The Florida Bar v. McCain

• Decision Date: 24 March 1976
• Docket Number: No. 48385,48385
• Citation: 330 So.2d 712
• Parties: THE FLORIDA BAR, Complainant, v. David Lucius McCAIN, Respondent.
• Court: Florida Supreme Court

Page 712

330 So.2d 712

THE FLORIDA BAR, Complainant, v. David Lucius McCAIN, Respondent.

No. 48385.

Supreme Court of Florida.

March 24, 1976.

Rehearing Denied May 18, 1976.

Bernard H. Dempsey, Jr., Bar Counsel, Orlando, Richard C. McFarlain, Asst. Director--Legal and Wilson J. Foster, Jr., Asst. Staff Counsel, Tallahassee, for The Florida Bar, complainant.

R. J. Beckham of Beckham & McAliley, Miami, for respondent.

HATCHETT, Justice.

We have for decision a 'motion to dismiss and/or motion to quash' a report of probable cause dated October 31, 1975. In the challenged report, the Board of Governors of The Florida Bar found 'probable cause justifying further disciplinary proceedings against the respondent (movant here)' in connection with seven separate allegations ¹ of misconduct occurring 'while (McCain was) a member of The Florida Bar and serving as a judicial officer of the State of Florida.' By the present motion, McCain asks this Court to halt all proceedings brought against him under the Integration Rule. We deny the motion, and direct that appropriate disciplinary proceedings go forward.

Ordinarily this Court does not entertain interlocutory questions arising in the course of proceedings under the Integration Rule for the discipline of attorneys. In re: The Florida Bar, 329 So.2d 301 (Fla., 1974). Today, however, we decide on its merits McCain's original motion, which is in the nature of an appeal from the decision of the Board of Governors to go forward; the Board's discision, reflected in its report of probable cause, is an apparent rejection of the various jurisdictional arguments made to it, ² and it is with the basic question of jurisdiction that we are concerned. The present proceedings bear some resemblance, therefore, to proceedings on suggestion for writ of prohibition. Cf. In re Proposed Disciplinary Action By The Florida Bar Against a Circuit Judge, 103 So.2d 632 (Fla.1958) (on application for cease and desist order); In re Investigation of Circuit Judge, 93 So.2d 601 (Fla.1957) (on motion to quash subpoena).

In support of the motion, it is argued that there is no 'jurisdiction of The Bar' to discipline an attorney for misconduct occurring while he was a judicial officer. This contention reflects a misconception of the nature of proceedings under Article 11 of the Integration Rule of The Florida Bar. 'In disciplinary matters the Board of Governors of the Integrated Bar serves merely as an adjunct or administrative agency of this Court with authority to make (findings of fact subject to our review and) recommendations (which are in no way binding on us).' In re Investigation of Circuit Judge, supra at 608. The responsibility for disbarring, suspending or otherwise disciplining lawyers who are admitted to practice in Florida rests with this Court alone. Fla.Const. art. V, § 15 (1973) ('The supreme court shall have exclusive jurisdiction to regulate the admission of persons to the practice of law and the discipline of persons admitted.') Admission to the Florida Bar means admission to the bar of this Court.

We are ill-equipped to function as a fact finding tribunal, however, when questions arise as to a lawyer's fitness to continue to practice law. In grievance cases, we have by rule delegated to the organized bar the task of preliminary screening and, where necessary, of ferreting out all pertinent facts. Integration Rule of The Florida Bar, art. 11. When The Florida Bar operates in this capacity, it acts not as an independent agent but as an 'arm of the Court.'

While we are dealing directly here with a power of the Board of Governors of the Florida Bar to conduct such disciplinary proceedings, we are actually talking about our own authority, because such officials of the Florida Bar in conducting disciplinary proceedings are mere arms of this Court and can have no greater jurisdiction or authority than this Court possesses.

In re Proposed Disciplinary Action etc., Supra 103 So.2d at 634.

The assertion that a lawyer's conduct during judicial service cannot be considered in proceedings like those begun in the present case is a challenge to this Court's jurisdiction and is tantamount to a claim that a lawyer is immune from discipline for the most egregious ethical improprieties, so long as his misconduct disgraced not only the bar but the bench as well. We reject any such proposition.

Other courts have concluded almost unanimously that a judge who is no longer sitting may be disqualified from practicing law on account of misconduct exhibited as a judge. In a case involving misconduct by a Georgia superior court judge, Chief Justice Duckworth wrote:

The relation of courts and attorneys to the people is one of high responsibility, involving complete trust and confidence and absolute fidelity to integrity. We know of no sound reason why the courts must allow lawyers, solely because of their position or business, including judges of the courts, to retain their licenses despite their conduct which would disbar other lawyers. We therefore hold that, irrespective of whether one is engaged in the practice of law, or activities disconnected with the practice, including judge of the superior court, his license will be canceled for conduct that would constitute grounds for disbarment of any attorney.

Gordon v. Clinkscales, 215 Ga. 843, 114 S.E.2d 15, 19 (1960).

An early Wisconsin case to the same effect is often cited for this language:

In response to the contention that the misconduct complained of was misconduct in his character as a judge, and bore no relation to his duties and responsibilities as a member of the bar, we have only this to say: One's morality or lack of morality is revealed by general conduct. One may lack morality in a great many ways. Where this lack of morality has no relation to, and does not affect, his duties and responsibilities as an attorney at law, the delinquencies are generally overlooked by the courts. But where there is lacking honest, probity, integrity, and fidelity to trusts reposed in him, it matters not whether the lack of such virtues is revealed in transactions with clients, in the conduct of lawsuits, or any other business dealings or relations. These qualities are highly essential on the part of those who are to exercise the privileges and responsibilities of members of the bar. When the lack of them become apparent, no matter what the character of the deal or transaction that may furnish the evidence, it becomes the duty of the court to purge its roster of an unreliable member. So if the respondent, by or through his acts as judge of the superior court, betrays a lack of the moral qualifications demanded of attorneys at the bar, it becomes the duty of this court to strike his name from the roll of its attorneys.

In re Stolen, 193 Wis. 602, 214 N.W. 379, 383 (1927)

We are in complete agreement with this view. In Jenkins v. Oregon State Bar, 241 Or. 283, 405 P.2d 525 (1965), which was followed only last year in In re Piper, 534 P.2d 159 (Or.1975) and In re Sisemore, 534 P.2d 167 (Or.1975), the Court said simply:

As far as his duty to his profession is concerned, a judge is a lawyer whose labors are performed behind the bench instead of before it. 405 P.2d at 528.

And, like the Supreme Court of Oregon, we have been

. . . unable to discover a valid reason for holding that while a judge can be stricken from the roll of attorneys for criminal behavior he should be immune from disciplinary action in cases involving reprehensible conduct that falls short of crime.

Jenkins v. Oregon State Bar, supra, at 527.

We reject the contention that a lawyer's status as former judge or justice immunizes him from discipline for ethical violations occurring during judicial tenure. We adopt for Florida the general rule that 'misconduct in . . . a judgeship, reflects upon an attorney's fitness to practice law and is consequently a proper ground for discipline.' Annot., 57 A.L.R.3d 1150, 1158 (1974).

For the proposition that a lawyer cannot be disciplined for his misconduct as a judge, McCain relies on four cases: In re Proposed Disciplinary Action, etc., Supra; In re Investigation of Circuit Judge, supra; In re Jones, 202 La. 729, 12 So.2d 795 (1943); and In re Meraux, 202 La. 736, 12 So.2d 798 (1943). The two Louisiana cases are no longer followed even in Louisiana. Louisiana State Bar Ass'n v. Funderburk, 284 So.2d 564 (La.1973). The Florida cases involved judges Who were sitting at the time disciplinary proceedings against them began.

This Court, in In re Investigation of Circuit Judge, supra, 93 So.2d at 604, took as its major premise the proposition that:

. . . where the constitution creates an office, fixes its term and provides upon what conditions the incumbent may be removed before the expiration of his term, it is beyond the power of the legislature or any other authority to remove or suspend such officer in any manner than that provided by the constitution. Falloon v. Clark, 61 Kan. 121, 58 P. 990; Lowe v. Com., 3 Metc., Ky., 237; Throop, Pub.Off., Section 341; State ex rel. Holmes v. Wiltz, 11 La.Ann. 439; State ex rel. Robinson v. McNeely, 24 La.Ann. 19; Brown v. Grover, 6 Bush., Ky., 1; Page v. Hardin, 8 B.Mon., Ky., 648; Mechem, Pub.Off., Section 457.

Justice Drew succinctly stated the minor premise the following year in In re Proposed Disciplinary Action, etc., Supra, 103 So.2d at 633, when he wrote:

Disbarment would not, of course, operate directly to remove petitioner from office, but all parties concede that disqualification proceedings would logically follow therefrom. This is, in fact, the only practical purpose which would be served by disciplinary action against such a judicial officer, since under the law of this State he is, during his incumbency, clothed with no other right by virtue of his membership in the Bar.

Completing the syllogism, ³ the Court concluded that application of the Integration Rule to a sitting judge was impermissible as...