Gould v. State

• Decision Date: 26 March 1930
• Citation: 99 Fla. 662,127 So. 309
• Parties: GOULD v. STATE.
• Court: Florida Supreme Court

127 So. 309

99 Fla. 662

GOULD v. STATE.

Florida Supreme Court, Division A.

March 26, 1930

Error to Circuit Court, Dade County; A. J. Rose, Judge.

Proceeding by the State to disbar Bernard Gould from practicing as an attorney and counselor at law. From an order of disbarment respondent brings error.

Reversed.

COUNSEL

Price, Price, Kehoe & Kassewitz and S. Grover Morrow, all of Miama, for plaintiff in error.

Fred H Davis, Atty. Gen., and H. E. Carter, Asst. Atty. Gen., for the State.

OPINION

ELLIS J.

Bernard Gould was admitted to practice law in Florida, and became a practicing attorney in this state in July, 1926. As such he became an officer of the court for the administration of justice and amenable to the rules and discipline of the court in all matters of order or procedure not in conflict with the Constitution or laws of the state. See Chapter 10175, Laws of Florida, 1925.

Mr Gould was disbarred from practicing as an attorney and counselor at law in any and all the courts of the state of Florida by order of the judge of the circuit court for the Eleventh judicial circuit for Dade county on the 9th day of May, 1929. He took a writ of error to that order from this court, and seeks here a reversal of it. The procedure is provided by statute. No material change has been made in it since the enactment of chapter 4379, Laws of 1895, which became sections 2554-2559, Revised General Statutes 1920. See State ex rel. Kehoe v. McRae, 49 Fla. 389, 38 So. 605, 6 Ann. Cas. 580.

A disbarment proceeding against an attorney is not a criminal proceeding; no indictment or information is necessary; no punitive sentence can be imposed, and a jury trial is not required, but to authorize disbarment not only the act charged but the bad or fraudulent motive must be proved by a preponderance of the evidence, and the conclusions of fact arrived at by the lower court should not be reversed, unless error is clear. See Zachary v. State, 53 Fla. 94, 43 So. 925; State ex rel. Fowler v. Finley, 30 Fla. 325, 11 So. 674, 18 L. R. A. 401; State ex rel. Rude v. Young, 30 Fla. 85, 11 So. 514.

The court has over attorneys a jurisdiction which is to be exercised according to a standard of conscience and not according to technical rules. State v. Maxwell, 19 Fla. 31.

The charges against an attorney in disbarment proceedings, however, should be clear, specific, and circumstantial, and stated with great particularity. See State ex rel. Fowler v. Finley, supra; Zachary v. State, supra.

It follows, as stated in the Finley Case, supra, that, where an attorney has been disbarred for abstracting a subpoena from the filed of a court record, and was afterwards acquitted of the crime involved, in a proceeding by mandamus to reinstate him, which is the proper remedy, he must negative the presumption of professional misconduct which is not negatived by the acquittal on the criminal charge.

To reiterate the doctrine announced in the Maxwell Case, supra, the court exercises a jurisdiction over attorneys which is to be exercised according to law and conscience, and not by any technical rules. Such was Lord Tenterden's thought expressed in Ex parte Bayley, 9 B. and C., 691, cited in the Maxwell Case, to which Mr. Justice Westcott added the following authorities: 'Ex parte Brounsall, 2 Cowp. 829; [Smith v. State] 1 Yerg. 231; Tom. Law Dic., 593; [ Beene v. State] 22 Ark. 157; [In re John Percy], 36 N.Y. 651.'

In the case of State v. Kirke, 12 Fla. 278, 95 Am. Dec. 314, Mr. Justice Westcott, speaking for the court, reviewed the subject fully. There has been no departure in the decisions of this court from the principles announced in the Kirke Case, supra. It may be considered as established that the power to admit one to practice law is one thing but the power to disbar is another. Although it may rest within legislative power to prescribe the qualifications which one desiring to practice law shall possess before he shall be admitted, the power of the court to deal with the alleged misconduct of attorneys is most generally conceded. It is an inherent power which is vested in the court to control the conduct of its own affairs and to maintain its own dignity. In exercising the summary jurisdiction to disbar attorneys, the object which the courts have in view is to remove from the profession a person whose misconduct has proved him unfit to be intrusted with the duties and responsibilities belonging to the office of an attorney. This power of the court, although not inherent in the sense that a court cannot exist without it and the Legislature, it has been held, may limit the power (see In re Ebbs, 150 N.C. 44, 63 S.E. 190, 19 L. R. A. (N. S.) 892, 17 Ann. Cas. 592; In re Saddler, 35 Okl. 510, 130 P. 906, 44 L. R. A. (N. S.) 1195), grows out of the relation which exists between attorney and court, the former's obligation to State and client; they are officers of the court, licensed, permitted, franchised to practice law to the end that justice may be efficiently administered (see Wernimont v. State ex rel. Little Rock Bar Ass'n, 101 Ark. 210, 142 S.W. 194, Ann. Cas. 1913D, 1156; Manning v. French, 149 Mass. 391, 21 N.E. 945, 4 L. R. A. 339; 2 R. C. L. p. 929).

The matter of admission to practice law may be assumed to be a subject for legislative regulation. The power did not exist in the courts at common law, and did not come definitely into existence as a court function until the statute of 4 Henry IV, c. 18. That statute, of course, became effective in this state when the act of November, 1829, was adopted declaring the common law and statutes of England, of a general nature down to July 4, 1776, to be in force in this state.

Whether the Legislature may limit the court's power to punish attorneys for misbehavior in the practice of the profession is a matter of grave doubt, although held by some courts to exist, because the power, as said by the Supreme Court of the United States in the case of Ex parte Bradley, 7 Wall. 364, 19 L.Ed. 214, has been exercised and recognized ever since the organization of courts and the admission of attorneys to practice therein.

In the matter of admission to the bar for the practice of law, the Legislature has exercised its power by the enactment of chapter 10175, supra. Under the provisions of that act the applicant for admission must first satisfy the board of law examiners that he possesses the necessary qualifications as to moral character and standing before he is admitted to the examination to determine his further qualifications as to his legal knowledge or attainments. The fact that the board of law examiners is required to pass its judgment upon the 'moral character and standing' of an applicant does not preclude the court, after a certificate to practice has been obtained by the applicant, from revoking the certificate, striking the name of the attorney from the rolls, disbarring him from practice because of conduct of which he was guilty before he passed the examinations and obtained a certificate to practice. This power must necessarily exist to enable the court to preserve its dignity and integrity and prevent the exercise of the privilege of practicing by one whose character and course of dealing renders him unfit to be intrusted with the privilege and to associate with the honorable and worthy members of the profession and to participate in the administration of justice. The power may be exercised if only upon the ground that a court of general jurisdiction may purge itself from a fraud committed upon the court by an officer thereof. The power is inherent in the court to remove any practitioner whose conduct tends to impede, obstruct, or prevent the administration of law or destroy the confidence of the people in such administration. See Wernimont v. State ex rel. Little Rock Bar Ass'n, supra; Ingersoll v. Coal Creek Coal Co., 117 Tenn. 263, 98 S.W. 178, 9 L. R. A. (N. S.) 282, 119 Am. St. Rep. 1003, 10 Ann. Cas. 829.

Concealment by an applicant for admission to the bar of the fact that he has recently been convicted of a crime involving moral turpitude is a fraud upon the court which warrants his disbarment. People v. Gillmore, 214 Ill. 569, 73 N.E. 737, 69 L. R. A. 701.

Failure to disclose previous conviction of crime committed in another state, although pardon had been obtained therefor, warrants disbarment. Matter of Pritchett, 122 A.D. 8, 106 N.Y.S. 847.

In People v. Propper, 220 Ill. 455, 77 N.E. 208, previous to his admission, the attorney had been convicted of bastardy, although he was innocent, he said, and did not appeal for lack of funds; had been convicted of sending obscene cards through the mail, although he had not been sentenced because, as he alleged, the judge was not satisfied with the evidence; that he had been guilty, but not convicted, of bigamy. It was held that he should be disbarred.

The rule is observed in Pennsylvania. In the case of In re O'Grady, 4 Weekly Notes Cas. (Pa.) 199, it was held that he should be disbarred because he had concealed from the court admitting him the fact that he had been refused admission by the common pleas court.

The same rule obtains in Idaho. See In re Bradley, 14 Idaho, 784, 96 P. 208. In New York see Matter of Leonard, 127 A.D. 493, 111 N.Y.S. 905, aff'd in 193 N.Y. 655, 87 N.E. 1121; In re Woodward, 27 Mont. 355, 71 P. 161. It was the rule in England, see Ex parte Hill, 2 W. Bl. (Eng.) 990. See In re Mosher, 24 Okl. 61, 102 P. 705, 24 L. R. A. (N. S.) 530, 20 Ann. Cas. 209.

In many states fraud in procuring admission to the bar is a statutory ground for disbarment. It is not made a statutory ground in this...