hugh Ray of the Tupelo bar to represent the State Bar Association in this matter.

Fox was represented at all hearings by Honorable L. G. Fant, Jr., of the Holly Springs bar and Honorable Frank T. Williams, of the Jackson bar.

This Court commends counsel for both sides for their very able and competent representation of their clients and the great help they have been to this Court in a most difficult matter.

After a great deal of legal skirmishing and numerous hearings on preliminary motions even including a hearing before the United States District Court for the Northern District of Mississippi, and the Circuit Court of Appeals, Fifth Circuit, New Orleans Louisiana, and after an amendment to the Petition for Disbarment, the hearing of the case on its merits was finally begun on February 15, 1973, and factual testimony was taken through February 21, 1973. The record of the hearing is composed of 1498 pages of testimony in seven bound volumes and nine bound volumes of exhibits.

After this long and protracted hearing, the court on May 30, 1973, found Fox guilty of 'improper, unethical and dishonest acts, and a deceitful and dishonest course of conduct' and disbarred him from practicing law, revoked his license and ordered his name stricken from the rolls as a licensed practicing lawyer in the courts of this State.

Fox assigns as error and argues these points in his brief:

1. The proceeding below was void under the Constitution of the United States and the law of the State of Mississippi;

2. Lawyers practice law by right;

3. The subpoena duces tecum was illegal;

4. The judge should have recused himself;

5. The intervention of the Mississippi State Bar was illegal and prejudicial;

6. Disbarment was unwarranted and extreme.

In 1932 the Mississippi Legislature recognized the inherent right of the courts to discipline members of the bar, who by virtue of their oath and office are officers of the court and, therefore, vitally interested in the proper and efficient administration of justice through the courts. (Chapter 121, Laws of 1932). Mississippi Code Annotated section 73-3-155 (1972) a part of the original act of 1932 provides:

'In all disbarment and/or reinstatement proceedings in the chancery or circuit court, a record shall be made of all testimony, evidence and other proofs taken in such proceedings, and upon appeals in such proceedings from the chancery and/or circuit court to the supreme court, the record shall be made up and filed with the supreme court as in other cases. The supreme court shall consider the evidence in the case, as disclosed by the record, and such other evidence as it may deem necessary for the administration of justice, and shall decide all questions of law and fact and render final judgment as to the disbarment, suspension, and/or reinstatement, as the case may be. The rule that the supreme court will not reverse the judgment of the lower court on a question of fact unless it affirmatively appears upon the face of the record that the cause was decided contrary to the evidence shall not apply in cases arising under this article, but the supreme court shall be the final judge of the facts, and the judgment to be rendered thereon.' (Emphasis added).

This Court stressed its inherent right and recognized its solemn duty and responsibility as the final judge of the law and the facts and the judgment to be rendered in Mississippi State Bar Association v. Wade, 250 Miss. 625, 167 So.2d 648 (1964); In Re Denman, 224 Miss. 92, 79 So.2d 536 (1955); In Re Quinn's Disbarment, 223 Miss. 660, 78 So.2d 883 (1955); In Re Poole, 222 Miss. 678, 76 So.2d 850 (1955); In Re Higgins, 194 Miss. 838, 13 So.2d 829 (1943).

Back in 1922, this Court in Ex Parte Cashin, 128 Miss. 224, 90 So. 850, said:

'It is a proceeding sui generis, on account of the relation of the attorney to the court; that is, he being an officer of the court, the judicial power lies with the court to proceed, for its own protection, to disbar upon a proper showing made, provided always that the attorney shall have reasonable notice of the charge in order that he may appear and defend, and so that the proceeding will be without oppression or injustice. The court already having jurisdiction of its attorneys, its officers, the citation by the judge was reasonable and sufficient notice to obtain jurisdiction to try appellant and disbar him.

'The court has the power to protect itself against an unfit attorney, an officer of the court, and may hear the charges in order to purge the roll of his name, upon reasonable notice given of the time of the hearing of the charges presented for disbarment, thus affording an opportunity to be heard. The exercise of the power of the court in hearing and determining whether the attorney shall be disbarred is not in contravention of the constitutional right of trial by jury. It is an exercise of judicial power in the regulation of the court's own officers, and to protect and preserve a clean and proper functioning of the tribunal.' 128 Miss. at 232-234, 90 So. at 851, 852. (Emphasis added).

Again in 1943 in Re Higgins, 194 Miss. 838, 13 So.2d 829, this Court in positive and unmistakeable terms asserted its inherent jurisdiction over members of the legal profession as its own officers when it said:

'We will assume, for the purposes of this appeal, that there was no quorum present at the said meeting of the commissioners and that the action directed to be taken was without the authority of the board of commissioners as such, and will, therefore, approach the contention presented by the motion to dismiss as if the proceedings to disbar were instituted by attorneys of good standing at the bar on their own initiative, and as if the court had recognized them as such, rather than as those proceeding in the name and by the authority of the State Bar; and this presents at once the question whether the statutory method set up by Chapter 121, Laws 1932, is the exclusive means by or through which an attorney may be disbarred in this state.

'We have held in Ex parte Cashin, 128 Miss. 224, 90 So. 850, and In re Steen, 160 Miss. 874, 134 So. 67, in accordance with the authorities everywhere, that the power, and the duty in proper cases, of disbarment is inherent in the superior courts of the state; that it is a power implicit in the constitutional establishment of such courts that they shall have the authority to take such steps as will be necessary to their preservation and protection in the performance of those duties for which they were called into existence by the constitution itself, and that a dependable and trustworthy bar is one feature, perhaps above all others, necessary to the proper performance of those duties. Such a power is, therefore, not dependent upon any statute, and is exercisable in the absence of any statute whatsoever. All that may be said of such statutes is that they may reasonably regulate the exercise of the power-they may not withdraw it, or so encumber it as to make it ineffective either upon the merits or as a matter of reasonable promptitude.

'Hence it is that the courts have generally considered statutes such as Chapter 121, Laws 1932, as prescribing a preferential method of procedure, one which the courts may and in most cases ought as a matter of discretion to require to be followed, but not one which is exclusive unless the statute expressly declares that the prescribed procedure is exclusive of all others, and our statute does not so declare; and if it did, there would still remain the question whether this can be constitutionally done. Let us suppose that the board of commissioners after repeated efforts could never get a quorum. This is a sufficient suggestion to repel the contention that the court is in the meantime without authority to proceed.

'We approve what was said on this subject in State v. Peck, 88 Conn. 447, 91 A. 274, 278, L.R.A.1915A, 663, 669, Ann.Cas.1917B, 227, as follows: 'It is quite apparent that neither the statute nor the rule, save as the latter comprehends most, if not all, practicable methods of procedure, undertakes to frame exclusive provisions. Each provides methods of procedure, but neither exclusive methods. The courts are, as they should be, left free to act as may in each case seem best in this matter of most important concern to them and to the administration of justice. They may of their own initiative, and without complaint, set on foot inquiries as to professional conduct and fitness, nor they may in their discretion entertain a complaint received from any source within or without the profession. Statute and rule provide orderly methods of...