Norfolk & Portsmouth Bar Ass'n v. Drewry

• Decision Date: 11 January 1934
• Citation: 172 S.E. 282
• Court: Virginia Supreme Court
• Parties: NORFOLK & PORTSMOUTH BAR ASS'N. v. DREWRY.

172 S.E. 282

NORFOLK & PORTSMOUTH BAR ASS'N.

v.DREWRY.

Supreme Court of Appeals of Virginia.

Jan. 11, 1934.

Error to Circuit Court of City of Norfolk.

Proceeding by the Norfolk & Portsmouth Bar Association to disbar or discipline W. Shepherd Drewry, an attorney at law. Judgment dismissing the complaint for want of jurisdiction, and the Norfolk & Portsmouth Bar Association brings error.

Reversed and remanded.

Argued before CAMPBELL, O. J., and HOLT, EPES, HUDGINS, GREGORY, BROWNING, and CHINN, JJ.

J. W. Eggleston, J. Hume Taylor, James G. Martin, and John B. Jenkins, Jr., all of Norfolk, for plaintiff in error.

N. T. Green and L. S. Parsons, both of Norfolk, for defendant in error.

HOLT, Justice

This is a proceeding brought by the plaintiff in error, plaintiff below, to disbar or to discipline one of its members the defendant in error and defendant below, for professional conduct charged to have been corrupt. The petition bears date April 19, 1932, and is addressed to the Honorable Allan R. Hanckel, judge of the circuit court of the city of Norfolk. That court on that day entered an order requiring the defendant to appear before it on May 20, 1932. Process was served, and these facts were certified to this court, whose Chief Justice, under authority of Code, § 3424, as amended by Acts of 1928, c. 457, p. 1162 designated the Honorable C. Vernon Spratley, judge of the Eleventh judicial circuit, the Honorable Frank Annistead, judge of the Fourteenth judicial circuit, and the Honorable Allan R. Hanckel, judge of the circuit court of the city of Norfolk, as a tribunal to hear and to pass upon the petition.

On May 28, 1932, defendant appeared by counsel and moved that the complaint be dismissed, assigning as grounds therefor reasons numbered alphabetically and running from (a) to (p). On August 17, 1932, the motion to dismiss was overruled and the case set down for hearing. It came on to be heard on November 10, 1932, when the motion to dismiss was renewed. It was then sustained, and from that judgment this appeal was taken.

For manifest reasons we shall not undertake to discuss the character of these charges. Their sufficiency is not in issue, nor does any evidence appear in the record to sustain them. The order of November 10, 1932, did not rest upon any want of proof but upon jurisdictional grounds alone.

In the petition the right to relief is placed upon two grounds. It is said that necessary power is conferred by the statute and also that it is inherent in the court. The statutes relied upon are Code, § 3423 and section 3424, as amended by Acts 1928, c. 457.

In their examination certain general principles are to be remembered. While attorneys at law are not officers in the sense that a judge is an officer (Bland & Giles County Judge Case, 33 Grat. [74 Va.] 443), they are court officers and may be disciplined (Ex parte Fisher, 6 Leigh [33 Va.] 619).

This is an inherent power. Opinion of the Justices (1932) 279 Mass. 607, 180 N. E. 725, 727, 81 A. L. R. 1059; People ex rel. Kar-lin v. Oulkin, 248 N. Y. 465, 162 N. E. 487, 60 A. L. R. 851; People v. Meyerovitz, 278 111. 356, 116 N. E. 189; In re Cohen (1928) 261 Mass. 484, 159 N. E. 495, 55 A. L. R. 1309; In re Wolfe's Disbarment, 288 Pa. 331, 135 A. 732, 50 A. L. R, 380; In re Burton (1926) 67 Utah, 118, 246 P. 188; 6 C. J. 581.

This power, since the judiciary is an independent ibranch of government, is not controlled by statute. In re Wolfe's Disbarment, supra; In re Burton, supra; In re Branch, 70 N. J. Law, 548, 57 A. 431; Opinion of the Justices, supra.

In this last-named case it was said: "The inherent jurisdiction of the judicial department of government over attorneys at law is illustrated in several of our decisions to the effect that power to remove an attorney for misconduct, malpractice, or deficiency in character, although recognized by statute (G. L. c. 221, § 40, as amended by St. 1924, c. 134), is nevertheless inherent and exists without a statute. In re Randall, petitioner, 11 Allen [Mass.] 472; Matter of Carver, 224 Mass. 169, 172, 112 N. E. 877, and cases cited; Matter of Ulmer, 268 Mass. 373, 397, 167 N. E. 749, and cases cited. No sound distinction can be drawn with respect to attorneys at law 'between the power to admit and the power to remove under the terms of the Constitution.

"Numerous statutes have been passed making provision in aid of the judicial department in reaching a proper selection of those qualified for admission as attorneys to practice in the courts. It is not necessary to review them in detail. Like many other statutes, they have been enacted to enable the courts to perform their duties. They have been enacted, also, in the exercise of the police power to protect the public from those lacking in ability, falling short in learning, or deficient in moral qualities, and thus incapable of maintaining the high standard of conduct justly to be expected of members of the bar. No statute can control the judicial department in the performance of its duty to decide who shall enjoy the privilege of practicing law."

In Ex parte Secombe, 19 How. 9, 13, 15 L. Ed. 565, is this statement: "It has been weU settled, by the rules and practice of common-law courts, that it rests exclusively with the court to determine who is qualified to become one of its officers, as an attorney and counsellor, and for what cause he ought to be removed." See, also, Ex parte Garland, 4 Wall. 333-379, 18 L. Ed. 366.

The power to discipline is judicial in its nature. Opinion of the Justices, supra; Gar-rigus Case, 93 Ind. 242; People v. Gorindar, 350 111. 256, 1S2 N. E. 732; 6 C. J. 581, 2 R. C. L. 1104.

When a delinquent is disciplined, the purpose of the proceeding is not to punish him but to protect the public. People v. Mey-erovitz, supra; People ex rel. Karlin v. Cul-kin, supra; Ex parte Wall, 107 U. S. 265, 2 S. Ct. 569, 588, 27 L. Ed. 552; McCumber v. Rovelsky (1930) 203 Wis. 158, 233 N. W. 627; 2 R. C. L. 1104; 6 C. J. 581; State v. Kern (1930) 203 Wis. 178, 233 N. W. 629.

Since the purpose is not to punish, the proceeding is not a criminal prosecution.

"The proceeding is in its nature civil, and collateral to any criminal prosecution by indictment. The proceeding is not for the purpose of punishment, but for the purpose of preserving the courts of justice from the official ministration of persons unfit to practice in them." Ex parte Wall, supra; State v. Peck (1914) 88 Conn. 447, 91 A. 274, L R. A. 1915A, 663, at page 667, Ann. Cas. 1917B, 227; Bar Ass'n of Boston v. Greenhood, 168 Mass. 169, 183, 46 N. E. 568.

It is an informal proceeding, and it is only necessary that the defendant be informed of the nature of the charge and be given an opportunity to answer. In re Information to Discipline Certain Attorneys of Sanitary Dist. of Chicago, 351 111. 206, 184 N. E. 332; Hess v. Conway, 93 Kan. 246, 144 P. 205; 95 Am. Dec. 342 (note); 6 C. J. 603.

It is not necessary that the offense charged bo committed in court or even in the discharge of any professional duty. People v. Meyerovitz, supra; In re Information to Discipline Certain Attorneys of Sanitary Dist. of Chicago, supra; In re Burton, supra; Gottesfeld's Case, 245 Pa. 314, 91 A. 494; In re Cary, 146 Minn. 80, 177 N. W. 801, 9 A. L. R. 1272; State v. Graves, 73 Or. 331, 144 P. 484, L. R, A. 1915C, 259; State v. Peck, supra; Ex parte Wall, supra; R. C. L. p. 1099.

In Ex parte Fisher, supra, it was said that all courts of record in Virginia have inherent power in proper cases to suspend or annul the license of an attorney practicing in the particular court which pronounces the sentence of disbarment, but that legislative power was necessary to make its sentence effective in other courts of the commonwealth.

Legal Club v. Light, 137 Va. 249, 119 S. E. 55, was a case in which an original petition was filed in this court charging misconduct in the circuit court of Campbell county. It was held that the statute did not confer jurisdiction on this court, and so for want of it the case was dismissed. The statute did not confer jurisdiction, but it had original inherent jurisdiction, and, as we have seen by the heavy weight of authority, it had inherent original jurisdiction where professional misconduct existed whether such misconduct occurred in or out of its presence. This inherent power the court seemed to think, under the Fisher Case, was limited to itself, and could not be extended in the absence of statute to all the courts of the commonwealth.

The bar of Virginia appears to have been of opinion that section 3196 of the Code of 1887 did not cover misconduct out of court. This subject came up for discussion at a meeting of the Virginia State Bar Association in 1899. The matter was referred to a committee, of which Professor Lile was chairman. His report, in part, appears in the Light Case. Its recommendations were adopted, and by Act of date March 7, 1900 (Acts 1899-1900, c. 954, p. 1060), it was provided: "If the supreme court of appeals, or any court of record of this state, observe any malpractice or any corrupt unprofessional conduct therein by any attorney, or if complaint, verified by affidavit, be made to any such court of malpractice or of corrupt unprofessional conduct by an attorney therein, or if complaint, verified by affidavit, be made to any court of record (other than the supreme court of appeals) of any malpractice or any corrupt unprofessional conduct by an attorney practicing therein, such court shall Issue a rule against such attorney to show cause why his license to practice law shall not be revoked or suspended."

This act was amended at the extra session of the Legislature for the years 1902, 1903, 1904, c. 354, p. 571, but no change was made in the foregoing provision, and it continued to be the law unchanged until the Code of 1919 was adopted.

Tho law as thus written covered the entire subject. It dealt with cases which occurred in court and were observed by it, with cases which...