Nevius, In re, No. 37675

• Court: United States State Supreme Court of Ohio
• Writing for the Court: GRIFFITH; TAFT
• Citation: 191 N.E.2d 166,174 Ohio St. 560
• Parties: , 23 O.O.2d 239 In re NEVIUS.
• Docket Number: No. 37675
• Decision Date: 29 May 1963

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174 Ohio St. 560 191 N.E.2d 166, 23 O.O.2d 239 In re NEVIUS. No. 37675. Supreme Court of Ohio. May 29, 1963.

[191 N.E.2d 167] Syllabus by the Court

1. The power to discipline an attorney at law and to reinstate him to the practice of law after disciplinary action rests inherently in the judicial branch of the government.

2. The General Assembly may enact statutes providing methods for the conduct of proceedings to discipline attorneys at law or to reinstate them for specified reasons, but such enactments are to be construed as an aid to and not as a limitation on the power of the judicial branch of the government.

3. The provisions of Rule XXVII of the Supreme Court, effective January 1, 1957, relating to reinstatement of attorneys at law to the practice of the law apply to removals from practice which occurred prior as well as subsequent to the adoption of the rule. Such rule provides the exclusive manner in which reinstatement may be sought, superseding in all respects the procedure under Section 4705.04, Revised Code.

The appellee, Jerome A. Nevius, was the prosecuting attorney and a member of the bar in Clark County. In 1947 he was charged with and found guilty of misconduct in office, unprofessional conduct and conviction of a crime, all involving moral turpitude. He was disbarred, and in 1953 such disbarment was affirmed by the Supreme Court of Ohio (In re Nevius, 159 Ohio St. 341, 112 N.E.2d 380).

In March 1961 appellee filed a motion and application

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for modification of the original entry of the Court of Common Pleas of Clark County from disbarment to suspension for a definite

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period, now expired, relying on the provisions of Section 4705.04, [191 N.E.2d 168] Revised Code, which provided for such procedure. The court appointed a committee of the Springfield Law and Library Association to take any and all actions on the motion as it may deem proper.

The question as to the jurisdiction of the court to hear the motion was raised and the court found, on the basis of Rule XXVII of the Supreme Court, effective January 1, 1957, that it had no jurisdiction to hear the case, determining that all such proceedings for reinstatement are now controlled by the provisions of such rule, and overruled the motion.

Upon appeal to the Court of Appeals, the judgment of the Court of Common Pleas was reversed. The Court of Appeals determined in essence that the procedure governing appellee's reinstatement to the practice of law was that in existence at the time of his disbarment and not that presently in effect by virtue of Rule XXVII.

The cause is before this court pursuant to the allowance of a motion to certify the record.

Bitner Browne, Springfield, for appellant, Committee of Springfield Law and Library Ass'n.

Eugene A. Nevius, Springfield, for appellee, Jerome A. Nevius.

GRIFFITH, Judge.

The single issur raised by this appeal is whether the procedure for reinstatement of a disbarred attorney is governed by the procedure in effect at the time of the disbarment or by the procedure in effect at the time the application for reinstatement is made.

At the time of appellee's disbarment, Sedtion 1707, General Code (now Section 4705.02, Revised Code, without substantial change), vested jurisdiction in disciplinary proceedings in the Common Pleas Court, the Court of Appeals and the Supreme Court; Section 1709, General Code (now Section 4705.04, Revised Code, without substantial change), also vested jurisdiction in reinstatement proceedings in such courts; and Rule XXVII of the Supreme Court recognized such statutory jurisdiction.

Section 1709, General Code, provided:

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'If such suspended or removed attorney at law shall desire a modification of the decree of suspension or removal, he shall file a written motion therefor in the court which entered such decree.'

The present disciplinary and reinstatement procedure is governed by Rule XXVII of the Supreme Court, effective January 1, 1957. It is unnecessary to make a detailed analysis of this rule. Rule XXVII provides primarily that all proceedings for the disciplining and reinstatement of attorneys indefinitely suspended shall be governed by the procedure set forth in the rule. Under such rule, the Board of Commissioners of Grievances and Discipline has exclusive original jurisdiction in disciplinary matters. The board conducts hearings, certifies its findings of fact and recommendation to the Supreme Court which, with or without the filing of objections and after a hearing, if requested by the court, may confirm, reject or modify the recommendation and enter such order as it may find proper. As to reinstatement, Rule XXVII provides that an attorney indefinitely suspended from the practice of law may file a petition for reinstatement in the Supreme Court, whereupon the petition shall be referred to the Board of Commissioners of Grievances and Discipline. Upon sucn referral, the procedure in reinstatement proceedings is governed by the procedure provided for disciplinary proceedings.

It must be noted here that under the present rule an order of disbarment, once made, is absolutely final, and, once entered, cannot be modified by a subsequent application for reinstatement.

The contention of the appellee is that amended Rule XXVII cannot be given retroactive effect, and that Section 4705.04, Revised Code, governs his rights and the procedure for his reinstatement.

[191 N.E.2d 169] It is now well...