Louisiana State Bar Ass'n v. Theard

• Decision Date: 22 March 1954
• Docket Number: No. 40891,40891
• Parties: LOUISIANA STATE BAR ASS'N v. THEARD.
• Court: Louisiana Supreme Court

Page 310

72 So.2d 310

225 La. 98

LOUISIANA STATE BAR ASS'N v. THEARD.

No. 40891.

Supreme Court of Louisiana.

March 22, 1954.

Rehearing Denied April 26, 1954.

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

Charles J. Rivet, New Orleans, for defendant.

HAMITER, Justice.

The instant consideration of this disbarment proceeding, instituted by the Committee on Professional Ethics and Grievances of the Louisiana State Bar Association against Delvaille H. Theard, occurs on oppositions to the Commissioner's report. Initially, it is well to briefly review earlier phases of the matter.

Under date of February 2, 1950 the Committee gave notice in writing to respondent that it was undertaking an investigation of certain conduct on his part as a member of the Bar of Louisiana, the communication detailing and specifying some eleven acts of alleged misconduct and further setting forth that he would be afforded the opportunity of being heard and of defending himself before the Committee.

The contemplated hearing was held in the City of New Orleans on June 5 and 6, 1952, at which respondent was present and represented by counsel of his choice; and, by stipulation, it was restricted to a consideration or investigation of specification No. 1 as listed in the above mentioned communication. The charge therein made was that on January 2, 1935, while engaged in the active practice of law in the City of New Orleans, respondent forged the signatures of Olga Wexler and Alys Senn to a promissory note for $20,000; and that subsequently, having paraphed it to appear as an authentic mortgage note, he sold this forged instrument for a valuable consideration to Mrs. Annie W. Forsyth, widow of Julius Forsyth.

In opening the hearing the Committee offered proof of the charged forgery and of respondent's having received, from a representative of Mrs. Forsyth, the sum of $12,601.25 for the note. Then respondent, instead of attempting to contradict such proof, admitted that the signatures on the note were in his handwriting; and, further, he sought to establish (by written reports and by his own testimony and that of others) the existence at the time of a mental illness or a form of insanity which rendered him incapable of wilfully committing the forgery and uttering. For example, under examination by his own counsel, he testified in part:

'Q. Mr. Theard, the Committee is investigating, as you know, a matter which appertains to a note dated January 2, 1935, which has been offered in evidence as 'Committee's Exhibit 1.' Will you look at that note and tell me what you remember of its execution (handing note to witness). A. You showed me that note in your office, Mr. Rivet. Frankly, I don't remember anything about it.

'Q. You won't deny that those signatures on that note are in your handwriting? A. No. I told you so, and you made the admission. I recognize my handwriting in the signatures and the statement of the reduction of the payment of interest. I recognize that that is my handwriting.

'Q. Do you remember selling the original of that note to anybody? A. no.'

On completion of the investigation the Committee petitioned this court for the disbarment of respondent, it alleging his guilt of the charge set forth in specification No. 1 as was proved at the hearing held June 5 and 6, 1952.

To the petition respondent tendered several exceptions. Particularly, in one he challenged the right of the Committee to maintain the action in view of his mental illness (as assertedly disclosed by the evidence adduced at the Committee hearing) at the time of the misconduct; and in another he pleaded prescription, laches and estoppel in bar of the disbarment. All exceptions, after having been thoroughly considered, were overruled by us. See 222 La. 328, 62 So.2d 501.

In an application for a rehearing the above specifically described exceptions were reurged and, for the first time, respondent further contended that the 'taking away of a lawyer's right to practice, after restoration to health, for acts committed during a mental infirmity precluding conscious guilt, would be inimical to Amendment XIV of the United States Constitution, which prohibits the deprivation of a valuable right without due process of law.' The application for a rehearing, calling due consideration, was denied.

Thereafter, answer was filed, it containing a general denial of the factual allegations on which the disbarment is sought and, additionally, the following affirmative averments:

'Further answering, respondent says that the act charged as misconduct against respondent occurred nearly eighteen years ago; that at that time respondent was suffering from a mental illness which rendered him incapable of guilty or wilful conduct and deprived him of the ability to distinguish right and wrong; that he carries no recollection of the act charged against him; that at this late date he is without records and other means of defending himself; that numerous witnesses best acquainted with his condition in January of 1935, and theretofore, have died; that a previous Committee considered and had the opportunity to investigate respondent's conduct; that the compulsion to defend himself against said stale occurrence operates to his prejudice, is essentially unjust, and results in depriving respondent of the procedural due process guaranteed by Section 2 of Article 1 of the State Constitution, and by the Fourteenth Amendment to the Constitution of the United States.

'Since April 1948, respondent has resumed the active practice of law without any complaint levelled at his conduct.

'Respondent finally says that he never at any time consciously violated any law relating to the professional conduct of lawyers and to the practice of law, nor has he ever wilfully violated any rule of professional ethics.'

Later, respondent submitted special pleas of prescription and unconstitutionality which merely reiterated and amplified similar pleas theretofore tendered.

On proper motion, after issue had been joined, Mr. John Pat Little, an attorney at law who had engaged in active practice for a period of not less than ten years, was appointed Commissioner to take the evidence in chambers and to report to this court his findings of fact and conclusions of law. Pursuant to the appointment he held a hearing on March 9, 1953, in which the greater part of the evidence offered was that introduced in the proceeding conducted by the Committee on June 5 and 6, 1952. Only three witnesses testified before the Commissioner. One was produced by the Committee in further proof of the forgery and uttering and to show that respondent knowingly committed the unlawful acts. The remaining two were called by respondent merely to identify certain records.

After termination of the hearing the Commissioner prepared and filed a lengthy and well considered written report in which he analyzed the evidence, set forth his findings of fact, and discussed and announced his conclusions of law. In summarizing the evidence he commented:

'The commission of the wrongful acts by the respondent is established beyond any doubt; it is even conceded in the respondent's brief to the Commissioner. No evidence was produced by counsel for the Committee, nor even offered, to rebut the alleged mental condition of the respondent. It must then, from the record, be held that the respondent was suffering under an exceedingly abnormal mental condition, some degree of insanity.'

With respect to the law determined to be applicable, as well as to his conclusions therefrom, the Commissioner observed in part:

'It is the gist of the respondent's argument that being without his mental faculties he was without volition or control over his actions, and, therefore, cannot be guilty of misconduct. * * * This feature of the case rests squarely upon the question of whether, or not, the defense of insanity is sufficient to prevent this Court from disbarring a lawyer who has been found guilty of having forged and uttered a promissory note. * * *

'* * *

'Having in mind the Court's decision on the exceptions found in 62 So.2d 501 and particularly the portion thereof relating to respondent's exceptions based upon insanity on page 503, the Commissioner is constrained to find that the law as expressed in that opinion does not relieve the respondent from the effects of his actions.

'* * * 'In conclusion the Commissioner finds that the respondent, Delvaille H. Theard, is guilty as charged of forging and uttering a certain promissory note, dated January 2, 1935, in face amount of $20,000.00, purporting to bear the signatures of Olga Wexler and Alys Senn.

'Commissioner further finds that, as a matter of law, the abnormal mental condition of the respondent at the time of such forgery and utterance does not constitute a defense to disbarment proceeding therefor.

'Accordingly, the Commissioner has no alternative but to recommend to the Supreme Court of Louisiana that a decree of disbarment be entered herein; and that the Court order the name of Delvaille H. Theard be stricken from the roll of attorneys permitted to practice before that Court.'

Now, in opposing the Commissioner's report, respondent first assigns error to the conclusion that the abnormal mental condition existing at the time of the commission of the wrongful acts does not constitute a defense to disbarment.

Influencing that conclusion, as the Commissioner points out, were certain pronouncements of this court made in connection with our consideration of respondent's tendered and overruled exceptions to the petition, they having been as follows: '* * * 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...