9 So. 2d 566 | La. | 1942
Lead Opinion
Section 10, Article VII of the Constitution, provides that the Supreme Court shall have control of, and general supervision over, all inferior courts, and further provides as follows:
"It shall have exclusive original jurisdiction in all disbarment cases involving misconduct of members of the bar, with the power to suspend or disbar under such rules as may be adopted by the court."
Section 12, Article XIII of the Articles of Incorporation of the Louisiana State Bar Association, which was adopted as a rule by this court, reads as follows:
"Section 12. Member Convicted of Felony. Whenever any member of the bar shall be convicted of a felony and such conviction shall be final, the Committee may present to the Supreme Court a certified or exemplified copy of the judgment of such conviction, and thereupon the court may, without further evidence, if in its opinion the case warrants such action, enter an order striking the name of the person so convicted from the roll of attorneys and cancelling his license to practice law in the State of Louisiana. Upon the person so convicted being pardoned by the President of the United States or Governor of this State, the Court, upon application may vacate or modify such order of disbarment."
Pursuant to this rule, the Committee on Professional Ethics and Grievances of the *296 Louisiana State Bar Association filed a petition in this court on January 5, 1942, in which it is alleged that Richard W. Leche, a member of the bar of this state, was convicted of a felony in the United States District Court for the Western District of Louisiana, Alexandria Division, in the matter entitled "United States of America v. Richard W. Leche". As evidence of the conviction and sentence, a certified copy of the "judgment of sentence" is attached to, and made part of, the petition.
The judgment of sentence shows that he was charged with violating Section 338, 18 U.S.C.A., using the mails to defraud; that he was tried before a jury and found guilty as charged, and sentenced to serve five years on the first count and five years on the second count in the United States Penitentiary at Atlanta, Georgia.
The Committee alleged further that Richard W. Leche, the defendant, appealed from the conviction and sentence to the United States Circuit Court of Appeal for the Fifth Circuit of Louisiana, and that the conviction and sentence were affirmed by that court. Leche v. United States,
The Committee alleged that the said Leche applied to the Supreme Court of the United States for writs of review, which were refused, and that the conviction and sentence are now final.
The Committee prayed that Richard W. Leche be notified of the filing of the petition and that he be ordered to show cause *297 why his name should not be stricken from the roll of attorneys and why his license to practice law in this state should not be cancelled.
The petition and annexed documents were presented to the Chief Justice, and the following order was signed by him on January 6, 1942:
Service was accepted by the attorney for Richard W. Leche. The defendant, through counsel, excepted to the petition filed by the Committee on the ground that it disclosed no cause of action, and specially pleaded that Section 12 of Article XIII of the Articles of Incorporation of the Louisiana State Bar Association, adopted as a rule by this court, is unconstitutional.
In the case of Louisiana State Bar Association v. Mary H. Connolly, La.Sup.,
"The identical question concerning the constitutionality of the rule of court has *298
been raised in the matter of Louisiana State Bar Association v. Richard W. Leche [La.Sup.,
We held that the rule is constitutional. In that case, as in this one, the charges made by the Committee against the attorney conformed strictly to the rule, and in the Connolly case it was held that the allegation that the attorney had been convicted of a felony, coupled with the presentation of a certified copy of the judgment of conviction, was sufficient to sustain a cause of action. In the Connolly case the Committee alleged, and attached documents which showed, that the attorney had been convicted in a Federal court. The same charges were made in the case at bar, and the Committee attached documents to its petition showing that the defendant had been convicted in a Federal court.
The following rulings in the Connolly case are decisive of the issues in this case: (1) That Section 12, Article XIII of the Articles of Incorporation of the Louisiana State Bar Association, is constitutional, and (2) that the allegation by the Committee that the attorney had been convicted of a felony, coupled with the presentation of a verified copy of the judgment of conviction, was sufficient to sustain a cause of action. *299
The exception of no cause of action is overruled, and the defendant is ordered to answer within 20 days from the date on which this decree is rendered.
O'NIELL, C.J., does not take part.
HIGGINS, J., dissents and assigns reasons.
FOURNET, J., dissents and will hand down reasons at a later date.
Dissenting Opinion
The petition under which the disbarment of the defendant, a member of the bar of this State, is sought in this case simply alleges that he "* * * was convicted of a felony in the United States District Court for the Western District of Louisiana, Alexandria Division, * * * as will appear from the certified copy of the judgment of sentence attached hereto and made a part hereof"; that he appealed to the United States Circuit Court of Appeal for the Fifth Circuit, and the judgment was affirmed as appears from the annexed "certified copy of the judgment of affirmation and order of execution"; that the defendant's application to the United States Supreme Court for a writ of review was refused, as appears from a "certificate of the clerk of the court" annexed to the petition and therefore the judgment is final; that under Section 12, Article XIII of the Articles of Incorporation of the Louisiana State Bar Association, now a part of the rules of this court, the Committee on Professional Ethics and Grievances presents "* * * the evidence of conviction in *300 order that the Court, if in its opinion, the case warrants such action, may enter an order striking the name of the said Richard W. Leche from the roll of attorneys and cancelling his license to practice law in the State of Louisiana." The prayer of the petition is that the defendant "* * * show cause on a day to be fixed by this Court why his name should not be stricken from the roll of attorneys and why his license to practice law in the State of Louisiana should not be cancelled." The documents made part of the petition show that the defendant was convicted of using the mails to defraud in violation of Section 338, 18 U.S.C.A., and sentenced to five years in the Federal Penitentiary at Atlanta, Georgia, but the facts upon which the charge of fraud was based neither appear in the petition nor the annexed certified papers. Acting upon this petition, the court ordered the defendant to show cause on February 12, 1942, why he should not be disbarred.
The defendant filed exceptions of no right and no cause of action on the ground that the petition failed completely to allege any facts whatsoever showing that he was guilty of any misconduct and that, under the law, he was entitled to be apprised in the petition of the act or acts upon which his misconduct is said to have been founded. He specially pleaded that Section 12 of Article XIII of the Articles of Incorporation of the Louisiana State Bar Association, adopted as a rule of this honorable court, is unconstitutional, being violative of Section 10 of Article VII of the State Constitution which vests in this court exclusive original jurisdiction *301 in all disbarment cases involving misconduct of members of the bar.
The Committee originally took the position that the verdict and sentence, or judgment of the Federal court should be accepted as conclusive evidence of the defendant's misconduct, but subsequently, in its supplemental brief, it stated: "The substance of the respondent's contention is that this Court will divest itself of the original jurisdiction conferred on it by the Constitution, if it construes the rule in question, as it is construed by the Committee, namely, that an attorney may bedisbarred without further evidence, upon the presentation to theCourt of a certified or exemplified copy of the judgment, showingthat he was convicted of a felony in a Federal Court sitting inLouisiana, and that the conviction is final. We respectfully submit that a mere reading of the rule will show that this contention is not well founded, because the use of the word `may' in the rules shows conclusively that the Court has not divested itself of jurisdiction, but has retained jurisdiction to pass onsuch matters as the respondent may plead and present, to show whyhe should not be disbarred, notwithstanding his conviction, whichis prima facie proof of misconduct." (Italics ours.)
The pertinent part of Article VII, Section 10 of the Constitution of 1921, conferring jurisdiction on the Supreme Court, reads as follows: "It shall have exclusive originaljurisdiction in all disbarment cases involving misconduct of members of the bar, with the power to suspend or disbar under such rules as may be adopted by the court, * * *." (Italics ours.) *302
This court adopted as a rule, Section 12 of Article 13 of the Articles of Incorporation of the Louisiana State Bar Association, which states:
"Member Convicted of Felony. Whenever any member of the barshall be convicted of a felony and such conviction shall befinal, the Committee may present to the Supreme Court a certifiedor exemplified copy of the judgment of such conviction, andthereupon the court may, without further evidence, if in itsopinion the case warrants such action, enter an order strikingthe name of the person so convicted from the roll of attorneysand cancelling his license to practice law in the State ofLouisiana. Upon the person so convicted being pardoned by the President of the United States or Governor of this State, the Court, upon application, may vacate or modify such order of disbarment." (Italics ours.)
The above rule has been in effect since 1926.
In the case of In re Kenner, 1933, 1934,
In the case of In re Edwards, 1929,
"That rule provides that, whenever any member of the bar shall be convicted of a felony and such conviction shall be final, the person so convicted may be stricken from the rolls and his license to practice law canceled.
"The defendant was served with the rule and cited to answer the same, but he failed to appear by answer or otherwise.
"A trial was had in open court, and due proof was made of thefacts as herein recited.
"Embezzlement is made a felony by the statutes of this state, and the conviction of the defendant had become final, prior to the filing of this proceeding." (Italics ours.) *305
In the case of State v. Flynn, 1926,
"Passing to the consideration of defendant's second exception, we have concluded *306 that the plea should be sustained. The Supreme Court of New York found the defendant guilty of professional misconduct, and disbarred him. The proceeding before this court is groundedentirely upon the action of the New York Supreme Court, and,while the petition sets forth the facts upon which the order ofthat court was based, it does not independently charge theexistence of those facts as a cause of action against thedefendant here.
"In Ex parte Tillinghast, 4 Pet. 108, 7 L. Ed. 798, the Supreme Court of the United States, through Chief Justice Marshall, admitted an attorney to practice before said court, notwithstanding his name had been stricken from the roll of counselors of the district court of the Northern district of New York by the order of the judge of that court for contempt. The United States Supreme Court, in refusing to recognize the order of the district court, held that it did not feel authorized to punish relator for the offense which had been committed in the other court. On the authority of that case, the United States Circuit Court, Sixth Circuit, with Judges Lurton, Severens, and Warrington sitting, decided that an action for the disbarment ofan attorney could not rest merely upon the judgment of a court ofanother jurisdiction, but must be based upon allegation and proofof an actual offense. In that proceeding the Supreme Court of Ohio had disbarred an attorney for professional misconduct, and a transcript of that action was presented to the federal court, where a motion was made for the entry of a similar order. *307 This motion was denied. Later, in a proceeding in which specificcharges were alleged and proved, the attorney in question wasdisbarred. See Thatcher v. United States [6 Cir.], 212 F. 801, 129 C.C.A. 255.
"When we consider the question from the standpoint of pure reason and sound public policy, the correctness of the conclusion which we have reached in this case is apparent. In respect to the punishment of crimes, the imposition of penalties and in matters of disqualification of attorneys each state acts within its own territorial limits, and the federal government within its own sphere. What is deemed an offense or misconduct in one jurisdiction may not be considered as an offense or misconduct in another jurisdiction. A felony in one state may not be a crime at all, or may be only a misdemeanor, in another state. Violations of the law are often only technical, and involve no moral turpitude. Such offenses may be punished in one jurisdiction by imprisonment in the penitentiary, while in another jurisdiction a fine or short term in the parish or county jail may be deemed sufficient to meet the requirements of the law. Conduct which would be considered sufficient to disbar an attorney in one state or in the federal courts might be deemed insufficient to disbar him in another state, or might not be deemed of such a grave character in that state as to require his disbarment, when an order of suspension would adequately respond to the necessities of the case. *308
"The authorities, including Dormenon's Case, 1 Mart., O.S., 129, and State v. Stringfellow,
"Although our ruling in this case may appear to be somewhat technical in its nature, nevertheless, even for so praiseworthy an object as purging the bar of unworthy members, we do not feelthat we would be justified in departing from the regular andorderly method of hearing and determining legal controversies.The defendant interposed his exceptions by way of a preliminarydefense, as was his right, and he is entitled to a decision fromthis court on the merit of his pleas.
"We do not wish, however, to be understood as laying down the rule that professional misconduct of members of this bar committed beyond the limits of this state may not be investigated and acted upon by this court. We are only holding that in this proceeding we are not justified in entering upon such investigation and taking action thereon.
"For the reasons assigned, the exception of no cause of action is sustained, and plaintiff's suit is dismissed." (Italics ours.)
See, also, In re Ebbs,
In the light of the foregoing authorities, let us analyze the pertinent part of *309 Section 10 of Article VII of the Constitution: First, it provides that this court shall have "exclusive original jurisdiction inall disbarment cases involving misconduct of members of the bar," and, second, it grants this Court "power to suspend or disbar under such rules as may be adopted by the court." (Italics ours.)
Article 84 of the Code of Practice states: "Judges havingoriginal jurisdiction are those before whom suits are brought in the first instance. (Italics ours.)
In Bouvier's Law Dictionary, Rawle's Third Rev., p. 1760,"Jurisdiction" is defined as "the authority by which judicial officers take cognizance of and decide causes."
In the case of The Resolute,
In the Constitution of the United States, the word "case" is used in declaring the extent of judicial power. (Art. III, Sec. 2, Clause 1.)
In La Abra Silver Min. Co. v. United States,
In Muskrat v. United States,
"It therefore becomes necessary to inquire what is meant by the judicial power thus conferred by the Constitution upon this court, and, with the aid of appropriate legislation, upon the inferior courts of the United States. `Judicial power,' says Mr. Justice Miller, in his work on the Constitution, `is the power of a court to decide and pronounce a judgment and carry it into effect between persons and parties who bring a case before it for decision.' Miller, Const. 314.
"As we have already seen, by the express terms of the Constitution, the exercise of the judicial power is limited to `cases' and `controversies.' Beyond this it does not extend, and unless it is asserted in a case or controversy within the meaning of the Constitution, the power to exercise it is nowhere conferred.
"What, then, does the Constitution mean in conferring this judicial power with the right to determine `cases' and `controversies.' A `case' was defined by Mr. Chief Justice Marshall as early as the leading case of Marbury v. Madison, 1 Cranch 137, 2 L. Ed. 60, to be a suit instituted according to the regular course of judicial procedure.
"* * * By cases and controversies are intended the claims of litigants brought before the courts for determination by such regular proceedings as are established by law or custom for the protection or enforcement of rights, or the prevention, redress, or punishment of wrongs. Whenever the claim of a party under the Constitution, laws, or treaties of the United States takes such a form that the judicial *311 power is capable of acting upon it, then it has become a case. The term implies the existence of present or possible adverse parties, whose contentions are submitted to the court for adjudication."
The first part of the constitutional provision in question gives the Supreme Court exclusive original jurisdiction to hear and decide disbarment cases involving misconduct of members of the bar, and the second part thereof confers upon this court the power to suspend or disbar, under its rules, a member of the bar, who, after judicial hearing, is found guilty of misconduct. This means that the Supreme Court shall hear such disbarment cases and the defendant is entitled to have this court decide for itself, from the evidence, whether or not he has committed misconduct warranting his suspension or disbarment. In conferring upon the Supreme Court this jurisdictional power to hear and determine such disbarment cases as a court of first instance, it is clear that the members of the Constitutional Convention did not contemplate that the court adopt rules, which would either delegate or defeat this constitutional grant of authority. In short, it could not adopt a rule which would deprive a defendant, who had been charged with misconduct, of his right to have this court decide his case. If the verdict of the jury and the sentence of the Federal District Court in this instance were either accepted as conclusive evidence that the defendant was guilty of misconduct, or, as establishing a prima facie case of misconduct against him, the rule of the court would thus be given a construction which would *312 clash with the constitutional provision requiring it to decide for itself from the evidence whether or not the member of the bar was guilty of misconduct justifying his suspension or disbarment.
In the case of State v. Woodville, 1926,
A verdict of a jury is nothing more than the opinion and the conclusion of its members reduced to writing. The verdict cannot serve as prima facie proof, or otherwise, of any fact upon which the jury found it. The members of the jury cannot be heard to testify as to the facts upon which they acted in returning the verdict, for such testimony would be hearsay. The law is well-settled that the conviction or the acquittal in a criminal case is inadmissible in a civil action growing out of the same matter. *313
In Quatray v. Wicker, 16 La.App. 515, 134 So. 313, 316, an ex delicto action for damages the court held:
"The defendant Marchesseau avers in his answer that Wicker, Jr., was convicted of reckless driving and causing personal injury under the state highway traffic statute (Act No. 296 of 1928) in the criminal district court and that he (Marchesseau) was acquitted of the same charge. Statements to this effect were admitted without objection. It is argued that the conviction and acquittal in criminal cases should be considered as evidence by us. The whole question is discussed in Interstate Dry Goods Stores v. Williamson,
"See Stone v. United States,
"In 3 Orleans App., page 356, Lennon v. Palmer Co., on page 359, this court in commenting on the action of the trial judge in refusing to admit in a civil damage suit, evidence showing an acquittal in a criminal court, and in refusing to admit the introduction of evidence adduced in the criminal trial, said: `Both rulings are correct; the prosecution was by the City and the present plaintiff had no power to cross examine the witness, and the judgment of a criminal *314 court has no effect on a civil court, which is charged with theduty and power to determine for itself all the issues arising ina civil suit.'
"In Jones' Commentaries on Evidence, § 1816, is found the following: `Although the same fact may be involved in two cases, one civil and the other criminal, the parties are necessarily different, for one action is prosecuted by the individual, the other by the State. Accordingly, by the weight of authority, the judgment in one case is not generally admissible in the other to establish the facts on which it is based.' See, also, Steel v. Cazeaux, 8 Mart., O.S., 318, 13 Am.Dec. 288; Lewis v. Petayvin, 4 Mart., N.S., 4; Pober v. Sterbcow, 14 Orleans App. 164; New Orleans Ry. Light Co. v. United States Fidelity Guarantee Co.
"The only case in this state that we have been able to find that supports defendant's contention is Bankston v. Folks, 38 La. Ann. 267, in which it was held that the verdict in a criminal case was admissible in a civil case but not binding on the civil court. This decision is not in accord with the other cases, supra. [We might say that an examination of the opinion in the case of Bankston v. Folks shows that the statement of the court on this subject was obiter dictum.]
"We hold that the conviction or acquittal in a criminal casegrowing out of the same matter or transaction which gives rise toa civil case is not evidence and should not be admitted by thecourt in a civil case." (Brackets and italics ours.) *315
Professor Edward W. Hinton, in his article in the Illinois Law Review — XXVII, page 195 (1932) entitled "Judgment of Conviction; Effect on a Civil Case," stated:
"For the purpose of proving the facts on which it is based the admission of the conviction seems to run counter to both (1) the hearsay rule and (2) the opinion rule. The finding of the jury is obviously nothing more than their conclusion from the testimony produced at the trial. It is clear that the individual jurors would not be admitted to testify to their belief in the guilt of the accused because of their lack of personal knowledge. Their formal verdict would seem to be no better than their present testimony."
A fortiori, if the verdict of acquittal or conviction in a criminal proceeding is inadmissible in a civil action to establish the facts therein to be determined, it cannot serve as the sole basis for a cause or right of action in a disbarment petition, a civil proceeding, where the Constitution requires the court of exclusive original jurisdiction to hear and determine for itself, from the evidence, the question of whether or not misconduct has been proved.
In Interstate Dry Goods Stores v. Williamson,
It is stated that the court, under its constitutional grant of authority or its inherent power to disbar members of the bar, had the right to adopt the rule in question. It is difficult to comprehend on what theory it could be stated that the court would have the right, under the section and article of the Constitution in question or its inherent powers, to adopt a rule contrary to the provisions of the express constitutional grant of original jurisdiction with restrictions or limitations, which are irreconcilable with the rule. Briefly, as the Constitution clearly places the duty and responsibility solely and only upon the Supreme Court to hear and to decide for itself, from the evidence, whether or not an attorney is guilty of misconduct justifying his suspension or disbarment, the court is therefore powerless to adopt a rule which provides that it may, in its discretion, accept a certified copy of a judgment of conviction of a felony, "without further evidence," in disbarring a member of the bar. Obviously, this court neither has the constitutional nor inherent right to wholly or partially surrender the exclusive original jurisdiction conferred upon it by the Constitution, to determine for itself from the evidence whether or not a member of the bar has acted in such a way as to warrant the court in concluding that he has been guilty of misconduct and, therefore, should be disbarred or suspended. It is conceded that the court cannot accept certified copies *317 of the verdict of a jury finding the defendant guilty of a felony and the sentence of another tribunal ordering him to be confined to the penitentiary, as conclusive evidence of misconduct, because by so doing, the court would be substituting the opinion of the members of the jury in lieu of its own opinion and thereby surrendering its jurisdiction to hear and determine the case for itself. Now, as the court cannot divest itself of its jurisdiction as a court of first instance to hear and determine the question of misconduct from the evidence and substitute the opinion of the jury for its own, it is, likewise, powerless to partially surrender its jurisdiction by accepting the opinion of the members of the jury to establish a prima facie case against the defendant. If the court has the power, by adopting a rule, to partially surrender its jurisdiction, the court must likewise be held to have the right to completely and wholly surrender its jurisdiction. Unquestionably, the court neither has the constitutional nor inherent power to surrender or delegate its jurisdiction by adopting a rule which would make a certified copy of the verdict or opinion of a jury, showing that the defendant had been found guilty of a felony, as conclusive proof or prima facie proof of his misconduct as a member of the bar. This court has no more right to delegate or surrender the jurisdiction which the Constitution has conferred upon it than it has to assume or create jurisdiction in itself where the Constitution has not conferred or withheld it. *318
In the case of In re Green et al., 1932,
"We think the correct rule to apply in reference to a conviction for a felony in the federal court is that there is nothing in said statute (Sec. 4106, C.O.S. 1921) which requires that disbarment be mandatory. This court should not be tethered, but should review all proceedings in disbarment matters, and exercise its judgment as to whether there should be a disbarment or suspension."
See, also, In re Platz,
In re Dampier, 1928,
In the case In re Donegan, 1940,
The Judiciary Law of New York, Sections 88 and 477, provide:
"§ 88. Admission to and removal from practice by appellate division * * *
"3. Whenever any attorney and counsellor-at-law shall be convicted of a felony, *321 there may be presented to the appellate division of the supreme court a certified or exemplified copy of the judgment of such conviction, and thereupon the name of the person so convicted shall, by order of the court, be stricken from the roll of attorneys.
"4. Upon a reversal of the conviction for felony of an attorney and counsellor-at-law, or pardon by the president of the United States or governor of this state, the appellate division shall have power to vacate or modify such order or disbarment."
"§ 477. Attorney convicted of felony shall cease to be attorney. Any person being an attorney and counsellor-at-law, who shall be convicted of a felony, shall, upon such conviction, cease to be an attorney and counsellor-at-law, or to be competent to practice law as such."
The Appellate Division, First Judicial Department, In re Donegan,
"It is urged, however, that subdivision 4 of section 88 of the Judiciary Law, in permitting modification by the Appellate Division in the event of a `pardon by the president of the United States,' indicates that the Legislature intended that the word `felony,' as used in subdivision 3 of section 88, include all felonies which are so under the federal law, in addition to those which are felonies under our own statutes. But this contention is completely met by the fact that the reference to presidential *323 pardon is given meaning by the inclusion of the first of the three categories noted above; nothing in the quoted phrase compels also its extension to acts which are not felonies under the laws of this State. Thus, under the interpretation at which we have arrived, all parts of the statute are given meaning without allowing the automatic operation of these provisions to cover a situation incompatible with a required strict construction."
In the case of State v. Flynn, supra, an exception to the jurisdiction of the court was filed on the ground that the Article of the Constitution in question did not define the word "misconduct". In holding that the Article of the Constitution was self-operating, without the necessity of legislation to give it effect, the court held:
"Moreover, the right to disbar is inherent in a court of competent jurisdiction. In the absence of restrictivelegislation, this right may be exercised as necessity requires. Thornton, Attys. at Law, § 758, vol. 1, pp. 1167-1169. Theconstitutional provision is not restrictive, but is declaratory,of the existence in this court of its power to disbar; and it may exercise this power, where, in a proper proceeding, any conduct of an attorney is shown to be such as to render him morally orprofessionally unfit to discharge the duties of his office." (Italics ours.)
In State v. Fourchy,
"It will be observed that when this constitutional provision was adopted the Act (129) of 1896 was in force, and that, by the terms of that act, jurisdiction is conferred upon the district courts to disbar any attorney at law who `shall be convicted of any felony, or shall be guilty of a gross professional misconduct.' (Italics by the court.) The convention which adopted the constitution might have used the same terms in conferring jurisdiction upon this court, but it did not. And from the language used, no other conclusion can fairly be drawn than that it was the deliberate purpose of that convention to limit the exceptional `exclusive and original' jurisdiction so conferred to cases of professional misconduct, whilst leaving nonprofessional misconduct to be dealt with in the first instance by the courts of ordinary and general jurisdiction, as provided by the existing laws. There is here presented, therefore, no question of the inherent jurisdiction of a court to purge itself of an unworthy officer, or of a conflict arising therefrom, between legislative and judicial authority, since the jurisdiction specifically invoked by the state, and the only jurisdiction invoked for the purposes of this case, is that which has been conferred upon this court, in plain language, by the constitution which established *325 the court itself, which jurisdiction, according to the terms of the grant, does not extend to the matter now under consideration."
On the merits the court refused to disbar the attorney because the alleged embezzlement grew out of a nonprofessional transaction.
The holding of this court in both of the foregoing cases is made clear by considering briefly the history of the law of disbarment in this State.
The general rule is that the power to disbar an attorney is possessed by and inherent in all courts which have authority to admit attorneys to practice, and in the absence of legislation regulating the matter, the question of what acts of misconduct justify disbarment has necessarily been left to the judgment of the court. In the year 1810, the Superior or Supreme Court of the Territory of Orleans, acting under its general authority, disbarred an attorney for having allegedly encouraged the mulattoes of St. Domingo in the massacre of the white population, but the accused later purged himself of the charge and was reinstated to a seat at the bar. Dormenon's Case, 1 Mart., O.S. 129; Id., 2 Mart., O.S. 305. In April, 1812, Louisiana was admitted as a State to the Union and under its first Constitution of that year, and five other Constitutions which preceded the one of 1898, the Supreme Court of the State was vested with appellate jurisdiction only and was powerless to exercise the original jurisdiction or inherent powers to disbar an attorney. This court declined to exercise the original jurisdiction *326
conferred upon it by the Legislature of 1813 to suspend notaries public, being of the opinion that the Legislature was without any constitutional right to do so. Pain v. Plicque LeBeau,
"Said court * * * shall have exclusive original jurisdiction in all matters touching *327 professional misconduct of members of the bar, with power to disbar under such rules as may be adopted by the court." (Italics ours.) See, also, same provisions in Constitution of 1913, Art. 85.
Although the above provision effected the partial restoration of the inherent power once possessed and exercised by the Superior Court of the Territory of Orleans, it withheld from the Supreme Court of Louisiana the plenary powers exercised by the Territorial Court and restricted the operation of the generally accepted doctrine that the power to admit necessarily included the power to disbar. The uniform jurisprudence and contemporaneous construction show that the court considered that the inherent power was circumscribed by the language of the grant in the Constitution; and that the new provision did not have the effect of removing the impediment to the exercise of an inherent power resulting from the previous denial of original jurisdiction, but merely imposed a restricted duty and power. State v. Weber,
It is clear that the Constitutional Conventions of 1898, 1913 and 1921, did not confer upon this court the authority to disbar a member of the bar solely on the ground that he was convicted of a felony.
If the members of the Constitutional Convention of 1921 had deemed it advisable, they could have granted to this court plenary power to disbar, or they could have re-established the power contained *328 in the Act 129 of 1896, to disbar an attorney should he be convicted of a felony. The Convention adopted neither of these views and the sole and only change made was to eliminate the word "professional" which qualified "misconduct" under Article 85 of the Constitutions of 1898 and 1913. Thus, the power of the court to disbar remains as it was under the Constitutions of 1898 and 1913, except that the misconduct for which an attorney may be disbarred need not be an act in relation to his professional duties. If the court were to accept the findings of another court or of a jury on the question of fact of misconduct vel non, it would thereby yield, relinquish, or delegate its exclusive original jurisdiction to the district courts and to juries where that power was placed prior to the Constitution of 1898. Under the Constitutions of 1898, 1913 and 1921, no jury and no court, except this court, is competent in a disbarment proceeding to hear the evidence and determine facts intended to establish misconduct on the part of an attorney and this court can disbar an attorney only after it has determined for itself from evidence presented in the first instance before it, that the accused has been guilty of misconduct.
For emphasis, we wish to state that our rule gives us the discretion to accept as final and conclusive, without further evidence, the exemplified copy of the final judgment of conviction and it is said this merely establishes a prima facie case of misconduct. But, this court is powerless to adopt a rule which will relieve the court of its duty and responsibility under the *329 constitutional grant of exclusive and original jurisdiction to hear and determine for itself cases of misconduct of members of the bar, and we are certainly surrendering our judgment, which is to be based on competent evidence, for the opinion of the jury when we do not know on what facts or evidence its opinion is based. Now, if the defendant fails to appear and lets judgment go by default, or if the defendant appears and answers by denying he is guilty of any act or acts involving moral turpitude, but does not offer any evidence, taking the position that it is encumbent upon the Committee to first offer evidence tending to show misconduct before he is legally obligated to offer his evidence to rebut the Committee's evidence, and the court rules that he must do so, but he does not and the Committee then offers the certified copy of the judgment of conviction of a felony, which does not show in any way the facts, but simply designates the name of the offense of which he was convicted, and the court accepts it as establishing a prima facie case, then we would be passing judgment upon the defendant without any evidence of misconduct and without knowing the facts or act or acts of misconduct or moral turpitude involved. This would be holding that this court has the power to adopt rules, in connection with its main and fundamental grant of authority to hear and decide disbarment cases involving misconduct and impose suspension or disbarment, by which it could relieve itself of the responsibility imposed upon it by the Constitution. Furthermore, how could we decide whether to suspend or disbar the *330 defendant when we know nothing of his case except that he was convicted of a felony for an unknown act or acts.
If the court were to accept, under its rule, the verdict of the federal jury as a cause of action and prima facie evidence of the defendant's misconduct in the instant case, the following unusual results would follow: First, if the defendant did not appear or defend the case, the introduction of the certified copies of the judgment of sentence and the verdict of the federal jury would not inform us in any respect whatsoever of what act or acts of misconduct the defendant had committed for which the jury found him guilty of using the mails to defraud. In short, we would be disbarring him without even knowing what he had done and without any evidence at all that his act or acts involved moral turpitude. Furthermore, the court would be abandoning its jurisdiction to hear and decide the case by substituting the jury's opinion for its own judgment. Second, if the defendant did appear and answer, he would have to attack the verdict and the entire proceedings upon which the verdict was based in order to defend himself, because he would not know what particular part thereof the Committee was depending upon to show that he was guilty of misconduct. Third, if the defendant's evidence and testimony in the opinion of the Committee was insufficient to overcome the prima facie case established by the certified copy of the verdict, the defendant, in the event the court agreed with the Committee, would thereby be deprived of an opportunity to cross-examine any of the *331 jurors who had in legal effect been permitted to give testimony even contrary to the hearsay and opinion rules of evidence. Fourth, the Committee would be relieved of the obligation imposed upon the plaintiff in a civil action of setting forth a cause of action in his petition by narrating the facts therein and thereafter establishing them through competent evidence by a preponderance of proof. Fifth, the Committee would be relieved of the burden of proof which rests upon the plaintiff in every court of original civil jurisdiction, and the defendant would be required to establish his defense before the plaintiff either alleged a cause of action or offered competent evidence to prove a case.
All of the above observations show that such a procedure is contrary to the well-established orderly practice in the trial of civil cases. Certainly, it was not contemplated that the court might adopt rules which would be substantive legislation. The above demonstrates that if the prima facie evidence of misconduct interpretation of the rule is accepted, such would be the case. Cities Service Oil Co. v. Dunlap, 1939,
It was suggested that if a member of the bar were deprived of his citizenship by a judgment of the Federal court convicting him of a felony, that circumstance alone might be a ground for cancelling his license to practice, because citizenship is a prerequisite for admission to the bar. The answer to that theory is: (1) That these proceedings are not instituted upon any such hypothesis; (2) There appears to be no way of losing citizenship except by expatriation, because the Constitution of the United States provides in Amendment XIV *333 "all persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside." Thus, it appears that citizens born in the United States remain such until death or voluntary renouncement of their citizenship. Surely, a person convicted of a felony in a Federal court in the State in which he resides does not lose his rights under the Federal Constitution as a citizen, so that his property could be taken without due process of law, or that any other privilege and immunity as a citizen of the United States could be abridged. It does not appear that there is any law of the United States that deprives a citizen of his citizenship upon being convicted of a felony. A person convicted of a felony in this State is deprived of his status as a qualified elector. Losing the privilege of franchise is not equivalent to being deprived of citizenship. The only requirement of citizenship for admission to the bar of Louisiana is as provided in paragraph 4, Section 7, Article XII of the Articles of Incorporation of the Louisiana State Bar Association, "that the applicant must produce satisfactory evidence that he is a citizen of the United States of America and is 21 years of age." See, also, Act 118 of 1910. There is neither any allegation nor suggestion in the petition of disbarment in this case that the defendant is no longer a citizen of the United States.
A cursory examination of the petition shows that the sole and only ground alleged for the disbarment of the defendant was that he had been finally convicted of a felony *334 in the Federal court. The case is entirely presented on the theory that under our rule final conviction of a felony in the Federal court is made an independent or per se ground of disbarment, without regard to the question of misconduct or moral turpitude. It is also plain that the rule was adopted on that basis. Neither the petition nor our rule can be construed in such a way to cover a misconduct case, because they were both designed and intended to apply to a disbarment case, based upon a final conviction of a felony, as an independent ground therefor. The attempt to interpret the petition as setting forth a cause of action on the ground of misconduct is entirely without merit, because the petition in no way sets forth any act or acts of misconduct. But even if the petition and rule are construed as intended to establish a prima facie case of misconduct an unsurmountable obstacle confronts us. As neither the petition nor the annexed documents show any acts whatsoever that the defendant is said to have committed, constituting misconduct, the court would be at a loss to know what punishment to inflict upon the defendant, because the Constitution grants it the discretion to either suspend or disbar him. It would be impossible for the court to intelligently and justly act unless it required the Committee, contradictorily with the defendant, to produce competent evidence to establish the facts of the case. As the court is ultimately compelled by the Constitution to be informed of the act or acts of misconduct before it can exercise its authority to suspend or disbar the attorney, it is apparent that it was *335 obligated to have required this to be done in the very beginning of the proceeding.
The defendant in this case is only asking that this court require the Committee to set forth in its petition the specific act or acts of alleged misconduct upon which his disbarment is sought and that it prove those allegations with competent evidence. It is elementary and fundamental that the defendant in a civil case is entitled under the law to require the plaintiff to make such allegations and to adduce such proper proof. The petition of the plaintiff and the documents annexed thereto neither furnish the defendant nor this court with any facts whatsoever, which would inform him or us as to what his alleged misconduct consisted of or was founded upon.
As the exception of no right and no cause of action is primarily predicated on a lack of sufficient allegations of fact in the petition, the exception should be sustained as one of vagueness, with leave to the plaintiff to amend the petition. Reeves v. Globe Indemnity Co., Inc.,
The reasons and authorities set forth in the dissenting opinion in the case of Louisiana State Bar Association v. Mary H. Connolly, La.Sup.,
It is my view that the exception of no right and no cause of action should be sustained as an exception of vagueness, with leave to the Committee to amend its petition by setting forth the act or acts of misconduct upon which the defendant's disbarment is sought; and that the interpretation *336 placed by the majority opinion upon Section 12 of Article XIII of the charter of the Louisiana State Bar Association, adopted as a rule of this court, renders it unconstitutional as violative of Section 10 of Article VII of the Constitution of 1921.
For these reasons, I respectfully dissent.
Dissenting Opinion
This is an original proceeding to disbar Richard W. Leche under Section 10 of Article VII of the Constitution of 1921 providing that the Supreme Court "shall have exclusive original jurisdiction in all disbarment cases involving misconduct of members of the bar, with the power to suspend or disbar under such rules as may be adopted by the court." (Italics mine.) The matter is now before us on an exception of no cause of action filed to a rule issued against the defendant to show cause why his name should not be stricken from the roll of attorneys and why his license to practice law in this state should not be cancelled.
The basic allegation of the petition is that the defendant "was convicted of a felony in The United States District Court * * * as will appear from the certified copy of the judgment of sentence" attached to the petition, which judgment has become final and the defendant is now serving his sentence thereunder. The petition contains no allegation of misconduct on the part of the defendant, nor does it give any of the facts from which a conclusion might fairly be drawn that the defendant is guilty of misconduct. Consequently, the exception of no cause of action should be maintained, for *337 under the express mandate of the Constitution we are powerless to proceed in any disbarment matter where any ground other than the misconduct of the member of the bar sought to be disbarred is being urged.
The author of the majority opinion in the Connolly case, La.Sup.,
Until the adoption of the Constitution of 1898 — wherein this court was given "exclusive original jurisdiction in all matters touching professional misconduct of members of the bar, with power to disbar under such rules as may be adopted by the court" (Article 85 of the Constitution of 1898) (Italics mine.) — the court only had appellate jurisdiction, as in all other cases. See State v. Fourchy,
Pursuant to the authority given the court in this article, the Supreme Court incorporated under its Rule No. XVIII the procedure to be followed in disbarment cases. In Section 7 of this rule it is provided that "The practice before the commissioner [appointed under Section 4 of Rule XVIII to hear the evidence in the case] shall conform as near as may be to the procedure in trials of civil suits before the district courts of this state, except asotherwise herein provided," this exception being, as provided in Section 9, "Whenever any member of the bar shall be convicted of a felony and such conviction shall be final there may be presented to the court a certified or exemplified copy of the judgment of such conviction, and thereupon the court may, without further evidence, if in its opinion the case warrants such action, enter an order striking the name of the person so convicted from the roll of attorneys and cancelling his license to practice law in the State of Louisiana." (Italics and brackets mine.)
The majority opinion in the Connolly case is based on the false premise that while the grant of jurisdiction given this court under Section 10 of Article VII of the Constitution of 1921 in disbarment cases "must be adjudged to be limited to cases of disbarment involving misconduct, [the grant] also contains a recognition of plenary power to suspend or disbar `under such rules as may be adopted by the court,'" and that the framers of the Constitution of 1921 did not intend "in authorizing us to enact rules in aid of our jurisdiction in disbarment cases involving misconduct, to restrict the right *339 delegated to mere rules of practice and procedure." (Brackets mine.) Or, as expressed in another portion of the opinion, "The limitation of jurisdiction with respect to disbarment proceedings contained in the Constitution refers solely to the grounds for disbarment but the recognition of the power of the court to adopt rules in aid of its jurisdiction is not in anywise restricted."
Such an interpretation, in my opinion, has the effect of creating the anomalous situation of permitting the court by the mere adoption of rules in aid of the limited jurisdiction granted it by the Constitution to so frame its rules as to give itself jurisdiction far beyond the limitation expressly placed upon it by the Constitution itself.
As previously pointed out, Rule XVIII provides that the procedure in disbarment cases shall conform to that in civil suits in the district courts of this state. In adopting this rule, the court did not see fit to define "misconduct," or to state what constitutes "misconduct." Nor did it declare that conviction of a felony would be per se ground for misconduct or prima facie evidence thereof. Of course if this court in adopting Section 9 of Rule XVIII intended to make the conviction of a felony, whether constituting misconduct or not, a ground for disbarment, the same would be unconstitutional. The section would likewise be unconstitutional if the interpretation to be placed thereon is that without any allegation of misconduct this court may disbar an attorney upon the mere presentation of a certified or exemplified copy of a judgment of conviction, for in such cases we would not only be relinquishing to a jury *340 of laymen our responsibility of passing upon the worthiness of a defendant by accepting, instead of our own, their appreciation of the facts upon which the prosecution of the defendant is based, but, in such instances, we would not even have an opportunity to ascertain just what those facts were, since no allegation in the petition details them. Furthermore, how are we to determine whether a defendant should be disbarred or suspended in a case of this kind. For example, in the instant case, unless we are to be governed by what we have heard and what we have read in the newspapers, we are completely ignorant of the facts upon which the defendant was convicted, since the petition is totally lacking in this respect.
The Connolly case serves its own good example of our dilemma in such instances. In that case the defendant was sentenced to prison, in addition to paying a fine, when she filed a plea of nolo contendere on a charge of evading the payment of income taxes. The jail sentence was suspended by the trial judge upon the payment of the fine and half the cost of the prosecution. With no other allegation in the petition than the fact that the defendant had been convicted of a felony, the Committee on Professional Ethics and Grievances is seeking to have her name stricken from the roll of attorneys and her license to practice law in this state revoked. Unless we are to assume that the judge had some arbitrary reason for suspending the defendant's jail sentence upon the payment of the fine, we have no recourse but to believe that the judge had at his disposal facts which justified the leniency showed her. Whatever these facts *341 may be, they are unknown to us. Are we to use as a standard the judge's leniency toward the defendant Connolly when judgment is passed on her in this court, showing her leniency on the strength of this alone, without any knowledge of the facts of the case? Or are we to require the defendant to produce such facts for us? The fallacy of such procedure is apparent. Suppose the defendant either makes no defense or permits the judgment to go against him by default, if the court is undecided as to whether the defendant should be suspended or disbarred, what then would be our procedure? In such cases, we could not compel the committee to produce the facts which gave rise to the prosecution and conviction, for it is hornbook law that no evidence can be introduced beyond the pleadings in civil suits and there is no allegation in the petition under which the evidence can be produced.
It is my opinion, therefore, that in all cases where the Committee on Professional Ethics and Grievances of the Louisiana State Bar Association seeks to disbar an attorney, all of the acts of misconduct of the member sought to be disbarred should be alleged, whether the same constitute a felony of which the member has been convicted or not, in order that the defendant may be fairly apprised of the issues he will have to meet so that he may prepare his defense thereto. This has been the interpretation placed on Section 9 of Rule No. XVIII of this court by all previous committees handling such matters from the time this *342 rule was adopted in 1926, and I see no reason to depart therefrom at this late date.
For these reasons, I respectfully dissent from the majority opinion in this case.