In re Bennethum
| Decision Date | 28 June 1961 |
| Docket Number | Misc. No. 5. |
| Citation | 196 F. Supp. 541 |
| Parties | In the Matter of William H. BENNETHUM. |
| Court | U.S. District Court — District of Delaware |
Frank H. Hollis, David B. Coxe, Jr., Wilmington, Del., and Joseph G. Feldman and Stephen M. Feldman (of Feldman & Feldman), Philadelphia, Pa., for William H. Bennethum.
S. Samuel Arsht and William Poole, Wilmington, Del., Committee designated by the court for the presentation of charges.
Before WRIGHT, Chief Judge, and STEEL, District Judge.*
The Supreme Court of Delaware has entered an order striking the name of William H. Bennethum from the roll of its attorneys and revoking his right to practice law in all courts of that State. The reasons for its action are stated in In re Bennethum, Del.1960, 161 A.2d 229, reargument denied Del.1960, 162 A.2d 429. Upon receiving a certified copy of the disbarment order pursuant to the direction of the Supreme Court, this Court entered an order which, after referring to the disbarment by the Supreme Court, temporarily suspended Bennethum from practicing law in this Court, and directed him to show cause why his name should not be stricken from its rolls and his right to practice law before it should not be revoked.
After having considered the answer filed by Bennethum to the show cause order and the briefs filed and argument made on his behalf, we have reached the following conclusions:
While the admission to practice before a state court is a prerequisite to admission to practice before a federal court, the loss of the right to practice before the state court does not automatically require the revocation of the right to practice in the federal court. Nevertheless, the natural effect of an unreversed disbarment order by a state court is to destroy the fair, private and professional character of the attorney, which is essential for membership in the federal bar. It is therefore settled that when disbarment is sought in a federal court upon the basis of a state court disbarment, the latter will be followed by the federal tribunal unless upon an intrinsic consideration of the state court record it appears that (1) the state proceeding was wanting in due process because of lack of notice or opportunity to be heard, (2) such an infirmity of proof of want of fair, private and professional character existed in the state court as to clearly convince the federal court that the state decision should not be accepted, or (3) some other grave reason appears why under principles of right and justice the federal court should not follow the state court. If an intrinsic examination of the state proceeding reveals an absence of either of these standards, a federal court may not rely upon a state proceeding as a basis for disciplinary action in the federal court. Selling v. Radford, 1917, 243 U.S. 46, 49, 51, 37 S.Ct. 377, 61 L.Ed. 585, Theard v. United States, 1957, 354 U.S. 278, 282, 77 S.Ct. 1274, 1 L.Ed.2d 1342.
These principles must guide us in determining what effect Bennethum's disbarment by the Supreme Court is to have upon his right to practice in this Court. Needless to say, this Court has no authority to re-examine as a reviewing court the action of the Delaware Supreme Court in disbarring Bennethum from practicing before the Delaware State Courts. See Selling v. Radford, supra, 243 U.S. at page 50, 37 S.Ct. at page 378.
Following a hearing which Bennethum had before the Censor Committee, the Supreme Court found, as had the Committee, that:
1. Bennethum failed to file state income tax returns for 1950-1955;
2. Bennethum failed to file federal income tax returns for 1942-1954;
3. Bennethum testified falsely under oath before the Internal Revenue Service Agents who investigated his tax delinquencies, and before the Censor Committee in the proceedings which eventuated the Supreme Court's disbarment order, that he had filed federal income tax returns for 1942-1954. He testified falsely under oath before this Court while on trial for wilfully failing to file income tax returns for 1953 and 1954, that he had filed returns for those two years. In all three proceedings he fabricated evidence by falsely claiming that two documents were copies of original federal income tax returns which he had filed for 1953 and 1954.1
The Supreme Court stated that a lawyer who disregards his duty as a citizen to honor his tax obligations fails to uphold the standards of his profession and that such a lawyer has consistently been disciplined by the courts, usually by suspension. But it stated further that a lawyer who testifies falsely before a court is morally unfit to practice law and that disbarment is warranted for such acts. This latter conclusion was the primary basis for Bennethum's disbarment.
Bennethum claims that the State court judgment against him should not be followed in this Court under the doctrine of Selling v. Radford, supra, for the reason, among others, that the State proceedings deprived him of due process of law in violation of the Fourteenth Amendment of the Constitution of the United States. Specifically, Bennethum asserts that he was given no notice or opportunity to be heard either before the Censor Committee or the Supreme Court on whether he should be disciplined for false swearing and fabrication of evidence, despite the fact that his disbarment was based primarily upon those grounds.
The constitutional argument thus made by Bennethum was presented to the Supreme Court for the first time in a petition to reconsider its opinion reported in Del., 162 A.2d 429 which denied reargument.2 The petition to reconsider was denied by an order stating that the "constitutional questions were raised too late". With us this is not the case. Bennethum pleaded his constitutional defense in his answer to the show cause order and has persistently adhered to it. It must be decided.
The show cause order which Bennethum received from the Censor Committee notified him that disciplinary action was under consideration based upon his failure to file state income tax returns for 1950-1955, federal income tax returns for 1942-1955, and to pay taxes for those years.3 No mention was made of false swearing or fabrication of evidence and Bennethum had no way of knowing that disciplinary measures against him might ultimately be based upon those offenses.4 It was solely because of the income tax delinquencies and one other matter covered by the show cause order with which we are not presently concerned, that the Censor Committee recommended that Bennethum be disciplined. Neither false swearing nor fabrication of evidence was the basis for the Committee's recommendation that he be disciplined. Report pp. 22, 36.
The crucial issue which the Censor Committee had to decide was whether Bennethum had filed tax returns and paid his tax, as he thrice testified, or whether he had failed to do so, as other evidence indicated. Bennethum was notified in advance of the hearing that his alleged tax delinquencies was the issue which he would have to meet and he was accorded a full hearing upon that issue. Both before and at the hearing Bennethum must have known that the Censor Committee would be confronted with the alternative of accepting his testimony as trustworthy, or rejecting it as unworthy of belief. He was afforded every opportunity to bring to the Committee's attention all evidence at his disposal which would corroborate his testimony on the income tax issue. In this respect the omission of a formal charge of false swearing or fabrication of evidence in no way prejudiced Bennethum. After having heard Bennethum, the Committee recommended that "Bennethum should be disciplined for his failure to file his state and federal tax returns."
Although the Committee's report did not recommend disciplinary action for false swearing or the fabrication of evidence, two of the Committee's findings dealt with these subjects as they related to the Committee's recommendation that Bennethum be disciplined for his tax delinquencies:
To continue reading
Request your trial
-
Ginger v. Circuit Court for County of Wayne, 17114.
...S.Ct. 120, 4 L.Ed.2d 103; In re Crow, D.C., 181 F.Supp. 718, affirmed 6 Cir., 283 F.2d 685; In re Noell, 8 Cir., 93 F. 2d 5; In re Bennethum, D.C., 196 F. Supp. 541. In Theard v. United States, 354 U.S. 278, p. 281, 77 S.Ct. 1274, 1 L.Ed.2d 1342, the Supreme Court of the United States "It i......
-
Gately v. Sutton
...re MacNeil, 1 Cir., 266 F. 2d 167, cert. denied 361 U.S. 861, 80 S.Ct. 120, 4 L.Ed.2d 103; In re Noell, 8 Cir., 93 F.2d 5; In re Bennethum, D.Del., 196 F.Supp. 541; In re Crow, N.D. Ohio, 181 F.Supp. 718, aff'd 6 Cir., 283 F.2d 685; Keeley v. Evans, D.Or., 271 F. 520, appeal dismissed 257 U......
-
Jones v. Hulse
...Cir. 1960); In re MacNeil, 266 F.2d 167 (1st Cir. 1959), cert. denied, 361 U.S. 861, 80 S.Ct. 120, 4 L.Ed.2d 103 (1959); In re Bennethum, 196 F.Supp. 541 (D.Del.1961); cf. Saier v. State Bar of Michigan, 293 F.2d 756, 759-760 (6th Cir. 1961), cert. denied, 368 U.S. 947, 82 S.Ct. 388, 7 L.Ed......
-
Lenske v. Sercombe
...cert. denied MacNeil v. Julian, 361 U.S. 861, 80 S.Ct. 120, 4 L.Ed.2d 103 (1959); In re Noell, 93 F.2d 5 (8th Cir. 1937); In re Bennethum, 196 F.Supp. 541 (D.Del.1961); In re Crow, 181 F.Supp. 718 (N.D.Ohio E.D.1959); Keeley v. Evans, 271 F. 520 (9th Cir. 1921), appeal dismissed 257 U.S. 66......