State ex rel. Board of Bar Examiners v. Poyntz

• Decision Date: 31 December 1935
• Citation: 152 Or. 592,52 P.2d 1141
• Parties: STATE ex rel. BOARD OF BAR EXAMINERS v. POYNTZ. [*]
• Court: Oregon Supreme Court

52 P.2d 1141

152 Or. 592

STATE ex rel. BOARD OF BAR EXAMINERS v. POYNTZ. ^[*]

Supreme Court of Oregon

December 31, 1935

In Banc.

Proceedings in the matter of the application for admission to the bar of L. K. Poyntz, wherein the State of Oregon, on the relation of the Board of Bar Examiners, filed a complaint against the applicant.

Applicant admitted to the practice of the law.

Will H Masters, of Portland, for plaintiff.

J. P Kavanaugh and B. G. Skulason, both of Portland, for defendant.

BELT, Justice.

The defendant L. K. Poyntz, who for the past 12 years has practised his profession as a physician and surgeon in the city of Portland, made application in May, 1934, to the Supreme Court for admission to the bar. His application was accompanied by the affidavits of two lawyers of high repute and A. R. Hunter, to the effect that the applicant was a person of good moral character. Mr. Hunter is a member of the State Industrial Accident Commission and, without doubt, has had numerous occasions to consider the testimony of Dr Poyntz, the petitioner herein, a well-known expert witness in personal injury actions who generally testifies on behalf of the plaintiff.

No objections having been interposed to this prima facie showing of the moral qualifications of Dr. Poyntz to be admitted to the bar, the applicant paid the required fee and proceeded to take the examination conducted by the state board of bar examiners. Upon completion of the examination which, it is conceded, the petitioner succeeded in passing, the state board of examiners failed and refused to recommend to this court that Dr. Poyntz be admitted, for the reason that his moral character was not good. No hearing was had, however, by the state board of bar examiners, and the petitioner had no opportunity to meet his accusers face to face to refute any charges which might be made against him, although he urged the board to grant him such hearing. In fairness to the board, let it be said that no statutory procedure for such hearing was provided. The conclusion reached by the board was based upon private and confidential investigation conducted by various of its members.

Dr. Poyntz then filed his petition with the Supreme Court for admission to the bar. Thereupon, the board of bar examiners filed a complaint against the petitioner alleging in substance:

(1) That the petitioner is a member of the medical profession specializing in X-ray diagnosis, and that his reputation among the members of his profession, particularly among those specializing in such work, is not good.

(2) That it is the general opinion of the members of the medical profession that petitioner will not give an "honest opinion in his X-ray findings and will make a willful deceitful finding if he deems it necessary" when testifying in personal injury actions.

(3) That petitioner aided and abetted one Dr. Richard Neubauer in the violation of the law relative to the sale of narcotics by making a knowingly false diagnosis of the ailments of various persons sent to him by Dr. Neubauer in order to afford the latter a basis for the sale of narcotics to them.

(4) That petitioner "embarked upon a career as a professional witness in personal injury cases," and that his findings and testimony in most cases are willfully false and "diametrically opposed to the findings and testimony of the experts for the defendant."

The petitioner in his answer denied generally the charges made against him by the state board. Upon issue being joined, the Supreme Court referred the cause for the purpose of having testimony taken. The voluminous record is now before us for consideration. There are over 1,200 pages in the transcript of the evidence, and the exhibits are, indeed, numerous. Apparently no attention was paid to rules of evidence. Almost everything went in, and the petitioner's record, in and out of his profession, was covered with a fine-toothed comb. It was a vigorous and fearless prosecution.

There is no question about the ability of the petitioner in his profession. That matter is conceded. Neither is it contended that Dr. Poyntz has not sufficient knowledge of the law. He graduated cum laude from the Northwestern College of Law. The sole question is whether he has shown sufficient moral qualifications to entitle him to admission to the honorable profession of the law.

Section 32-104, Oregon Code 1930, provides:

"An applicant for admission as attorney must apply to the supreme court, and must show,- ***

"2. That he is a person of good moral character, which may be proved by any evidence satisfactory to the court."

In view of the above section, it is clear that the burden of proof relative to such showing rests upon the applicant. In re Weinstein (Or.) 42 P.2d 744. We are not dealing with a disbarment proceeding where the burden of proof is upon the accuser. However, when the applicant has made a prima facie showing, as provided by rule 39 of the Supreme Court, which was done in the instant case, and has paid the fee and taken the examination, it is incumbent upon those making objections to offer evidence to support the same and to overcome the prima facie showing made by the applicant. It is not for the applicant to prove the falsity of the charges made against him. The burden of proof never shifts, but the burden of proceeding does.

The rules of the Supreme Court applicable to admission to the bar, as amended and adopted May 22, 1934, which are material herein provide:

"Rule 39: Each application for admission to the bar by examination shall be filed with the clerk of the supreme court not less than 60 days during 1934 and thereafter not less than 90 days prior to the date of the examination unless the court shall by order, upon petition for sufficient cause shown, otherwise specify the time for filing such application.

"Each application for admission by examination shall contain or be accompanied by the following: ***

"(3) the affidavits of three responsible citizens, two of whom shall be members of the bar, showing that the applicant is a person of good moral character, which affidavits shall set forth how long a time, when and under what circumstances those making the same have known the applicant. ***" (Italics ours.)

"Rule 41. Unless the court shall otherwise direct, all applications, certificates, affidavits and petitions mentioned in Rules 39 and 40 shall be referred to the board of bar examiners which shall investigate and report to the court its findings as to the facts and its recommendations with respect to whether such applicant should be permitted to take the examination. ***" (Italics ours.)

"Rule 43. ***

"If after the filing of any such petition (reviewing the finding of the board as to examination)...