The Florida Bar v. Wilkes

• Decision Date: 13 October 1965
• Docket Number: No. 33505,33505
• Citation: 179 So.2d 193
• Parties: THE FLORIDA BAR, Complainant, v. Donald E. WILKES, Respondent.
• Court: Florida Supreme Court

Page 193

179 So.2d 193

THE FLORIDA BAR, Complainant, v. Donald E. WILKES, Respondent.

No. 33505.

Supreme Court of Florida.

Oct. 13, 1965.

Donald C. Jacobson, Daytons Beach, for The Florida Bar, complainant.

Donald E. Wilkes, respondent, in pro. per.

O'CONNELL, Justice.

The respondent, Donald E. Wilkes, seeks review of a recommendation by the Board of Governors of The Florida Bar that he be disbarred. Respondent has been a member of the Bar of Florida since his admission in 1950. Until 1960, when he was disbarred in a disciplinary proceeding in New York, he was also a member of the bar of that state. While his conduct was being investigated by a grievance committee but prior to his disbarment in New York respondent returned to this state where he now lives. He has not practiced law since his return to Florida.

In 1963 The Florida Bar filed a complaint against respondent charging him with violating Rule 11.02(6) of the Integration Rule, 31 F.S.A. After hearing, the referee recommended that respondent either be disbarred or suspended until the New York disbarment be vacated. The Board of Governors adopted the findings of the referee and ordered that respondent be disbarred.

The principal question for decision is the effect that Rule 11.02(6), supra, requires us to give to the judgment of disbarment entered in New York. That rule reads as follows:

'(6) Discipline by foreign jurisdiction. A final adjudication by a court or other authorized agency of another state in a disciplinary proceeding that an attorney licensed to practice in that state is guilty of misconduct justifying disciplinary action shall be considered as conclusive proof of such misconduct in a disciplinary proceeding in this state.'

This case is unique in that the violations of professional ethics in issue occurred in another state, and in that they have already resulted in a judgment of disbarment by a competent court in that state. It marks the first time that this court has been called upon to construe and apply Rule 11.02(6). For this reason we requested the parties to file additional briefs dealing specifically with this question and both complied.

Most state courts encountering the question have taken the view that the effect to be given a judgment of disbarment by a sister state is governed either by the full faith and credit clause of Art. IV, Section 1, of the federal constitution, or by the principles of interstate comity. In re Van Bever, 1940, 55 Ariz. 368, 101 P.2d 790; In re Leverson, 1935, 195 Minn. 42, 261 N.W. 480; Copren v. State Bar, 1947, 64 Nev. 364, 183 P.2d 833, 173 A.L.R. 284; In re Brown, 1932, 60 S.D. 628, 245 N.W. 824; State Board of Law Examiners v. Brown, 1938, 53 Wyo. 42, 77 P.2d 626; In re Clay, Ky.App.1953, 261 S.W.2d 301; In re Veach, 1956, 365 Mo. 776, 287 S.W.2d 753. Moreover, this also appears to be the position urged by the referee and the board of governors. In any event, it seems appropriate that we take a position as to the extent of our obligation under these principles before going on to consider the effect of Rule 11.02(6), Integration Rules. For if we conclude that either of these principles imposes an obligation upon Florida to give effect to the disbarment judgment of the New York court, the rule would no longer matter very much, except to the extent that its obligation might exceed that imposed by these principles.

We have concluded that neither comity nor the full faith and credit provision requires that the judgment of disbarment in New York result in disbarment in this state.

For at least two reasons it would be incongruous to apply the principle of the full faith and credit provision to judgments of disbarment. First, the issues adjudicated are not the kind to which the clause was intended to apply. As Chief Justice Stone has expressed it, '[i]t was the purpose of that provision to preserve rights acquired or confirmed under the public acts and judicial proceedings of one state by requiring recognition of their validity in others.' Pink v. A. A. A. Highway Express, 1941, 314 U.S. 201, 210, 62 S.Ct. 241, 246, 86 L.Ed. 152. Moreover, the implementing act of Congress, 62 Stats.947 (1948), 28 U.S.C.A. § 1738, requires only that

'Such Acts, records and judicial proceedings or copies thereof, so authenticated, shall have the same full faith and credit in every court within the United States and its Territories and Possessions as they have by law or usage in the courts of such State, Territory of Possession from which they are taken.'

Here the New York judgment did not purport to disbar the respondent from practicing in Florida or any state other than New York, and that judgment vested no right which respondent's practice in Florida would violate.

Second, to our knowledge neither of the principles under discussion has ever been held to require one state automatically to admit to practice an individual merely because a sister state has admitted him. (Those states which do admit to practice on a showing of admission in certain other states do so on the basis of reciprocity, and not on any obligation of comity or full faith and credit.) Thus, if these principles do not control or affect admission to practice there is no logical basis upon which they can be made applicable to disbarment or removal from practice. This is so because the authority and responsibility of the state is the same in admission to practice as it is in disbarment. It is to protect the public against those who for any reason are unfit to practice law. Both functions are given to this court under our state constitution and we must exercise both or abdicate our constitutional mandate under Art. V, Sec. 23, Florida Constitution, F.S.A.

Here we note that to hold that Florida is not obligated to recognize and enforce the New York judgment of disbarment does not mean that it cannot do so if it elects. This brings us to an interpretation of Rule 11.02(6) and the determination of what effect this court intended to give foreign judgments of disbarment or other discipline when it adopted the rule.

In considering the question of the effect to be given disciplinary judgments of a sister state, this court could have adopted the extreme position under which no recognition would be given such a judgment. The rational for rejecting this position is well explained in Selling v. Radford, 1916, 243 U.S. 46, 49, 37 S.Ct. 377, 61 L.Ed. 585. Alternatively, the court could have adopted the opposite extreme under which such a judgment would be given automatic and complete effect by imposing the same discipline in Florida as imposed in a sister state.

In our view adoption of either of these extremes would amount to an abdication of this court's responsibility imposed by the Florida constitution. On the one hand, to ignore acts of professional misconduct merely cecause they occurred outside this state would be to ignore our duty to protect the people of this state from one who has been held by another state to be an unfit practitioner. On the other hand, to accept the second extreme would constitute an abdication of the responsibility imposed on this court to determine for itself, in proceedings conducted by it, or under its direction, the fitness of those permitted to practice in this state. To give automatic and unquestioning effect to the judgment of a foreign tribunal would be to fail to exercise the discretion vested in this court by our state constitution.

By adopting Rule 11.02(6) we took a reasonable position between the two extremes above mentioned. By the plainest language the rule makes such a foreign judgment of guilt conclusive proof of such misconduct in a disciplinary proceeding in this state. Proof of guilt of the acts of misconduct adjudicated in the sister state is accomplished by simply proving the entry of the foreign judgment. This eliminates any necessity to retry the bare issue of guilt and makes unnecessary the production in Florida of testimony and evidence on this issue. The rule nether prescribes nor proscribes professional behavior. It relates solely to the question of proof of guilt.

Although the respondent has not raised the question we note that the complaint against him in this case, after setting forth the datails of the New York proceedings, alleges a 'violation' of Rule 11.02(6). As noted above the rule does not either prescribe or proscribe conduct of attorneys; therefore, the misconduct in New York could not constitute a violation of this rule. In the instant case it seems clear that the respondent suffered to prejudice because the complaint charged a violation of Rule 11.02(6), for it also specified the acts of misconduct committed in New York. However, for guidance of the Bar in future cases we point out that the complaint, in a case such as this one, cannot be based upon a violation of Rule 11.02(6), but as in all other cases must charge acts of misconduct as violations of the canons of ethics and rules governing attorneys.

It is clear--and both parties agree--that the rule does not require Florida to follow the foreign judgment as to the discipline imposed thereby. The imposition of discipline in such proceedings requires much more than a determination of guilt. The basic issue always is whether the misconduct of the accused manifests such an unfitness to practice as to require the imposition of discipline to protect the public interest. Gould v. State, 1930, 99 Fla. 662, 127 So. 309, 69 A.L.R. 699; Rule 11.02, Integration Rule, F.S.A. In order properly to resolve this issue, this court and its agencies must, in every disciplinary proceeding, whether based upon acts of misconduct already adjudicated in another state or upon acts committed in this state, fully inform themselves concerning the nature of the misconduct and all the attendant circumstances. In doing this all available sources which can be properly utilized should be considered, including all evidence properly offered in the Florida...