In re Berkwitzk

• Decision Date: 07 June 1948
• Parties: In re BERKWITZK.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

323 Mass. 41

80 N.E.2d 45

In re BERKWITZK.

Supreme Judicial Court of Massachusetts, Suffolk.

June 7, 1948.

Exceptions from Superior Court, Suffolk, County; Brogna, Judge.

Petition by Abram J. Berkwitzk for readmission to the bar of the Commonwealth. Petition dismissed without prejudice to the transfer thereof, or to the bringing of a similar petition in the Supreme Judicial Court, and petitioner brings exceptions.

Exceptions overruled, and petition dismissed without prejudice to right of petitioner to file petition for readmission to the bar in the Supreme Judicial Court for county of Suffolk.

Before QUA, C. J., and LUMMUS, DOLAN, SPALDING, and WILLIAMS, JJ.

R. T. Parke and P. A. Dever, both of Boston, for petitioner.

C. B. Rugg and J. J. Phelan, Jr., both of Boston, for Bar Ass'n of City of Boston.

C. A. Barnes, Atty. Gen., and B. M. Hall, Asst. Atty. Gen., submitted a brief.

DOLAN, Justice.

The petitioner was admitted to the bar of this Commonwealth on February 23, 1906. He was removed from his office of attorney at law in the courts of this Commonwealth by a judgment of this court entered on November 24, 1934. On April 6, 1942, he filed in the Superior Court for the county of Suffolk a petition for readmission to the bar. After the entry of that petition, it was referred to the board of bar examiners, who reported on January 27, 1943, that the petitioner possessed the necessary intellectual qualifications and legal attainments required to warrant his admission to the bar. An order of notice issued to the Bar Association of the City of Boston which filed a special answer on March 19, 1943. The Attorney General filed a petition for leave to intervene on April 22, 1943. The case was inactive until August 7, 1946. On that day the petitioner filed a motion that the answer of the Bar Association of the City of Boston be struck from the record. On October 21, 1947, the association filed a motion that the petition be referred to the board of bar examiners to inquire fully into the moral character of the petitioner and to report to the court its finding and recommendations with respect thereto as required by rule 7 of the General Rules in Relation to Attorneys, adopted by this court on June 25, 1945, to become effective on July 2, 1945. 318 Mass. 784, 788. The association also filed on the same day a motion to dismiss the petition without prejudice to the filing of a similar petition in the Supreme Judicial Court on the ground that the rule just referred to requires that an application for admission to the bar by a person who has been disbarred in this Commonwealth must be filed in the court which entered the judgment of disbarment. Pertinent provision of the General Rules in Relation to Attorneys adopted by this court on June 25, 1945, as before stated, are these: ‘Ordered, by the Justices of the Supreme Judicial Court, that the following general rules be and they hereby are adopted, applicable both in the Supreme Judicial Court and in the Superior Court, and superseding heretofore existing rules of said courts in relation to the admission and discipline of attorneys, and that these general rules shall remain in force until otherwise ordered by the Justices of this court. 1. Any citizen of the United States and any alien who has made the primary declaration to become a citizen of the United States under federal laws and who has not claimed exemption from military service on the ground of being an alien, if twenty-one years of age or over, may apply for admission as an attorney. Every application, including applications by persons who have been disbarred, shall be made by a petition either to the Supreme Judicial Court or to the Superior Court, accompanied by the recommendation of a member of the bar of this Commonwealth. Such petition shall be filed in the county where the applicant resides or in the county of Suffolk, but in the case of a person disbarred the petition shall be filed in the county and court in which the judgment of disbarment was entered. * * * 7. The foregoing rules in relation to admission shall apply in all respects to applications by persons who have been disbarred in this Commonwealth, except that in no event may such an application be filed until at least five years have elapsed since the judgment of disbarment and that it must be filed in the court which entered that judgment and in the county in which it was entered. In such cases the applicant shall not be subject to the provisions of Rule 3 relating to preliminary, general and legal education. The board shall first determine whether such an applicant possesses sufficient intellectual acquirements and qualifications to warrant his admission to the bar.’ On November 25, 1947, the case came on for hearing on the petition of the Attorney General for leave to intervene and on the motions above described. The judge took no express action on those matters, but on December 2, 1947, entered the following ruling and order: ‘I rule that this court is now without jurisdiction in the matter. Petition dismissed without prejudice to the transfer thereof to, or to the bringing of a similar petition in the Supreme Judicial Court.’ The exception of the petitioner to that action of the judge brings the case here.

The petitioner contends that the rules above set forth in their precise terms relate only to the filing of applications subsequent to the effective date of the rules (July 2, 1945), and that since his application for readmission to the bar was filed in the Superior Court on April 6, 1942, under the provisions of G.L.(Ter.Ed.) c. 221, § 37, conferring concurrent jurisdiction upon the Suprme Judicial Court and the Superior Court of petitions for admission to the bar, the Superior Court had jurisdiction to hear and determine his petition, unaffected by the rules subsequently adopted by this court. In support of those contentions the petitioner cites decisions of this court to the effect that rules adopted within the rule making power of the judicial department have the force of statutes, are subject to the same rules of construction,and are not to be given retrospective operation in the absence of plain indication to the contrary.

The case of Keenan, petitioner, 310 Mass. 166, 37 N.E.2d 516, 137 A.L.R. 766, discloses that Keenan had been disbarred by a judgment entered by a single justice of this court on October 19, 1934, after rescript from the full court. On December 28, 1939, he filed a petition in the Superior Court for readmission to the bar. The required formalities of the rules relative to admission to the bar were complied with; and notice of the petition having been issued and served upon the Bar Association of the City of Boston, it objected that the Superior Court was without jurisdiction to hear the petition. The judge ruled that the court did have such jurisdiction and reported his ruling to this court. And this court held that the Superior Court did have jurisdiction of the petition, that G.L.(Ter.Ed.) c. 221, § 37, conferring jurisdiction upon the Superior Court concurrently with the Supreme Judicial Court to admit persons to the bar embraced petitions for...