10 So. 2d 1 | Ala. | 1942
This cause is before this court on petition for review of the decision of the Board of Commissioners of the Alabama State Bar in denying appellant's petition for reinstatement to practice as an attorney before the Bar of Alabama.
Petitioner was convicted by a jury on July 13, 1933, of second degree forgery, and sentenced to the penitentiary for a period of not less than two years, nor more than four years. Application for certiorari to this court was denied October 11, 1934. Stephenson v. State,
"The order in the case was final and was a judgment from which appeal may be taken. De Graffenried v. Breitling,
"We have examined the record. The restoration of an attorney to the privilege to pursue his vocation, as an attorney at law, and in that sense as an officer of the the court, is dependent upon many material considerations, which tend to hold that profession in the high standing it has attained.
"The fact of his pardon by the Governor and the restoration of his full civil and political rights has not the effect of restoration to him of the privilege to practice his profession as a member of the bar.
"The application should be made to the duly constitutedauthorities to consider his present quality of mind, character,qualifications and fitness for the discharge of his duties before the courts, and to the clients whom he may represent and the upholding of the dignity of the profession in the eyes of the public of which the profession is an important agency.
"The judgment of the trial court is affirmed.
"Affirmed." [Italics supplied.]
Ex parte Stephenson,
In Ex parte Peters,
"Under the statutes of this state (Code, §§ 2991-3008) jurisdiction of proceedings for the disbarment of licensed attorneys is vested in circuit courts, or courts of like jurisdiction. Withers v. State,
"With respect to the reinstatement of attorneys against whom a judgment of disbarment has been rendered, our statutes are silent. It is, however, generally held — and properly so, we think — that a court which has the power to disbar, has also the power to reinstate, which will be exercised in proper cases. In re Thatcher,
In McCord v. State ex rel. Allen et al.,
Code 1940, T. 46, §§ 49, 50. In Code 1940, T. 46, § 28, it is provided as follows:
"The causes of removal or suspension of attorneys, and methods of proceeding in reference to such removal or suspension are hereby declared to be cumulative with the right and power herein given to the board of commissioners to reprimand, suspend, exclude, or disbar attorneys. (1923, p. 100.)
"Applied in Ex parte Thompson,
On March 1, 1941, the petitioner appeared before the Grievance Committee of the Alabama State Bar, and was there examined at length on matters relating to his conduct subsequent to his disbarment. Volume Two of the testimony taken before the Grievance Committee of the Alabama State Bar on March 1, 1941, states the salient facts.
Thereafter the Grievance Committee of the Board of Commissioners of the State Bar filed a report in accordance with Rule C of the rules Governing the Conduct of Attorneys in Alabama, as promulgated by the Board of Commissioners, and approved by the Supreme Court of Alabama.
It will here be noted that rule C approved by this Court on June 11, 1940, is as follows:
"Rules Governing Petitions for Reinstatement of persons who have been suspended, disbarred, or otherwise excluded from the practice of law.
"Any person who has been suspended, disbarred, or otherwise excluded from the practice of law, may thereafter file with the Secretary six copies of a sworn petition for reinstatement addressed to the Board. The Secretary shall send a copy thereof to each member of the Grievance Committee and shall retain one copy in his office. The Grievance Committee is empowered to make such investigation and require the production before it of such facts, data and proof as it may deem essential to enable it to determine whether it should or should not recommend the granting of such petition. The recommendation of such committee shall be filed with the Secretary. After the recommendation of such Committee, the Board shall, in executive session at which no person not a member of the Board is present, consider the said petition, together with the recommendation of the Grievance Committee, and any affidavits or other proof that may be offered in support of such petition. The decision of the Board shall be expressed by resolution entered upon its record. A copy of such resolution shall be kept in the Secretary's office, and a copy shall be mailed by the Secretary to the petitioner, and a copy to the Judge or Judges of the Judicial Circuit in which the petitioner resides to be spread upon the minutes of the Circuit Court of the County of petitioner's residence and a copy to the Clerk of each Federal District Court in Alabama, the Clerk of the United States Circuit Court of Appeals for the 5th Circuit and to the Clerk of the United States Supreme Court.
"A petition for reinstatement having been denied, no more than one additional petition from such person may be received, filed, or considered. Provided, that from the decision of the Board of Commissioners the petitioner shall be entitled to an appeal to the Supreme Court of Alabama as provided by Rule No. 28 of Section B."
The instant proceeding, judgment and appeal are had, entered, taken and submitted in this court under such amended and approved rules. This present rule, now in effect, supersedes the observation hereinabove set forth from the Peters case. Ex parte Peters,
Under this appeal we are confronted with the legal effect of petitioner's pardon of the crime for which he was convicted, and the restoration of his civil and political rights. It was held by this court and by the Supreme Court of the United States, on which point all authorities concur, that [Ex parte Garland, 4 Wall., 333, at page 380,
"A pardon reaches both the punishment prescribed for the offence and the guilt of the offender; and when the pardon is full, it releases the punishment and blots out of existence the guilt, so that in the eye of the law the offender is as innocent as if he had never committed the offence. If granted before conviction, it prevents any of the penalties and disabilities consequent upon conviction from attaching; if granted after conviction, it removes the penalties and disabilities, and restores him to all his civil rights; it makes him, as it were, a new man, and gives him a new credit and capacity. *346
"There is only this limitation to its operation: it does not restore offices forfeited, or property or interests vested in others in consequence of the conviction and judgment."
Such was the holding of this court in this case when before us on former appeal in Ex parte Stephenson,
In the case of In re Kaufmann,
A prerequisite to the admission to the bar is a good moral character. Ex parte Thompson,
The general rule applicable to petitions for reinstatement to the bar is thus stated in 6 Corpus Juris, p. 615, § 97: 11 "* * * The decisive question of such an application is whether the applicant is of good moral character in the sense in which that phrase is used when applied to attorneys at law, and is a fit and proper person to be entrusted with the privileges of the office of an attorney. [In re Simpson,
In the case of Matter of Palmer, 9 Ohio Cir.Ct.R. 55. 70; Id., 15 Ohio Cir.Ct.R. 94, the test for reinstatement is laid down as follows: "Looking at the life and conduct of the attorney prior to the disbarment, and the reasons for the disbarment, have his life and conduct since that time been such as to satisfy the court that if restored to the bar he will be upright, honorable and honest in all his dealings? Will his restoration to the bar be compatible with a proper respect of the court for itself and with the dignity of the profession?"
See also Matter of Clark,
In the case of In re Thatcher,
The District Court of Appeals, laying down the rule for the test of character justifying reinstatement in the ranks of the legal profession, said in the case of In re *347
Stevens,
The leading case of In re Cate,
We quote, also, from the enlightening case by the Supreme Court of Montana,
"Per Curiam. On October 7, 1918, petitioner R. E. O'Keefe was disbarred from the practice of law in this state.
"* * * We do not believe he is possessed of the moral conceptions requisite for the practice of law, and his petition is therefore denied."
The removal of an attorney from the practice of law under Paragraph 1 of § 6256, Code of 1923, Code 1940, T. 46, § 49, subd. 1, has the legal effect of forbidding him to practice law. If such disbarred attorney thereafter engages in practice in willful disobedience of the order removing him, he is guilty of a criminal offense. See General Acts of Alabama, Regular Session 1931, p. 606, Code 1940, Tit. 46, § 42. Furthermore, after an attorney have been disbarred or suspended from the practice of law, if he then engages in the practice of the law, he is guilty of a violation of Rule 10 of Section A of the Amended Rules Governing the Conduct of Attorneys in Alabama, promulgated by the Board of Commissioners and approved by the Supreme Court of Alabama on June 11, 1940.
A large amount of evidence has been introduced both by the petitioner and by the attorney for the Board, all of which has been considered with the petition. Applying the law as hereinabove stated to the facts of this case, the Grievance Committee of the Board of Commissioners of the State Bar reached the conclusion that the petition of John L. Stephenson for reinstatement as a lawyer and for the privilege of again engaging in the practice of law should be denied. In this judgment we concur. He has a second chance, however, for reinstatement under the statute and rules that obtain, dependent on the subsequently accruing facts, if he is found worthy of reinstatement. It is to be regretted that he practiced law after his disbarment in the several divorce cases when he sought to help his relations and friends with but little compensation.
We have examined the record in full and are in accord with the finding of the State Bar. The judgment of the commissioners is affirmed.
Affirmed.
All the justices concur. *348