Lieberman, In re

• Decision Date: 09 March 1955
• Docket Number: No. 34047,34047
• Citation: 125 N.E.2d 328,163 Ohio St. 35,56 O.O. 23
• Parties: , 56 O.O. 23 In re Disbarment of LIEBERMAN.
• Court: Ohio Supreme Court

Page 35

163 Ohio St. 35

125 N.E.2d 328, 56 O.O. 23

In re Disbarment of LIEBERMAN.

No. 34047.

Supreme Court of Ohio.

March 9, 1955.

Syllabus by the Court.

1. A proceeding to suspend or remove an attorney at law from office is strictly statutory and constitutes an action at law only, and the only appeal provided in such proceeding is one on questions of law.

2. The testimony of witnesses who have been convicted of, or charged with, felonies is competent in a disbarment proceeding.

3. The determination of the credibility of such witnesses is for the trial court, and the Court of Appeals may not substitute its judgment as to such credibility for that of a three-judge trial court.

4. Evidence of a prior suspension of an attorney at law as shown by the records of the Clerk of the Supreme Court of Ohio is admissible in a subsequent hearing on charges of misconduct by such attorney.

5. The degree of proof required in a disbarment proceeding is a preponderance of the evidence.

On September 29, 1953, the Court of Common Pleas of Franklin County appointed a committee of three members of the Bar to investigate a complaint of misconduct and unprofessional conduct involving moral turpitude on the part of appellee, an attorney at law, and, if the facts warranted, to prepare and file written charges as provided in Section 1708, General Code, R.C. § 4705.03.

Pursuant to said order, the committee prepared and filed seven specifications, which in substance charged that appellee had been (1) guilty of misconduct in office involving moral turpitude and (2) guilty of unprofessional conduct in office involving moral turpitude. The appellee filed a general denial to these charges.

The cause was tried in the Court of Common Pleas of Franklin County before three judges of that court. At the conclusion of the evidence, one specification was dismissed by agreement and the court sustained appellee's motion to dismiss two others. The court found appellee guilty of unprofessional conduct involving moral turpitude as set forth in four of the specifications and ordered him disbarred from the practice of law in all the courts of Ohio.

Following the overruling of a motion for a new trial, appellee perfected an appeal to the Court of Appeals for Franklin County, which court, with the judges of the Court of Appeals of the Sixth Appellate District sitting by designation, reversed the judgment of the Court of Common Pleas, dismissed all charges and specifications, and ordered final judgment for the appellee on all counts.

The entry of the Court of Appeals is as follows:

'This cause came on for hearing upon appeal on questions of law, original papers, assignment of error, bill of exceptions, transcript of the docket and journal entries in the Court of Common Pleas of Franklin County, Ohio, and briefs, and was argued by counsel and submitted to the court.

'Upon consideration whereof, this court finds there is error apparent upon the record in the proceedings of said court, to the prejudice of the appellant.

'It is, therefore, considered by this court that the judgment rendered by said court below be reversed and held for naught.

'And the court further proceeding to render such judgment as the said court ought to have rendered hereby dismisses the specifications and charges filed against the appellant and renders final judgment for the appellant.

'To all of which exceptions are taken by the committee, appellees.'

The cause is now before this court upon the allowance of the committee's motion to certify the record.

Emanuel H. Lieberman, in pro. per.

Arthur L. Rowe, Sidney D. Griffith and Earl L. Hamilton, Columbus, for appellant committee.

BELL, Judge.

The first question raised in this appeal is whether, as a matter of law, the testimony of witnesses who were convicted of, or charged with, felonies is unworthy of belief and entitled to no credibility.

To determine the basis of the decision of the Court of Appeals in regard to these witnesses, since nothing referring thereto is found in the entry, it is necessary to look to the opinion of the court:

'We have studiously considered the long and somewhat confusing record respecting the charge that appellant had solicited professional employment in the county jail, and had asked other persons to make solicitations in his behalf, alleged in six of the seven specifications, and all we can find on the one hand is the uncorroborated testimony of the several prisoners who made the respective charges and on the other, the positive denial of appellant as to each.'

It is obvious that the Court of Appeals looked upon this testimony in either of two ways--that it was incompetent or that it was entitled to no credibility.

Under the common law, a person convicted of a felony was not competent as a witness. This common-law rule was by statute abrogated in Ohio as to civil actions in 1853, 51 Ohio Laws, 57, and as to criminal actions in 1869, 66 Ohio Laws, 308.

Section 2317.01, Revised Code, successor to the first of those statutes, reads:

'All persons are competent witnesses except those of unsound mind, and children under ten years of age who appear incapable of receiving just impressions of the facts and transactions respecting which they are examined, or of relating them truly.'

Section 2945.42, Revised Code, successor to the second, reads, in part, as follows:

'No person is disqualified as a witness in a criminal prosecution by reason of his interest in the event thereof as a party or otherwise, or by reason of his conviction of crime. * * *'

These statutes clearly provide that the testimony of witnesses either convicted or charged with felony is competent. Since the testimony of such witnesses is competent, we are led to the further question: Who shall determine the credibility of such witnesses?

It is universally accepted that the jury, or the trial court where there is no jury, is the sole judge of the credibility of witnesses and of what weight is to be given their testimony. Smiley v. Dewey, 17 Ohio 156; Sharp v. State, 16 Ohio St. 218; Hollenbeck v. McMahon, 28 Ohio St. 1. The principle is stated as follows in 5 C.J.S., Appeal and Error, § 1645, page 569:

'The appellate court will not pass on the credibility of witnesses which is a question solely for the determination of the jury. Further, the appellate court will not pass on the credibility of witnesses which is question for the trial court in cases tried without a jury, or a master or referee before whom the witness testified. The reason is that the judge or the jury who see and hear the witnesses testify and who observe their demeanor and appearance on the witness stand are in a better position to determine the credibility of the witnesses than the appellate court is by reading their evidence as it appears in the record.'

A proceeding to suspend or remove an attorney at law from office is strictly statutory and constitutes an action at law only, and the only appeal provided in such proceeding is one on questions of law. Section 4705.04, Revised Code, reading, 'In case of suspension or removal of an attorney at law by the court of common pleas, an appeal on questions of law may be had to the court of appeals * * *.' (Emphasis added.)

This court has held that a disbarment proceeding is not a chancery case in which a trial de novo may be had in the Court of Appeals. In re Hawke, 107 Ohio St. 341, 140 N.E. 583.

Whether there is sufficient evidence to sustain the finding of the trial court is a question of law. If the Court of Appeals had determined in this case that the finding was not sustained by sufficient evidence, it would have been justified in dismissing the charges. And in an appeal on questions of law, if there is sufficient evidence in the record to warrant the finding of the Court of Common Pleas, the Court of Appeals may nevertheless decide that such finding is against the weight of the evidence. In that event, the only power of the Court of Appeals is to order a new trial. State v. Robinson, 162 Ohio St. 486, 124 N.E.2d 148. But the Court of Appeals can not substitute its judgment as to what the evidence shows for that of a jury or a three-judge court. State v. Robinson, 161 Ohio St. 213, 118 N.E.2d 517; Henry v. Henry, 157 Ohio St. 319, 105 N.E.2d 406.

The opinion of the Court of Appeals clearly indicates that it substituted its judgment as to the credibility of the witnesses for that of the three-judge trial court.

The second question raised in this appeal is whether evidence of a prior suspension of an...