In re Stephenson

• Decision Date: 08 October 1942
• Docket Number: 6 Div. 50.
• Parties: In re STEPHENSON.
• Court: Alabama Supreme Court

10 So.2d 1

243 Ala. 342

In re STEPHENSON.

6 Div. 50.

Supreme Court of Alabama

October 8, 1942

J. L. Stephenson, of Parrish, pro se.

Jas. W Aird, of Birmingham, for Board of Commissioners.

THOMAS, Justice.

This cause is before this court on petition for review of the decision of the Board of Commissioners of the Alabama State Bar in denying appellant's petition for reinstatement to practice as an attorney before the Bar of Alabama.

Petitioner was convicted by a jury on July 13, 1933, of second degree forgery, and sentenced to the penitentiary for a period of not less than two years, nor more than four years. Application for certiorari to this court was denied October 11, 1934, Stephenson v. State, 26 Ala. App. 175, 156 So. 638, 639. Petitioner commenced serving his sentence November 1, 1934, was granted temporary parole of six months in March, 1935, and was permanently paroled in September 1935. Petitioner received full pardon on August 18, 1936 with restoration of civil and political rights. By order of two judges of the Fourteenth Judicial Circuit, petitioner was disbarred July 13, 1936. Code of 1923, § 6256, Code 1940, T 46, § 49. Thereafter, petitioner filed in the circuit court for the Fourteenth Judicial Circuit his petition for reinstatement as an attorney at law. Subsequently this court rendered the following opinion on appeal of this application:

"The order in the case was final and was a judgment from which appeal may be taken. De Graffenried v. Breitling, 192 Ala. 254, 68 So. 265; In re Fite, 228 Ala. 4, 152 So. 246.

"We have examined the record. The restoration of an attorney to the privilege to pursue his vocation, as an attorney at law, and in that sense as an officer of the the court, is dependent upon many material considerations, which tend to hold that profession in the high standing it has attained.

"The fact of his pardon by the Governor and the restoration of his full civil and political rights has not the effect of restoration to him of the privilege to practice his profession as a member of the bar.

"The application should be made to the duly constituted authorities to consider his present quality of mind, character, qualifications and fitness for the discharge of his duties before the courts, and to the clients whom he may represent and the upholding of the dignity of the profession in the eyes of the public of which the profession is an important agency.

"The judgment of the trial court is affirmed.

"Affirmed." [Italics supplied.]

Ex parte Stephenson, 237 Ala. 488, 187 So. 461.

In Ex parte Peters, 195 Ala. 67, 70 So. 648, 649, this court through Mr. Justice Somerville, said:

"Under the statutes of this state (Code, §§ 2991-3008) jurisdiction of proceedings for the disbarment of licensed attorneys is vested in circuit courts, or courts of like jurisdiction. Withers v. State, 36 Ala. 252; Ex parte State Bar Ass'n, 92 Ala. 113, 8 So. 768 . In such cases the judgment of the trial court is final and conclusive, unless it should be reversed or modified by the Supreme Court on appeal. But the jurisdiction of the Supreme Court is strictly appellate. Code, § 3008.

"With respect to the reinstatement of attorneys against whom a judgment of disbarment has been rendered, our statutes are silent. It is, however, generally held-and properly so, we think-that a court which has the power to disbar, has also the power to reinstate, which will be exercised in proper cases. In re Thatcher, 83 Ohio St. 246, 93 N.E. 895, Ann.Cas.1912A, 810, and note, 813-815; 4 Cyc. 917, 4, and cases cited. This power to reinstate is based upon the continuing jurisdiction of the court over the subject-matter and the party, and hence it is held that a petition for reinstatement must be addressed, and can be addressed, only to the court which rendered the judgment of disbarment. In the Matter of King, 54 Ohio St. 415, 43 N.E. 686; 4 Cyc. 918, note 4." Italics supplied.

In McCord v. State ex rel. Allen et al., 220 Ala. 466, 126 So. 873, 874, it was held that in "proceeding for disbarment of attorney at law, formal and technical pleading is not essential."

Code 1940, T. 46, §§ 49, 50. In Code 1940, T. 46, § 28, it is provided as follows:

"The causes of removal or suspension of attorneys, and methods of proceeding in reference to such removal or suspension are hereby declared to be cumulative with the right and power herein given to the board of commissioners to reprimand, suspend, exclude, or disbar attorneys. (1923, p. 100.)

"Applied in Ex parte Thompson, 228 Ala. 113, 152 So. 229 ; In re Fite, 228 Ala. 4, 152 So. 246." On March 1, 1941, the petitioner appeared before the Grievance Committee of the Alabama State Bar, and was there examined at length on matters relating to his conduct subsequent to his disbarment. Volume Two of the testimony taken before the Grievance Committee of the Alabama State Bar on March 1, 1941, states the salient facts.

Thereafter the Grievance Committee of the Board of Commissioners of the State Bar filed a report in accordance with Rule C of the rules Governing the Conduct of Attorneys in Alabama, as promulgated by the Board of Commissioners, and approved by the Supreme Court of Alabama.

It will here be noted that rule C approved by this Court on June 11, 1940, is as follows:

"Rules Governing Petitions for Reinstatement of persons who have been suspended, disbarred, or otherwise excluded from the practice of law.

"Any person who has been suspended, disbarred, or otherwise excluded from the practice of law, may thereafter file with the Secretary six copies of a sworn petition for reinstatement addressed to the Board. The Secretary shall send a copy thereof to each member of the Grievance Committee and shall retain one copy in his office. The Grievance Committee is empowered to make such investigation and require the production before it of such facts, data and proof as it may deem essential to enable it to determine whether it should or should not recommend the granting of such petition. The recommendation of such committee shall be filed with the Secretary. After the recommendation of such Committee, the Board shall, in executive session at which no person not a member of the Board is present, consider the said petition, together with the recommendation of the Grievance Committee, and any affidavits or other proof that may be offered in support of such petition. The decision of the Board shall be expressed by resolution entered upon its record. A copy of such resolution shall be kept in the Secretary's office, and a copy shall be mailed by the Secretary to the petitioner, and a copy to the Judge or Judges of the Judicial Circuit in which the petitioner resides to be spread upon the minutes of the Circuit Court of the County of petitioner's residence and a copy to the Clerk of each Federal District Court in Alabama, the Clerk of the United States Circuit Court of Appeals for the 5th Circuit and to the Clerk of the United States Supreme Court.

"A petition for reinstatement having been denied, no more than one additional petition from such person may be received, filed, or considered. Provided, that from the decision of the Board of Commissioners the petitioner shall be entitled to an appeal to the Supreme Court of Alabama as provided by Rule No. 28 of Section B."

The instant proceeding, judgment and appeal are had, entered, taken and submitted in this court under such amended and approved rules. This present rule, now in effect, supersedes the observation hereinabove set forth from the Peters case. Ex parte Peters, 195 Ala. 67, 70 So. 648, supra.

Under this appeal we are confronted with the legal effect of petitioner's pardon of the crime for which he was convicted, and the restoration of his civil and political rights. It was held by this court and by the Supreme Court of the United States, on which point all authorities concur, that [Ex parte Garland, 4 Wall., 333, at page 380, 18 L.Ed. 366]:

"A pardon reaches both the punishment prescribed for the offence and the guilt of the offender; and when the pardon is full, it releases the punishment and blots out of existence the guilt, so that in the eye of the law the offender is as innocent as if he had never committed the offence. If granted before conviction, it prevents any of the penalties and disabilities consequent upon conviction from attaching; if granted after conviction, it removes the penalties and disabilities, and restores him to all his civil rights; it makes him, as it were, a new man, and gives him a new credit and capacity.

"There is only this limitation to its operation: it does not restore offices forfeited, or property or interests vested in others in consequence of the conviction and judgment."

Such was the holding of this court in this case when before us on former appeal in Ex parte Stephenson, 237 Ala. 488, 187 So. 461, the opinion in said case being hereinbefore set out in full. That is to say, the pardon and restoration of his political and civil rights do not of themselves restore the petitioner to the office of an attorney. They merely open the door that would otherwise be barred to him.

In the case of In re Kaufmann, 245 N.Y. 423, 157 N.E. 730 733, the Court of Appeals of New York, speaking to the point under consideration here, through Mr. Chief Justice Cardozo, said: "* * * Precedents cited to the contrary hold no more than this, that reinstatement will not follow automatically from pardon without more. People ex rel. Johnson v. George, 186 Ill. 122, 57 N.E. 804. There must be convincing proof of innocence before pardon will restore to the fellowship of the bar. Even innocence of crime will not suffice if there has been a failure to live up to the standards of morality and honor. Pardon...