Hogan v. State

• Decision Date: 15 May 1925
• Citation: 89 Fla. 388,104 So. 598
• Parties: HOGAN v. STATE.
• Court: Florida Supreme Court

104 So. 598

89 Fla. 388

HOGAN v. STATE.

Florida Supreme Court

May 15, 1925

En Banc.

Error to Circuit Court, Orange County; J. C. B. Koonce, Judge.

Proceeding by the State of Florida to disbar H. H. Hogan as attorney at law. Judgment disbarring defendant, and he brings error.

Reversed.

Syllabus by the Court

SYLLABUS

Complaint seeking to disbar attorney ought not to be received and acted on unless made on oath; charge in complaint seeking to disbar attorney should be specific and particular. A regular complaint against an attorney ought not to be received and acted on unless made on oath, and the charge made should be specific and particular, so that the officer may be aware of the precise nature of the accusation he is to meet. State v. Kirke, 12 Fla. 278, 95 Am. Dec. 314.

Order by which judge disqualified himself to sit and try complaint for disbarment of attorney because of having formed opinion from preliminary examination will not be held error. While under the statute (section 2554, Rev. Gen. Stat.) prescribing the procedure for disbarment of an attorney at law consideration of the complaint and supporting evidence lodged with the circuit judge against such attorney, which is the basis of the court's action directing the state attorney to file a motion in the name of the state in such court to disbar the attorney, does not ipso facto disqualify the judge to proceed further in the case yet, where the judge, after directing the motion to be filed, finds and enters an order disqualifying himself to sit and try the cause by reason of having formed an opinion upon the facts from the preliminary examination made by him, such order will not be held to be error.

After judge enters order disqualifying himself in disbarment proceedings, subsequent orders entered by him in such case are void. Where in disbarment proceeding against an attorney at law the circuit judge enters an order reciting his disqualification in the cause upon the ground that he formed an opinion as to the facts on the preliminary examination made by him, and upon which he acted in directing the state attorney to file a motion for disbarment, subsequent orders entered in the case by such judge anterior to his recusation are void.

After sustaining demurrer to motion to disbar attorney, allowing amended motion to be filed held proper. In disbarment proceedings against attorney, after sustaining demurrer to motion to disbar, it was not error to allow on application amended motion to be filed by state attorney, in view of Rev Gen. St. 1920, § 2629, relating to amendment of pleadings.

COUNSEL

Landis, Fish & Hull, of De Land, for plaintiff in error.

Rivers Buford, Atty. Gen., and Marvin C. McIntosh, Asst. Atty. Gen for the State.

OPINION

WEST C.J.

This writ of error brings to this court for review a judgment disbarring plaintiff in error from the practice of law in the state of Florida. The motion to disbar was filed by the state attorney on September 20, 1923, in the circuit court of the Seventeenth judicial circuit in and for Orange county, pursuant to an order of honorable C. O. Andrews, judge of said court, directing the motion to be made. From time to time thereafter upon application orders were made by said judge enlarging the time for pleading by defendant to said motion, sustaining a demurrer to the motion, allowing the filing of an amended motion, and overruling a demurrer thereto. After which on March 3, 1924, the following order was entered by said judge:

'This cause coming on to be heard and set for trial, and the undersigned circuit judge of said circuit feeling that he is disqualified to act as trial court upon the ground hat the charges in the several counts of the motion to disbar are based upon alleged facts which this court under the statute had to investigate before requesting the state attorney to file motion to disbar, and therefore had to form an opinion as to those facts, therefore, acting upon the statutes of this state, it is considered by this court that he is disqualified to sit and try said cause by reason of having previously formed an opinion.'

The judge having entered this order disqualifying himself, by order of the Governor, honorable J. C. B. Koonce, judge of the Sixteenth judicial circuit of Florida, was designated and assigned to exercise all the functions of a circuit judge in and for said Seventeenth judicial circuit in so far as the disposition of the said disbarment proceedings against said defendant were concerned. Thereafter the judge of the said Sixteenth judicial circuit did proceed in said Seventeenth judicial circuit to hear and determine said cause and enter judgment therein disbarring the defendant from the practice of law.

The conclusion which we have reached renders it unnecessary to refer to the grounds of the motion for disbarment or to the evidence offered. The order of disqualification is assigned and urged as error requiring a reversal of the judgment.

Proceedings for disbarment of an attorney at law in this state are statutory. Such proceedings are initiated by making known to the judge of the circuit that an attorney has been guilty of such acts or conduct as to unfit him for the profession. Whereupon the judge directs the state attorney to institute formal proceedings by motion to disbar the attorney against whom the charges have been made. The statute provides:

'Whenever it shall be made known to any judge of the circuit that any attorney-at-law, practicing in any of the courts in his judicial circuit, has been guilty of dishonest conduct, or habits or general immorality [or other acts, enumerating them] which unfit him for association with the fair and honorable members of the profession, it shall be the duty of such judge to direct the state's attorney for the circuit to make in writing a motion, in the name of the state, to disbar such attorney, setting forth in the motion the particular acts or conduct for which the attorney is sought to be disbarred.' Section 2554, Rev. Gen. Stats.

The attorney against whom the motion to disbar is filed is required, within three days after service thereof, to file his answer thereto under oath. And, upon the filing of an answer denying the acts or conduct alleged in the motion as grounds for disbarment, the court hears the evidence, and if, in the judgment of the court, the allegations of the motion are sustained by the preponderance of the evidence, the motion is granted, and judgment entered accordingly. Sections 2555, 2556, Rev. Gen. Stats.

The inquiry required of the judge of be made preliminarily before it can be said that it has been 'made known' to him prima facie that grounds for disbarment exist, together with the conclusion reached upon which he directs the motion to be filed, is not a legal disqualification of the judge to proceed further in the cause. The statute is susceptible of no other meaning than that the judge directing the motion to be filed, if not otherwise disqualified, shall proceed to hear and determine the issues made. But this court has said that:

A 'complaint against an attorney * * * ought not to be received and acted on unless made on oath. * * * It has been held by some of the courts that the charge made must be specific and particular, so that the officer may be aware of the precise...