Lark v. West

• Decision Date: 02 March 1960
• Docket Number: Civ. A. No. 3092-59.
• Parties: Edwin F. LARK, Plaintiff, v. Vernon E. WEST, Chairman, et al., Defendants.
• Court: U.S. District Court — District of Columbia

182 F. Supp. 794

Edwin F. LARK, Plaintiff, v. Vernon E. WEST, Chairman, et al., Defendants.

Civ. A. No. 3092-59.

United States District Court District of Columbia.

March 2, 1960.

James J. Laughlin, Washington, D. C., for plaintiff.

Roger Robb, Washington, D. C., for defendants.

LEONARD P. WALSH, District Judge.

This case comes before the Court upon a motion for summary judgment based upon the pleadings on file in this action, and the affidavits and pleadings on file in Civil Action No. 1288-58 of this Court, In re Petition of Edwin F. Lark.

The Court has heard oral argument and has reviewed all of the pleadings, exhibits and affidavits constituting the Court Files in Civil Actions No. 1288-58 and No. 3092-59.

The Plaintiff, Edwin F. Lark, filed a complaint for a mandatory injunction, praying as follows: that the Defendants, as the Committee on Admissions and Grievances of the United States District Court for the District of Columbia, show cause why a mandatory injunction should not issue from this Court requiring Defendants to report favorably on Plaintiff's application for admission to the Bar of the United States District Court for the District of Columbia; that the matter be set down for oral hearing with testimony in open court in order that the Plaintiff could establish the allegations contained in his complaint; and that this Court issue an order directing that the Plaintiff be admitted to the Bar of this Court.

The Defendants subsequently filed a motion for summary judgment under Rule 56 of the Federal Rules of Civil Procedure, Title 28, United States Code, on the ground that there is no genuine issue as to any material fact and therefore they are entitled to judgment as a matter of law.

The facts in the case are substantially as recited below. Plaintiff, Edwin F. Lark, is a practicing attorney in the State of West Virginia; graduated from Howard University Law School in 1922; was admitted to practice in the State Court of Appeals in West Virginia in November 1924, and was admitted to the United States District Court for the Northern District of West Virginia in 1950. He is now a member in good standing in the jurisdictions referred to.

Plaintiff made formal application to be admitted to the bar of this Court on October 11, 1956, and on May 27, 1957, the Committee on Admissions and Grievances notified Plaintiff of the denial of his application.

Plaintiff alleges that the Defendants' denial of admission was arbitrary, capricious, and without regard to due process of law. The record in Civil Action No. 1288-58 indicates that the Plaintiff was involved in a matter while residing in Welch, West Virginia, in 1925, which resulted in his conviction for using the mails to defraud. He was sentenced on September 26, 1925, to twelve years in the penitentiary, was paroled in April, 1932, finally discharged on October 24, 1933, and pardoned on May 5, 1943 by President Roosevelt.

Plaintiff protests his innocence in the matter for which he was convicted and claims that he was prevented from taking an appeal in his case because of the "destruction of the stenographic record, which made it impossible for him to prepare a sufficient record to present the matter properly for appellate review." Plaintiff has, by exhibits, verified the fact that in 1926 he had a Mr. Nutter of Charleston, West Virginia, inquire as to whether a record was in existence for a possible appeal. A letter from U. S. District Judge G. W. McClintic, who presided at Plaintiff's trial, to Mr. Nutter states as follows:

"I am informed by Mr. Scott, who reported this case, that when no application was made for a transcript of the testimony within the time provided by law, and no request was made of him to keep the notes, he destroyed the same, according to his system, and that therefore he can make no record. He tells me that he asked counsel who tried the case at Huntington, whether they wanted copies of the record, and they told him `no, that the matter was ended.' Under these circumstances, I know of nothing that can be done by way of getting a record in this case."

In a petition filed May 20, 1958, Plaintiff made application for admission to practice law in the District of Columbia even though the Defendant Committee had seen fit to deny his admission. The Court, in an order filed June 2, 1958, denied the petition after consideration of the matter in Executive Session. Thereafter, on October 10, 1958, Plaintiff filed a motion to vacate and set aside judgment under Rule 60(b) of the Federal Rules of Civil Procedure, Title 28 United States Code. The Court, in an order entered November 13, 1958, after review in Executive Session, denied the motion.

The Plaintiff then filed notice of appeal on December 9, 1958. However, the matter on appeal (Circuit Court of Appeals, District of Columbia, No. 14,910, September Term, 1958) was dismissed on October 29, 1959, upon the Plaintiff's motion to dismiss.¹

It should be noted at the outset of the discussion of this case that the Court, when entertaining a motion for summary judgment, in determining whether there is genuine issue of material fact, may take judicial notice of its own records and of other cases, including the same subject matter or questions of a related nature between the same parties. Fletcher v. Evening Star Newspaper Co., 77 U.S.App.D.C. 99, 133 F.2d 395, certiorari denied 319 U.S. 755, 63 S.Ct. 1163, 87 L.Ed. 1708, rehearing denied 319 U.S. 785, 63 S.Ct. 1432, 87 L.Ed. 1728; see also Booth v. Fletcher, 69 App.D.C. 351, 101 F.2d 676. The Court, therefore, takes judicial notice of all papers on file in Civil Action No. 1288-58, In re Petition of Edwin F. Lark.

With reference to the Plaintiff's motion to vacate in Civil Action No. 1288-58, it is noted therein, as was also brought out in the affidavit in opposition to the motion before the Court, that the fact was stressed that the Plaintiff is stated to be a member in good standing of the bars of the State of West Virginia and the United States District Court for the Northern District of West Virginia, and is still entitled to practice before those courts. However, as recognized by the court in the case of Application of Wasserman, 9 Cir., 240 F.2d 213, with respect to comity for admission of applicants, the separate United States District Courts are separate tribunals and are governed by their own rules and they may require, among other things, independent examinations into character and fitness. This Court requires such examinations. Pursuant to the provisions of section 1301, Title 11, District of Columbia Code, this Court has the power and authority to make such rules as it deems proper respecting admission of persons to its bar. It has, in fact, been determined that this Court may establish and maintain its standards of fitness for membership within very wide limits. Carver v. Clephane, 78 U.S.App. D.C. 91, 137 F.2d 685. Rule 93, dealing with admissions, adopted by the Court in Executive Session, October 9, 1952, as amended, provides in part:

"(e) Any applicant who has practiced law for five years after having been admitted to the bar of a court of general jurisdiction in any state or territory may, upon proof of good moral character, be admitted without examination.

* * * * * *

"(g) No applicant shall be admitted until the said committee on Admissions and Grievances to be appointed by the Court shall have caused an exhaustive examination to be made either by the committee or by an appropriate agency as to his character and a favorable report made thereon."

It was held in this jurisdiction at an early date that where evidence sustained a finding that the applicant for admission was lacking in good moral character, a denial of an application was justified. Carver v. Clephane, supra. The rule in the Carver case was upheld in the later case of Brooks v. Laws, 92 U.S.App.D.C. 367, 208 F.2d 18, 28, where it was held that the matter was squarely within the discretion of the district court as to whether an applicant was qualified for admission.

It would appear, therefore, that inasmuch as the action of the court is a discretionary one, that an inquiry will not be made into considerations which impel the action of the bar and of the court, except to see if there has been a fair investigation of the facts or an unjust deprivation of a right that is, an inquiry may be made into the circumstances of the denial to that extent. However, with respect to the possible unjust deprivation of a right, an applicant does not have a "right", as such, to be admitted to the bar of this Court. The court in the Brooks case went on to clarify this point, where it said:

"The expression `A claim of a present right to admission to the bar' means something more than a mere application under the rules of court. There is no inherent right to practice law. The right arises after qualifications under the rules has been established."

There appears in the instant case to have been a fair investigation of the facts and a careful consideration thereof. The defendants have determined that the Plaintiff is unqualified for admission to this bar after consideration of the application, investigation, and, as noted in their report, "after a hearing at which Mr. Lark appeared and testified at length." The denial of the admission of the Plaintiff has been reviewed by this Court,² sitting in executive session, as noted earlier, on two separate occasions, and in each instance the determination of the Defendants was upheld. The reasons given by the Defendants for the denial of the Plaintiff's application are stated in the conclusion of their report, which reads as follows:

"The allegations of the indictment, which the jury found to be true, show that Mr. Lark was guilty of a mean and contemptible fraud. He imposed upon people who were poor and ill, inducing them to part with their money by false representations that in return they would receive insurance benefits. The

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