56 Ga. App. 840 | Ga. Ct. App. | 1937
On April 17, 193S, the solicitor-general of the Atlanta judicial circuit, in behalf of the State of Georgia, instituted a disbarment proceeding against B. C. Williford. As grounds for disbarment the petition set forth that the defendant was indicted by the grand jury of Tift County, on December 7, 1921, in two counts, each charging a separate and distinct felony, to wit, (1) forgery of a deed, and (2) uttering said forged deed with intent ■to defraud; that the defendant was found guilty, the jury fixing his punishment at not less than four nor more than five years on each count, but recommending that he be punished as for a misdemeanor; that the trial judge thereupon sentenced him to the penitentiary for not less than four nor more than five years on each count, the sentence on count 2 to begin at the expiration of the sentence on count 1; that on December 24, 1921, said sentences were amended by the judge imposing a fine of $1000, or in lieu thereof service of twelve months on the county chain gang, on each count; that, on information and belief, the fines of $2000 were paid; that the defendant has been guilty of wilful misconduct in his profession in the following particulars: (1) In 1929, he was entrusted by J. W. Davis with a mortgage made
The defendant filed pleadings as follows: (1) Demurrer; (2) plea and answer; (3) plea to the jurisdiction; (4) plea of res judicata; all filed on May 5, 1935. (5) Amendment to plea and answer, filed after a motion by the plaintiff to dismiss the defendant’s original plea and answer; (6) amendment to the plea to the jurisdiction; (7) amendment to plea of res judicata; (8) motion to dismiss the disbarment petition; (9) another motion to. dismiss the disbarment petition; all filed on July 30, 1935. (10) A motion to dismiss the plaintiff’s motion to dismiss the defendant’s original plea and answer, above mentioned, filed on August 1, 1935. (11) Another amendment to the original plea and answer; (12) another amendment to the plea to the jurisdiction; both filed on August 3, 1935. (13) An amendment to the demurrer; (14) an amended motion to dismiss the disbarment petition; both filed on December 2, 1935. (15) Another amendment of the motion to dismiss the disbarment petition, filed on June 22, 1936. On October 10, 1936, the plaintiff filed a motion to suspend the defendant until final determination of the
The special demurrers to the petition were properly overruled. The facts alleged as a cause for removing the defendant as an attorney were stated with certainty and particularity, and were sufficient to apprise him of the nature of the charges. No formal pleading is necessary in a suit to disbar an attorney.
Under the Code, § 9-501, if an attorney be convicted of a crime involving moral turpitude, he is as a matter of law unfit to remain a member of the legal profession and practice before the courts of this State; and upon a proceeding brought therefor, the court should enter a judgment to that effect. A certified copy of the conviction is conclusive evidence against him both as to the fact of his conviction and his guilt of the crime charged.
If, from the lapse of a considerable time and the particular circumstances of the case, it should appear that it would be unfair and unjust to the defendant to require him to answer to certain alleged misconduct, the court should forbear the investigation. People v. Hooper, 218 Ill. 313 (75 N. E. 896); People ex rel. Bar Asso. v. Sherwin, 364 Ill. 350 (4 N. E. (2d) 477). Where the petition alleges as a ground of disbarment that the defendant has been convicted of a felony involving moral turpitude, it can not be said that a great lapse of time between the conviction and the institution of the proceeding to disbar injures defendant in that it makes it more difficult for him to repel the charge. When he was indicted and tried for such offense, he was given ample opportunity to sustain his innocence. If convicted, that conviction (upon the production of a certified copy thereof) is conclusive upon him in a disbarment suit based thereon; and this is true whether the disbarment proceeding be instituted immediately thereafter or years hence; and what is said in cases where the doctrine of laches is applied, as to the lapse of time which renders it more difficult or practically impossible for the defendant to establish his defense, is not true in such a disbarment proceeding; for the judgment of his conviction has already foreclosed any defense. In re Elliott, 73 Kan. 151, a case much relied on by the defendant it was said: “While there is no statute of limitations which is technically applicable to a disbarment proceeding, yet where the alleged misconduct set forth in a charge is shown to have occurred more than thirteen years before the charge is filed in this court, and it appears that proceedings to investigate the occurrence were instituted soon thereafter and proceeded so far that an accusation was prepared and the accused made known his defense thereto, and that thereupon the district court having jurisdiction, and the members of the bar thereof, dropped further proceedings, and thereafter the judge of that court and the members of the bar recognized the accused professionally and socially, this court will not consider such charge.
The present petition not only sets forth the defendant’s conviction of forgery, in 1921, but also alleges the commission by him of two other crimes in 1929, both committed by him in his professional capacity. These constitute additional grounds authorizing the defendant’s disbarment. It has long been recognized that an attorney duly licensed to practice law is an officer of the court, "exercising a privilege or franchise to the enjoyment of which he has been admitted, not as a matter of right, but upon proof of fitness through evidence of his possession of satisfactory legal attainments and fair private character. For the manner in which this privilege or franchise is exercised he is continually
A disbarment proceeding is not intended for punishment, but to protect the courts from the official ministration of persons unfit to practice as attorneys therein. Payne v. State, 52 Ga. App. 425 (2) (183 S. E. 638). Therefore it is not necessary that the conduct of an attorney be criminal in order to subject him to disbarment (see Code, § 9-501, par. 3, 4), so long as the conduct illustrates his unfitness to enjoy the privileges of an attorney at law. If this be true, it follows that it is not necessary, if that conduct does amount to a criminal offense involving moral turpitude, that there be a conviction of such attorney in the criminal courts before he can be disbarred therefor; and especially is this true where the acts committed were within his professional employment. Ex parte Wall, 107 U. S. 265 (2 Sup. Ct. 569, 27 L. ed. 552); U. S. v. Parks, 93 Fed. 414; In re Danford, 157 Cal. 425 (108 Pac. 322); State ex rel. Fowler v. Finley, 30 Fla. 302 (11 So. 500); Bar Association of Boston v. Greenhood, 168 Mass. 169 (46 N. E. 568); In re Ebbs, 150 N. C. 44 (63 S. E. 190, 19 L. R. A. (N. S.) 892); State v. Winton, 11 Ore. 456 (5 Pac. 337, 50 Am. R. 486); Stone v. Pennsylvania Bar, 312 Pa. 576 (168 Atl. 473); In re Kenner, 178 La. 774 (152 So. 520); In re Burns, 55 Idaho, 190 (40 Pac. (2d) 105); State v. Fisher, 103
It appears that shortly after the defendant was convicted of forgery in Tift superior court, certain parties, individually and as a committee appointed by the Tift County Bar Association, filed a petition to disbar him, setting out as cause therefor his conviction of forgery. In December, 1922, the judge of the superior court of Tift County allowed a motion to withdraw this proceeding, and passed .an order -dismissing it. In 1929 W. S. Wiggins filed in the superior court of Atkinson County a disbarment proceeding against the defendant, which set out as ground therefor the same acts set out in the present petition to disbar, and also other professional misconduct. On April 6, 1931, Wiggins filed a petition withdrawing and dismissing the disbarment petition, and an order dismissing it was passed. The dismissal of these proceedings does not effect a bar of the present proceeding on the theory of res judicata, or on any other theory, as urged by the defendant. Such a dismissal was not an adjudication on the merits of the proceeding and the principle of res judicata has no application. See Justices of the Inferior Court v. Selman, 6 Ga. 432; 9 R. C. L. 209-10. It is true that the court could, and possibly should, have refused to allow the withdrawal, and could have gone forward with the proceeding and entered a judgment of disbarment as required by the statute. However, its leniency in failing to do so can no more prevent the prosecution and investigation of 'the charges at this time than could the failure of the judge before whom the defendant was tried and convicted ex mero motu to have entered a judgment disbarring him. The court did not err in overruling the plea of res judicata and the motions setting up the same facts.
It is further contended by the defendant that a suit of this character can be dismissed and rebrought only once, • and within six months, and upon the payment of all costs in the former suit. Code, §§ 3-508, 3-808. These sections have no application to a
It appears from the allegations of the petition to disbar that all of the acts set out as grounds of disbarment occurred out of the County of Eulton. A motion to dismiss the petition was made on the ground that in such a case the superior court of Fulton County would have no jurisdiction. The Code, § 9-501, provides that a disbarment proceeding may be prosecuted in the county of the residence of the offending attorney. The petition to disbar specifically alleges that the defendant is a resident of Fulton County and maintains an office and is engaged in the practice of law in such county. It seems clear that the fact alone that the defendant maintains an office and is engaged in the practice of law in Fulton County, as is alleged in the petition to disbar, would be sufficient residence;, within the meaning of the term as used in the statute, to give the superior court of Fulton County jurisdiction to entertain a suit to disbar him. The place of the commission of the acts set out as cause for disbarment is immaterial. It has been held that an attorney may be disbarred by reason of having been convicted of a crime'in Federal district
It is further contended that the superior courts of Tift and Atkinson counties, having assumed jurisdiction over the disbarment proceeding, thereby retained it, and that the superior court of Fulton County had no' jurisdiction of the matter for this reason. Among other cases the defendant cites Mordecai v. Stewart, 37 Ga. 364, where it was held that “whenever any court of competent jurisdiction has possession of a cause, it will retain it to the exclusion of all other courts.” It is too obvious to require discussion that this principle has no application to the facts of the present case. The petition alleges that the defendant is a resident of Fulton County and is practicing law in said county. This is entirely sufficient to authorize the bringing of a disbarment proceeding in this county, even though there might be pending against him in another county another disbarment suit, based on the same grounds, which is not true here, both former disbarment proceedings having been dismissed.
It further appears that because of certain alleged statements made in the pleadings filed by the defendant to the present proceeding, which were verified by oath, he -was indicted in five counts by the grand jury of Fulton County for perjury. Williford v. State, 53 Ga. App. 334 (185 S. E. 611). Count 5 of the indictment was based on a denial, in his answer, of the allegations in the suit to disbar that he had been convicted of the crime of forgery, and uttering a forged instrument with intent to defraud, in Tift superior court. He was placed on trial, and the jury returned a verdict of guilty on the first four counts, and of not guilty on count 5. The defendant contends that the verdict of not guilty on this count is res judicata of the fact that he was not convicted of the crime of forgery and uttering a forged instrument, and therefore that this should be stricken from the petition as a ground of disbarment. There is no merit in this position. In a prosecution for perjury the question is, did the accused wil
As appears from the statement of facts, on October 10, 1936, on motion made by the petitioner, the court, by order reciting the defendant’s conviction of perjury in Fulton superior court after the filing of the disbarment proceeding, suspended the defendant from the right to practice law “until a final disposition of the proceeding to disbar him and until further order of the court.” In DeKrasner v. Boykin, 54 Ga. App. 29, this court said: “The court in the present case suspended the movant, sua sponte, for a definite period, that is until disbarment proceedings brought against him are disposed of, because of its knowledge that he had been convicted of a crime involving moral turpitude; and here we might state, by way of parenthesis, that this fact alone, under the Code, § 9-501, providing that an attorney may be disbarred 'upon his being convicted of any crime or misdemeanor involving moral turpitude. In either case the record of his conviction is conclusive evidence,’ would be sufficient authorization for the court to enter an order of disbarment, based upon such record, without further notice or process (In re Collins, 188 Cal. 701, 206 Pac. 990, 32 A. L. R. 1062); and this would be true although his conviction was pending on motion for new trial, or on appeal' to this court (Ex parte Cohen, 72 Or. 570, 144 Pac. 79).” That
Upon a consideration of the motion for rehearing filed by the defendant the judgment originally entered is adhered to. The above opinion is substituted for that originally rendered.
Judgment affirmed.
