State v. Fourchy

• Decision Date: 01 January 1901
• Docket Number: 13,630
• Court: Louisiana Supreme Court
• Parties: STATE OF LOUISIANA v. PAUL LOUIS FOURCHY

31 So. 325

106 La. 743

STATE OF LOUISIANA v. PAUL LOUIS FOURCHY

No. 13,630

Supreme Court of Louisiana

January 1, 1901

Walter Guion, Attorney General (Henry Plauche Dart and Edwin Thomas Merrick, of Counsel), for Plaintiff.

Gustave V. Soniat, for Defendant.

MONROE J. BLANCHARD, J., dissent.

OPINION

MONROE J.

STATEMENT OF THE CASE.

This is an original proceeding to disbar the defendant for professional misconduct. The petition alleges, in substance that Article 85 of the present State Constitution confers on this court exclusive jurisdiction in all matters "touching professional misconduct of members of the bar, with power to disbar under such rules" as may be adopted; that, under the authority thus conferred, this court, in June, 1898, amended its rules so as to create a commission of five lawyers and to impose upon said commission the duty of examining applicants for admission to the bar and of investigating complaints made against members of the bar touching professional misconduct; and, in the event of its finding probable cause for disbarment, making it the further duty of said commission to certify the same to the Attorney General, upon whom is imposed the obligation of filing in this court proceedings to disbar the offending attorney; it being also the duty of said commission to designate certain of its members to be associated with the Attorney General in such prosecution. The petition further alleges that the members of the commission so created accepted the trust and entered upon the duties thereof, and that charges having been made before them accusing Paul Louis Fourchy of professional misconduct, the facts supporting the same were investigated, with the result that the commission reached the conclusion that probable cause for disbarment existed and certified such conclusion to the Attorney General, who, in discharge of the obligations imposed upon him by the rule hereinbefore referred to, and by his oath of office, presents this petition, and charges --

That Paul Louis Fourchy was admitted to the bar of Louisiana March 28th, 1884, and took the oath, signed the roll of attorneys in this court and entered upon the practice of law.

That, as such attorney, he received, on or about April 5th, 1895, $ 1,163.73; on September 9th, 1895, $ 650.00; on July 31, 1896, $ 1,667.75, and that he embezzled said sums and was indicted therefor by the Grand Jury; "that on March 25th, 1898, the said Paul Louis Fourchy was indicted by the Grand Jury of the Parish of Orleans in suit No. 27,273 of the docket of the Criminal District Court, charging him with having embezzled the sum of three hundred dollars on May 18, 1895," and that, in December, 1898, said Fourchy, "as attorney for the succession of one J. M. Modtler and wife," under a pretense that he needed money to conduct a lawsuit, fraudulently induced John L. Modtler to sell certain real estate in the belief that he was merely mortgaging the same, and that said sale was thereafter annulled as fraudulent by judgment of the Civil District Court. Relator further alleges that "all or most" of said indictments were "nolle prossed," but that said Fourchy was, nevertheless, guilty of professional misconduct; that his actions have brought great scandal on the legal profession and the administration of justice in this State, and that he should, therefore, be deprived of the right hereafter to practice law in Louisiana. The prayer is that, after citation and hearing, the said Fourchy be found guilty of gross professional misconduct and punished by disbarment and withdrawal of his license to practice law.

To this petition the defendant excepts upon the following grounds, to-wit:

1. That the petition discloses no cause or right of action.

2. That, as the petition alleges that the defendant has already been called upon to answer to all of the criminal charges mentioned, and as the same have been nolle prosequied by the State, the State is estopped with respect to the present prosecution, which is in violation of Article 9 of the Constitution of 1898; Article 5 of the Constitution of 1879, and Article 5 of the amendments to the Constitution of the United States.

3. That this court is without jurisdiction of an original proceeding in prosecution of an offense said to have been committed before the adoption of the Constitution of 1898 and the rules adopted thereunder; that respondent's rights with respect to the trial of such offenses were fixed by Act 129 of 1896, and that a trial without a jury, and in the manner proposed, would be in violation of Article 7 of the amendments to the Constitution of the United States and of Article 1, Section 10, of said Constitution.

4. That the rules adopted by this court did not authorize an ex parte investigation by the committee created by the court, and that respondent had the constitutional right to be heard before said body before action affecting him was taken.

5. That the offenses mentioned in the petition are barred by the prescription of six and twelve months.

OPINION.

The exception of "no cause or right of action" is founded, in the main, upon the theory that, in view of the prohibition in the Federal Constitution against the passage of bills of attainder and ex post facto laws, the defendant is not liable to be disbarred for the acts charged against him until he has first been convicted thereof by means of a criminal prosecution, and hence, that, in failing to allege such previous conviction, the petition fails to disclose either a cause or a right of action.

The generally accepted doctrine in England and in this country is that the power to disbar an attorney is possessed by and is inherent in all courts which have authority to admit attorneys to practice, and wherever there has been no legislation regulating the matter, it has, necessarily, been left to the courts to determine what manner of case should be made out in order to justify a judgment of that character.

In 1810 this court disbarred an attorney upon a charge of having fraternized with the negro insurrectionists in St. Domingo in 1793, before his admission to the bar here. Dormenon's Case, 1st M. 129. Thereafter, in 1823 and 1826, the General Assembly adopted certain legislation upon the subject of the disbarment of attorneys, which survives, in part, as Sections 119 and 120 of the Revised Statutes. Those sections, so far as it is necessary to quote them, read as follows, to-wit:

"Sec. 119. If any attorney at law shall recover any sum of money for his client and shall neglect or refuse to pay it over when demanded, without any legal ground for such refusal, he shall, on conviction, be immediately erased from the list of attorneys. * * *

"Sec. 120. If any attorney shall commit any fraudulent practice in any court of this State, or shall betray the interest confided to him by his client, he shall be deemed guilty of a misdemeanor and, upon conviction thereof, shall be stricken from the list of attorneys."

In the two cases arising under the dominion of this law it was held that an attorney's license could not be withdrawn and annulled unless on conviction "in a proceeding by information in a criminal court." Chevalon and Wife vs. Gustavus Schmidt, 11 R. 91; Turner vs. Walsh et al., 12 R. 363. And matters remained in that condition until July 9th, 1896, when Act No. 129 of the session of that year became a law. It reads as follows:

"That if any attorney at law in this State shall be convicted of any felony or shall be guilty of a gross professional misconduct, he may be summoned before the District Court * * * by a petition signed by not less than ten attorneys at law * * * setting forth * * * the felony of which he has been convicted or the professional misconduct complained of * * * and if, upon trial, the allegations of such petition shall be proven, the court shall proceed to render judgment reprimanding, suspending from practice or disbarring such attorney." * * *

This statute was brought here for construction in the case of State ex rel. Adams vs. Judge, 49 Ann. 1013, and it was held that it did not have the effect of repealing the provisions of the Revised Statutes, but authorized a proceeding to disbar in the Civil Court as an additional means of accomplishing that result. Mr. Justice Miller, as the organ of the court, said:

"The Legislature, guided by the judicial interpretation that under existing legislation the attorney could be reached only by criminal proceedings for misconduct in his profession, it is clear to our minds, proposed to supply another method, by civil proceedings." And the application that the Civil District Court be prohibited from going on with the trial of the case begun under the authority of the Act of 1896, was accordingly denied. In the following year (May 12th, 1898) the present State Constitution was adopted. Article 85 of that instrument provides that the "Supreme Court * * * shall have exclusive original jurisdiction in all matters touching the professional misconduct of members of the bar with power to disbar, under such rules as may be adopted by the court." And, with the view of carrying this provision into effect, this court, in June, 1898, adopted the following, as an amendment to its rules, to-wit: "That a commission of five lawyers shall be appointed, whose duty it shall be * * * and, in addition to those duties, said commission shall be charged with the special duty of investigating any complaints made against members of the bar touching professional misconduct; and, if said commission shall be of the opinion that a probable cause of disbarment exists against said member of the bar, the said commission shall certify the facts to the Attorney General of the State, and it shall thereupon be his duty...