State ex rel. Florida Bar v. Grant

• Decision Date: 10 February 1956
• Citation: 85 So.2d 232
• Parties: STATE of Florida ex rel. The FLORIDA BAR, Complainant, v. W. Cecil GRANT, Respondent.
• Court: Florida Supreme Court

Page 232

85 So.2d 232

STATE of Florida ex rel. The FLORIDA BAR, Complainant, v. W. Cecil GRANT, Respondent.

Supreme Court of Florida, En Banc.

Feb. 10, 1956.

Chester Bedell, Jacksonville, for The Florida Bar, complainant.

Raymond & Wilson, Horn & Ossinsky, Adams & Judge and Charles E. Booth, Daytona Beach, for respondent.

STANLY, Associate Justice.

The question submitted is whether the amended complaint filed by the Florida Bar against one of its members for alleged professional misconduct is sufficient to withstand the attack levelled against it by the respondent. Paragraph 3 of such complaint alleges the acts of misconduct charged against the accused. Briefly stated, subparagraph (a) is a general charge which says in substance that respondent specialized in handling divorces and during the period May 2, 1953, to December 2, 1953, filed in excess of 250 divorce suits, some of which originated outside of the State of Florida; that 'in many instances' the testimony given and procured by respondent's clients to establish jurisdictional residence of 90 days was false and untrue and was known, or should have been known, by respondent to be false and untrue. Respondent's motion to strike that portion of the complaint should be granted for lack of definiteness in failing to place respondent on notice of the specific acts of alleged misconduct which he will be called upon to defend against. State ex rel. Fowler v. Finley, 30 Fla. 302, 11 So. 500; Gould v. State, 99 Fla. 662, 127 So. 309, 69 A.L.R. 699. See also Vol. 3 Florida Jurisprudence, Sec. 108, page 435.

However such criticism of lack of definiteness does not apply to the remaining subparagraphs (b), (c) and (d) of paragraph 3 of the amended complaint. Each of these subparagraphs specifically charges the respondent with procuring in the courts of this state through fraud, deceit and misrepresentation a final decree of divorce for a client, particularly identified as to name of parties, times and courts wherein maintained. In each of these 3 instances it is alleged that respondent filed a bill of complaint alleging his respective client to have been a bona fide resident of this state continuously for more than 90 days prior to filing thereof, and that said allegation was false and untrue, and at such time was known by respondent to be false and untrue; and that he thereafter prosecuted said cases through the customary stages ending in entry of a final decree of divorce for his client with personal knowledge, at all times and stages of the cases, that the testimony introduced and representations made to the court concerning residence of the respective client involved were false and untrue. Those facts are set forth in clear, direct and unambiguous language and with great particularity and exactness. The language employed not only places the respondent squarely on notice of the misconduct charged against him, but also pin points each specific act, with accompanying dates, names and circumstances, alleged to have been wrongfully engaged in by the respondent, and leaves nothing to surmise or conjecture concerning the accusation which he is called upon to defend. The conduct charged is in shocking contrast to the standards approved by this court, and if capable of being proved by competent evidence would constitute a flagrant violation of the code of ethics for which appropriate disciplinary action would be fully warranted. A few of the cases involving charges of similar misconduct wherein this court approved disciplinary action against the offending attorney are: In re Harrell, 156 Fla. 327, 23 So.2d 92; In re Stoller, 154 Fla. 864, 19 So.2d 312, 313; Weinstein v. State, 151 Fla. 287, 9 So.2d 710.

The respondent has filed a verified as well as unverified motion to dismiss and an answer, all addressed to the amended complaint (which for the remainder of this opinion will be treated as though subparagraph 3(a) has been deleted therefrom) by which he contends such complaint, and the proceedings leading up to its filing, are defective on account of the following: (1) the alleged charges of misconduct were not initiated in the form of an affidavit, (2) he has not yet been confronted by the complaining witnesses, and (3) he has been deprived of his right to cross-examine the witnesses. The arguments advanced in support of those points appear to overlook and disregard the particular portion of Amended Article XI of the Integration Rule, 31 F.S.A., under which this proceeding is maintained.

Amended Article XI of the Integration Rule, which became effective July 1, 1951, provides two separate or alternate methods whereby the Board of Governors, or a Grievance Committee of the Florida Bar, may properly invoke disciplinary proceedings against a member of that bar for alleged professional misconduct. The first method outlined in the rule contemplates that the power to invoke its investigative authority would be exercised only after charges of professional misconduct may be brought to their attention in the form of an affidavit. So far as this controversy is concerned it may be conceded that an essential preliminary requirement to a proper investigation by the board or committee under such first method is that the charges to be so investigated must be presented under oath by affidavit or deposition by some person desiring to initiate the charge. But that is not the exclusive method authorized by said Article XI. Other parts of said Article XI, which were invoked by the Florida Bar in this case, provide for an entirely separate or alternate method, as follows:

'The Board of Governors and the Grievance Committees may initiate such investigations at such time and place as deemed by them advisable; * * *.'

That last quoted portion of the rule prescribing the second or alternate method for exercising such investigative authority conspicuously omits, and refrains from including, any provision whereby a charge under oath by affidavit or deposition is contemplated or required as an indispensable prerequisite thereto.

The word 'initiate' is defined by Webster to mean 'to introduce by a first act; to make a beginning with; to set afoot; to originate; commence; begin'. Hence the rule unquestionably authorizes the Board of Governors and the Grievance Committee to 'introduce * * * set afoot, originate, commence (or) begin' such investigations at such time and place as deemed by them advisable. Furthermore the plain, simple and clear statement that such board or committee 'may initiate such investigations at such time and place as deemed by them advisable' is so entirely foreign and contradictory to the thought of other conditional preliminaries as to effectively exclude any inference that such board or committee must numb themselves into acting like the three little monkeys who 'see no evil, hear no evil, and speak no evil' unless and until some other person with less reason or obligation to speak out, (and more often than not-possessed of less knowledge on the subject) is shocked out of his human state of reluctance into presenting them with a formal affidavit or deposition charging a lawyer (schooled in the business or prosecuting libel and slander suits) with professional misconduct. It is convincingly clear that the rule itself respecting the second or alternate method of exercising such investigative authority (which is the portion of the rule under which the Florida Bar acted in this case) affords no support for respondent's contention that complainant's jurisdiction to investigate his alleged misconduct was dependent upon charges being first made against him in the form of an affidavit. However respondent argues that the rulings in the cases of Hogan v. State, 89 Fla. 388, 104 So. 598 and State ex rel. Wolfe v. Kirke, 12 Fla. 278, support his contention. But that argument cannot be reconciled with the more recent case of Richardson v. State, 141 Fla. 218, 192 So. 876, 877, where this Court's latest expression on that subject states:

'* * * 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.'

In that case an attorney who had been suspended from the practice of law pursuant to statutory proceedings before a Circuit Judge sought a reversal of the judgment on the ground was without authority to receive and act upon a motion to disbar made pursuant to statute when said motion is not sworn to. But there the court said:

'The absence of an oath of the State attorney to a motion to disbar made under the statute is not ground for reversal.'

In so holding the court reasoned as follows:

'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 (69 A.L.R. 699), 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...