Palmer, In re

• Decision Date: 08 July 1963
• Docket Number: No. 5613,5613
• Parties: In the Matter of Disbarment Proceedings Against Paul B. PALMER (Application for Reinstatement).
• Court: New Mexico Supreme Court

Page 264

383 P.2d 264

72 N.M. 305

In the Matter of Disbarment Proceedings Against Paul B.

PALMER (Application for Reinstatement).

No. 5613.

Supreme Court of New Mexico.

July 8, 1963.

Melvin D. Rueckhaus, Sutin & Jones, Albuquerque, for Paul B. palmer

PER CURIAM.

On April 23, 1953, Paul B. Palmer was disbarred. See Ex parte Palmer, 57 N.M. 160, 255 P.2d 988. In 1961, applicant sought reinstatement, but for reasons unnecessary for the disposition of this proceeding, no final action was taken thereon. In 1962, application was again made, seeking a termination of the suspension. Thereafter, the members of the board of bar commissioners, sitting as referees for this court, held a hearing in compliance with Sec. 21-2-1(3), N.M.S.A.1953, 1961 Supp., by stipulation of applicant to the board, and a report was submitted of their findings, conclusions and recommendations.

The report of the commissioners, omitting findings 1 and 2 which are not necessary for decision, was as follows:

'3. That petitioner, Paul B. Palmer, testified as to his personal, educational and professional background, certain circumstances connected with the subject matter of the disciplinary proceedings against him which resulted in termination of his license to practice law, and his subsequent business, personal and family life to the date of this hearing.

'4. That petitioner was ordered disbarred May 1, 1953, for misappropriating funds collected for and belonging to a client and wrongfully commingling with his own funds monies placed with him as a trustee belonging to another client.

'5. That petitioner in words confessed and acknowledged the error of his ways in matters leading to his disbarment, and expressed contrition, remorse and his rehabilitation since that time.

'6. That a civil suit concerning a claim against the defendant for monies belonging to a client, being part of the subject matter of the original disbarment proceedings, was concluded in December, 1961, by a settlement involving a cash payment by petitioner herein of a certain principal sum of money claimed by the client as due him from the petitioner.

'7. That petitioner stated that he did not know whether or not he would practice law if his license were reinstated, but that he probably would not engage in the practice of law.

'8. That petitioner negotiated a settlement of the civil suit against him for monies misappropriated and commingled with his own funds directly with his former client, a person of limited education and business acumen, under questionable circumstances as to petitioner's responsibility to negotiate through and advise with the attorneys representing the party adverse to petitioner herein.

'9. That the only evidence offered as to rehabilitation was petitioner's own testimony. No associates in business, attorneys or others testified on petitioner's behalf.

'CONCLUSION

'That the petitioner has failed to sustain the burden of establishing facts showing he has rehabilitated himself, by clear and convincing evidence.

'RECOMMENDATIONS

'Your referees recommend that petitioner's application be denied.'

Applicant filed exceptions, which attacked the report in the following particulars: that finding No. 3 made no finding of fact with reference to the matters testified to by applicant; that the commissioners failed to make any findings with respect to applicant's business, personal and family life since his disbarment; that finding No. 6 was not a finding of misconduct; that finding No. 8 concerning the negotiation of the settlement under questionable circumstances is not supported by the facts; that the commissioners failed to make findings of fact supporting the conclusion of failure to establish rehabilitation; and that, lastly, the evidence was clear and convincing that the applicant had rehabilitated himself, lived an exemplary family life, and been a good citizen. It is this final ground which is determinative, and to which our consideration will be directed.

The transcript of the testimony of the hearing before the commissioners consists, almost in its entirety, of the testimony of the applicant. The only other witness who was called, or heard, was a member of the bar whose testimony related to certain discussions with the former client of Mr. Palmer's mentioned in findings Nos. 6 and 8, but it did not, except inferentially, relate to applicant's claimed rehabilitation. It is thus necessary for us to determine whether the applicant has satisfied the burden placed upon him by our rules, to establish the facts of his rehabilitation by clear and convincing evidence.

Supreme Court Rule 3, being Sec. 21-2-1(3), N.M.S.A.1953, 1961 Supp., effective November 1, 1960, consists of detailed provisions relating to disciplinary proceedings, and we are here particularly concerned with subsections 3.02 and 3.03.

Subsection 3.02 sets forth what shall be included in an application for termination of suspension, and requires, in part:

'(b) Facts showing he has rehabilitated himself and is otherwise entitled to have the order of suspension terminated.'

Subsection 3.03 provides, insofar as material here:

'However, the burden shall be upon the applicant for termination of suspension to establish the averments of his application by clear and convincing evidence.'

It would seem to be applicant's theory that inasmuch as, according to his own word, he has conducted himself in an exemplary manner, has made an effort to improve himself in conformance with good citizenship and has agreed to abide by the letter and spirit of the canons of professional ethics, that this is sufficient to satisfy the burden placed upon him of establishing his rehabilitation by clear and convincing evidence. It is to be noted that the commissioners arrived at their recommendation on the basis of applicant's testimony and that of one other witness whose evidence partially formed the basis for at least two of the findings.

We have on many occasions mentioned the phrase 'clear and convincing,' and in particular instances have pointed out that the testimony presented either did or did not comply with the necessary requirement. See White v. Mayo, 1931, 35 N.M. 430, 299 P. 1068; Brown v. Likens, 1933, 37 N.M. 312, 22 P.2d 848; Koprian v. Mennecke, 1949, 53 N.M. 176, 204 P.2d 440; and Hendricks v. Hendricks, 1950, 55 N.M. 51, 226 P.2d 464, all dealing with the amount of persuasion necessary to prove an implied, resulting, or constructive trust; Lindley v. Lindley, 1960, 67 N.M. 439, 356 P.2d 455, relating to an oral contract to execute mutual wills; and Sargent v. Hamblin, 1953, 57 N.M. 559, 260 P.2d 919, and Bell v. Ware, 1961, 69 N.M. 308, 366 P.2d 706, which are cases attempting to prove a deed absolute as being a mortgage. In none of these cases however, did we...