In re Harris

88 N.J.L. 18 | N.J. | 1915

The opinion of the court was delivered by

Garrison, J.

In the case of In re Branch, 70 N. J. L. 537, it was pointed out that in New Jersey the admission of attorneys is regulated by a local common law peculiar to this state, which, arising prior to the year 1776, had in the year 1844 become a distinctive attribute of the Supreme Court and constituted one of those “powers” which the constitution of that year declared “except as herein otherwise provided shall continue as if this constitution had not been adopted.” Article 10, paragraph 1.

In marked contrast to the foregoing the disbarment of attorneys and their restoration to the roll have from the very earliest period been the subject of express statutory enactment.

On the 14th day of Eebruary, 1799 (Pat. L., p. 355), the legislature pássed “An act to regulate the practice of the courts of law,” the first three sections of which were as follows:

“1. That every person of full age, &c., may appear and prosecute or defend any action in any of the courts of judicature in this state, in person, or by his solicitor-in-chancery or attorney-at-law.”

“2. That no person, except in his own case, &c., shall be permitted to appear and prosecute or defend any action in any o£ said courts, but such as is a licensed solicitor or attorney-at-law, who shall be under the direction of the court in which he acts.”

“3. That if any counsellor, solicitor or attorney-at-law shall be guilty of malpractice in any of said courts he shall be put out of the roll and never after be permitted to act or practice as a counsellor, solicitor or attorney-at-law unless he shall obtain a new license and be again enrolled in due form at law.”

These statutory provisions were in force in 1844 when the constitution was adopted and a, fortiori came within the declaration of that constitution already quoted. These statutes now appear in our Practice act as sections 16, 17 and 5.

The provisions of section 5 as to disbarment for malpractice and readmission to practice clearly contemplate that it shall be possible for an attorney who has been put out of the roll to be again admitted to practice, and the policy thus declared by the legislature, and not “otherwise provided” in the constitution, is binding upon us to the extent of forbidding our adoption of a rigid judicial policy, to the effect that an attorney once disbarred shall never again be admitted to practice. Notwithstanding the fundamental policy that is ■thus inherent in the statute from which we derive our powers, there are certain minor questions of judicial policy that are open to our adoption or rejection, one of which is whether the making of complete restitution by the former attorney shall, in all cases, be a sine qua non to his restoration to the roll.

In the recent case of In re Hawkins, 87 Atl. Rep. 243, Chief Justice Pennewill, speaking upon this question for the Superior Court of Delaware, said: “We do not attach very much importance, as a rule, to the matter of restitution, because that may depend more upon financial ability or other favoring circumstances than repentance or reformation. A thoroughly bad man may make restitution, if he is able, in order to rehabilitate himself and regain his position in the community; and a thoroughly good man may be unable to make any restitution at all.” Without underestimating the importance of restitution, a moment’s reflection must convince one that of all the factors that enter into the question of moral fitness, the mere circumstance of restitution is the one most likely to be fortuitous and to depend upon conditions and circumstances that afford no reliable test of moral qualities. The money may have come from wealthy relatives, or from a lucky speculation, or from engaging in some alien business venture, or it may have been borrowed, in which case the old liability is apparently extinguished by the creation of a new one. Taken in connection with other circumstances, restitution may be of the utmost significance, but this, oftener than not, is due to such other circumstances rather than to the mere fact of non-restitution; as, for instance, if the former attorney became possessed of sufficient money with which to make restitution but refused so to apply it.

Upon the whole, we conclude that there should be no hard and fast rule upon the subject of restitution, but that each case should be considered and dealt with in the light of its own circumstances, bearing in mind that the aim of the court is to search the heart of the petitioner in order to arrive at a just judgment as to his moral standards as shown in his conduct.

The evidence in the present case convinces us that the petitioner has made such restitution as his crippled capacity to earn money permitted, and has done so to the satisfaction of those who still have claims against him. This was the conclusion reached by the committee of the bar association, who, with the witnesses before it, reported upon this topic as follows:

“Harris, since his disbarment aforesaid, has remained in the city of Camden where he has been engaged chiefly in tutoring candidates for admission to the bar, assisting attorneys in the preparation of pleadings, briefs and for the trial of cases, and in looking up evidence and examining books of account, that he has also done some other work, and has managed to support his family and rear and educate his children, three in number, one of whom is now a practicing attorney of this state; that he has compromised the claims against him, referred to in the above decision as existing at the time of his disbarment, in the manner shown by the testimony herewith submitted, which is probably as much as could be reasonably expected in view of his circumstances and limited income; that the claimants above referred to, so far as your committee has been able to ascertain, appear to be satisfied with his efforts to reimburse them and to be favorable to his reinstatement as an attorney.”

"We conclude that the partial restitution the petitioner has actually made is not inconsistent with his moral reformation, and that his failure to make complete restitution should not be held to be an insuperable bar to his present petition.

This brings us to a consideration of the merits of the present petition as disclosed by the proofs. Before taking up their consideration, however, it should be noted as a most significant circumstance that the petitioner’s application is accompanied by the unanimous recommendation of the Camden County Bar Association, at whose instance the petitioner twenty years ago was disbarred.

In Mr. Justice Van Syclcel’s opinion, in 1901, he stated as one of the grounds for denying the petition at that time that “the bar association did not appear by any representative before the committee (appointed by the court) and took no part in the proceedings.” That objection is now not only removed, but in its place we have the affirmative recommendation of the association based upon an investigation that was comprehensive in its range and judicial in its character. In the examination of the evidence itself we are impressed, at the outset, with the manner in which it was obtained, viz., that it was'not procured by the personal solicitations of the petitioner or by anyone acting in his behalf, but was elicited by the bar association in the course of an independent investigation conducted entirely by its agents. Personally solicited letters or mere signatures obtained to a petition, while plenary evidence of the unwillingness of such signers to deny a personal favor, is very far from being cogent evidence of any particular state of facts, especially if it relates to the moral character of the person who obtains the letters or circulates the petition. This sort of evidence, if such it can be called, is so well understood as to be practically negligible. On the contrary, the body of testimony now before us lacks nothing that could make for its spontaneous and impersonal character. It is given by citizens of the highest standing from all walks of life, divided between the profession of the law and the laity, although naturally the former predominate over any other class. These witnesses, each in his own way, and from his own knowledge or observation, give testimony to the same general effect, which can be best stated in the language of a few taken at random. A former judge of the Camden Pleas, and also of its District Court, and one of the most respected members of its bar, testified: “I have known Mr. Harris ever since his admission to the bar, and I do not know of a single thing that has occurred since his disbarment that should prevent his reinstatement to the bar.”

The present District Court judge testified: “Since his disbarment his conduct and reputation, as far as I have observed, have been excellent.” To the same effect is the testimony of the mayor of the city, a former mayor, the sheriff of the county, the former sheriff, the county clerk, surrogate and pretty much all of the city and county officials now or formerly holding office.

The judge of the Circuit Court, although not appearing as a witness, was present as a member of the bar association at the special meeting at which the resolution favoring the petitioner’s reinstatement was unanimously adopted.

The congressman representing the district testified: “I have known, I think, very intimately, Mr. Harris for the past twenty years and his conduct has been of the best. I have never heard a single insinuation passed on John Harris since he was disbarred.”

Mention has been made of the fact that the petitioner has supported himself in part by the preparation of law students for their examination, and not the least impressive of the evidence before us comes from such former students; let one speak for the rest: “Mr. Harris prepared me, among others, for my bar examination, and in all his lectures and talks to us, has stood only for the highest, noblest and bes,t- ideals of the profession. We all know to whom we can go when blocked by a knotty or complicated problem, and know, too, that we’ll get good, square, honest advice, for Mr. Harris has long been known as dean of our legal advisers.” It may be added, by way of parenthesis, that of the two hundred and twenty students prepared by the petitioner one only failed to pass the bar examination.

Business men and members of the bar of Camden county, as well as of the nearby counties from Burlington to Atlantic, give evidence similar to the quotations already given, which could be extended to include the testimony of every one of the hundred and twenty-five witnesses. It may be well to conclude with a single quotation from the testimony given before the committee by a judicial officer who, more than any other, is in constant arid intimate touch with the local bar and all that concerns its interests. Vice Chancellor Learning testified: “I know what Mr. Harris’ conduct has been in this city since his disbarment. I know that it has been in every way exemplary. If it is possible for a man to be reinstated, after being once disbarred, I think Mr. Harris is entitled to that reinstatement.”

This is the conclusion to which we are led by the evidence before us, which is both ample in quantity and convincing in its character; and we may say that upon no other kind of evidence would we lend a favorable ear to a petition of this sort. Having determined that ,a disbarred attornejr may be reinstated,- and having decided' that in the present case restitution has been made to the extent of the petitioner’s capacity and to the satisfaction of those whom he injured, the evidence as to the moral fitness of the petitioner should, we think, be dealt with upon the general rules applicable to its weight and character. Finding the testimony to be ample in quantity, given in a qvmi-judicial inquiry- by witnesses of the highest standing and of unquestioned opportunity for knowing the truth of that to which they voluntarily testify, we can reach no other verdict upon the proofs than that the'case is a proper one for the interposition of the court to relieve the petitioner from the disability under which he now rests, especially in view of the- fact that the bar association upon whose charges and presentation he. was' disbarred has, after a thorough investigation, unanimously asked for Ms reinstatement.

Nro one of these considerations standing alone, and no group of them less than the whole, would, support this conclusion, which rests emphatically upon the concurrence and combination of them all. This conclusion relegates the question of the proper practice to be pursued under section 5 of the Practice act to such future application as the petitioner may be advised to make, the matter, as far as I know, never having been passed upon or considered by the court. All that we now decide is that the hitherto insuperable bar to such application is removed.

Subsequently, the following rule was entered in the Supreme Court:

“The petition of John Harris, of Camden, to be restored to the rolls of attorneys of this state having been presented to the February term of this court, and it appearing to the court that notice of the presentation of said petition was given to the Camden County Bar Association, and it further appearing that said bar association appointed a committee of its members to make an investigation and report to the said association, the result of its investigation and its finding, together with letters and testimony presented to said committee, which said association having duly considered the report adopted a resolution, recommending to this court that the said John Harris be reinstated as a member of the bar of this state, and at the June term of this court the said petition, committee’s report, with the letters and testimony attached thereto, and the recommendation of the Camden County Bar Association, being presented to the court, and the argument of Harvey F. Carr, Esquire, and John IV. TVeseott, Esquire, of counsel with petitioner, having been heard and considered, the court now determines that the prayer of the petitioner to be restored to the rolls cannot be granted under the law and practice of this court, but that upon the proofs the case is a proper one for the interposition of the court to relieve the petitioner from the disability under which he now rests. And a further application having been made at the present term of the court for an order admitting the said John Harris, as an attorney of this court, it is ordered that the said John Harris shall be admitted to the examination for license as an attorney upon his compliance with sections (a) and (b) of rule 4 of this court.

“Dated Jan’y 12th, 1916.

“By the court,

“William S. Gummere, G. J