In re Richards

• Decision Date: 16 October 1933
• Docket Number: 32421
• Citation: 63 S.W.2d 672,333 Mo. 907
• Parties: In the Matter of Proceedings Against Paul Richards For Disbarment
• Court: Missouri Supreme Court

63 S.W.2d 672

333 Mo. 907

In the Matter of Proceedings Against Paul Richards For Disbarment

No. 32421

Supreme Court of Missouri

October 16, 1933

License revoked.

Glendy B. Arnold and J. W. McAfee for complainants.

(1) The Supreme Court has repeatedly held that it has original jurisdiction of proceedings to disbar attorneys from the practice of law. State v. Selleck, 252 Mo. 369; In re Sizer, 300 Mo. 369, 306 Mo. 356; State ex rel. v. Mullins, 129 Mo. 231; State ex rel. v Harber, 129 Mo. 271. (2) The St. Louis Court of Appeals has construed State ex rel. v. Selleck, supra, as holding that it had original jurisdiction of disbarment proceedings and that: "This conclusion was concurred in by all the judges of the Supreme Court save one." In re Marshall, 178 Mo.App. 16. (3) The fact that a commissioner appointed by this court to take testimony in this proceeding is a member of a bar association exhibiting charges against respondent does not disqualify him to act. Ex parte State Bar Assn., 92 Ala. 113; Bar Assn. of the City of Boston v. Casey, 211 Mass. 187; Woodman of the World v. Alford, 89 So. 528; Ex parte Lewis, 288 P. 354. Especially is this point true since the commissioner made no rulings or findings adverse to respondent and the evidence relied upon for his disbarment is in his own answer and his testimony, voluntarily given. (4) As there is no statutory authority for taxing costs against complainants or either of these bar associations, it is immaterial that the judges of this court or its commissioner may be members of the bar associations. 4 Cyc. 917; State ex rel. v. Martin, 45 Wash. 89; Morton v. Watson, 84 N.W. 91. (5) A disbarment proceeding is not a suit between parties litigant. In re Baum, 186 P. 927; Bar Assn. of the City of Boston v. Casey, 211 Mass. 187. (a) It is neither a civil nor a criminal proceeding. In re Marshall, 178 Mo.App. 22; Wernimont v. State, 101 Ark. 210; State v. Peck, 91 A. 274. (b) And the only parties thereto are the court and respondent. State ex rel. v Martin, 45 Wash. 76; In re Autt's Disbarment, 15 Wash. 417; Morton v. Watson, 84 N.W. 91. (6) Rule 32 of this court has no application to disbarment proceedings. This is the court's proceeding, instituted at the suggestion of members of its bar. That rule applies only to original remedial writs. (7) "The words, 'misdemeanor in his professional capacity,' as used in Section 11707 of our statutes, are not technically used, but mean simply professional misbehavior." In re Bowman, 7 Mo.App. 569; In the Matter of Z --, 89 Mo.App. 435. (8) Section 11707 makes any conduct of an attorney, which brings reproach upon his profession and alienates the favorable opinion the public should entertain concerning it, a misdemeanor, and ground for disbarment, "and the misconduct need not be such as would subject the offender to an indictment." In re Bowman, 7 Mo.App. 569; In the Matter of Z --, 89 Mo.App. 426; State ex rel. v. Mullins, 129 Mo. 236; In re Sizer, 300 Mo. 369; In re Smith, 73 Kan. 743; 6 C. J. p. 588, sec. 47. (9) The fact that respondent was acquitted by a jury of the charge of kidnaping Berg is no bar to a revocation of his license as an attorney, regardless of whether he acted in his professional or nonprofessional capacity in securing the release of Berg. R. S. 1929, sec. 11712; People v. Thomas, 36 Colo. 126; In re Smith, 73 Kan. 743; In re Welcome, 43 Mont. 513; In re Platz, 42 Utah 439. (10) If it be held that respondent was not acting in his professional capacity while serving as a go-between for Berg and the kidnapers then he should be disbarred for nonprofessional conduct which shows him to be an unfit and unsafe person to practice before the courts in this State, or to manage the legal business of clients. 6 C. J. p. 599, sec. 59; In re Wallace, 19 S.W.2d 625.

Don Purteet and Paul Richards for respondent.

(1) The Supreme Court has no original jurisdiction in disbarment proceedings. Const. Mo., secs. 2, 3, Article VI; In re Sizer, 300 Mo. 369, 254 S.W. 82; 15 C. J., p. 732, sec. 30; 2 R. C. L., p. 1086, sec. 179; State ex rel. v. Daues, 6 S.W.2d 893; 2 Burr Trials, p. 5; State v. Gordon, 133 S.W. 44. (2) The fact that the commissioner appointed by the Supreme Court to take testimony is a member of a bar association preferring charges against respondent disqualifies him from acting. State ex rel. Scott v. Smith, 176 Mo. 90, 75 S.W. 586. (3) The order of the Supreme Court appointing the commissioner deprived the respondent of his right to have the credibility of the witnesses passed upon. Finley v. Williams, 29 S.W.2d 103. (4) The acquittal of respondent of the matters alleged in complainants' petition is a complete bar to disbarment proceedings based on the same facts. R. S. 1909, secs. 951, 956, 959; R. S. 1929, secs. 11707, 11712; People v. Thomas, 36 Colo. 126; People v. Mead, 29 Colo. 348; People v. Weeber, 26 Colo. 229; In the Matter of an Attorney, 86 N.Y. 563; In re Smith, 73 Kan. 743, 85 P. 586; In re Wellcome, 23 Mont. 213, 58 P. 47; In re Platz, 42 Utah 439, 132 P. 390; People ex rel. Deneen v. John, 212 Ill. 615, 72 N.E. 789; State ex rel. Johnson v. Gebhardt, 87 Mo.App. 542. (5) The testimony fails to show any secret communications with the alleged kidnapers, any lack of co-operation or withholding of information on the part of respondent.

OPINION

Atwood, J.

This is an original proceeding in the Supreme Court to disbar Paul Richards who has been duly licensed by that court to practice law in Missouri. It was instituted by the filing of a verified complaint on behalf of the grievance committees of the Bar Association of St. Louis and the Missouri Bar Association charging that the said Richards "has been guilty of a misdemeanor and malpractice in his professional capacity" in certain particulars specified in the complaint in violation of the statutes of this State and amounting to "such conduct upon his part as to disqualify him from further acting as an attorney at law."

Citation was duly issued and served upon respondent Richards, who thereupon filed motion to dismiss, answer and special plea in bar. The motion to dismiss and the special plea in bar were taken with the case, and it appearing to the court from the complaint and respondent's answer to the citation that issues of fact were joined, Honorable Scott R. Timmons, a duly licensed and practicing attorney under the laws of this State, was appointed special commissioner to take testimony thereon and certify the same to this court. Respondent thereupon filed motion to set aside said order of appointment and thereafter when the special commissioner had heard said evidence and certified the same to this court respondent filed motion to suppress said commissioner's return.

The principal ground set forth in respondent's motion to dismiss, and vigorously pressed as the first point in his brief, is that this court "has no original jurisdiction in disbarment proceedings." [Secs. 2 and 3, Article VI, of the Constitution of Missouri; 15 C. J., p. 732, sec. 30; 2 R. C. L., p. 1086, sec. 179; In re Sizer and Gardner, 300 Mo. 369, 254 S.W. 82; and State ex rel. Hopkins v. Daues et al., 6 S.W.2d 893, 319 Mo. 733, are cited in support of this contention.]

State ex rel. Selleck v. Reynolds et al., 252 Mo. 369, 158 S.W. 671, was an original proceeding in this court by certiorari directed to the St. Louis Court of Appeals. The Bar Association of St. Louis, through its grievance committee, had filed charges therein for the disbarment of Selleck. The St. Louis Court of Appeals appointed two members of that bar to hear the charges and report thereon. Their report presented a finding of guilty on two of the charges in the petition for disbarment. The commissioners' report was approved by the court and Selleck was disbarred. In the certiorari proceeding, as well as in the disbarment proceeding, jurisdiction of the St. Louis Court of Appeals was attacked on the grounds that the Supreme Court was the only court having power to license attorneys to practice law in this State, that the question of the court's inherent authority to control the conduct of attorneys practicing at its bar did not arise because the acts complained of were not committed in reference to or in connection with any matter pending in that court, and that the jurisdiction of the St. Louis Court of Appeals is limited by constitutional provisions making its character, duties and functions strictly appellate, with certain marked and defined exceptions among which is the power to issue, hear and determine writs of habeas corpus, mandamus, quo warranto, certiorari and other original remedial writs. Constitutional questions connected with these grounds were properly lodged and pressed in the Supreme Court. While conceding that the case in hand "did not fall within these granted powers" and that the Legislature could not add to the powers named in the Constitution, this court in banc held in the face of all these objections that the St. Louis Court of Appeals possessed inherent power to disbar attorneys licensed to practice law in this State, all of the judges concurring in this holding except Brown, J., who expressed opposing views in a separate opinion.

In re Sizer and Gardner, 300 Mo. 369, 254 S.W. 82, was an original proceeding in the Supreme Court to disbar attorneys licensed to practice law in this State for alleged acts of malpractice not connected with any case or proceeding pending or heard in this court. The opinion dealt only with the question of jurisdiction which was exhaustively briefed and argued. It was urged then, as respondent urges now, that Sections 2 and 3 of Article 6 of the State Constitution defining the court's jurisdiction of cases as appellate "except in cases otherwise directed by this...