In re Bailey

• Decision Date: 08 July 1926
• Docket Number: Civil 2523
• Parties: In the Matter of the Disbarment of WELDON J. BAILEY, an Attorney of This Court
• Court: Arizona Supreme Court

248 P. 29

30 Ariz. 407

In the Matter of the Disbarment of WELDON J. BAILEY, an Attorney of This Court

Civil No. 2523

Supreme Court of Arizona

July 8, 1926

Original proceeding in disbarment.

Respondent's demurrer overruled, with leave to answer.

Mr John W. Murphy, Attorney General, and Mr. Earl Anderson Assistant Attorney General, for the State.

Arizona Bar Association (by Mr. James E. Nelson), Amicus Curiae.

Mr. John W. Ray, for Respondent.

Lockwood, J. McAlister, C. J., and Ross, J., concur.

OPINION

Lockwood, J.

This is an original proceeding in the Supreme Court for the disbarment of Weldon J. Bailey, an attorney of this court. A petition was filed by the Attorney General charging Bailey, hereinafter called respondent, with wrongful, unlawful, unprofessional and unethical conduct and acts unbecoming an attorney. Such alleged misconduct was detailed in an affidavit attached to the petition, which is substantially as follows:

George F. Bowland died in the Government Hospital at Tucson, Arizona, leaving an estate consisting only of a claim against the government. Decedent's heirs were his mother, two half-sisters, and his half-brother, Roy J. Hockrey. The latter, being the only relative of decedent living in Arizona, consulted respondent in regard to the settlement of his brother's estate, and was informed that it would be necessary to administer the estate in order to collect the claim for compensation. Hockrey then employed respondent for that purpose. A petition by Hockrey for letters of administration was filed in the proper court, and letters issued in due time. It appeared on investigation the amount of compensation due decedent was approximately $ 190. Proper proof thereof was prepared and sent to the Veterans' Bureau in Washington, and Hockrey was informed by respondent that he had taken the matter up with the Bureau.

Some months thereafter, no payment for compensation having been received by Hockrey, he inquired of respondent what the trouble was, and the latter informed him he could get no satisfaction from the Bureau. Decedent's mother a few months later took the matter up with the Bureau, and was informed by it that a letter had been sent to Roy J. Hockrey, in care of respondent, containing a check for the amount of the compensation, and that it had never been returned. Hockrey then went to the respondent, and told him what he had heard from the Bureau, and asked concerning the receipt by respondent of the check and letter, and the latter informed him he had never received any such letter or check, or heard anything from the Bureau regarding it. Hockrey thereafter repeatedly tried to get some information from respondent regarding the matter, but on each occasion he talked with him the latter stated that he had never received any letter or check.

Nearly three years later the matter was again taken up with the Bureau by Alice M. Birdsall, who received a letter from it stating that the check had been sent to Hockrey in care of respondent, and that it had been paid years before, and further stating that on request investigation would be made. Thereafter a secret service agent showed Hockrey a photostatic copy of the check for compensation, which bore his indorsement as administrator, by Weldon J. Bailey, the respondent, and later a certified check which respondent had given the agent, refunding the amount in question to the government. Another check was then issued by the Bureau and duly paid to Hockrey.

On the filing of the petition by the Attorney General with affidavit attached, an order to show cause was issued to respondent out of this court, directing that he appear and show why he should not be disbarred. An appearance was duly entered, and a demurrer to the accusation of the Attorney General filed, which was argued to the court and submitted.

Before discussing the questions raised by the demurrer, we have deemed it the best course to lay down the general principles of law applicable to the admission and disbarment of attorneys, and, after having stated such principles, to apply them to the demurrer as seems appropriate.

The right to practice law is not a natural or constitutional one. Such being the case, it has always been held that it could, and should, be regulated in some manner, and it frequently happens that, as in this state, the legislature has passed an act providing that the applicant for admission to the bar must pass an examination of a certain kind and in a certain manner. Ex parte Yale, 24 Cal. 241, 85 Am. Dec. 62; In re Bailey, 50 Mont. 365, Ann. Cas. 1917B 1198, 146 P. 1101; State Bar Com. v. Sullivan, 35 Okl. 745, 131 P. 703; State v. Rossman, 53 Wash. 1, 17 Ann. Cas. 625, 21 L. R. A. (N. S.) 821, 101 P. 357.

From time immemorial, however, attorneys at law have been considered essentially and primarily as officers of the court admitting them, and exercising a peculiar privilege or franchise. As was said by the Supreme Court of the United States in Ex parte Garland, 4 Wall. 333, 18 L.Ed. 366:

"Attorneys and counselors are not officers of the United States; . . . they are officers of the court, admitted as such by its order, upon evidence of their possessing sufficient legal learning and fair private character. . . . The order of admission is the judgment of the court that the parties possess the requisite qualifications as attorneys and counselors, and are entitled to appear as such and conduct causes therein. From its entry the parties become officers of the court, and are responsible to it for professional misconduct. They hold their office during good behavior, and can only be deprived of it for misconduct ascertained and declared by the judgment of the court after opportunity to be heard has been afforded. . . ."

It is therefore held by the best considered cases, where this point has been specifically passed on, that the requirements prescribed by the legislature are merely restrictive of the rights of the applicant, and that they do not, and cannot, compel the courts to admit anyone to practice. As is stated by the Supreme Court of Pennsylvania in Re Splane, 123 Pa. 527, 16 A. 481:

"We are clearly of opinion that the act of 1887, though probably not so intended, is an encroachment upon the judiciary department of the government. . . . It is an imperative command to admit any person to practice law upon complying with certain specified conditions. . . . No judge is bound to admit, or can be compelled to admit, a person to practice law who is not properly qualified, or whose moral character is bad. . . . The attorney is an officer of the court, and is brought into close and intimate relations with the court. Whether he shall be admitted, or whether he shall be disbarred, is a judicial and not a legislative question." Re Miller, 29 Ariz. 582, 244 P. 376; Matter of Mosness, 39 Wis. 509, 20 Am. Rep. 55; In re Day, 181 Ill. 73, 50 L. R. A. 519, 54 N.E. 646; In re Burton (Utah), 246 P. 188.

The courts are, of course, a separate and independent division of the government, and, within their constitutional rights, not subject to control by the legislature. Article 3, Constitution of Arizona. We think there is no more important duty, nor one whose performance is more necessary to the proper functioning of the courts, than to see that their officers are of proper mental ability and moral character. The legislature may, and very properly does, provide from time to time that certain minimum qualifications shall be possessed by every citizen who desires to apply to the courts for permission to practice therein, and the courts will require all applicants to comply with the statute. This, however, is a limitation, not on the courts, but upon the individual citizen, and it in no manner can be construed as compelling the courts to accept as their officers all applicants who have passed such minimum standards, unless the courts are themselves satisfied that such qualifications are sufficient. If they are not, it is their inherent right to prescribe such other and additional conditions as may be necessary to satisfy them the applicants are indeed entitled to become such officers. In other words, they may not accept less, but may demand more, than the legislature has required.

Such being the law in regard to admission to the bar, it equally and necessarily follows that, whenever a practitioner by his conduct shows that he no longer possesses the qualifications required for his admission, he may be deprived of the privilege theretofore granted him, and such deprivation may be either under the authority of a statute prescribing the cause therefor, and the manner of procedure, or the court of its own inherent power may act. Following the principle applying in the case of admission to practice, the court will disbar an...