In re Keenan

• Decision Date: 31 October 1941
• Parties: WILFRED B. KEENAN, petitioner.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

310 Mass. 166

37 N.E.2d 516

WILFRED B. KEENAN, petitioner.

Supreme Judicial Court of Massachusetts, Suffolk.

October 31, 1941

May 15, 1940.

Present: FIELD, C.

J., DONAHUE, DOLAN COX, & RONAN, JJ.

Attorney at Law. Superior Court, Jurisdiction. Jurisdiction, Admission to bar. Practice, Civil, Admission to bar, Disbarment, Report Parties. Constitutional Law, Separation of powers of government, Judiciary. Rules of Court. Supreme Judicial Court, Rules of court. Words, "Admission."

The question whether the Superior Court had jurisdiction of a petition by a disbarred lawyer for admission to the bar, properly was before this court upon a report thereof under G. L. (Ter Ed.) c. 231, Section 111, irrespective of whether a bar association, which had appeared in response to an order of notice issued to it and had sought to raise that question, had standing to do so.

A final and absolute decree of disbarment of an attorney at law did not deprive the judicial department of jurisdiction to readmit him.

A petition for admission to the bar by one who has been disbarred is not a continuation of the disbarment proceeding, but is a new and independent proceeding involving a new inquiry as to whether, in the interval following the disbarment, the petitioner has become a proper person to hold the office of a member of the bar.

Control of membership in the bar of the courts of the Commonwealth, both through admission thereto and through removal therefrom, is exclusively in the judicial department of the government, and legislative interference therewith would be unconstitutional under art. 30 of the

Declaration of Rights.

Although Section 37 of G. L. (Ter. Ed.) c. 221, contains no express reference to a previously disbarred person, its terms are sufficiently comprehensive to include such a person among those who may petition for admission to the bar and, if qualified, may be admitted.

Section 37 of G. L. (Ter. Ed.) c. 221, conferring upon the Superior Court concurrently with the Supreme Judicial Court jurisdiction to admit persons to the bar, interpreted as including among such persons a previously disbarred person, is not unconstitutional as an interference by the legislative department with the judicial department or with the constitutional powers of the Supreme Judicial Court, at least until the

Supreme Judicial Court otherwise fixes the jurisdiction of that subject matter.

The Supreme Judicial Court has not by its rules excluded the Superior Court from jurisdiction of a petition by a disbarred attorney for admission to the bar.

PETITION, filed in the Superior Court on December 28, 1939, and afterwards amended.

The case was reported by Buttrick, J.

P. N. Jones, (J.

S. Dawson with him,) for the Bar Association of the City of Boston.

K. D. Johnson, for the petitioner.

FIELD, C.J. This is a petition for admission to the bar by a person who was disbarred by a judgment of the Supreme Judicial Court entered by a single justice of the court on October 19, 1934, after rescript from the full court. See Matter of Keenan, 287 Mass. 577 . The petition was filed in the Superior Court. An order of notice was issued thereon to the Bar Association of the City of Boston. Upon objection by the association to the jurisdiction of the Superior Court to hear the petition, a judge of that court ruled that it had jurisdiction of the petition and entered an ordered overruling the objection. The judge reported the jurisdictional question to this court under G. L. (Ter. Ed.) c. 231, Section 111. In these circumstances, no question is presented of the right of the association -- not technically a party to the proceeding, see Boston Bar Association v. Casey, 211 Mass. 187; S. C. 213 Mass. 549 , 556 -- to except. See Matter of Mayberry, 295 Mass. 155 , 160. The jurisdictional question is here upon the report of the trial judge.

1. The judgment of the Supreme Judicial Court entered on October 19, 1934, was that the present petitioner "is removed from the office of an attorney at law in the courts of this Commonwealth." This judgment, as is apparent, was not restricted to exclusion of the present petitioner from practice before the court entering it. It is too late to contend -- and it is not contended -- that the Supreme

Judicial Court did not have jurisdiction to enter a judgment in this broad form. See Boston Bar Association v. Greenhood, 168 Mass. 169 , 182-183; O'Connell, petitioner, 174 Mass. 253 , 262. And the judgment was absolute without limitation of time. See Boston Bar Association v. Greenhood, 168 Mass. 169, 183. It was final and subject to review only in accordance with principles applicable to the review of final judgments. Boston Bar Association v. Casey, 227 Mass. 46 , 51. Matter of Keenan. 287 Mass. 577 , 582. Compare Matter of Mayberry, 295 Mass. 155 , 161. Nevertheless, a party so removed from the office of attorney is not, by force of such a final judgment, though unreversed, precluded from applying "for readmission if his offence was of such a kind that, after a lapse of time, he can satisfy the court that he has become trustworthy." Boston Bar Association v. Greenhood, 168 Mass. 169 , 183. This is in conformity with the general principle that the control of membership in the bar rests exclusively in the judicial department. See Opinion of the Justices, 279 Mass. 607 , 609, 611; 289 Mass. 607 , 612, 615. The jurisdiction of the judicial department with respect to membership of a particular person in the bar is not exhausted by a final judgment, favorable or adverse to such person, in a proceeding for his disbarment. See Matter of Mayberry, 295 Mass. 155 , 160. The present petitioner does not seek by his petition review of the final judgment of removal from his office as an attorney at law, but, in accordance with the statement just quoted, seeks readmission to the bar.

2. The present proceeding is a new proceeding for admission to the bar, subject to the limitations of procedure and substance resulting from the fact that the petitioner by a final judgment has been "removed from the office of an attorney at law in the courts of this Commonwealth." The present proceeding is not a continuation of the prior proceeding culminating in such a final judgment. It is brought under the jurisdiction of the judicial department to control membership in the bar, which continues though a particular proceeding has been terminated by a final judgment. This conclusion is in accord with the decision in Matter of

Mayberry, 295 Mass. 155 , 160-161. That case was a proceeding for disbarment in which an order for judgment was entered on October 5, 1933, that the proceeding be dismissed. Subsequently the case was heard de novo. This court held that the order for judgment was not final and that the later action of the court "in ordering a hearing de novo was a step in the further progress of the case which the court had power to take." But the court further said that "we need not rest this decision upon technical niceties of practice, for even if the order of October 5, 1933, had been a final judgment, it would not follow in a case of this kind that the court was without jurisdiction to entertain the later proceedings. . . . If, as the respondent contends, the order of October 5 was a final judgment in his favor ending the original proceeding against him," the further action including the assignment of the matter "for hearing de novo was the commencement of a new proceeding against the respondent. That proceeding was within the general jurisdiction of the court. . . . The existence of a former judgment in favor of the respondent could not affect the jurisdiction of the court to hear the second proceeding. At most it could be no more than an affirmative defence in the nature of res judicata to be seasonably set up and proved by the respondent." This principle is equally applicable when a final judgment in a proceeding for disbarment is adverse to the respondent.

A petition of a disbarred person for admission to the bar is not to be regarded as a continuation of the proceeding in which he was disbarred, on the ground that such admission would be a modification of punishment imposed by the judgment of disbarment. A judgment of removal from the office of an attorney in the courts is not properly or technically to be considered as in the nature of punishment -- though it may have that practical effect. Its purpose is to exclude from the office of an attorney in the courts, for the preservation of the purity of the courts and the protection of the public, one who has demonstrated that he is not a proper person to hold such office. Randall, petitioner, 11 Allen, 473, 480. Boston Bar Association v. Greenhood, 168

Mass. 169, 183, 188.

Matter of Carver, 224 Mass. 169 , 172. Matter of Ulmer, 268 Mass. 373 , 393. Matter of Keenan, 287 Mass. 577 , 582. A final judgment of removal from such office rendered by a court of competent jurisdiction is binding upon all the courts of the Commonwealth and constitutes an adjudication that, at the time it was rendered, the attorney so removed was not a proper person to hold such office. A subsequent petition for admission to the bar involves a new inquiry as to whether, in the interval following the rendering of the judgment of removal, the petitioner has become a proper person to hold such office. Boston Bar Association v. Greenhood, 168 Mass. 169 , 183.

It is to be observed -- by way of analogy -- that even statutory proceedings for review of final judgments are regarded as new and independent proceedings, though the statutes in some instances, but not in all, provide that such a proceeding for review shall be brought in the court in which the judgment was entered. See G. L. (Ter. Ed.) c. 250, Sections...