Mississippi State Bar Ass'n v. Wade, 43127

• Decision Date: 05 October 1964
• Docket Number: No. 43127,43127
• Citation: 167 So.2d 648,250 Miss. 625
• Parties: MISSISSIPPI STATE BAR ASSOCIATION v. B. D. WADE.
• Court: Mississippi Supreme Court

Page 648

167 So.2d 648

250 Miss. 625

MISSISSIPPI STATE BAR ASSOCIATION v. B. D. WADE.

No. 43127.

Supreme Court of Mississippi.

Oct. 5, 1964.

William B. Compton, Thomas Y. Minniece, Meridian, for appellant.

Thomas B. Alexander, A. K. Edwards, Mendenhall, James M. Walker, for Fayette, for appellee.

BRADY, Justice.

The petitioner-appellee was disbarred by the Chancery Court of Hinds County, Mississippi, on April 31, 1954, because of conduct dishonest, inexcusable, and wholly contrary to his responsibilities as a member of the bar. Upon appeal the Supreme Court of Mississippi affirmed the decree of the lower court on May 2, 1955, which decree is reported in 224 Miss. 197, 79 So.2d 727.

The petitioner filed a petition for reinstatement in the Circuit Court of Hinds County, Mississippi subsequent to May 4, 1957. After an investigation by a committee of the Hinds County Bar Association which revealed that petitioner had, subsequent to his disbarment, engaged in the unlawful practice of law, this petition for reinstatement was voluntarily dismissed by petitioner.

The petitioner, who engaged in the small loan business in Hinds County subsequent to his disbarment, sold this business and moved from Hinds County to Simpson County. After establishing residence there petitioner, on December 20, 1960, filed a second petition for reinstatement to the bar, Cause No. 8,001 in the Chancery Court of Simpson County, before Chancellor Neville Patterson. This petition was likewise dismissed for the same reasons which led to the dismissal of his first petition and for additional reasons. The second dismissal occurred on July 10, 1961.

On September 28, 1962 a third petition for reinstatement was filed in the Chancery Court of Simpson County as Cause No. 8336. After proper investigation, the answer of the respondent-appellant here was filed on February 22, 1963. A resolution of the Mississippi State Bar was filed resolving that petitioner, B. D. Wade, be opposed for reinstatement on the grounds that petitioner has not manifested genuine repentance of his conduct and has not met the necessary burden of proof showing his moral rehabilitation.

On March 5, 1963 Honorable E. A. Turnage, who was elected Chancellor in place of Chancellor Patterson who had resigned and who was elected to the office of Supreme Court Justice, heard the testimony and evidence in this cause, and subsequent thereto in vacation entered a decree on July 9, 1963, authorizing the petitioner to practice law in all the courts of the state of Mississippi. On July 15, 1963 notice of appeal from the decree was filed by the attorneys representing the Mississippi State Bar. It is the appeal from the chancery decree rendered on the third petition which now is before us.

There are but two errors assigned: First, the court erred in concluding that petitioner Wade had in fact repented, made restitution, and had rehabilitated himself sufficiently to justify his reinstatement to the practice of law; second, the court erred in decreeing that petitioner Wade be reinstated to the practice of law. The fundamental question which is presented by the petition for reinstatement, the decree based thereon and the subsequent appeal therefrom by the respondent is whether the applicant Wade has been sufficiently rehabilitated in conduct and character since his disbarment to be safely readmitted to practice law. This question we must decide upon the record as it exists before us at the time of the decision upon that question.

At the outset, 'The rule that the supreme court will not reverse the judgment of the lower court on a question of fact unless it affirmatively appears upon the face of the record that the cause was decided contrary to the evidence shall not apply in cases arising under this act, but the supreme court shall be the final judge of the facts, and the judgment to be rendered thereon', Ex parte Marshall, 165 Miss. 523, 555, 147 So. 791, 798; Sec. 3378, Code of 1930; Secs. 8714, 8715, 8716, Code of 1942, Ann; Const. 1890, Secs. 33, 103; State ex rel. Jones v. Laughlin, 73 Mo. 443; Winkelman v. People, 50 Ill. 449; Mattler v. Schaffner, 53 Ind. 245; Morrison v. Snow, 26 Utah. 247, 72 P. 924; People ex rel. Moses v. Goodrich, 79 Ill. 148; In re Darrow, 175 Ind. 44, 92 N.E. 369; and In re Ebbs, 150 N.C. 44, 63 S.E. 190, 19 L.R.A.,N.S., 892, 17 Ann.Cas. 592.

In determining whether a particular attorney has been rehabilitated and would be safe to assist in administering justice if readmitted, the primary question presented has been resolved, but there still remains another, though secondary, question which is: What will be the effect of his readmission upon the conduct of others involved in the administration of justice? 'A court of justice consists, not of the judge alone, but also of its administrative machinery, a fundamental and essential portion of which is attorneys at law' who are officers of the court in which they practice.

'The right to practice law is not a natural or constitutional right'. It is a revocable privilege conferred upon persons who have met the basic legislative and educational requirements and are of 'good moral character'. 'An attorney's good moral character must not only appear when he is admitted to the bar, but must continue thereafter, in default of which, his license to practice may be revoked.'

'The statute does not set forth the grounds on which a disbarred attorney may be reinstated, leaving that question to the law governing it theretofore in effect, under which the question is, Is the petitioner of good moral character, and a fit and proper person to assist the court in the administration of justice?' This quotation from the Marshall case still has application today. 'Or, to state it differently, Would his reinstatement be compatible with the proper respect of the court for itself, the dignity of the profession, and the safety of the public? There are four parties before the court in such a proceeding--the petitioner, the court itself, the bar, and the public.' Ex parte Marshall, supra.

No man or tribunal can fully comprehend the meditations of another human heart. At best, they can be approximated only. It follows therefore that a change of heart cannot be absolutely determined. To reach a just decision is indeed a difficult task which requires the highest objectivity in evaluating all the pertinent facts. The declarations of the person whose reformation is urged are worthy of solemn consideration, but more so are his overt acts and habits which disclose any professed changes in his moral, attitude, practical beliefs and conduct.

In striving to reach the proper conclusion, we will review first the testimony and evidence ultimately presented. Eleven witnesses testified in behalf of the petitioner's rehabilitation and yet none of them had a clear and concise understanding of what the petitioner had done to cause his disbarment and require his rehabilitation. Their comprehension was vague and indefinite, and only to the effect that Wade had done some thing or another that had caused his disbarment. No frank admission of the nature of his dishonest acts was made to any of his witnesses. Practically all of his witnesses expressed approval of petitioner's efforts to support his family and apparently felt that his efforts constituted not only reasonable proof of his repentance and rehabilitation but also justification for his readmission to the bar.

Although members of the Simpson County Bar had signed the second petition for his reinstatement, which stated that Wade had made restitution of all moneys which he was charged with misappropriating and was fully rehabilitated, only two lawyers neither of whom is a resident of Simpson County, took the stand in his behalf. First, Honorable Maurice Black, a former state representative, who attended the Jackson School of Law with petitioner, stated that he had had no business dealings whatsoever with the petitioner, and further that he could not determine from his conversations with petitioner whether he differentiated between the idea that he made mistakes in doing things he 'got caught at', or if he really felt that those things were wrong and he should not have done them. The second attorney was Honorable Dan Breland, President of Tillman Finance Company. Mr. Breland testified that he had had eight or nine different transactions with petitioner Wade; that he did not follow him daily but he had entrusted him with money and that his business transactions were satisfactory. Mr. Breland had never discussed the details of his disbarment with petitioner and he based his belief that Wade was repentant also on the fact that he had wanted him during the last few years and observed his eagerness to get out and make an honest living.

Except for being treasurer of the D'Lo Lions Club, to which club several of his witnesses belonged, it does not appear that Mr. Wade had any business dealings with his witnesses and neighbors of D'Lo. Petitioner did have business dealings with Mr. J. H. White of Jackson, Mississippi, one time owner of the White System, a loan agency. These relationship consisted of loans made to petitioner by the White System and notes purchased from Wade's loan agency, Acme Finance Company or Acme Collecting Agency, in passing, one of which was the Ophelia Tornes note and deed of trust on Ophelia Tornes' house, which Ophelia Tornes paid out. The amount could not be recalled, but Mr. White remembered that it 'was for some kind of fee or something.'

Mr. White based his belief of rehabilitation on the fact that petitioner had been honest and honorable with him in every respect, and stated: 'He has really tried to make a living for that wife and family and has moved off down here where expenses are cheaper and he has done various and sundry things.'

Witness Jack Warren of the State Game and Fish Commission had no business dealings with petitioner except as an officer in the...