Memphis & Shelby County Bar Ass'n v. Vick

• Citation: 40 Tenn.App. 206,290 S.W.2d 871
• Parties: MEMPHIS & SHELBY COUNTY BAR ASSOCIATION, Inc. v. Charles Gordon VICK.
• Decision Date: 03 November 1955
• Court: Tennessee Court of Appeals

Page 871

290 S.W.2d 871

40 Tenn.App. 206

MEMPHIS & SHELBY COUNTY BAR ASSOCIATION, Inc. v. Charles Gordon VICK.

Court of Appeals of Tennessee, Western Section.

Nov. 3, 1955.

Rehearing Denied Dec. 7, 1955.

Certiorari Denied by Supreme Court June 8, 1956.

Sam P. Walker, John S. Porter, Thomas R. Prewitt, and James M. Manire, Memphis, for Memphis & Shelby County Bar Ass'n, Inc.

Aspero & Aspero, Memphis, for Charles Gordon Vick.

FELTS, Judge.

This is a disbarment proceeding brought by the Memphis & Shelby County Bar Association, Inc., against Mr. Charles Gordon Vick, an attorney admitted to practice in this state and practicing at Memphis. Petitioner charged that respondent had been guilty of certain acts of professional misconduct which violated these provisions of our statute, Code, § 9974:

'9974. Attorneys may be disbarred or suspended for what causes.--Any attorney, solicitor or counselor at law admitted to practice in the courts of the state may be disbared or suspended from the practice of law----

'(1) Who shall commit or may have committed, any infamous crime or misdemeanor involving moral turpitude.

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'(3) Who shall wrongfully retain money or property of his client for an unreasonable time after demand made.

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'(5) Who shall be guilty of any unprofessional conduct, dishonesty, malpractice, or any conduct which renders him unfit to be a member of the bar. (1919, ch. 42, sec. 1, Modified.)'

The acts with which he was charged may be summarized as follows:

(1) He accepted from the Credit Exchange Service Corporation employment to collect two claims at the rates set out in its two letters to him, dated September 30, 1952, and overcharged his client, and, to sustain his overcharge, he fraudulently altered these letters by inserting the words 'Retail rates' in typing; and he refused, upon demand, to remit the funds to his client according to his contract of employment.

(2) He forged, or procured to be forged, the signature of his client, J. L. Lott, on a check to himself for $1,100, dated August 29, 1952, and knowing the check to be a forgery, he fraudulently uttered and cashed it at the drawee bank, Union Planters National Bank & Trust Company, and accepted and retained the proceeds.

(3) He made deliberately false and dishonest statements about these matters to petitioner's Committee on Discipline and Ethics while it was investigating the complaints against him, and made further false statements in a bill filed by him against petitioner and others in the Chancery Court of Shelby County on January 15, 1954, which bill was later dismissed.

During the Committee's investigation, on September 26, 1953, respondent promised to submit the originals of said two letters to the Committee for their inspection, but failed or refused to do so. The disbarment petition, filed March 18, 1954, stated that these original letters would be the best evidence of any alteration in them, and prayed that respondent be required to file them with the Clerk and Master.

He filed an answer to the petition on April 2, 1954, denying that he had been guilty of any of the charges. In respect of these two original letters of September 30, 1952, his answer stated: 'At the Hearing of this cause, said letters will to the Court be shown'. And in his answer he demanded a jury to try the issues of fact in this cause.

On April 6, petitioner moved the Court to strike the cause from the jury calendar and set it for trial as a non-jury case, and to require respondent forthwith to file the two original letters with the Clerk. He filed a response claiming that the State and Federal Constitutions guaranteed him a right to a trial by jury and a right not to be compelled to give evidence against himself by filing the letters.

On April 13, the motion was heard before Chancellor Bejach, now a member of this Court, and Chancellor Creson and they entered an order striking the case from the jury calendar and putting it on the non-jury docket, and requiring respondent, on or before April 19, 1954, to file with the Clerk the two original letters or, in the alternative, an affidavit that the filing of them would tend to incriminate him or expose him to a penalty or forfeiture.

He did not comply with this order but sought to have it set aside by a petition for certiorari and supersedeas presented to a member of the Supreme Court, who denied the petition because jurisdiction of it was not in that Court. On April 27, petitioner moved the Court to hold respondent in contempt for refusal to comply with the order. The Court, however, modified the order so as to give him time to seek a review of it by petition for certiorari and supersedeas in the Court of Appeals.

On May 5, 1954, he presented such a petition, asserting that this order violated his constitutional rights to a jury trial and against self-incrimination, and asking this Court to set aside the order on both grounds. On May 19, in an opinion by Presiding Judge Avery and Judge Carney of the Western Section, Judge Bejach not participating, this Court denied the petition upon both grounds. In respect of the first ground the Court said:

'We think there is nothing in our Constitutions, either National or State, which would require, even upon demand therefor, our courts to grant a trial by jury in a disbarment proceedings in the absence of express statutory direction so to do.' (Opinion, unreported, page 4.)

In respect of the second ground, or in denial of respondent's claim that the order violated his constitutional right against self-incrimination, the Court said:

'* * * we can see no good reason why the original respondent should not file the original letters, as commanded or respond to the order of the court by making the affidavit which the court has, in the alternative, required him to make.' (Opinion, p. 5)

The Chancellor again extended the time for compliance with the order so as to enable respondent to ask the Supreme Court to review the Court of Appeals' action; but he sought no such review. He later filed an affidavit that the production of the two original letters 'would tend to expose him to a forfeiture'. Petitioner moved to strike this affidavit, but there was no ruling on the motion. On the first day of the trial, the letters were handed to petitioner's counsel, who proposed to offer them in evidence; respondent's counsel replied: 'We have no objection'; and the letters were thus put in evidence.

The cause was heard before Chancellor Little orally, or upon the testimony of witnesses and documentary exhibits introduced in open court, the trial consuming some six days, from September 22 through the 29th. The Chancellor filed his findings and opinion, reviewing the evidence at length and sustaining the charges. On October 1, 1954, he entered a decree that respondent had violated Code section 9974(1), (3), and (5), that he be permanently disbarred from the practice of law in Tennessee, and that his name be stricken from the roll of attorneys, solicitors, and counselors.

Respondent saved a bill of exceptions, appealed to this Court, and has assigned numerous errors upon the Chancellor's findings and decree. The cause was heard by this Court June 6, 1955, upon the briefs and oral arguments of counsel. Counsel were granted further time to file additional briefs; the record was later passed to the Court; and the Court took time for consideration.

The first and larger part of the brief and argument for respondent is devoted to the contention that this proceeding violated his constitutional rights in three particulars and that, therefore, before reaching the merits of the charges, we should reverse the Chancellor's decree and dismiss the proceeding or at least remand it for a new trial in order that his constitutional guaranties may be observed.

He first invokes article I, section 14, of the Constitution of Tennessee: 'That no person shall be put to answer any criminal charge but by presentment, indictment or impeachment'. He insists that since the matters alleged against him in the disbarment proceeding constituted a 'criminal charge', he could not be required to answer such matters or be tried for them in this proceeding; but that he must first be presented or indicted upon such charge in the criminal court and there tried by a jury; and that, if convicted, the record of his conviction could be the basis of a disbarment proceeding against him.

In this connection, he attacks the constitutionality of this provision of our statute relating to charges in disbarment proceedings: '* * * If the information shall charge the commission of any such crime or misdemeanor, proceedings shall not be stayed to await the result of the trial of the criminal case. * * *' Acts 1919, ch. 42, sec. 3, Code, § 9976. He contends that insofar as this requires an attorney first to answer a criminal charge in a disbarment proceeding, it violates the above provision of our Constitution and is void.

This argument overlooks the nature of a disbarment proceeding. Such a proceeding is neither a criminal nor a civil action, but a summary proceeding by which the court investigates the conduct of one of its officers, not to punish him, but to uphold the honor of the profession and the administration of justice. State v. Bomer, 179 Tenn. 67, 71, 78-81, 162 S.W.2d 515; Davis v. State, 92 Tenn. 634, 641-644, 23 S.W. 59; Ex parte Thompson, 228 Ala. 113, 152 So. 229, 107 A.L.R. 671, 684; Matter of Rouss, 221 N.Y. 81, 84, 116 N.E. 782; In re Santosuosso, 318 Mass. 489, 62 N.E.2d 105, 161 A.L.R. 892, 895.

As said by Judge Cardozo, 'Membership in the bar is a privilege burdened with conditions. A fair private and professional character is one of them'. Matter of Rouss, supra [221 N.Y. 81, 116 N.E. 783]. 'The appellant was received into that ancient fellowship for something more than private gain. He became an officer of the court, and, like the court itself, an instrument or agency to advance...