Louisiana State Bar Ass'n v. Wheeler

• Decision Date: 03 October 1962
• Docket Number: No. 45533,45533
• Citation: 243 La. 618,145 So.2d 774
• Parties: LOUISIANA STATE BAR ASSOCIATION v. Thomas B. WHEELER.
• Court: Louisiana Supreme Court

Page 774

145 So.2d 774

243 La. 618

LOUISIANA STATE BAR ASSOCIATION v. Thomas B. WHEELER.

No. 45533.

Supreme Court of Louisiana.

Oct. 3, 1962.

Rehearing Denied Nov. 5, 1962.

John Pat. Little, Chairman, Trial Counsel, New Orleans, Bascom D. Talley, Jr., Vice-Chairman, Bogalusa, Pat W. Browne, Sr., New Orleans, A. K. Goff, Jr., Ruston, Walter G. Arnette, Jennings, for Committee on Professional Ethics and Grievances, Louisiana State Bar Association.

James J. Morrison, Leonard A. Calcagno, New Orleans, for respondent.

FOURNET, Chief Justice.

This court's Committee on Professional Ethics and Grievances, upon the complaint of the firm of Heineke, Conklin, and Schrader of Chicago, Illinois, contained in a letter dated April 20, 1960, instituted this proceeding against Thomas B. Wheeler, an attorney practicing in New Orleans, under the original jurisdiction vested in us by Section 10 of Article VII of the Louisiana Constitution of 1921, seeking his disbarment on charges of professional and ethical misconduct.

The petition, predicated on two specifications drawn by the committee following a full hearing, charges, briefly, that (1) the respondent, despite repeated demands, failed and refused to discharge his professional and legal duty to timely process, settle, account for, report and surrender several hundred files forwarded to him under an agreement between them, and arising out of claims for damages to ocean marine cargo covered by policies underwritten through companies represented by the Illinois firm, referred to as The Atlantic Companies, ¹ and (2) violated his obligations and responsibilities in his fiduciary capacity as an attorney by commingling with his own, and converting to his own use, funds received by him for the account of the Illinois firm and its client companies.

After issue was joined by the respondent filing what is, in effect, a general denial, the matter was heard by the Honorable A. J. Waechter, Jr., an attorney of New Orleans, who was the Commissioner appointed by this court to take the evidence and report his findings of fact and conclusions of law in accordance with the procedure set out in the rules adopted by this court pursuant to our constitutional authority in such matters. ²

In a carefully prepared report, filed with the court on November 27, 1961, wherein he succinctly states and analyzes the charges and defenses in the light of all of the evidence, Mr. Waechter concluded the committee had established 'without question' that the respondent was guilty of the charges against him, with the exception of that portion of Specification No. 1 alleging he had exceeded his authority with reference to the settlement of claims. He, nevertheless, recommended that the respondent be suspended from the practice of law in this state for a period of two years from the date of a final decree in this matter.

On December 18, 1961, the respondent objected to this report on sixteen counts, two of which are exceptions of no cause and no right of action, the remainder touching on the merits. On January 9, 1962, the committee excepted to that portion of the report recommending only the suspension of Wheeler. Counsel representing the respondent thereafter countered with a motion seeking to strike the committee's exception and to dismiss the entire proceedings.

This motion and the exceptions of no cause and no right of action rest on counsel's strained and devious effort to restrict this court's jurisdiction in matters affecting disciplinary action against members of the Louisiana State Bar Association through a highly technical interpretation and application of Section 10 of Article VII of the constitution and this court's rules governing such proceedings adopted pursuant to the authority there conferred.

The basis of counsel's contentions and arguments in support of the motion and exceptions stems from the erroneous assumption that (1) inasmuch as the committee's petition only prayed for respondent's disbarment, without seeking his suspension in the alternative, as recommended by the Commissioner, and (2) since the committee failed to timely object to the report, it, as well as this court is, under our rules, bound thereby, and the entire proceeding must be dismissed as moot as there is nothing before this court for review.

Respondent's ingenuous presentation reflects a clear misunderstanding and misinterpretation of our constitutional authority and rules. It hinges in part on the erroneous assumption that this court is powerless to suspend an attorney in such proceedings where the committee has not specifically prayed for the suspension recommended by the commissioner, and in part on a misconception of the effect of the failure of the parties to object to the commissioner's report within the twenty-day period provided in our rules. It also hinges in part upon unwarranted effect sought to be imputed to the recommendation of a commissioner appointed to hear evidence in a disbarment proceeding, and in part upon the total inaccuracy of respondent's frequently reiterated conclusion that a commissioner's recommendation of anything less than disbarment is tantamount to the committee's failure to prove any misconduct warranting disbarment.

Pursuant to the provisions of the Louisiana Constitution of 1921 granting this court 'exclusive original jurisdiction in all disbarment cases involving misconduct of members of the bar, with the power to suspend or disbar under such rules as the court may adopt,' ³ we created a Committee on Professional Ethics and Grievances charged with the mandatory duty of (1) investigating all complaints lodged against members of the Bar, and (2) instituting disbarment or suspension proceedings if, after investigation, it finds the conduct complained of warrants such action. Sections 2, 3, and 4 of Article XIII of the Articles of Incorporation of the Louisiana State Bar Association.

After such a proceeding has been instituted and issue joined by the filing of an answer by the accused member within fifteen days, 'the court may hear the evidence, or the court may appoint a commissioner to take the evidence in chambers.' Section 7. If a commissioner is appointed for this purpose, as was done in the instant case, he is required, upon the termination of the hearing, to 'report to the Supreme Court his findings of fact and conclusions of law.' Section 9. This section further provides that 'The parties Shall have twenty days from the filing of the report to file exceptions thereto, and if no exceptions are, Within that period, filed by either party, the report shall stand confirmed.' And while it is true that a commissioner customarily appends to his report a recommendation that may be informative, or, conceivably, persuasive, such recommendations and not authorized in our rules or orders, and are not, therefore, binding on this court. (The emphasis has been supplied.)

This court, in the case of In re Reed, 207 La. 1011, 22 So.2d 552, aptly observed that no harm had been done by the commissioner's recommendation with respect to the imposition of a penalty since his 'report Is prepared and furnished solely for the court's assistance and convenience in determining the issues of the disbarment proceeding, and any recommendations contained therein are not conclusive on the court. It can and will, in its discretion, either reject or adopt them.' See, also, In re Weber, 202 La. 1037, 13 So.2d 341; Louisiana State Bar Association v. Steiner, 204 La. 1073, 16 So.2d 843; and Louisiana State Bar Association v. Woods, La., 141 So.2d 828. (The emphasis has been supplied.)

It necessarily follows, therefore, that the commissioner's recommendation of suspension in this case can have no effect whatsoever on its final outcome; and inasmuch as suspension is less than, but implicit in, the more severe disciplinary action of disbarment, it is not mandatory that the committee plead one or the other, or both in the alternative. Regardless of the manner of pleading, or the recommendation of the commissioner, it is the ultimate duty of this court to determine under the broad discretion vested in it what action, if any, is to be taken against an attorney charged with misconduct and unethical dealings in the discharge of his professional responsibilities. See, In re Craven, 204 La. 486, 15 So.2d 861; In re Novo, 200 La. 833, 9 So.2d 201; In re Weber, supra; Louisiana State Bar Association v. Steiner, supra; and In re Reed, supra.

Having reached this conclusion, it is obvious the entire basis upon which counsel's argument is predicated falls, as the commissioner in the instant case concluded the committee had proved by clear and convincing evidence all of the charges against Wheeler with the exception noted. Hence it was not necessary for the committee to except to his report unless it intended to object to the finding with respect to this exception, i.e., that Wheeler had exceeded his authority in the settlement of claims. And whether respondent's exception to the report, filed December 18, 1961, was timely ⁴ is immaterial under the circumstances, for this court, in discharging its responsibility in disbarment proceedings must, of necessity, review the record in order to mete out the proper disciplinary action in the light of the charges, defenses, evidence, and report of the commissioner. That portion of Section 9 of Article XIII of the Articles of Incorporation of the Louisiana State Bar Association providing the report 'shall stand confirmed' where no exceptions are timely filed, means only that it stands confirmed as to the party or parties failing to except 'within' the twenty-day period from its filing. Our right to review the record in such an important matter has never--either by our rules or in our pronouncements in individual cases--been relinquished or surrendered to the commissioner; and the parties, by failing to timely object to his report, cannot thus curtail the duties and...