In re The Disbarment of H. N. Casebier

• Decision Date: 08 February 1930
• Docket Number: 29,343
• Citation: 284 P. 611,129 Kan. 853
• Parties: In re the Disbarment of H. N. CASEBIER
• Court: Kansas Supreme Court

284 P. 611

129 Kan. 853

In re the Disbarment of H. N. CASEBIER

No. 29,343

Supreme Court of Kansas

February 8, 1930

Decided January, 1930.

Original proceeding in disbarment.

Motion denied.

SYLLABUS

SYLLABUS BY THE COURT.

1. ATTORNEY AND CLIENT--Disbarment After Conviction of Felony--Constitutional Law. The statute, R. S. 7-110, which provides that upon the receipt of a certified copy of a judgment showing the conviction of an attorney at law heretofore admitted to the bar of this state the supreme court must enter an order disbarring such attorney, does not violate the fourteenth amendment nor the Kansas bill of rights; nor does it constitute a substantial encroachment by the legislature upon the inherent jurisdiction of the judiciary.

2. SAME--Generally. Other objections to the order of disbarment in conformity with the statute considered and not sustained.

William A. Smith, attorney-general, R. O. Mason, assistant attorney-general, A. M. Keene, of Fort Scott, W. F. Lilleston, of Wichita, James V. Humphrey, of Junction City, Fred Robertson, of Kansas City, and T. M. Lillard, of Topeka, for the accusers.

M. A. Bender, of Holton, for the petitioner.

OPINION

DAWSON, J.:

This is a special proceeding which questions the validity of a statute which requires this court to enter an order disbarring an attorney upon the transmission to it of a certified copy of a record of his conviction of a felony in a court of competent jurisdiction.

The record thus certified shows that H. N. Casebier was convicted of the offense of statutory rape in the district court of Jefferson county on the 8th day of October, 1929.

Casebier is an attorney at law who has practiced his profession in this state for many years.

The pertinent statute reads:

"That in the case of the conviction of an attorney at law, who has been admitted to the bar of this state, of a felony or of a misdemeanor involving moral turpitude, the clerk of the court in which such conviction is had must, within thirty days thereafter, transmit to the supreme court a certified copy of the record of conviction, and the supreme court upon receipt of such record, must enter an order disbarring such attorney. Upon reversal of such conviction, or pardon by the governor, the supreme court shall have the power to vacate such order of disbarment." (R. S. 7-110.)

The certified copy of the record of his conviction in conformity with the statute was transmitted to this court and filed on November 1, 1929. Shortly thereafter the court's attention was called thereto by the attorney-general, and on November 2, 1929, counsel for Casebier filed a motion requesting that the matter of disbarment be held in abeyance until his appeal from the judgment of conviction could be heard and determined by this court. This motion was overruled, and on November 8, 1929, it was ordered and adjudged that the name of H. N. Casebier be stricken from the roll of attorneys in this state--"and his license to practice as an attorney within the state of Kansas be and the same is hereby revoked."

On November 26, 1929, a petition for a rehearing was filed by counsel for Casebier. This was allowed and the matter set down for hearing at the present January sitting of court, at which time the cause was argued at length by counsel for Casebier and by counsel for the state and its board of law examiners.

Counsel for Casebier raises certain questions of law which will be considered in the order of their presentation.

It is first urged that the statute which requires this court to enter an order of disbarment against an attorney upon the mere receipt of a certified copy of a judgment of his conviction of a felony or misdemeanor involving moral turpitude is unconstitutional because it violates the letter and spirit of the fourteenth amendment and section 1 of the bill of rights of the Kansas constitution. The first of these provides that no state shall deprive any person of life, liberty or property without due process of law, nor deny to any person within its jurisdiction the equal protection of the laws. The second declares that all men are possessed of equal and inalienable natural rights, among which are life, liberty, and the pursuit of happiness. It is suggested that the statute does not conform to due process of law and that it brings upon an attorney consequences which apply to no other citizen, not even to other professional men.

So far as due process of law is concerned, the constitutional guaranties above quoted have to do with the safeguarding of the lives, liberty and property and the inalienable natural rights of persons against infractions of the regular procedure prescribed by law for the administration of justice. None of these enumerated constitutional rights of Casebier are affected by the statute nor by our compliance with its terms. It is not contended, of course, that the statute invades the life of Casebier; but it is suggested that the operation of the statute amounts to an invasion of his liberty. It is true that the right to choose one's profession is an attribute of liberty, but the constitutional guaranties do not extend to the protection of that right regardless of limitations imposed by public policy. (12 C. J. 1199.) Counsel also suggest that the right to practice law is a form of property which is invaded by our compliance with the statute. We hold not. The right to practice law is a privilege conferred upon a specially qualified class of persons for the purpose of assisting the state and its tribunals to administer justice. It is neither property nor a property right. While disbarment is a consequence which follows the conviction of an attorney for a felony which does not apply to a blacksmith, farmer or physician convicted of the same offense, the punishment prescribed is the same. It is only because the attorney before his conviction held a privileged status which the blacksmith, farmer and doctor did not, that his conviction brings a consequence not attaching to the conviction of these others. The loss of his right to practice law is not penal, but merely a complement to the privilege conferred upon him upon his admission to practice law. An attorney is an officer of the court, a quasi public official. To permit an attorney who has been convicted of a felony or reprehensible misdemeanor to continue to function as an officer of a court of justice would bring discredit upon the court, and tend to cause it to lose the respect and confidence of the public which it must have if it is to function at its best in the administration of justice. In the case of In re Learnard, 121 Kan. 596, 600, 249 P. 606, it was said:

"In all of the courts, both state and federal, of the United States of America, an attorney at law assists in the administration of justice. He is there to promote justice. He is a part of the machinery provided by government in the performance of its functions in administering justice. If he perverts justice, the state fails in its duty to administer justice. His conduct should be as careful and clean as that of the judge who tries the case. In other words, the state demands of an attorney at law that he be absolutely obedient to law and that his conduct be always correct. He cannot escape disbarment by following that line of conduct which barely keeps the citizen out of jail." (p. 600.)

In 6 C. J. 569 it is said:

"The right to practice law is not a natural or constitutional right, but is a privilege or franchise subject to the control of the legislature, and limited to persons of good moral character with special qualifications ascertained and certified as prescribed by law. The right to practice law is not 'property,' nor in any sense a 'contract,' nor a 'privilege or immunity,' within the constitutional meaning of those terms. It cannot be assigned or inherited, but must be earned...