In re Smith

• Decision Date: 25 November 1980
• Docket Number: No. 13493.,13493.
• Citation: 585 S.E.2d 602,214 W.Va. 83
• Parties: In re W. Bernard SMITH.
• Court: West Virginia Supreme Court

585 S.E.2d 602

214 W.Va. 83

In re W. Bernard SMITH.

No. 13493.

Supreme Court of Appeals of West Virginia.

November 25, 1980.

Concurring Opinion of Harshbarger, J. December 1, 1980.

Dissenting Opinion of Miller, J. December 4, 1980.

John O. Kizer, Robert H. Davis, Jr., Charleston, for Legal Ethics committee.

Beckett, Burford & James and R.H. Burford, Huntington, for Smith.

NEELY, Chief Justice.

This is a petition by a disbarred attorney for reinstatement of his license to practice law, pursuant to Art. VI, § 35 of the By-Laws, West Virginia State Bar.¹ The license of the petitioner, W. Bernard Smith, was annulled by this Court on 30 July 1974, In Re Smith, 158 W.Va. 13, 206 S.E.2d 920 (1974), after his conviction on 13 December 1971 in the United States District Court for the Southern District of West Virginia for conspiring to cause fraudulent and illegal votes to be cast in a primary election in Logan County contrary to the provisions of Title 18 U.S.C. § 241. This conviction was appealed to the United States Court of Appeals for the Fourth Circuit where it was affirmed and to the United States Supreme Court where it was also affirmed, Anderson v. United States, 417 U.S. 211, 94 S.Ct. 2253, 41 L.Ed.2d 20, (1974) with Justices Douglas and Brennan dissenting.

On 15 July 1974 the petitioner was incarcerated in the Federal Penitentiary at Lewisburg, Pennsylvania, to be returned to the Court after a 90 day period of study with a report and recommendation under the provisions of Title 18, U.S.C. 4208(b). When he was returned to the Court the original maximum sentence was set aside and he was fined $5,000 and sentenced to 179 days of incarceration with credit for time previously served, and five years probation. One condition of his probation was public service without compensation, and in fulfillment of that requirement, the petitioner moved to Fairmont, West Virginia where he participated in the Senior Aides program for a year.

On 14 September 1979, more than five years after the annulment of petitioner's license, his petition for reinstatement was filed and on 22 April 1980, a three-man subcommittee of the Committee on Legal Ethics of the West Virginia State Bar held an evidentiary hearing on the petition and on 1 July 1980 recommended that the petition for reinstatement be denied. Petitioner then filed his request for our review and reinstatement. The original opinion in this case reinstating petitioner was filed by this Court on 7 October 1980 and on 5 November 1980 the Ethics Committee filed a petition for rehearing, pointing out to the Court that it had incorrectly stated certain principles of law. Upon consideration of the Committee's petition for rehearing the Court concluded that parts of the majority opinion misstated the law, whereupon on the Court's own motion the original opinion was withdrawn and this opinion is substituted in its place. Since the relief for which petitioner prayed is granted, thus causing no prejudice to the petitioner, and since the Committee showed no grounds in its petition which would change the final result in this case, the Court denied the rehearing.

I

Recently this Court spoke to the entire issue of reinstatement in the case of In re Bonn Brown, 164 W.Va. 234, 262 S.E.2d 444 (1980) in which we cited with approval In re Hiss, 368 Mass. 447, 333 N.E.2d 429 (1975) where the Massachusetts Court set forth the broad categories of considerations to which a court should look before reinstating an attorney. We quoted the Massachusetts Court as follows:

In judging whether a petitioner satisfies these standards and has demonstrated the requisite rehabilitation since disbarment, it is necessary to look to (1) the nature of the original offense for which the petitioner was disbarred, (2) the petitioner's character, maturity, and experience at the time of his disbarment, (3) the petitioner's occupations and conduct in the time since his disbarment, (4) the time elapsed since the disbarment, and (5) the petitioner's present competence in legal skills. (Citations omitted.) 164 W.Va. 234, 262 S.E.2d 444 at 446 (1980).

The Committee on Legal Ethics takes the position that the petitioner was convicted of a crime which in and of itself justifies denial of reinstatement to practice law. While the Committee does not argue that the petitioner's license should never be reinstated, they object to reinstatement at this time because of lack of affirmative evidence of rehabilitation. The Committee argues that the petitioner's offense was reprehensible and that the petitioner has not engaged in any affirmative acts which could be called rehabilitation since his disbarment, although the Committee points to no blemishes upon the petitioner's record since his conviction in 1971.

The Committee notes that since his release from confinement and required public service work in the Senior Aides Program in Fairmont, the petitioner has not participated in any civic, community, or religious undertakings which, according to the Committee's argument, would demonstrate rehabilitation. Furthermore, the Committee points to the fact that the petitioner, while earning occasional consulting fees, has primarily relied for his living upon his private resources. The Committee implies that failure to have steady employment at a regular salary in some way casts aspersions upon the character of the petitioner, although they readily admit that the petitioner's private resources were sufficient to sustain him without reliance upon anyone else.

The Committee has long been in favor of permanent disbarment of attorneys. However, this Court has rejected the concept of permanent disbarment at least since the case of In re Daniel, 153 W.Va. 839, 173 S.E.2d 153 (1970) where it was decided before the adoption of the present rule, Art. VI, § 35, that annulment of a license to practice law does not prohibit an application by a disbarred attorney for a new license as if the former license had never been issued.

In 1971, after our decision in Daniel, supra, the State Bar proposed amendments to its By-Laws including a provision for permanent annulment of the license of an attorney upon disbarment. See West Virginia State Bar News. Dec. 1971, at 5. By order entered in the Sup.Ct. Order Book No. 71, at 500, on 7 December 1971 this Court approved all of the suggested amendments except the one providing for permanent annulment of a license to practice. A year later, on 12 December 1972, acting on a petition by the State Bar which resulted from action taken by the Bar at its regular annual meeting held 12 October 1972, this Court entered an order approving an amendment to the By-Laws adopting the present rule providing for petitions for reinstatement after the expiration of five years from the date of disbarment.

It should be obvious from a history of Art. VI, § 35 that the Court in recent years has considered it disproportionate punishment to deny an attorney the right to practice law indefinitely. As this Court said in the case of State ex rel. Harris v. Calendine, 160 W.Va. 172, 233 S.E.2d 318, at 329-30 (1977) in a different but related context:

At the outset this Court acknowledges that the cruel and unusual punishment standard cannot easily be defined and certainly is not fixed; consequently, we feel the standard tends to broaden as society becomes more enlightened and humane....

A good starting point for applying the cruel and unusual punishment standard... is the concept of disproportionality. This concept is explicitly recognized in W. Va. Const., art. III. § 5, "Penalties shall be proportioned to the character and degree of the offence" and is implicit in the Eighth Amendment to the United States Constitution, which originates in the same tradition as our own constitutional provision.

While the Bar maintains that the permanent annulment of the license of an attorney who is guilty of a crime of moral turpitude is primarily for the purpose of protecting society from unscrupulous lawyers, nonetheless, in cases such as the one before us there is little justification for denying reinstatement other than to heap additional punishment upon the offending attorney. In the case before us the offense was not related to the practice of law so that the offense itself, while serious, does not raise the specter of future injury to the public through reinstatement of petitioner's license. In general this Court has rejected vengence as a civilized instinct. See State ex rel. D.D.H. v. Dostert, 165 W.Va. 448, 269 S.E.2d 401 (1980)

.

The five year rule is consistent with other decisions of this Court regarding restoration of rights after an individual has been convicted of a crime and served his sentence. The petitioner for example is not disqualified as a voter, Osborne v. Kanawha County Court, 68 W.Va. 189, 69 S.E. 470 (1910); he is not disqualified from holding public office, Webb v. County Court, 113 W.Va. 474, 168 S.E. 760 (1933); nor is he prohibited from seeking and holding a seat in the West Virginia Legislature, Isaacs v. Ballot Comrs., 122 W.Va. 703, 12 S.E.2d 510 (1940).

II

The petitioner was born in Logan, West Virginia in 1930. He graduated from Marshall University in 1952 and the Washington and Lee School of Law in 1956 where he was a member of the Law Review. He was admitted to practice in 1956 and immediately went to work for the State Tax Department where he served for six months and then became an Assistant Attorney General for the State of West Virginia until 1961. At that time he was appointed State Director of the Department of Public Assistance, commonly called the Department of Welfare. He served as Commissioner of Welfare from 1961 to 1965 and from that time until his disbarment he practiced law in Logan County, West Virginia, during which time he served as Assistant Prosecuting Attorney for approximately one year. Petitioner was elected to the West Virginia State Senate in 1968 and served in that capacity...