CAMPBELL, J.
George W. Egan, of Sioux Falls, S. D., formerly and at two different periods (from November 15, 1907, to October 10, 1908, and from January 1, 1911, to April 4, 1916) admitted to practice as an attorney in the courts of this state, but now disbarred, has presented to this court his petition wherein he prays the entry of an order admitting and reinstating him to practice as an attorney and counselor in this state.
Before passing to a detailed consideration of this petition and of the record of the applicant it is perhaps fitting that we should first advert somewhat to the general legal principles involved, which must govern and control the sound judicial discretion of this court in passing upon an application of this nature.
[1] Of these propositions doubtless the most fundamental is that what by common usage we denominate “the right to practice law” is not in any proper sense of the word a “right” at all, but rather a matter of license and high privilege. Certainly, it is in no sense an absolute right. It is in the nature of a franchise to the enjoyment of which no one is admitted as a matter of right, but only upon proof of fitness and qualifications which must be maintained if the privilege is to continue in enjoyment.
“An attorney at law is an officer of court, exercising a privilege or franchise, to the enjoyment of which he has been admitted, not as a matter of right, but upon proof of fitness through evidence of his possession of satisfactory legal attainments and fair private character. Fairfield County Bar v. Taylor, 60 Conn. 11, 15, 22 A. 441 ; Ex parte Garland, 4 Wall. 333, 378 ;Butchers' Union Slaughterhouse, etc., Co. v. Crescent City Live Stock Landing, etc., Co., 111 U. S. 746, 763, 4 S. Ct. 652 . For the manner in which this privilege or franchise is exercised he is continually accountable to the court, and it may at any time be declared forfeited for such misconduct, whether professional or nonprofessional, as shows him to be an unfit or unsafe person to enjoy the privilege conferred upon him and to manage the business of others in the capacity of an attorney. Ex parte Wall, 107 U. S. 265, 273, 304, 2 S. Ct. 569 ; Ex parte Garland, 4 Wall. 333, 378 ; Ex parte Robinson, 19 Wall. 505, 512, 22 L. Ed. 205; Ex parte Brounsall, 2 Cowp. 829.” In re Durant, 80 Conn. 140, 67 A. 497, 10 Ann. Cas. 539.
“Early in the case the court found itself at variance with the respondent and his counsel touching the nature of the office of attorney at this bar and of the proceedings in disbarment. We wholly disagree with respondent that the right to practice law is a property right, to be treated with all the incidents peculiar to property. On the other hand, we hold that it is merely an extraordinary privilege, valuable to the holder, it is true, and granted to him for life on certain conditions, upon the reasonable maintenance of which by him depends his continuance in office.” In re Thatcher (C. C. & D. C.) 190 F. 969.
[2] A second fundamental proposition which is too frequently overlooked, not only by laymen but by lawyers, is that the purpose of suspending or disbarring an attorney is not to punish him, but to guard the administration of justice and protect the courts, the profession, and the public.
“The proceeding is not for the purpose of punishment, but for the purpose of preserving the courts of justice from the official ministration of persons unfit to practice in them. Undoubtedly, the power is one that ought always to be exercised with great caution; and ought never to be exercised except in clear cases of misconduct, which affect the standing and character of the party as an attorney. But when such a case is shown to exist, the courts ought not to hesitate, from sympathy for the individual, to protect themselves from scandal and contempt, and the public from prejudice, by removing grossly improper persons from participation in the administration of the laws.” Ex parte Wall, 107 U. S. 265, 2 S. Ct. 569, 27 L. Ed. 552.
“When an attorney, one of its officers, is charged with unprofessional conduct and the court institutes inquiry in regard to the truth of the charge or charges, it is not mainly for the purpose of punishing him, but to ascertain whether he has violated the trust reposed in him. If the charges are found established, and show such misconduct in his office as amounts to a violation of his trust, it then becomes the duty of the court to remove him from the office of an attorney, not primarily as a punishment to him, but as a protection to the court and community.” In re Enright, 69 Vt. 317, 37 A. 1046.
“So often and so clearly have courts pointed out that in proceedings of this character the punishment of the offending lawyer is neither involved nor considered that repetition is not necessary. It would perhaps be unavailing to prevent appeals for sympathy upon that ground in future cases.” In re Thatcher, 83 Ohio St. 246, 93 N. E. 895, Ann. Cas. 1912A, 810.
“This is not a proceeding by way of punishment, though the deprivation of the privileges of an attorney may be a matter of serious importance to a practitioner. It is a measure necessary to the protection of the public, who have a right to expect that courts will be vigilant in withholding, and, if already given, withdrawing, their certificates of qualification and character, upon which the public rely. Attorneys are officers in a sense; they must possess such qualifications as the law prescribes, sanctioned by the certificate of the courts, or they may not enjoy the privileges of the office. As said by Mr. Justice Whipple, in Re Mills, 1 Mich. 395:
“‘Should this court, after being officially advised that one of its officers has forfeited the good name he possessed when permitted to assume the duties of his office, still hold him out to the world as worthy of confidence, they would, in my opinion, fail in the performance of a duty cast upon them by the law. It is a duty they owe to themselves, to the bar, and the public, to see that a power which may be wielded for good or for evil is not intrusted to incompetent or dishonest hands. The extreme judgment of expulsion is not intended as a punishment inflicted upon the individual, but as a measure necessary to the protection of the public, who have a right to demand of us that no person shall be permitted to aid in the administration of justice whose character is tainted with corruption.”’ In re Shepard, 109 Mich. 631, 67 N. W. 971.
“In one or two of the affidavits in the record the statement is made that the petitioner has been punished enough, as if a disbarment were punitive in character. It is not. The removal of an attorney's name from the rolls of the profession is a measure protective in character; in a certain sense protective of the profession, but in a higher sense protective of the public which finds it necessary to resort to the services of lawyers. No one not a lawyer can fully realize the opportunities for undiscovered peculation, graft, and embezzlement which are afforded the practitioner at the bar. No one not a lawyer can so well understand the degree to which the public is entitled to protection from dishonesty in the profession. When a member of the profession has been found lacking in the requisites which go to make him a helper to his clients and has been discovered to possess aims, views, and purposes which indicate a moral obliquity in him, and which might make his clients his victims, it is well that he were removed from the possibility of doing them harm. When he has been once disbarred, a mistaken charity should not restore him to his position. That restoration should only come when he has lived long enough after his disbarment in honorable intercourse with his fellow citizens to demonstrate that he is both tried and true.” In re Shepard, 35 Cal. App. 492, 170 P. 442.
“Much was said in the testimony of witnesses in the applicant's behalf before the superior court and in argument here to the general effect that the applicant had been sufficiently punished for the offense for which he was suspended. That view of the case entirely misconceives the question before the court for decision. Disbarment and suspension from practice are not visited upon offending practitioners as a means or measure of punishment. They are steps taken by the court, whose officer the attorney is, for its own protection and that of the public from the misconduct of untrustworthy men in the exercise of functions of great and intimate concern to both.” In re Durant, 80 Comm. 140, 149, 67 A. 497, 10 Ann. Cas. 539.
“For like reason, the question for determination on an application like this is not one as to the sufficiency of the punishment already suffered by the offending attorney, but one as to the present fitness of the applicant for reinstatement to again exercise the privileges and functions of an attorney as an officer of the court and confidential manager of the affairs and business of others intrusted to his care and keeping in view his previous misconduct, his discipline therefor, and any reformation of character wrought thereby or otherwise as shown by his more recent life and conduct.” In re Kone, 90 Conn. 440, 97 A. 307.
“Membership in the bar is a privilege burdened with conditions. A fair private and professional character is one of them. Compliance with that condition is essential at the moment of admission; but it is equally essential afterwards. Selling v. Radford, 243 U. S. 46, 37 S. Ct. 377, 61 L. Ed. 585;Matter of Durant, 80 Conn. 140, 147, 67 A. 497, 10 Ann. Cas. 539. Whenever the condition is broken the privilege is lost. To refuse admission to an unworthy applicant is not to punish him for past offenses. The examination into...
