Louisiana State Bar Ass'n v. Theard

• Decision Date: 15 December 1952
• Docket Number: No. 40891,40891
• Citation: 62 So.2d 501,222 La. 328
• Court: Louisiana Supreme Court
• Parties: LOUISIANA STATE BAR ASS'N v. THEARD.

Page 501

62 So.2d 501

222 La. 328

LOUISIANA STATE BAR ASS'N v. THEARD.

No. 40891.

Supreme Court of Louisiana.

Dec. 15, 1952.

Rehearing Denied Jan. 12, 1953.

L. V. Cooley, Jr., Slidell, Wm. F. M. Meadors, Homer, Harry B. Kelleher and James G. Schillin, New Orleans, for Committee on Professional Ethics and Grievances.

Charles J. Rivet, New Orleans, for defendant.

McCALEB, Justice.

The Louisiana State Bar Association, appearing through the Committee on Professional Ethics and Grievances, instituted this proceeding seeking the disbarment of Delvaille H. Theard for professional misconduct. It is charged, in substance, that, on January 2nd 1935, while engaged in the active practice of law in the city of New Orleans, respondent forged, with intent to defraud, the signatures of Olga Wexler and Alys Senn to a promissory note for $20,000; that he thereafter transferred the note for valuable consideration to a Mrs. Annie W. Forsyth and that, in furtherance on his unlawful acts, he paraphed the note in his capacity as a Notary Public in order to make it appear that it was an authentic mortgage note. It is averred that, in conformity with the rules of this court, the Committee on Professional Ethics and Grievances has conducted an investigation; that a hearing was had on the charges in the city of New Orleans on June 5th and 6th 1952, at which time respondent admitted that he had apparently forged the signatures of Olga Wexler and Alys Senn and had uttered the forged instrument but that he had no recollection whatever of the transaction nor with respect to the disposition of the money he obtained from Mrs. Forsyth.

It is further alleged that, after hearing the evidence, the Committee was of the opinion that respondent had been guilty of a violation of the laws of this state relating to professional misconduct and that he had wilfully transgressed the rules of professional ethics to such an extent that he was morally unfit to continue the practice of law. Wherefore the suit.

In due course, respondent appeared and excepted to the petition on several grounds. These exceptions have been argued and are presently submitted for our decision.

The first exception assails the capacity, authority and power of the Louisiana State Bar Association to institute the action. It is based on the idea that the Association, a non-trading corporation organized under Act 254 of 1914, LSA-R.S. 12:101 note, cannot appear through a Committee on Professional Ethics and Grievances but only by authority of its Board of Governors.

There is no merit in the point. By Section 11 of Article XIII of the Articles of Incorporation of the Association, it is specifically provided that all suits for disbarment 'shall be brought in the name of the Louisiana State Bar Association * * *' and Section 4 of said Article makes it the duty of the Committee on Professional Ethics and Grievances to institute the suit. These are the rules of this Court, see Rule XVII. Hence, no special authority from the Board of Governors is essential to enable the appearance of the Association as complainant.

The second exception is predicated upon a similar contention--i. e., that the petition cannot stand because it is not signed by an officer of the Association. The answer is that this court, under its rule making power, has ordained that the suit be filed in the name of the Association by the Committee on Professional Ethics and Grievances. No other authority is required.

The third and fourth exceptions of respondent may be considered together. They are exceptions of no right or cause of action and to the jurisdiction of the court based on the single proposition that, since respondent has adduced proof at the hearing (which was held in accordance with Section 3 and 4 of Article XIII of the Articles of Incorporation of the Louisiana State Bar Association), ¹ showing that he was afflicted with a mental illness at the time of his misconduct, the proceedings should be summarily dismissed.

The contention does not impress us. It is plain fallacy, insofar as it is directed against our jurisdiction, as Section 10 of Article 7 of the Constitution vests the court with exclusive original jurisdiction '* * * in all disbarment cases involving misconduct of members of the bar * * *'. Respondent is charged with misconduct and his alleged mental illness cannot effect an ouster of the power of the court to hear the case.

The exception of no right or cause of action is addressed to the asserted lack of probable cause on the part of the Committee in filing the proceeding in view of respondent's showing of insanity at the time of the commission of his misdeeds. But the mere fact that respondent offered the sole defense of insanity at the hearing affords no reason for this court to deduce that the committee was without probable cause or that the petition does not state a right or cause of action. On the contrary, even if insanity at the time of the misconduct could be regarded as a legal ground for denying disbarment, we doubt that it can be pleaded on an exception of no cause of action, notwithstanding that evidence in support of the plea has been offered under a so-called exception of no right of action. See Duplain v. Wiltz, La.App., 174 So. 652 and cases there cited. Manifestly, insanity pleaded in ordinary civil actions as a bar to legal responsibility is a matter of defense, triable only on the merits, so that the plaintiff is afforded an opportunity to rebut the evidence tendered in support of the plea.

But, be this as it may, we do not view the mental deficiency of a lawyer at the time of his misconduct to be a valid defense to his disbarment. Strangely enough, counsel for respondent apparently takes it for granted that, because evidence has been produced indicating that respondent was probably...