In re Fleming

• Decision Date: 13 February 1934
• Docket Number: 23308.
• Citation: 29 P.2d 592,167 Okla. 335,1934 OK 75
• Parties: In re FLEMING.
• Court: Oklahoma Supreme Court

29 P.2d 592

167 Okla. 335, 1934 OK 75

In re FLEMING.

No. 23308.

Supreme Court of Oklahoma

February 13, 1934

Syllabus by the Court.

Record examined. Held, disbarment proceedings dismissed.

Disbarment proceedings against J. E. Fleming.

Proceedings dismissed.

I. C Sprague, of Idabel, for respondent.

J. H Everest, of Oklahoma City, W. H. Loofbourrow, of Buffalo, and John H. Cantrell, of Tulsa, for state bar of Oklahoma.

McNEILL Justice.

This proceeding involves the disbarment of J. E. Fleming, a member of the state bar of Oklahoma, referred to as respondent, herein, by reason of the fact that he had been disbarred from the practice of law by the Supreme Court of the state of New Mexico on August 26, 1927.

It appears that respondent was admitted to the practice of law by the United States District Court for the Southern District of Indian Territory on September 24, 1907, and thereafter admitted to the practice of law by the Supreme Court of this state on motion on January 4, 1913; that he thereafter went to the state of New Mexico in January, 1922, established a location, and became a citizen and resident thereof; that he was admitted to the bar of the state of New Mexico on January 14, 1922, and practiced in that state until December 26, 1924; that he then returned to the state of Oklahoma; and that since his return he has been engaged in the practice of law, residing at Smithville, Okl., an inland town of approximately three hundred inhabitants, located in the southeastern part of Oklahoma.

It also appears that disbarment proceedings in New Mexico were instituted against respondent upon the accusation of the Attorney General of that state; that respondent while he was a practicing attorney at Santa Rosa, N. M., was charged with professional misconduct and specifically with failure to account for moneys of certain clients coming into his hands as an attorney. These charges were preferred against respondent after he had returned to the state of Oklahoma. Respondent denied the charges against him and alleged that all such sums had been remitted prior to the commencement of the proceedings against him. In mitigation of the circumstances respondent in his answer alleged that at the time he had a large collection business conducted largely through stenographers and that his files had become confused; that when his attention was called to the matter set forth in the accusation he caused a complete search to be made of his files and records and upon ascertaining the several amounts due to his clients made remittance therefor in full; that "though perhaps careless he had no wrongful intent"; that he was financially unable to return to New Mexico to appear in person.

The matter was submitted by stipulation upon the pleadings and documentary evidence. The Supreme Court of New Mexico, in that case, In re Fleming, 32 N.M. 442, 259 P. 613, said in the syllabus as follows: "Attorney disbarred for failure to account for moneys of clients."

In the body of the opinion, the court said: "The evidence does not permit us to accept respondent's protestations of mere carelessness and of no wrongful intent."

The court quotes from correspondence of respondent to the American Credit-Indemnity Company, a forwarder. These letters, in effect, appear to deny that the debtor had made any payments on the account which had been forwarded for collection, when certain amounts in fact had been collected by respondent, either personally or through his office. The Supreme Court of New Mexico also said that the board of commissioners of the state bar "was unanimously of opinion that the respondent is guilty and should be disbarred. Upon the facts herein stated, we concur in that view."

After the complaint was filed before the state bar association of this state, the matter was referred by the board of governors of the Oklahoma state bar association to the administrative committee for said board, section No. 27, in which respondent resided, and, after the hearing on the matter, said administrative board found that said respondent had conducted himself since his residence in McCurtain county, Okl., in all professional matters in an ethical manner. The administrative board recommended to the board of governors that, if the mere fact of such disbarment by the state of New Mexico was sufficient to warrant disciplinary measures, said respondent should be required or given a reasonable opportunity to appear before the Supreme Court of the state of New Mexico and endeavor to secure a modification of the decree of that court, and that the action of the board of governors await termination of such application. The said administrative board also recommended that if the board of governors should determine that the mere fact of such disbarment was not sufficient to warrant disciplinary measures, then in that event the complaint against respondent should be dismissed.

It further appears that respondent did make application before the Supreme Court of New Mexico for reinstatement as a member of the bar of the state of New Mexico. In re Fleming, 36 N.M. 93, 8 P.2d 1063. The Supreme Court of that state said: "Application for reinstatement of attorney, made after judgment of disbarment became final, must be treated as application for admission to practice."

In his application for readmission, respondent stated that he "has no immediate intention of returning to this state to reside, or to engage in the practice of the law." Respondent had made his application to the Supreme Court of New Mexico for reinstatement as a member of the bar of that state for the purpose of setting aside and vacating the disbarment judgment against him. The Supreme Court of New Mexico in consideration of the application for reinstatement, in the syllabus said: "Disbarred attorney who is not bona fide resident of state held not eligible to reinstatement, in effect, application for admission to practice."

In the body of the opinion, the court said: "The applicant, a nonresident, has submitted to us communications from members of the bench and bar and other officials and residents of the state of Oklahoma, who vouch for the uprightness of the applicant's life and his ethical conduct as a lawyer during the past seven years, which constitute a good ex parte showing, but it will not be necessary for us to consider the character of the applicant in deciding this matter. Aside from the question of his moral reformation, an applicant for reinstatement must otherwise be eligible to admission to the bar. One of the requisites is that the applicant shall be a bona fide resident of this state. 1929 Comp., § 9-119. The application should be denied, and it is so ordered."

The board of governors found that the order of disbarment made by the Supreme Court of New Mexico had not been modified nor set aside but was in full force and effect, and concluded as a matter of law, as follows: "As stated, the certified record of the proceedings in the Supreme Court of New Mexico and the opinion of the Court in the cause were introduced in evidence. From an intrinsic consideration thereof, it appears that due process of law was accorded the respondent; that there was no informity of...