In re Crum

• Citation: 204 P. 948,103 Or. 296
• Parties: In re CRUM.
• Decision Date: 07 March 1922
• Court: Supreme Court of Oregon

204 P. 948

103 Or. 296

In re CRUM.

Supreme Court of Oregon

March 7, 1922

In Banc.

Appeal from Decision of the Board of Bar Examiners of the State of Oregon.

Application by Jesse Crum for admission to the bar. Application granted.

Jesse Crum has made application to be admitted as an attorney at law of the state of Oregon.

In accordance with Rule 39 of the Supreme Court (173 P. xii), he filed with the clerk hereof a certificate showing his educational qualifications and setting forth that he has studied law for three years, together with affidavits of three responsible citizens, two of whom are members of the bar, stating the time and the circumstances under which the affiants have known the applicant, and further stating that Crum is a person of good moral character.

Rule 38 (173 P. xii) provides that--

"The examination of all applicants for admission to practice in this state shall be conducted by a board of examiners under the direction of the Supreme Court, which board shall be composed of five members of the Oregon Bar in good standing to be nominated by the president of the Oregon Bar Association and confirmed and appointed by the Supreme Court for a term of three years from date of appointment. * * * "

Rule 40 (173 P. xii) provides, in part, that--

"No such applicant shall be permitted to practice in the courts of this state, unless at least three members of said board or the court on appeal from the decision of the board, shall deem such applicant to be duly qualified as to the requisite character, learning and ability. Upon such motion of any three members of said board such applicant shall be admitted subject to the approval and confirmation of the Supreme Court."

In order "that an opportunity for investigation may be afforded before license is issued," Mr. L. Denham, the only lawyer engaged in active practice at Elgin, the home of applicant, filed objections to his admission. The objector avers among other things:

"That the said Jesse Crum has resided at Elgin for about ten years last past, and engaged principally in the real estate and insurance business, during which time he has had a great deal of trouble before the courts and otherwise, and has a very unenviable reputation, being regarded by many as dishonest and unscrupulous, double dealing, and wholly unworthy of trust or confidence. * * * "

An answer was filed by the applicant, denying the material averments contained in the objections, to which the objector replied.

The board of bar examiners thereafter heard evidence, and three of the five members thereof signed the following report:

"The board of bar examiners, to whom the Supreme Court referred for hearing and determination the question of whether or not the applicant, Jesse Crum, constituted 'fit material for membership at the bar,' finds and reports in the negative."

The two remaining members dissented.

BROWN J. (after stating the facts as above).

The right to engage in the practice of the law is a privilege conferred or withheld, in accordance with the general policy of the state expressed by statutory enactment. The policy of our state is to admit no one to the bar who does not possess a good moral character. The law of this state reads, at subdivision 2, § 1077, Or.L.:

"An applicant for admission as attorney * * * must show 'that he is a person of good moral character, which may be proved by any evidence satisfactory to the court.' "

Prior to taking his examination relating to the requisite learning and ability to practice law, the applicant made a prima facie showing of good moral character, as prescribed by our statute. Thereafter his moral character was challenged by the objector herein, who filed a complaint containing numerous averments of misconduct on the part of applicant. Pending these proceedings Crum's certificate as an attorney has been withheld. The hearing was conducted along the lines usually followed in disbarment proceedings, which are analogous to the present proceeding. The immorality that rejects an applicant is ground upon which to disbar. Section 1091 of our Code provides that--

"Any member of the bar of this state shall be disbarred by the Supreme Court, upon proper proceedings for that purpose, whenever it shall appear to that court that his conduct has been such that if he were then applying for admission to the bar his application should be denied."

If the allegations of the objector are supported by sufficient evidence, the prima facie showing made by applicant's affidavits fails.

The proceedings in the matter at issue have been properly conducted. The end in view has been to ascertain the moral character of the applicant. There is but one question to be determined: Does Jesse Crum possess the moral character requisite for admission to the bar of this state? The lawmaking power of the state of Oregon has placed the authority and responsibility upon this court to determine who are qualified to become its officers as attorneys.

"This power, however, is not arbitrary or despotic, to be exercised according to the pleasure of the court, but is judicial." In re Day, 181 Ill. 73, 54 N.E. 646, 50 L.R.A. 519; Ex parte Secombe, 19 How. 9, 15 L.Ed. 565.

In a proceeding of this kind, the applicant is entitled to confront the witnesses, to subject them to cross-examination, and to invoke the protection of the tried, wise, and well-settled rules of evidence. In re Eldridge, 82 N.Y. 161, 37 Am.Rep. 558.

It has been written that--

"It is essential to the administration of justice according to law, that the recognized rules of evidence should be observed in this class of cases as well as in all others." People v. Amos, 246 Ill. 299, 92 N.E. 857, 138 Am.St.Rep. 239.

Also, that--

"A proceeding for the disbarment of an attorney is in no sense a criminal prosecution, though the alleged causes therefor are criminal acts. Its purpose is to ascertain whether the accused is worthy of confidence and possessed of that good moral character which is a condition precedent to the privilege of practicing law. * * * In re Thresher, 33 Mont. 441, 114 Am.St.Rep. 834. * * * While the proceeding is civil and not criminal, yet more than a preponderance of the evidence is required, and the guilt of the attorney must be clearly established. In re Evans, 22 Utah, 366, 83 Am.St.Rep. 794. " People v. Amos, supra, note 138 Am.St.Rep. page 243.

In People v. MacCabe, 18 Colo. 186, 32 P. 280, 19 L.R.A. 231, 36 Am.St.Rep. 270, the court said that--

"A court intrusted with the power to admit and disbar attorneys should be considerate and careful in exercising its jurisdiction; the interests of the [attorney] must in every case be weighed in the balance against the rights of the public; and the court should endeavor to guard and protect both with fairness and impartiality."

1 Thornton on Attorneys at Law, p. 90, reads:

"All persons are interested in the rectitude of attorneys and may properly be permitted to oppose an application for admission by urging the moral disqualification of the applicant."

The same text-writer has written, at section 62:

"The power to deny an application for admission because the evidence of good moral character is unsatisfactory 'is one of great delicacy, and should be exercised with extreme caution, and with a scrupulous regard for the character and rights of the applicant,' said the New Jersey Supreme Court. 'On the other hand,' continued the court, 'the standing of the profession must not be disregarded, nor must the court shrink from the performance of a clear duty, however embarrassing.' In re Attorney's License, 21 N.J.Law, 345. The words 'good moral character,' in the statutes regulating admission to the bar include, of course, all the elements essential to make up such a character. Among these are common honesty and veracity"--citing in re O--, 73 Wis. 602, 618, 42 N.W. 221.

Subject to constitutional limitation, the legislative assembly has the right to prescribe the qualifications and provide the regulations under which its citizens may engage in the practice of law. Our Code makes an attorney at law an officer of the court. Section 1076, Or.L.; State v. Edmunson (Or.) 204 P. 619, filed February 21, 1922. Proceedings had for the admission and disbarment of attorneys at law are alike judicial. Weeks on Attorneys at Law (2d Ed.) 157; 1 Thornton on Attorneys at Law, § 28.

Evidence that satisfies the court of the good moral character of an applicant for admission to the bar is required in all jurisdictions. The intent of our statutory enactment is that the court may have assurance that the applicant, if admitted to the bar, will honestly transact the business of an attorney at law.

The majority of the board reached a conclusion adverse to the admission of Crum to the bar, because of an alleged false affidavit made by him, and by reason of his averred misconduct in reference to an action in the recorder's court of the city of Elgin.

The affidavit alleged to be false was made by applicant for the purpose of having a default judgment set aside. The objector, representing the Inland Merchants' Association, instituted an action against one J.H. Morris as defendant, to collect a certain promissory note with accumulated interest, amounting to $56.02, and for costs and attorney's fees in the sum of $25. It is averred that Morris, the defendant, was served with summons on the 19th day of February, 1917, "and the same day Jesse Crum wrote the following letter":

"At request of Mr. J.H. Morris of this place, I herewith hand you check for $56.02, covering that certain note in full payment thereof given by Morris to Harvey and Regan, and which is at present owned by yourselves. Original amount of note being $45.00, and which...