Richardson v. State

• Decision Date: 02 January 1940
• Citation: 192 So. 876,141 Fla. 218
• Parties: RICHARDSON v. STATE.
• Court: Florida Supreme Court

192 So. 876

141 Fla. 218

RICHARDSON v. STATE.

Florida Supreme Court

January 2, 1940

Error to Circuit Court, Palm Beach County; George W. Tedder, Judge.

Proceeding by the State against Walter S. Richardson. To review a judgment suspending the defendant from the practice of law for six months, he brings error.

Affirmed.

COUNSEL John Ziegler, of West Palm Beach, and LeRoy Collins and W. P. Shelley, Jr., both of Tallahassee, for plaintiff in error.

George Couper Gibbs, Atty. Gen., and Thomas J. Ellis, Asst. Atty Gen., for defendant in error.

OPINION

PER CURIAM.

Writ of error to a judgment of the Circuit Court of the Fifteenth Circuit for Palm Beach County.

On June 13, 1936, Hon. C. E. Chilling-worth, Circuit Judge, entered an order directing the State attorney to file in the name of the State a motion to disbar Walter S. Richardson, who, while acting as an attorney at law, did, from an unlawful dishonorable and corrupt motive stir up, conceive, plan, foment, maintain and aid in unduly prolonging certain litigation lately pending in the U.S District Court for the Southern District of Florida, Miami Division, in equity, entitled Bert E. Holland et al. v Whitehall Building and Operating Company et al., for the unlawful, dishonorable and corrupt primary purpose of personal enrichment of himself.

Such motion was filed October 7, 1937. Defendant Richardson filed an answer to said motion, alleging his good faith, honesty and fair dealing in his position as Receiver and later as Trustee in said bankruptcy proceedings.

At the trial, the State produced evidence showing that while acting in the capacity of Receiver in said bankruptcy case, Richardson advised certain bondholders of their rights, and did himself deal in said bonds for his wife. It was brought out that Richardson gave his wife $8,000 as part of a fee of $18,000 accruing for his services as Trustee, and that a considerable portion of said $8,000 was used to purchase bonds of the Whitehall properties. Richardson alleged in his answer and testified that all bond dealings were in the open market and carried on in the best interests of Whitehall Properties.

The Court entered final judgment finding Richardson guilty and suspending him from the practice of law for six months. Motion for a new trial was denied, and writ of error taken to this court.

Richardson questions the authority of the court to receive a motion to disbar when said motion is not sworn to. In the early case of State ex rel. Wolfe v. Kirke, 1869, 12 Fla. 278, 95 Am.Dec. 314, it is said that, a 'complaint against an attorney * * * ought not to be received * * * unless made on oath', citing In re Burr, 9 Wheat. 529, 6 L.Ed. 152, as the only authority. This is a statement of the common law prior to the enactment of Chapter 4379, Acts of 1895, being section 4172 (2554), C.G.L. The same sentence is quoted in Hogan v. State, 89 Fla. 388, 104 So. 598, citing State ex rel. Wolfe v. Kirke, supra, as authority. It was mere dicta in the Hogan case, however.

There is no statutory authority which compels a State attorney to file his motion to disbar under oath. In Gould v. State, 99 Fla. 662, 127 So. 309, text page 311, it is said, 'the court exercises a jurisdiction over attorneys which is to be exercised according to law and conscience, and not by any technical rules'. While it was formerly the practice to require all pleadings of any kind whatever, both in equity and in law, to be under oath, the old technicalities of pleading are being done away with, and rightly so, including the elimination of the oath in most actions. In view of this tendency, and by reason of the absence of statutory requirements, we cannot agree with State ex rel. Wolfe v. Kirke, supra, or with the dicta in Hogan v. State, supra, that a complaint against an attorney ought not to be received unless made on oath. The absence of an oath of the State attorney to a motion to disbar made under the statute is not ground for reversal.

Richardson assigns as error the fact that State attorney included matter in his motion which was not contained in the order of the Court directing the filing of the motion. Section 4172...