State ex rel. Florida Bar v. Evans

• Decision Date: 06 February 1957
• Parties: The STATE of Florida, ex rel. The FLORIDA BAR, Complainant, v. Evan T. EVANS, Respondent.
• Court: Florida Supreme Court

Page 730

94 So.2d 730

The STATE of Florida, ex rel. The FLORIDA BAR, Complainant, v. Evan T. EVANS, Respondent.

Supreme Court of Florida, En Banc.

Feb. 6, 1957.

Rehearing Denied April 24, 1957.

Delbridge L. Gibbs and John S. Duss, III, Jacksonville, for Florida Bar, complainant.

L. J. Cushman, Miami, for respondent.

THORNAL, Justice.

In accordance with the provisions of Articles X and XI of the Integration Rule of The Florida Bar as such rule existed prior to December 6, 1955, the Board of Governors of The Florida Bar has filed in this Court its recommendation that the respondent Evan T. Evans be disbarred upon stated grounds hereafter mentioned.

The matter comes on for consideration upon a petition of the respondent Evans asking us to review, revise, modify or deny the findings and recommendations of said Board of Governors.

On September 6, 1955, The Florida Bar filed in this Court its complaint against respondent Evans charging that: (a) he had been convicted of an infamous crime within the meaning of Section 454.18, Florida Statutes 1953, F.S.A., and that pursuant to said section he is not entitled to practice law; (b) he was guilty of conduct in the practice of his profession as an attorney at law in violation of Canon 30, Rule B, Section II, Code of Ethics adopted by this Court January 27, 1941, 31 F.S.A.; (c) he was guilty of acts forbidden or prohibited by law within the meaning of Canon 32, Rule B, Section II, Code of Ethics, supra; and (d) he was guilty of professional misconduct within the meaning and intent of Articles X and XI of the Integration Rule of The Florida Bar, adopted by this Court March 4, 1950, as Amended.

Thereafter, a Referee was appointed by this Court to hear and transcribe the evidence to be offered and to submit to the Board of Governors his report together with his recommendations and findings.

At the hearing before the Referee, The Florida Bar established that Mr. Evans had been indicted by a Grand Jury of the United States District Court of the Southern District of Florida for filing false and fraudulent income tax returns for the calendar years 1945 and 1946. It was shown that to this indictment he pleaded nolo contendere. Pursuant to this plea he was on June 25, 1952 convicted and adjudged guilty of filing false and fraudulent income tax returns in violation of Title 26 United States Code, Section 145(b). It was further shown that this judgment of conviction was never appealed, modified, revoked, rescinded or set aside. By reason of the foregoing The Bar contended that the respondent was guilty of the charges leveled against him by the complaint.

In defense of his position before the Referee, the respondent, by competent evidence which was not disputed, established that during the year 1950 and repeatedly thereafter he had suffered severe heart attacks (angina pectoris) which for all practical purposes totally incapacitated him; that he pleaded nolo contendere to the income tax charges solely and only because his doctors advised him that if he undertook any extensive defense against the charges his life would be in danger; and finally that the plea of nolo contendere cannot be considered as an admission or guilt in any proceeding other than the immediate criminal proceeding in which the plea is submitted. In addition Mr. Evans offered the testimony of numerous reputable lawyers who stated that he enjoyed a good reputation in his community for honesty and integrity.

The Referee found that the proof offered by The Bar was sufficient to establish a conviction of an infamous crime within the meaning of Section 454.18, Florida Statutes, F.S.A.; that such proof justified disciplinary action under Articles X and XI of the Integration Rule; that the offense charged was an isolated offense and that the respondent enjoyed a good reputation for honesty and fair dealings in the community in which he resides. The Referee was of the view that Canon 30, Rule B. Section II, Code of Ethics, applies solely to conduct of a lawyer in his professional affairs but has no relation to his private conduct and, therefore, was not applicable. He also found that Canon 32, Rule B. Section II, Code of Ethics, does not purport to prescribe a rule of conduct or to define a ground for disbarment. The conclusion of the Referee was that the respondent should be disciplined by virtue of the provisions of Section 454.18, Florida Statutes, F.S.A. He recommended that respondent be suspended from the practice of law for a period of two years.

The report of the Referee was thereupon filed with and considered by the Board of Governors of The Florida Bar which thereupon submitted its recommendations to this Court. The Board of Governors approved the finding that respondent had been convicted of an infamous crime condemned by Section 454.18, Florida Statutes, F.S.A.; it disapproved the finding that Canon 32, Rule B, Section II, Code of Ethics, was inapplicable and, on the contrary, found this Canon to be applicable. The recommendation of a two-year suspension was disapproved and in lieu thereof the Board of Governors recommended disbarment. Respondent petitions for a review of this recommendation.

Section 454.18, Florida Statutes, F.S.A. reads as follows:

'No sheriff, or clerk of any court, or deputy of either, shall practice in this state, nor shall any person not of good moral character, or who has been convicted of an infamous crime be entitled to practice. But no person shall be denied the right to practice on account of sex, race or color. And any person, whether an attorney or not, or whether within the exceptions mentioned above or not, may conduct his own cause in any court of this state, or before any public board, committee, or officer, subject to the lawful rules and discipline of such court, board, committee or officer.'

Canon 32, Rule B, Section II, of the Code of Ethics, adopted by this Court on January 27, 1941, 31 F.S.A. p. 784, is as follows:

'32. Any attorney who shall do or be guilty of any of the acts forbidden or prohibited by law or rules of court may be subject to disciplinary action by public or private reprimand, or by suspension from the practice of law, or by exclusion and disbarment therefrom.'

It is the alleged violation of this statute and this prescribed rule of conduct that complainant asserts was sufficiently established to sustain the recommendation of disbarment.

The respondent Evans contends: (a) that the offense with which he was charged in the federal court was not an 'infamous crime' within the contemplation of Section 454.18, Florida Statutes, F.S.A.; (b) that even if it were, his plea of nolo contendere was not an admission of guilt except as to that particular proceeding and cannot be asserted as evidence of his guilt in this proceeding; (c) Canon 32, Rule B, Section II, of the Code of Ethics, adopted January 27, 1941, merely prescribes a penalty but does not define a ground for disbarment; and (d) the sole evidence relied upon by The Bar, to wit: the indictment, the plea of nolo contendere and the judgment of conviction and guilt is insufficient to sustain disciplinary action in the absence of supporting evidence to establish the commission of a particular act showing the respondent to be unfit to engage in the practice of law. In other words, he asserts, that conviction of the offense charged on a plea of nolo contendere does not in and of itself prove the commission of an act sufficient to invoke the disciplinary authority of the Court under the Integration Rule.

The legal profession with admirable candor has recognized the need for a code of ethical conduct to prescribe the standards for the governance of itself. We find these standards in the Code of Ethics prescribed by this Court. 31 Florida Statutes Annotated, p. 765. The lawyer is an essential component of the administration of justice. A courtroom without a lawyer would be like a hospital without a doctor or a house of God without a spiritual guide. So it is that a lawyer is an officer of the Court. As such his conduct is subject to judicial supervision and scrutiny. Especially since the integration of The Florida Bar in 1950 the prescription of ethical standards, the designation of educational and moral requirements, and the exercise of supervisory jurisdiction are all peculiarly judicial functions. In more recent years the legislative branch of the government recognized this historic prerogative of the judicial branch when it adopted Chapter 29796, Law of 1955, F.S.A. §§ 454.021, 454.022, and when it proposed for approval the recent amendment to and revision of Section 5, Article 5, of the Florida Constitution, F.S.A. On November 6, 1956, the people of Florida themselves confirmed the fact when they overwhelmingly approved the revision of Section 5, Article 5, Florida Constitution. Section 23 of that amendment specifically provides that 'the Supreme Court shall have exclusive jurisdiction over the admission to the practice of law and the discipline of persons admitted.' On the effective date of this amendment we will no longer recognize any legislative control on the subject of who may be admitted to the practice of law or any legislative determination on the subject of who must be or shall be disciplined. These will then be the exclusive functions of the judiciary. State ex rel. Florida Bar v. Murrell, Fla., 74 So.2d 221.

Section 454.18, Florida Statutes, F.S.A. originated as Section 18, Chapter 10175, Laws of 1925, which was the statute that established the former Florida Board of Bar Examiners. The key words are '* * * nor shall any person * * * who has been convicted of an infamous crime be entitled to practice.'

Respondent contends that a wilful attempt to evade or defeat income taxes as condemned by Section 145(b), Title 26 United States Code, is not an 'infamous crime' within the contemplation of this statute. Admittedly, by the terms of Section 145(b), supra, it is a federal...