State Board of Law Examiners v. Phelan

• Decision Date: 24 November 1931
• Docket Number: 1710
• Parties: STATE BOARD OF LAW EXAMINERS v. PHELAN
• Court: Wyoming Supreme Court

5 P.2d 263

43 Wyo. 481

STATE BOARD OF LAW EXAMINERS v. PHELAN

No. 1710

Supreme Court of Wyoming

November 24, 1931

DISBARMENT proceedings from the District Court, Laramie County; V. J. TIDBALL, C. O. BROWN, and SAM M. THOMPSON Judges.

Disbarment proceedings by the State Board of Law Examiners against Walter Q. Phelan. Verdict of not guilty, with recommendations on part of judges presiding at hearing that verdict was opposed to weight of evidence, and that license of respondent to practice law be revoked and suspended for a period of two years and alternative recommendation of new trial.

For the complainant there was a brief by James A. Greenwood, Attorney General, Richard J. Jackson, Deputy Attorney General, and George W. Ferguson, Assistant Attorney General, all of Cheyenne, Wyoming, and oral argument by Mr. Jackson.

The right to practice law is a mere privilege or franchise limited to those having special qualifications. 6 C. J. 569. The modern trend of decisions is, that disbarment proceedings are civil in their nature and not criminal, nor quasi criminal, the object being, as stated in many of the authorities, for the protection of the court, the proper administration of justice, the dignity and purity of the profession, and the public good and protection of clients and not the punishment of the individual attorney. State ex rel. v. Priest, 223 N.W. 635 (Nebr.); In re Bruen, 172 P. 1152 (Wash.); In re Burnette, 85 P. 575; State ex rel. v. McRae, 38 So. 605 (Fla.); In re Wellcome, 58 P. 711 (Mont.); State v Mosher, 103 N.W. 105 (Ia.); Bradley v. Fisher, 7 D. C. 32, Aff. 13 Wall. 335. And it is almost universally held that in a case of this character, the attorney has no right to a trial by jury. Davis v. Commonwealth, 2 S.W. (2nd) 1038 (Ky.); Commonwealth v. Richie, 70 S.W. 1054 (Ky.); In re Adair, 34 F.2d 663; In re Ulmer, 167 N.E. 749 (Mass.); In re Carver, 112 N.E. 877 (Mass.); Balogh v. Jackson, 116 A. 377; 22 A. L. R. 1497 (Pa.); State Bar Comm. v. Sullivan, 131 P. 703 (Okl.); Dean v. Stone, 35 P. 578 (Okla.); State v. Rossman, 101 P. 357; 21 L. R. A. (N. S.) 821, 17 Ann. Cas. 625 (Wash.); Ex parte Robinson, 3 Ind. 52; In re Norris, 57 P. 528 (Kan.); State v. Fourchy, 31 So. 325 (La.); In re Shepard, 67 N.W. 971 (Mich.); Smith v. State, 9 Tenn. (1 Yerg.) 228; State v. Davis, 23 S.W. 59 (Tenn.); Ex parte Wall, 107 U.S. 265. Louisiana cases and an Arkansas case may be found to the contrary. Chenalon v. Schmidt, 11 Rob. 91 (La.); Turner v. Walsh, 12 Rob. 383 (Ia. ); Nichols v. Little, 165 S.W. 301 (Ark.). An Indiana case also holds that a jury trial is essential in a matter of this kind, but is predicated upon a statute. Reilly v. Cavanaugh, 32 Ind. 214. There is no natural, nor constitutional right to practice law, and courts are the only proper bodies to judge their own officers. Courts have inherent power to remove their officers for cause independent of statute under the Laws of 1925, Ch. 51. The finding of a jury is merely advisory. If intended to be decisive, the legislature would not have provided for a hearing upon the record, which includes recommendation of the trial court as well as the verdict of the jury. The legislature cannot curb the right of the judicial department to discipline its own officers. Danforth v. Egan, 119 N.W. 1021; In re Simpson, (N. D.) 83 N.W. 541; In re Bruen, (Wash.) 172 P. 1152; 6 C. J. 581. The presumption is that the legislature did not intend something beyond its authority. Burton v. Union Pacific Coal Co., 18 Wyo. 362. The three district judges in their recommendations to the Supreme Court called attention to the fact that respondent failed to offer any explanation of the altered name on the deed.

For the respondent there was a brief by Walter Q. Phelan and Edward B. Almon, both of Cheyenne, Wyoming, and oral argument by Mr. Phelan.

The verdict of the jury was sustained by substantial evidence. The testimony of Mortellaro as to the facts concerning the execution of the deed in question was contradictory, he having given three distinct stories, concerning the central idea in the entire case; the jury was entirely justified in discrediting his testimony. Ch. 51, Laws 1925 provides that jury trial may be had if demanded, in disbarment cases. There is nothing in the statute providing that a jury trial of the facts, is different from a similar trial of facts in any civil case. The rules of the State Board of Examiners also provide for a trial by jury if demanded. Judgment must be entered by the clerk in conformity to the verdict. 5893 C. S. The right of trial by jury cannot be taken away by implication. 35 C. J. 147, 241, 242; Young v. People, (Colo.) 107 P. 274; In re McCue, (Mont.) 261 P. 341; Ladd v. Williams, (Mo.) 79 S.W. 511; Hill v. Ellis, (Kas.) 48 P. 204; Jensen v. Co., (Wash.) 136 P. 698; Gibson v. City, (W. Va.) 45 Am. S. R. 853. The rule applies in disbarment cases. In re Grorud, (Mont.) 275 P. 1098; In re Lunke, (Mont.) 182 P. 126; In re Griggs, (Mont.) 240 P. 820; People v. Amos, (Ill.) 92 N.E. 857; Ex parte Burr, 9 Wheat. 529; Bradley v. Fisher, 13 Wall. 354; In re Burnette, (Kas.) 85 P. 575; People v. Baker, (Ill.) 142 N.E. 554; People v. Barker, 55 Ill. 299. Some courts hold that if the finding is in favor of the respondent, the accuser has no right of appeal. 6 C. J. 611; In re Thompson, (Cal.) 45 P. 1034; State v. Tracy, 81 N.W. 727; State v. Tomlinson, (Ia.) 109 N.W. 120. No application was made for a new trial and it is not clear what the trial court had in mind, in making the recommendation for a new trial.

KIMBALL, Chief Justice. BLUME and RINER, JJ., concur.

OPINION

KIMBALL, Chief Justice.

This is a disbarment proceeding brought by the State Board of Law Examiners, as complainant, and prosecuted by the Attorney General, under Chapter 51, Session Laws of 1925. It was charged that the accused attorney, called the respondent, altered a deed by substituting his name for the name of the grantee, and thereafter refused to reconvey the deeded land to the true grantee until the latter agreed to give respondent a mortgage for $ 2000 on the land.

Chapter 51, supra, in prescribing the procedure in disbarment cases, provides for a hearing in the District Court, and that "if the accused attorney shall demand a jury trial of the facts, the same shall be granted." The judge of the District Court wherein the proceedings are brought "shall call in to sit with him * * * at least one other district judge and, in his discretion, one additional district judge may also be called in." When a jury trial of the facts is demanded, it "shall be discretionary with the judge of said court whether any other district judge shall be called to sit with him at the hearing." Sec. 1. When the hearing is without a jury the judges make findings "upon the evidence produced," and the findings, "together with the court's recommendations," a transcript of the evidence, and other papers in the case, are filed with the clerk of the Supreme Court. When there has been a jury trial of the facts, "the verdict, together with said court's recommendations and the other papers aforesaid" are so filed in the Supreme Court. Sec. 3. There is then a hearing before the Supreme Court "upon the record certified by the District Court under such rules of procedure as said Supreme Court may prescribe," and the Supreme Court "shall render such judgment as the facts warrant, or may remand the case to the District Court for further investigation and consideration" by the District Court or the Board of Law Examiners. The Supreme Court may order the respondent to be disbarred, or suspended, or subjected to such other discipline "as may be deemed proper upon the facts," or may order an acquittal and discharge. Sec. 4. It is further provided that the Board of Law Examiners "shall prescribe forms, rules and regulations" which, when approved by the Supreme Court, shall have the same force and effect as if made a part of the act. Sec. 5. Rules of the Supreme Court provide for the preparation, certification and filing of the record; for notice to the respondent; for the filing of objections and briefs, and that, "at the expiration of the time for filing briefs, the proceeding shall be considered upon the record the same as cases upon appeal." Rules 38-41, 42 Wyo. 542. By rule of the Board of Law Examiners, approved by this court, provisions are made for demand by respondent of a jury trial of the facts, and for the selection and instruction of the jury much the same as in the trial of civil cases. It is there provided that "the verdict shall be guilty or not guilty on each charge set forth in the complaint." Rule 7, 42 Wyo. 551.

The case at bar was heard in the District Court by three district judges and a jury demanded by respondent for trial of the facts. The verdict was "not guilty." The judges who presided at the hearing filed recommendations as follows:

"We recommend that the verdict of the jury is opposed to the weight of the evidence. * * *.

"We further recommend that, if the verdict of a jury is only advisory, it be disregarded, and the Honorable Supreme Court make its findings on the evidence notwithstanding said verdict.

"If the Supreme Court finds respondent guilty as charged, we recommend that the license of respondent to practice law within the state of Wyoming be revoked and suspended for a period of two years.

"In case the Supreme Court regards the verdict of a jury in a disbarment matter binding to the same extent as a verdict in a civil action, then we recommend that a new trial be ordered."

A discussion of the evidence is not required. All that need now be said about it is that complainant's evidence sufficient to prove the charges, was contradicted in all essential particulars by the...