Louisiana State Bar Ass'n v. Edwins

• Decision Date: 23 February 1976
• Docket Number: No. 55456,55456
• Citation: 329 So.2d 437
• Parties: LOUISIANA STATE BAR ASSOCIATION, Petitioner, v. R. C. EDWINS, Respondent.
• Court: Louisiana Supreme Court

Page 437

329 So.2d 437

LOUISIANA STATE BAR ASSOCIATION, Petitioner, v. R. C. EDWINS, Respondent.

No. 55456.

Supreme Court of Louisiana.

Feb. 23, 1976.

A. Russell Roberts, Chairman, Wood Brown, III, New Orleans, Sam J. D'Amico, Baton Rouge, Leonard Fuhrer, Alexandria, Harold J. Lamy, New Orleans, Edgar H. Lancaster, Jr., Henry A. Politz, Shreveport, John F. Pugh, Thibodaux, John B. Scofield, Lake Charles, Thomas O. Collins, Jr., New Orleans, Counsel, Louisiana State Bar Association Committee on Professional Responsibility, for petitioner.

Walker P. Macmurdo, Macrino R. Trelles, Jr., Baton Rouge, for respondent.

TATE, Justice.

The Louisiana State Bar Association, appearing through its Committee on Professional Responsibility, instituted these disciplinary proceedings against R. C. Edwins, a member of the Louisiana bar. La.Const. of 1974, Art. 5, Section 5(B). Under the provisions of Article XV, Section 6, of the Articles of Incorporation of the Association (1971), approved by us as a rule of this court, a commissioner was appointed to take evidence and to report to us his findings of fact and conclusions of law.

The commissioner's report filed with this court, after making certain findings of fact, concluded: 'It is, therefore, the conclusion of the undersigned that Respondent, R. C. Edwins, has been guilty of professional acts and omissions which do not conform to standards of character and conduct laid down by the profession, particularly with reference to advancement of money and failing to account to the client for funds received. It is the further conclusion of the undersigned that Respondent, R. C. Edwins, did seek representation of Ralph H. Thomas and this constitutes solicitation. Being unable, however, to determine which Disciplinary Rule, if any, was or would be violated, the undersigned cannot conclude that a violation, as a matter of law, did occur.'

To this report, the Association through its Committee on Professional Responsibility filed a concurrence to its findings of fact, but excepted to its conclusion of law that the solicitation activity shown by the respondent Edwins did not constitute a violation of a disciplinary rule. The respondent did not formally except to the commissioner's report; however, by brief and oral argument through his counsel before this court, be vigorously contests both the findings of fact and the conclusions of law.

I. Scope of Review

At the outset, we are faced with the Association's contention that the respondent's failure to except formally to the commissioner's report timely bars this court from considering the findings of fact and conclusions of law therein which are adverse to the petitioner. In so concluding, the Association relies upon Article XV, Section 6(d) of its Articles of Incorporation, which provides:

'(d) Report of the Commissioner--Upon the termination of the hearing, the commissioner shall file with the Supreme Court his written report wherein he will state his findings of fact and conclusions of law. The parties shall have twenty (20) days from the time of the filing of the report to file exceptions thereto, and if no exceptions are, within that period, filed by either party, the report shall be confirmed. If exceptions are filed, they shall be heard by the court on the summary docket on the record prepared by and before the commissioner.'

Before discussing this contention, it may be well to review the respective functions and authority of the Association and of this court in disciplinary matters.

This court has 'exclusive original jurisdiction of disciplinary proceedings against a member of the bar'. La.Const. of 1974, Art. 5, Section 5(B). See also La.Const. of 1921, Art. 7, Section 10(2). The state bar association is created and regulated under the rule-making power of this court, and its articles of incorporation, disciplinary proceedings, and code of professional conduct have been adopted as rules of this court. This adoption by rule is pursuant to the cited constitutional mandate and in accord with the inherent power of this court to prescribe rules and regulations governing the practice of law in the jurisdiction.

See: Rules of Supreme Court of Louisiana, Rule 19 (1973); La.R.S. 37:211; In re Mundy, 202 La. 41, 11 So.2d 398 (1942); Hood, Renewed Emphasis on Professional Responsibility, 35 La.L.Rev. 719, 722--23, 737--39 (1975).

We have held that, when a respondent attorney fails to except (as required by the court rule) to the factual findings of the commissioner's report, they are confirmed against him. Louisiana State Bar Association v. Klein, 253 La. 603, 218 So.2d 610 (1969); Louisiana State Bar Association v. Mayeux, 249 La. 7, 184 So.2d 537 (1966); Louisiana State Bar Association v. Powell, 248 La. 237, 178 So.2d 235 (1965); Louisiana State Bar Association v. Youder, 243 La. 909, 148 So.2d 597 (1963); Louisiana State Bar Association v. Wheeler, 243 La. 618, 145 So.2d 774 (1962), and Louisiana State Bar Association v. Woods, 243 La. 94, 141 So.2d 828 (1962).

However, as these decisions recognize, the ultimate responsibility as to the discipline warranted by the facts rests with this court. Further, while some of the decisions contain statements that the commissioner's conclusions of law, if not excepted to, become conclusive, such statements are dicta in the light of the issues then before the court.

As we noted in In re Reed, 207 La. 1011, 22 So.2d 552, 555--56 (1945): 'The Commissioner's 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.'

Again, with regard to the specific issue before us, we stated in Louisiana State Bar Association v. Wheeler, cited above, 145 So.2d at 777--78:

'And whether respondent's exception to the report . . . was timely 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 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 responsibilities of this court.'

Thus, while the respondent's failure to formally except to the commissioner's report may bar his right to contest that certain facts occurred (if this court, in its independent review, finds that sufficient and competent evidence supports them), nevertheless it is the responsibility of this court, not of the commissioner, to conclude whether, as a matter of law, such facts constitute the unethical conduct charged, as well as for it to assess what penalty it deems appropriate if it finds disciplinary proceedings are warranted.

Preliminarily, we should note that, in disbarment proceedings the burden rests on the association to establish proof of misconduct by clear and convincing evidence. Louisiana State Bar Association v. Brown, 291 So.2d 385 (La.1974). See also Louisiana State Bar Association v. Levy, 292 So.2d 492 (La.1974), and In re Novo, 200 La. 833, 9 So.2d 201 (1942).

'Clear and convincing evidence', in general, means that the fact of guilt must be proven to a greater degree than by 'a mere preponderance of the evidence' but less than by 'beyond a reasonable doubt'. Sanders v. Sanders, 222 La. 233, 62 So.2d 284 (1952); Annotation, Attorneys' Misconduct--Degree of Proof, 105 A.L.R. 984 (1936). See also 7 C.J.S. Attorney and Client § 33(3), and 7 Am.Jur.2d, 'Attorneys at Law', Section 67. As stated at Sanders, The Anatomy of Proof in Civil Actions, 28 La.L.Rev. 297, 304 (1968): 'The standard requires that the existence of the disputed fact be Highly probable, that is, much more probable than its non-existence.' (Italics ours.) See also: McCormick on Evidence, Section 340(b) (2d ed. 1972).

II. Disciplinary Rules Allegedly Violated

The Code of Professional Responsibility for Louisiana Lawyers (adopted as a rule of this court), Article 16, Articles of Incorporation, Louisiana State Bar Association, is divided into '(1) Canons, (2) Ethical Considerations, and (3) Disciplinary Rules. The Canons are 'statements of axiomatic norms, expressing in general terms the standards of professional conduct expected of lawyers in their relationship with the public, with the legal system and with the legal profession.' The number of canons has been reduced from forty-seven to nine. Ethical Considerations are 'aspirational in character,' and they represent 'the objectives toward which every member of the profession should strive.' The Disciplinary Rules are mandatory in character. They 'state the minimal level of conduct below which no lawyer can fall without being subject to disciplinary action. '' Hood, Renewed Emphasis on Professional Responsibility, 35 La.L.Rev. 719, 737 (1975).

The disciplinary rules which the Association contends were violated by the respondent Edwins are:

Disciplinary Rule 2--103 provides: 'A lawyer shall not recommend employment, as a private practitioner, of himself, his partner, or associate to a non-lawyer who has not sought his advice regarding employment of a lawyer';

Disciplinary Rule 9--102(B)(3) provides that a lawyer shall 'maintain complete records of all funds, securities, and other properties of a client coming into the possession of the lawyer and render appropriate accounts to his client...