Harper, Application of

• Decision Date: 11 January 1956
• Citation: 84 So.2d 700
• Parties: Application of Carlos E. HARPER to Withdraw and Separate Himself From the Practice of Law and to Withdraw from the Florida Bar.
• Court: Florida Supreme Court

Page 700

84 So.2d 700

54 A.L.R.2d 1272

Application of Carlos E. HARPER to Withdraw and Separate Himself From the Practice of Law and to Withdraw from the Florida Bar.

Supreme Court of Florida, En Banc.

Jan. 11, 1956.

DREW, Chief Justice.

Carlos E. Harper is an attorney at law, duly admitted and authorized to practice law in the State of Florida and a member of The Florida Bar. With the consent of the Board of Governors of The Florida Bar, he has filed in this Court a petition in which he alleges that there are three charges of professional misconduct presently pending before the Board of Governors, which proceedings are in progress under the applicable provisions of the integration rule; that he does not desire to present further defenses against said charges but wishes to withdraw and separate himself from the practice of law henceforth. He prays this Court to enter an order striking his name from the rolls of The Florida Bar and withdrawing from him the privilege of practicing law without leave for reinstatement.

The Florida Bar has responded to the petition. It admits that it was filed with its consent and that such charges are pending against the petitioner. It is averred that the Grievance Committee of the Eighth Judicial Circuit of Florida has exhaustively investigated the charges against petitioner and, based upon such investigation, has arrived at the conclusion that there is reasonable and probable cause shown that petitioner had been guilty of professional misconduct, and so reported to the Board of Governors of The Florida Bar. It is further averred that after consideration, and pursuant to notice to the petitioner and hearings before it, it found that ground existed to believe the petitioner guilty of professional misconduct. It is then averred:

'In the private hearing upon the third of said charges, the petitioner stated that he did not desire to present further defenses to any of the charges against him and requested leave to file petition to this Court to withdraw and separate himself from the practice of law and have his name stricken from the rolls of The Florida Bar, which leave was granted by the Board of Governors upon the condition that said petition recite that there were charges pending against petitioner and that petitioner did not desire to present defenses thereto.

'The Board of Governors of The Florida Bar has given careful consideration to the facts and circumstances surrounding the charges against petitioner and has also carefully considered the request of petitioner for leave to file his petition herein, and has arrived at the conclusion that when serious charges of professional misconduct are pending against an attorney, and the Board of Governors after consideration thereof and private hearing thereon, has determined that there is reasonable ground to believe the charges are true, that the Board of Governors may properly give leave to such accused attorney, at his instance and request, to file petition to this Court, therein waiving defenses to such charges and praying that the privilege of practicing law be withdraw from him and his name stricken from the rolls of The Florida Bar, without leave for reinstatement, provided, of course, that the public interest does not render necessary or advisable a further investigation and public prosecution of the pending charges, and provided, further, that the nature of the charges are such that no restitution on the part of the petitioner is called for.

'After careful consideration of this matter, the Board of Governors of The Florida Bar has reached the conclusion that the public interest does not render necessary or advisable a further investigation and prosecution of the pending charges against petitioner, and recommends to this Court that the petition be granted.'

The disposition of this matter necessarily involves a consideration of the nature of proceedings of the kind here under consideration. This we shall first discuss.

Disciplinary proceedings against attorneys are instituted in the public interest and to preserve the purity of the courts. No private rights except those of the accused attorney are involved. A judgment in such proceedings does not affect the rights of any injured person to maintain a civil action against the attorney nor prevent the public authorities from the institution of criminal proceedings, if justified by the nature of the charges.

More than fifty years ago, this Court, in the case of State ex rel. Kehoe v. McRae, 49 Fla. 389, 38 So. 605, 606, approved the general principles relating to proceedings of this kind. In that case we said:

'At the common law the disbarment of an attorney was not considered a criminal proceeding. In the case of Ex parte Brounsall, 2 Cowp. 829, Lord Mansfield said: 'It is not by way of punishment, but the court on such cases exercise their discretion, whether a man whom they have formerly admitted is a proper person to be continued on the roll or not.' All the courts from that day to this have uniformly held that disbarment proceedings are not designed as a penalty or punishment for any malfeasance or dereliction of duty by an attorney, but are solely for the purpose of purging the roll of legal practitioners of an unworthy or disreputable member, and that in such proceedings no fine, imprisonment, or other punitive sentence can be imposed, but that the judgment therein can only be one simply revoking the formerly granted permit to practice as an attorney and counsellor, and striking the name of such attorney from the roll of attorneys. If a punishable crime has been committed by the attorney, that is of such nature as to be cause for disbarment, the penalty prescribed by law for such crime cannot be administered in a proceeding to disbar, but must be left to the usual proceeding by trial on an information or indictment; but the fact of the commission of such crime may be inquired into in a proceeding to disbar, and, if its commission is therein established against such attorney to the satisfaction of the judge, the sole result of such inquiry will be to strike his name from the roll of attorneys, not as any part of the penalty for such crime, but because the person who his committed it is unfit to be upon the roll of attorneys.' (Emphasis added.)

The views expressed by this Court on this subject in 1905 are summarized in the following observation appearing in 5 Am.Jur., Attorneys at Law, Sec. 249:

'The purpose of suspending or disbarring an attorney 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, and thus to protect the public and those charged with the administration of justice, rather than to punish the attorney.'

On the same subject, the Supreme Judicial Court of Massachusetts, in Re Keenan, 287 Mass. 577, 192 N.E. 65, 68, 96 A.L.R. 679, text 682, 683, said:

'The primary purpose of such a proceeding is the preservation of the purity of the courts and the protection of the public from attorneys who disregard their oath of office and have been proved unworthy of trust. An attorney is not merely practicing a profession for personal gain; he is an officer of the court. By virtue of its inherent power to control the conduct of its affairs, to maintain its dignity and to enable itself to do justice the court has a summary jurisdiction to inquire into the conduct of its officers and to deal with an attorney found to have committed any evil practice contrary to justice and honesty. * * * A disbarment proceeding is an inquest or an inquiry into the conduct of the attorney. It is the pursuit of a right as well as the performance of a duty by or in behalf of the court to purge its officers of an unworthy member. It involves no private interest except that of the attorney. It is the invocation of a remedy to protect the courts and the public from the impositions arising from the presence of an unfit person among trusted officers. It does not afford redress for a private grievance. It is an action undertaken and carried forward solely for the public welfare.'

The question, however, of whether an attorney at law has the right to resign and have his name stricken from the roll of attorneys at his own instance is a subject which has received little attention of the courts. There was little American precedent on the subject when this Court had before it the case of In re Clifton, 1934, 115 Fla. 168, 155 So. 324. It cannot be doubted, however, that the right of an attorney to voluntarily resign was recognized by the English courts long before the American Revolution. Anon. 1 Chit. 557, n; Ex parte Gray, 9 D.P.C. 336; Ex parte Owen, 6 Ves. Jr. 11; Ex parte Foley, 8 Ves. Jr. 33.

In the Clifton case, supra, a petition was filed in this Court on January 13, 1934, in which the petitioner alleged that he was an attorney at law practicing in West Palm Beach, Florida having been duly admitted to the practice of law on November 14, 1927. He further alleged that at the time of the filing of the petition there were no proceedings pending against him under any of the statutes of the State of Florida for his disbarment or suspension and that he desired to 'withdraw from the practice of the law and to resign as an attorney and surrender up for cancellation and revocation his certificate admitting him to practice in all and singular the courts of Florida.' Upon the filing of this petition in this Court, an order was issued to the Attorney General and the Chairman of the State Board of Law Examiners requiring them to show cause why the prayer of the petition should not be granted. Returns thereto were made by the Attorney General and by the Chairman of the State Board of Law Examiners and there appears in the records of said cause a statement of Circuit Judge C. E. Chillingworth to the effect that prior to the filing of the petition in this Court he had taken...