In re Fite

• Citation: 228 Ala. 4,152 So. 246
• Decision Date: 09 June 1933
• Docket Number: 6 Div. 216.
• Parties: In re FITE.
• Court: Supreme Court of Alabama

152 So. 246

228 Ala. 4

In re FITE.

6 Div. 216.

Supreme Court of Alabama

June 9, 1933

Rehearing Denied Oct. 12, 1933.

Rehearing Denied to Bar Commission Dec. 14, 1933.

Petition of Fred Fite to review action of the Board of Commissioners of the State Bar disbarring him from the practice of law.

Judgment modified, and petitioner suspended from the practice of law in accordance with opinion.

THOMAS and BROWN, JJ., dissenting.

Mullins Pointer & Deramus, and J. F. Thompson, all of Birmingham, for appellant.

Jim C Smith, J. W. Gillon, Jr., W. H. Sadler, Jr., and Frank Bainbridge, all of Birmingham, for appellee.

The following filed briefs amici curiæ in support of the petition for review:

A. H Carmichael, of Tuscumbia, J. J. Curtin, of New York City, Fleetwood Rice, of Tuscaloosa, Norman Gunn, of Jasper, Richard C. Foster, of Tuscaloosa, R. A. Cooner, of Jasper, Reuben H. Wright, of Tuscaloosa, Coleman D. Shepherd, of Jasper, W. C. Warren, of Tuscaloosa, J. B. Powell, of Jasper, S. H. Sprott, of Tuscaloosa, J. J. Ray, of Jasper, W. T. Searcy, of Tuscaloosa, Still Hunter, of Jasper, R. C. Price, of Tuscaloosa, C. E. Mitchell, J. P. Middleton, and Fred Jones, all of Hamilton, John A. Darden, of Goodwater, M. E. Nettles and Carter Manasco, both of Jasper, Mulkey & Mulkey, of Geneva, L. D. Gray, of Jasper, Frank B. Embry, of Pell City, A. A. Griffith, of Cullman, Griffin & Ford, of Huntsville, C. O. Stokes, of Ozark, J. C. Yarbrough, of Enterprise, and Sollie & Sollie, of Ozark.

The following filed briefs amici curiæ in opposition to the petition:

Francis Hare, J. K. Taylor, Chas. W. Greer, John W. Altman, David J. Davis, Forney Johnston, Borden Burr, and A. Leo Oberdorfer, all of Birmingham.

THOMAS Justice.

The prosecution that resulted in a judgment of disbarment against the petitioner-appellant in this cause was for violation of certain rules of the board of commissioners of the state bar association and certain provisions of the statute.

The acts relating to the organization, regulation, and government of the state bar and the granted powers to its board of commissioners are: Gen. Acts 1923, p. 100; Gen. Acts 1923, p. 587; Gen. Acts 1927, p. 79; Gen. Acts 1931, pp. 284, 683; and provisions of codified statutes cited by counsel as applicable, are sections 3308, 3310, 6220-6236, 6243, 6250, subsection (6); 6257, Code of 1923, chapters 79 and 260.

Pertinent provisions of the statute touching the enlarged powers of the board of commissioners or state bar association, and those for review by this court, among other things, are: (1) "In all cases in which the evidence, in the opinion of a majority of the board, justifies such a course, they shall take such disciplinary action by public or private reprimand, suspension from the practice of law," or (2) "exclusion and disbarment therefrom, as the case shall in their judgment warrant, provided that in cases of exclusion and disbarment two-thirds of the board shall vote affirmatively before the exclusion and disbarment become effective but said board shall not have jurisdiction over anything which may have occurred before the 9th day of August, 1923. The supreme court may, and on petition of the party aggrieved must, in any case of suspension or disbarment from practice, review the action of the board, and may, on its own motion, and without the certification of any record, inquire into the merits of the case and take any action agreeable to their judgment. Rules regulating the manner of such review and providing for the certification of the evidence, or if the supreme court desire, the taking of additional evidence shall be promulgated by said board and become effective upon approval by the supreme court. The board of commissioners shall also have power to make rules and by-laws not in conflict with any of the terms of this article concerning the selection and tenure of its officers and committees and their powers and duties, and generally for the control and regulation of the business of the board and of the state bar." Section 6225, Code 1923; Ex parte Von L. Thompson (Ala. Sup.) 152 So. 229; Ex parte Robert G. Messer (Ala. Sup.) 152 So. 244; Ex parte Hugh Walker (Ala. Sup.) 152 So. 246; State Tax Commission v. Bailey & Howard, 179 Ala. 620, 631, 60 So. 913.

There was a motion to quash or suppress depositions taken under provisions of the statutes, which was overruled at the trial by the commission; that action is assigned as error by petitioner-appellant, and decided adversely to his insistence in Ex parte Robert G. Messer, supra. It was there indicated that these provisions of the statute, and those for the taking of testimony, did not violate section 6 of the Constitution. The authorities cited by counsel were considered and discussed by Mr. Justice Brown, in a like proceeding, and declared to be "only quasi criminal in nature" (State v. Quarles, 158 Ala. 54, 48 So. 499; Thomas v. State ex rel. Stepney, 58 Ala. 365, 368), and to which State ex rel. Attorney General v. Buckley, 54 Ala. 599, held, did not apply. The rules that govern in such matter as to the relevancy of evidence, its admissibility, and the tests thereof are stated in Ex parte Robert G. Messer, supra, and need not be repeated. There was no error in the ruling of the trial commission in overruling the motion.

It is decided, that in such an appeal, some presumptions must be indulged in favor of a fair intent of the trial court and its rulings. McCord v. State ex rel. Allen, 220 Ala. 466, 126 So. 873.

A due procedure by pleading to judgment by the commissioners of the state bar was likewise indicated in Ex parte Von L. Thompson, supra; Ex parte Robert G. Messer, supra, and Ex parte Hugh Walker, supra; and that under the statute as was declared in McCord v. State ex rel. Allen, supra. In the recent cases, and that last cited, proceedings for disbarment of attorneys at law, it was declared that "formal and technical pleadings are not essential," being required only to sufficiently inform the attorney proceeded against that he was charged with the specific conduct indicated as unbecoming to an attorney at law; conduct that unfits him as an officer of the court and to advise and represent clients desiring the aid of an attorney; that it is only required that the particulars of the charge be stated. 6 C.J. page 605, § 69; Id., page 603, § 65. It will not be necessary that we consider, in detail, the demurrer, and grounds thereof, to the specifications that sufficiently informed appellant of the facts and the nature of the several charges made against him in a proceeding that is sui generis in nature. Ex parte Von L. Thompson (Ala. Sup.) 152 So. 229; Thomas v. State ex rel. Stepney, 58 Ala. 365; State v. Quarles, 158 Ala. 54, 48 So. 499. The introduction of evidence showing scienter held competent and material in Ex parte Robert G. Messer (Ala. Sup.) 152 So. 244.

In this case, as was the observation by Mr. Justice Brown for the court in the Messer Case, supra, "some, if not all of the counts of the complaint, charge the defendant with the fraudulent conversion to his own use, moneys [of the client] coming into his hands as a licensed practicing attorney," and that his acts, as charged, were within the condemnation of the statutes and rules of law provided for the regulation of conduct between an attorney and his client. See Bar Association of City of Boston v. Casey, 211 Mass. 187, 189, 97 N.E. 751, 39 L. R. A. (N. S.) 116, Ann. Cas. 1913A, 1226; Matter of Ulmer, 268 Mass. 373, 167 N.E. 749; McCord v. State ex rel. Allen, 220 Ala. 466, 126 So. 873.

The right of trial by jury in this case has been passed upon by this court adversely to the insistence of appellant-respondent, and the question was covered by an exhaustive opinion by Mr. Justice Knight in Ex parte Von L. Thompson (Ala. Sup.) 152 So. 229, and adhered to in Ex parte Robert G. Messer (Ala. Sup.) 152 So. 244, and Ex parte Hugh Walker (Ala. Sup.) 152 So. 246.

It need not be observed, that one having been duly admitted to his profession has a substantial interest and right therein, within the law, to enjoy its emoluments in its contribution to his livelihood, until he voluntarily forfeits or relinquishes that right, by the withdrawal of that permission according to the due process of law, or by physical hindrance. Hardie-Tynes Mfg. Co. v. Cruise, 189 Ala. 66, 66 So. 657; Lehmann v. State Board of Public Accountancy, 208 Ala. 185, 188, 94 So. 94; Wright v. Aldridge, 219 Ala. 632, 123 So. 33; State ex rel. Miller v. Aldridge, 212 Ala. 660, 103 So. 835, 39 A. L. R. 1470. And it is held that this is a valuable property right of which one will not be deprived except by due process of law, and, if necessary, will be protected in that enjoyment under and within the law. Bowen v. Morris, 219 Ala. 691, 123 So. 222; Walker v. Ferguson, 221 Ala. 549, 130 So. 64; Walker v. City of Birmingham, 216 Ala. 206, 112 So. 823.

It is established that the Legislature has the power to delegate to officials, boards, or commissions, of its own creation and appointment, certain governmental powers for the more efficient administration of the law, and as to the recognized matter and person in question and to be affected; subject however, to clearly expressed or implied constitutional limitations. Lehmann v. State Board of Public Accountancy, supra; Parke v. Bradley, State Treasurer, 204 Ala. 455, 86 So. 28; Railroad Commission v. Ala. North. Ry. Co., 182 Ala. 357, 62 So. 749; Ex parte Samples (Samples v. State), 210 Ala. 544, 98 So. 803; Woco Pep Co. of Montgomery v. City of Montgomery, 213 Ala. 459, 105 So. 214; 27 A. L. R. 1532 note. The insistences of the appellant challenge the constitutionality of the Gen. Acts 1931, p. 284, and to that consideration we...