Lieberman, In re, No. 34047

• Court: United States State Supreme Court of Ohio
• Writing for the Court: BELL; WEYGANDT; HART
• Citation: 125 N.E.2d 328,163 Ohio St. 35,56 O.O. 23
• Parties: , 56 O.O. 23 In re Disbarment of LIEBERMAN.
• Docket Number: No. 34047
• Decision Date: 09 March 1955

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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, [125 N.E.2d 329] which in substance charged that appellee had been (1) guilty of misconduct in

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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

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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:

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'All persons are competent witnesses except those of unsound mind, and children under ten years of age who appear incapable [125 N.E.2d 330] 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...