In re Stoner

• Decision Date: 16 January 1981
• Citation: 507 F. Supp. 490
• Parties: In re Jesse Benjamin STONER.
• Court: U.S. District Court — Northern District of Georgia

507 F. Supp. 490

In re Jesse Benjamin STONER.

United States District Court, N. D. Georgia, Atlanta Division.

January 16, 1981.

Omer W. Franklin, Jr., Gen. Counsel, Joe David Jackson, Asst. Gen. Counsel, Atlanta, Ga., for State Bar of Georgia.

Jesse Benjamin Stoner, Marietta, Ga., for respondent.

DISCIPLINARY PROCEEDING

ORDER

TIDWELL, District Judge.

On October 29, 1980, an order was entered by the Supreme Court of Georgia suspending the respondent Jesse Benjamin Stoner from the practice of law in the State of Georgia pending the outcome of the appeal of his felony conviction in Jefferson County, Alabama. This suspension was made pursuant to Rule 4-106 of the Rules and Regulations for the Organization and Government of the State Bar of Georgia ("State Bar Rule______"). Local Rule 71.52 provides for suspension of an attorney from the bar of this court upon suspension of that attorney by the courts of the State of Georgia. Pursuant to Local Rule 71.52, the respondent was ordered to show cause before this court on November 24, 1980 as to why the Order of the Supreme Court of Georgia, dated October 29, 1980, should not be made the order of this court. The respondent was present at the hearing before this court on November 24, 1980 and filed written objections to the State suspension being given federal effect. The State Bar of Georgia filed a response on December 10, 1980.

The State Bar Rules, adopted by the Supreme Court of Georgia pursuant to Georgia Laws 1963, page 70, provide for the regulation of attorneys practicing in the State of Georgia. State Bar of Georgia, 219 Ga. 873 (1963). State Bar Rule 4-102 provides for disciplinary action including suspension and disbarment to be taken upon violation of any of the Standards of Conduct which are enumerated within that Rule. Standard 66 provides for disbarment upon "final conviction of any felony or misdemeanor involving moral turpitude." State Bar Rule 4-106 provides for suspension from the practice of law pending appeal of a conviction of a felony or a misdemeanor involving moral turpitude as follows:

an appeal of a conviction, in any jurisdiction, of any felony or misdemeanor involving moral turpitude shall not divest the State Disciplinary Board of jurisdiction to order a hearing before itself or a special master appointed by the Supreme Court requiring the convicted attorney to show cause why he should not be suspended during the appeal.... Upon termination of any appeal of such conviction, the State Disciplinary Board shall, after notice to a suspended attorney, cause a hearing to be held either by the Board or a panel thereof, for the purpose of determining whether the circumstances of the termination of the appeal indicate that the suspended attorney should be disbarred, reinstated, suspended pending retrial, or reinstated pending further investigation.

The respondent was convicted in May, 1980 in an Alabama court of the felony of setting off dynamite dangerously near or in an inhabited building and was sentenced to ten years in prison. Following notice and a hearing before a Special Master on August 6, 1980 at which the respondent was present and given an opportunity to be heard and present evidence on his behalf, the Supreme Court of Georgia adopted the recommendation of the Special Master that the respondent be suspended from the practice of law in Georgia pending the outcome of the appeal of his Alabama conviction. The respondent has at no time challenged the fact of his conviction and sentence or the procedure applied in his suspension, and continues to argue here as he did before the Special Master and in briefs to the Supreme Court of Georgia that State Bar Rule 4-106 is unconstitutional under both the Constitution of the State of Georgia and the Constitution of the United States. The respondent contends that suspension from the practice of law prior to the exhaustion of all appeals is violative of due process rights guaranteed him under State and Federal Constitutions.

Generally state disciplinary proceedings are given great weight in the federal courts; however, they are not conclusively binding. Theard v. United States, 354 U.S. 278, 77 S.Ct. 1274, 1 L.Ed.2d 1342 (1957). Federal courts are required to give "intrinsic consideration" to the state proceedings to insure due process, adequate proof, and that principles of right and justice were observed. In Re Dawson, 609 F.2d 1139, 1142 (5th Cir. 1980). Although the respondent has challenged the constitutionality of State Bar Rule 4-106 both on its face and as applied to him, he has failed to allege any procedural violation with respect to his disciplinary process. Thus, the court need not address the procedural aspects of this particular state proceeding except as they affect the constitutionality of the rule on its face.

Courts have an inherent power to supervise and discipline the attorneys which practice before them for the protection of the public. This power is derived from the special relationship that exists between the bar and the judiciary.

The two judicial systems of courts, the state judicatures and the federal judiciary, have autonomous control over the conduct of their officers, among whom, in the present context, lawyers are included. The court's control over a lawyer's professional life derives from his relation to the responsibilities of a court. The matter was compendiously put by Mr. Justice Cardozo, while Chief Judge of the New York Court of Appeals. "`Membership in the bar is a privilege burdened with conditions' (Matter of Rouss, 221 N.Y. 81, 84, 116 N.E. 782, 783). The appellant was received into that ancient fellowship for something more than private gain. He became an officer of the court, and, like the court itself, an instrument or agency to advance the ends of justice." People ex rel. Karlin v. Culkin, 248 N.Y. 465, 470-471, 162 N.E. 487, 489. The power of disbarment is necessary for the protection of the public in order to strip a man of the implied representation by courts that a man who is allowed to hold himself out to practice before them is in "good standing" to do so.

Theard v. United States, 354 U.S. at 281, 77 S.Ct. at 1276. Disciplinary procedures are viewed as a function of maintaining the integrity of the bar and avoiding the appearance of impropriety. United States v. Friedland, 502 F.Supp. 611 (D.N.J.1980). Thus, discipline of convicted attorneys is seen as both "a catharsis for the profession and a prophylactic for the public." Maryland State Bar Association, Inc. v. Agnew, 271 Md. 543, 549, 318 A.2d 811, 814 (1974).

In Georgia as in several other jurisdictions, the purpose of suspension from the practice of law pending appeal of a felony conviction or conviction of a misdemeanor involving moral turpitude is not to punish the attorney for the underlying offense, but to protect the public and to promote their confidence in the judicial system. In Re Jesse Benjamin Stoner, supra; Gordon v. Clinkscales, 215 Ga. 843, 114 S.E.2d 15 (1960). It is not the fact that the attorney may have committed the underlying wrong, but the fact that the attorney is a "convicted felon" or stands convicted of an offense involving moral turpitude that tends to impair public confidence in the judicial system and the integrity of the bar as a whole.

The Supreme Court of Georgia upheld the constitutionality of State Bar Rule 4-106 as rationally related to the legitimate state interest in promoting public confidence in the judicial system and protecting the public from those attorneys who have been convicted of crimes involving moral turpitude. In Re Stoner, ___ Ga. ___, 272 S.E.2d 313 (1980). In Georgia, a felony which is punishable by imprisonment is considered a crime of moral turpitude. Lewis v. State, 243 Ga. 443, 254 S.E.2d 830 (1979).

The respondent relies on In Re Metheany, 104 Ariz. 144, 449 P.2d 609 (1969) for the proposition that it is unfair to discipline an attorney for a criminal conviction until that conviction is final, i. e., until all appeals are exhausted. In Metheany, where state bar rules did not provide for interim suspension pending appeal but only for disbarment following conviction, the court construed the state bar rule to permit disciplinary action only upon final conviction, when higher courts no longer had the power to set aside the conviction. In a similar vein is In Re Ming, 469 F.2d 1352 (7th Cir. 1972), which involved the construction of a local rule of the United States District Court for the Northern District of Illinois that provided for disbarment or suspension upon conviction of a misdemeanor. Again, in construing the local rule, the circuit court required final conviction prior to disciplinary action. Metheany and Ming are thus distinguishable from the instant case since neither involved a disciplinary rule which expressly provided for suspension pending appeal. In addition, the rule construed in Ming applied only to misdemeanor convictions. Further, Ming expressly left open the possibility of disciplinary action prior to exhaustion of appeals,

We do not, however, tie the hands of the district court so that it can never suspend a person until his conviction reaches finality. All we say is that if the conviction itself is to be used to show that the appellant actually committed the underlying acts which are of such a nature as to form the basis for disbarment or suspension that the conviction must have reached finality, at least to the extent of exhaustion of direct appeals.

In Re Ming, supra at 1354 (emphasis added).

The continued practice of law by a convicted attorney has been perceived as one of the major disciplinary problems facing the bar and the judiciary.

No single facet of disciplinary enforcement is more to blame for any lack of public confidence in the integrity of the bar than the policy that permits a convicted attorney to continue to practice while apparently enjoying immunity from discipline.

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