State ex rel. Florida Bar v. Murrell

• Decision Date: 30 July 1954
• Citation: 74 So.2d 221
• Parties: STATE ex rel. FLORIDA BAR v. MURRELL.
• Court: Florida Supreme Court

Page 221

74 So.2d 221

STATE ex rel. FLORIDA BAR v. MURRELL.

Supreme Court of Florida, En Banc.

July 30, 1954.

William D. Barfield, Jacksonville, John T. Wigginton, Tallahassee, and Darrey A. Davis, Miami Beach, for complainant.

L. J. Cushman, Miami, for respondent.

TERRELL, Justice.

This is a disciplinary proceeding against Will O. Murrell, Sr., for unprofessional conduct, the charge being that during the years 1946 to 1950 inclusive he did personally or by his touter or runner solicit professional employment, contrary to the Code of Ethics governing members of the Bar. Motions to dismiss and for summary judgment were overruled, other proceedings followed which we do not detail, a referee was appointed who took testimony, heard arguments of counsel and has made report of his findings and recommendations to the Board of Governors of the Florida Bar.

The complaint against respondent was initiated under Section 1, Article XI, Integration Rule of the Florida Bar, 31 F.S.A. and was based on nine cases in which he was charged with soliciting professional employment, two of which the referee found the proof to be insufficient and rejected. A third case was controverted but we pretermit any consideration of that. The referee found respondent guilty of soliciting professional employment as charged in paragraphs 4(a) to 4(g) inclusive of the complaint contrary to Section (1), paragraph 27, and Section (2), paragraphs 19 and 20, of Rule B of the Code of Ethics, approved by the Supreme Court of Florida, January 27, 1941, 31 F.S.A. The referee also found the following mitigating circumstances to favor respondent: (1) He has practiced law in Florida for many years, is 55 years old and a graduate of one of our best A grade Law Schools, is ill and subject to cardiac attacks and is no doubt near the end of his career as a practitioner; (2) He has a young son just getting started in the law practice, and there is no showing of unprofessional conduct since May 1950 which, under paragraph 11, Article XI, Integration Rule, would entitle him (respondent) to apply for reinstatement; (3) Such discipline as may be imposed should take into account that it in no way condones the activities of respondent's adversaries, the Association of Casualty and Surety Companies 'who instituted and carried out the investigation, resulting in the charges against respondent.' The referee recommends that respondent be suspended from the practice of law for a period of not less than six months nor more than twelve months. The Board of Governors of the Florida Bar, on consideration of the report, the record and recommendation of the referee, heard argument of counsel for respondent, approved the findings of fact of the referee, but recommends that an order be entered by this Court disbarring respondent from the practice of law in the State of Florida. The record, the report and recommendation of the referee and the recommendation of the Board of Governors have been certified to this Court.

The question with which we are confronted may be stated as follows: Under the circumstances presented, should respondent be disciplined and, if so, what form should the discipline take?

The primary defense of respondent is directed to the charge that the investigation of his professional conduct was initiated and conducted by the Association of Casualty and Surety Companies and that no member of the bar or other responsible person had any part in it whatever. The referee conceded this but pointed out that the evidence adduced by said Casualty Companies was received in proffer only, that he ruled it to be immaterial under the issues raised and hence inadmissible. He also ruled that the manner of conducting the investigation and the motive which initiated it were of no consequence as applied to the truth or falsity of the charges except insofar as the credibility of the witnesses was affected, in which event the evidence was admitted. The referee condemned the practice of soliciting or permitting organizations like the Association of Casualty and Surety Companies to investigate the conduct of attorneys under charge of unprofessional conduct because their interests and that of the attorneys in negligence and compensation cases is antagonistic and bound to create widespread resentment among members of the bar and the public. Said the referee: 'The bar should conduct its own investigations, and the energy at the disposal of the Association of Casualty and Surety Companies might better be utilized in perfecting a code of ethics for insurance adjusters and in enforcing it, in as much as it is a matter of common knowledge that activities of certain adjusters tend to breed the sort of unprofessional conduct alleged in the complaint filed in this matter', such practice was condemned in Schoolfield v. Bean, 26 Tenn.App. 30, 167 S.W.2d 359 and State ex rel. Turner v. Denman, 36 Tenn.App. 613, 259 S.W.2d 891.

The main witness in support of the charges against respondent was A. M. Crabtree, Sr., who testified that he solicited representation for respondent in all the cases enumerated in the complaint except the case of Palmer. There was effort to impeach Crabtree's testimony but it was corroborated by the testimony of his son, a member of the bar, the testimony of other witnesses, bank accounts of respondent and photostatic copies of pay checks introduced as exhibits. Crabtree further testified as to compensation paid him for soliciting professional services and supported his testimony with photostatic copies of checks made to him for the service. His evidence on this point was challenged but its credibility was for the referee.

Discipline of an attorney may be effected by disbarment, suspension or censure, sometimes called reprimand, which may be public or private. By some well-reasoned cases the test for disbarment is conduct involving moral turpitude. The best treatise on the subject of discipline is found in the book entitled, 'Legal Ethics', authored by Hon. Henry S. Drinker of the Philadelphia Bar, Chairman of the Standing Committee on Professional Ethics and Grievances, American Bar Association. There are also many well written opinions treating the subject. Both Mr. Drinker and the Courts tell us that disbarment is the extreme measure of discipline and should be resorted to only in cases where the lawyer demonstrates an attitude or course of conduct wholly inconsistent with approved professional standards. It must be clear that he is one who should never be at the bar, otherwise suspension is preferable. For isolated acts, censure, public or private, is more appropriate. Only for such single offenses as embezzlement, bribery of a juror or court official and the like should suspension or disbarment be imposed, and even as to these the lawyer should be given the benefit of every doubt, particularly where he has a professional reputation and record free from offenses like that charged against him.

Speaking to this point, in Bradley v. Fisher, 13 Wall. 335, 80 U.S. 335, 20 L.Ed. 646, the Court said: 'To deprive one of an office of this character would often be to decree poverty to himself and destitution to his family.' A removal from the bar should therefore never be decreed where any punishment less severe, such as reprimand, temporary suspension or fine, would accomplish the end desired. The following cases enlighten the question. In re Power, 407 Ill. 525, 96 N.E.2d 460; In re Diesen, 173 Minn. 297, 215 N.W. 427, 217 N.W. 356; In re McDonald, 204 Minn. 61, 62, 282 N.W. 677, 284 N.W. 888; Barton v. State Bar of California, 209 Cal. 677, 289 P. 818; In re L. R., 7 N.J. 390, 81 A.2d 725; In re Gill, 104 Wash. 160, 176 P. 11 and In re Bruener, 178 Wash. 165, 34 P.2d 437; United States v. Costen, C.C., 38 F. 24; People ex rel. v. McCallum, 341 Ill. 578, 173 N.E. 827; Dorsey v. Kingland, 84 U.S.App.D.C. 264, 173 F.2d 405; In re Isserman, 9 N.J. 269, 87 A.2d 903. The last cited opinion was by Chief Justice Vanderbilt and is interesting because of the circumstances out of which it derived and the ground for disbarment, but all these citations deal with professional lapses and attitudes that on their face should not be indulged in by any respectable lawyer. They are important because they give us the approach of the best legal thinking in the country on the question of discipline for unprofessional conduct.

It is well settled that the legislature may impose minimum character and scholastic requirements as a prerequisite for admission to the bar, but the decisions generally hold that when it comes to establishing and upholding the highest standards of professional conduct and protecting the public from the unscrupulous practitioner, that duty rests upon the courts. Ex parte Steckler, 179 La. 410, 154 So. 41; In re Lavine, 2 Cal.2d 324, 41 P.2d 161, 42 P.2d 311; Hanson v. Grattan, 84 Kan. 843, 115 P. 646, 34 L.R.A., N.S., 240; In re Platz, 42 Utah 439, 132 P. 390; In re Opinion of Justices, 279 Mass. 607, 181 N.E. 833, 82 A.L.R. 1021; In re Cannon, 206 Wis. 374, 240 N.W. 441; Rheb v. Bar Association of Baltimore, 186 Md. 200, 46 A.2d 289; State v. Peck, 88 Conn. 447, 91 A. 274, L.R.A.1915A, 663; In re Bergeron, 220 Mass. 472, 107 N.E. 1007, Opinion by Chief Justice Rugg. It is an enlightening discussion of the reasons for imposing scholastic qualifications on members of the bar. Mr. Drinker's book treats the question of discipline for unprofessional conduct in two categories: (1) Cases in which the lawyer's conduct has shown him to be one who cannot properly be trusted to advise and act for clients. (2) Cases in which his conduct had been such that to permit him to remain a member of the profession and to appear in court, would cast a serious reflection on the dignity of the court and on the reputation of the profession. The decisions amply support this division.

In this country there are reasons for exacting a high standard of professional conduct on the part of...