Summary
In Louisiana State Bar Association v. Connolly, 201 La. 342, 9 So.2d 582 (1942), the court was presented with the issue of the constitutionality of § 12.
Summary of this case from Louisiana State Bar Ass'n v. PonderOpinion
No. 36663.
June 29, 1942. Rehearing Denied July 20, 1942.
Disbarment proceedings by the Louisiana State Bar Association against Mary H. Connolly wherein the respondent filed an exception of no right or cause of action.
Exception overruled.
Charles A. McCoy, of Lake Charles, Hollingsworth B. Barret, of Shreveport, and Frank Wm. Hart and Benjamin Y. Wolf, Chairman, Supreme Court Committee on Professional Ethics and Grievances, both of New Orleans, for appellant.
O'Niell O'Niell and Robert A. Ainsworth, Jr., both of New Orleans, for defendant.
The Louisiana Bar Association, appearing herein through the Committee on Professional Ethics and Grievances, filed this summary proceeding which has for its purpose the disbarment of one Mary H. Connolly, a member of the Bar of this State. The ground upon which the disbarment of the respondent is sought is that she is unworthy to continue as a practicing attorney having been convicted, in the United States District Court for the Eastern District of Louisiana, New Orleans Division, in the matter entitled "United States of America v. Joseph H. Connolly and Mary H. Connolly", No. 20,275 of the Criminal Docket of said Court, of willfully attempting to defeat and evade the payment of income taxes due the United States for the years 1936, 1937, 1938 and 1939, which is a felony under the federal statutes punishable by fine and imprisonment in the federal penitentiary. The proceeding instituted against the respondent is authorized by, and the charges made are in strict conformity with, Section 12 of Article XIII of the Articles of Incorporation of the Louisiana State Bar Association which has been adopted as a rule of this court and which 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."
In accordance with the prayer of the Committee, this court issued an order for respondent to show cause on April 28, 1942, why her name should not be stricken from the roll of attorneys and why her license to practice law in the State of Louisiana should not be cancelled. In compliance with this order of the court, the respondent appeared on the appointed day and filed, in limine, an exception of no right or cause of action which is based upon the following contentions:
1. That Section 12 of Article XIII of the Charter of the Louisiana State Bar Association adopted as a rule of the court, providing for the summary disbarment of attorneys convicted of a felony, does not apply to a federal court conviction of a federal offense which is not cognizable under the laws of this State;
2. That the rule of court is inapplicable to this case for the reason that the conviction of respondent consists solely of the federal court's acceptance of her plea of nolo contendere followed by a sentence of fine only and a suspension of imprisonment;
3. That the rule of court is inapplicable to the offense for which respondent was convicted because the offense of willfully attempting to evade income taxes is one which does not involve moral turpitude, and
4. In the alternative, if the rule of court is held to pertain to the case, then the rule is unconstitutional in that it is violative of Section 10 of Article VII of the Constitution of 1921 which limits the original exclusive jurisdiction of this court in all disbarment cases to matters involving misconduct of the members of the bar.
It will be noted from the contentions made by the respondent that a serious challenge is made not only with respect to the applicability of our rule to her case but also as to the fundamental right and power of this court to enact and enforce it. For this reason, we address our immediate attention to the question respecting the constitutionality of the rule of court because, if, as respondent contends, it is unconstitutional, the other points relied upon by her with reference to the inapplicability of the rule to this case need not be considered.
The identical question concerning the constitutionality of the rule of court has been raised in the matter of Louisiana State Bar Association v. Richard W. Leche, La.Sup., 9 So.2d 566 where lengthy and comprehensive briefs have been filed by opposing counsel and also by amici curiae. Counsel for the respondent have adopted the arguments advanced by defense counsel in the Leche case as their argument on the constitutional question in this matter.
The attack upon the constitutionality of the rule of court is founded upon the provisions of Section 10 of Article VII of the Constitution of 1921 which defines the general supervisory powers and the original and appellate jurisdiction of the Supreme Court. The pertinent part of that section ordains: "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, * * *".
It is said by the respondent that the foregoing grant of exclusive original jurisdiction to this court in all disbarment cases is limited and qualified by the words "involving misconduct of members of the bar", and that, therefore, the court is without power or jurisdiction to adopt a rule whereby the mere allegation that a lawyer has been convicted of a felony, supported by a certified copy of the judgment of conviction, constitutes a valid ground for his disbarment; that it is necessary, in order for a petition for disbarment to state a cause of action, that it be alleged that the attorney committed an act of misconduct and that the facts upon which the charge of misconduct is predicated be set forth. In other words, it is maintained that the conviction of a felony is not, in itself, a ground for disbarment because the jurisdiction of this court in disbarment matters is limited by the Constitution to cases involving misconduct.
A consideration of the lucid language used in the Constitution makes it apparent that, while this court has been vested with exclusive original jurisdiction in all disbarment cases, the jurisdiction is expressly limited to cases involving misconduct of the members of the bar. We use the word "limited" advisedly because it is difficult to believe that the framers of the Constitution of 1921 intended to curtail or restrict the inherent or implied powers of this court over the members of the bar which it unquestionably possesses. Rather, we think, that the members of the Constitutional Convention, in providing that this court be vested with exclusive original jurisdiction of all cases of disbarment involving misconduct, indicated that they recognized and confirmed the court's inherent power over members of the bar. Under the previous Constitutions of 1898 and 1913, the jurisdiction of this court in disbarment cases was restricted to "all matters touching professional misconduct of members of the bar, * * *". (Article 85 of Constitutions of 1898 and 1913.) Hence, when the members of the Constitutional Convention of 1921 deleted the qualifying word "professional" in drafting Section 10 of Article VII, they not only extended the exclusive original jurisdiction of the court to all disbarment cases involving any misconduct on the part of an attorney but, we think that they manifested the intention of conferring upon the court plenary power to prescribe and determine the acts of the attorney which would be deemed to be misconduct. It is likewise reasonable to suppose that the members of the Constitutional Convention felt that this court would not undertake to expel any attorney unless he committed acts affecting his integrity or good moral character which he possessed at the time of his admission to the bar and which he agreed to maintain when he took his oath as an officer of the court. Accordingly, it could be plausibly argued that the phrase "involving misconduct of members of the bar" which follows the grant of jurisdiction to this court is merely descriptive of the reason for disbarment of an attorney, i.e., misconduct, and that it was not intended to be regarded as a limitation upon the jurisdiction of the court.
However, in spite of any notions we may entertain respecting the intention of the members of the Constitutional Convention of 1921, the language used in Section 10 of Article VII is too clear and direct in its meaning to authorize us to inquire into the reasons which prompted the Convention to limit our jurisdiction to matters "involving misconduct of members of the bar". Hence, it must be resolved that this court, in exerting its recognized inherent power to enact rules governing the conduct of the members of the bar, is without right to pass a rule applicable to disbarment proceedings having for its purpose the creation of a separate and distinct ground for disbarment which is not founded upon acts of misconduct.
A study of the prior jurisprudence of this court, considered in connection with the history of the constitutional provision under discussion, has been sufficient to impress us with the correctness of the conclusion above stated.
The implied or inherent power of the court over attorneys at law has never been questioned. In fact, in this and in the Leche case, all counsel concede that this court, in the absence of constitutional restriction, has plenary power to admit or reject applicants for admission to the bar under such rules and regulations as it may adopt and that it also may, in its discretion, define and prescribe standards governing the conduct of attorneys after their admission. Ex parte Steckler, 179 La. 410, 154 So. 41, 45. And the court, while it will approve legislative acts passed in aid of its inherent power, will strike down statutes which tend to impede or frustrate its authority. Meunier v. Bernich, La.App., 170 So. 567. It also seems too plain for serious argument that, since the attorney at law obtains his license or franchise from the court, the court necessarily possesses plenary power to suspend or expel him where he has failed to maintain the standard of moral character required of him at the time of his admission. This is the generally accepted doctrine. The right of the court to expel in such instances cannot be set aside by mere legislative action. However, it can be limited or restricted by constitutional provision for the reason that the Constitution is the source of all governmental powers.
The general authority of the court in disbarment matters was first recognized in 1810 when the Superior Court of the Territory of Orleans disbarred an attorney for having allegedly concerted with negroes and mulattoes of Santo Domingo in the indiscriminate massacre of the white population. See Dormenon's Case, 1 Mart., O.S., 129.
Under the first Constitution of Louisiana, that of 1812, the Supreme Court was vested with appellate jurisdiction only, art. 4, § 2. That Constitution and the five others which preceded the Constitution of 1898, did not contain a grant of original jurisdiction to the Supreme Court in disbarment cases and the court, in the cases coming before it for adjudication, declined to recognize that it possessed any implied or inherent powers over these matters and refused to entertain them on the ground that, under the Constitution, the court was vested with appellate jurisdiction only. See Pain v. Plique and Le Beau, 10 La. 304, and Robouam's Heirs v. Robouam's Executor, 12 La. 73.
The procedure for the disbarment of attorneys, prior to the passage of Act No. 129 of 1896, was provided for by Sections 118, 119 and 120 of the Revised Statutes. Under these sections, the criminal courts were given jurisdiction of the proceeding. In Chevalon and Wife v. Schmidt, 11 Rob. 91, and again in Turner v. Walsh, 12 Rob. 383, both decided in 1845, it was held that, under those sections of the Revised Statutes, the license of an attorney could not be withdrawn or annulled except on conviction in a court having jurisdiction of criminal proceedings and that the case must be brought by information and trial had by jury. By Act No. 129 of 1896, provision was made by the Legislature for the disbarment of attorneys in civil proceedings. That statute declared that, if any attorney had been convicted of a felony or was guilty of gross professional misconduct, he was subject to summons before the district court in the parish in which he resided on a petition signed by not less than ten attorneys, and, if the allegations of the petition were proved, the court had the right, in its discretion, to render judgment reprimanding, suspending or disbarring him.
In State ex rel. Adams v. Judge, 49 La.Ann. 1015, 22 So. 195, decided in 1897, it was held that, while Act No. 129 of 1896 did not have the effect of repealing Sections 118, 119 and 120 of the Revised Statutes, it provided an additional remedy for disbarment of an attorney in a civil proceeding upon a showing that he had been convicted of a felony or that he was guilty of gross professional misconduct.
By Article 85 of the Constitution of 1898, this court was given, for the first time, exclusive original jurisdiction "in all matters touching professional misconduct of members of the bar, * * *". And, in the case of State v. Fourchy, 106 La. 743, 31 So. 325, it was held that the constitutional grant of exclusive original jurisdiction was of a limited nature and conferred upon this court the right only to hear and determine as an original proposition disbarment cases in which professional misconduct of an attorney was charged. Chief Justice Monroe, the author of the opinion in the Fourchy case, served as a member of the Constitutional Convention of 1898. In speaking for the court with respect to the extent of the constitutional grant of jurisdiction, he said (see page 760 of 106 La., page 333 of 31 So.): "It will be observed that when this constitutional provision was adopted the act 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 non-professional misconduct to be dealt with in the first instance by the courts of ordinary and general jurisdiction, as provided by the existing laws."
Thus, it will be seen from the foregoing quotation that the court in State v. Fourchy adopted the view that the exclusive original jurisdiction in disbarment cases conferred upon this court by the constitutional provisions was restricted to cases involving professional misconduct and that the Act of 1896, insofar as it made conviction of a felony a separate and independent ground for disbarment, remained in force and effect, with original jurisdiction vested in the district court of the residence of the lawyer sought to be disbarred. This is shown, not only by the quotation supra, but also by the following paragraph of the decision where it is declared: "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 the court itself, which jurisdiction, according to the terms of the grant, does not extend to the matter now under consideration."
The decision in the Fourchy case respecting the limited jurisdictional grant (Article 85 of the Constitutions of 1898 and 1913) to this court in disbarment cases involving professional misconduct was approved and reaffirmed as late as 1917 in the case of State v. Weber, 141 La. 448, 75 So. 111. In that matter, disbarment proceedings were instituted against Weber on the ground that he had been convicted of the crime of forgery. It appeared that the forgery for which he was convicted was committed by him in his individual capacity and not in his professional capacity. The court held that it was without jurisdiction of the case, citing State v. Fourchy as authority for dismissing the suit.
The only case which we have been able to find wherein the correctness of the decisions in the Fourchy and Weber cases are questioned is State v. Gowland, 189 La. 80, 179 So. 41. In that matter, it appeared that Gowland had been disbarred in 1910 by a decree of this court in a proceeding based upon his conviction of a felony. State v. Gowland, 126 La. 262, 52 So. 480. Later, upon being granted a full pardon for the offense for which he was convicted, he presented a petition to the court to have himself reinstated as a practicing attorney. His application was denied. 174 La. 351, 140 So. 500.
Subsequently, in 1938, he filed another petition requesting the court to declare that its decree of disbarment rendered in 1910 was absolutely null on the ground that the offense for which he had been convicted did not involve professional misconduct and, hence, that the court had no original jurisdiction to render the disbarment decree. Reliance was placed upon the cases of State v. Fourchy, supra, and State v. Weber, supra, in support of the proposition. The court, however, refused to annul the decree of disbarment rendered in 1910 stating that Gowland was not disbarred for professional misconduct but because of the fact that he was convicted of a felony and was thereby disfranchised. It was declared in the opinion that the ruling in State v. Weber was based upon obiter dicta contained in the Fourchy case and that, since the expressions in the Fourchy case relied upon by the court in the Weber case were not necessary to the conclusion reached in the former decision [ 189 La. 80, 179 So. 43], the Weber case was "based upon a misunderstanding of the cause for which the disbarment should have been pronounced, and is not to be regarded as authority".
An examination of the original proceedings under which Gowland was disbarred ( 126 La. 262, 52 So. 480) shows that he was charged with professional misconduct in that he had been convicted of the crime of forgery and was thereby rendered morally unfit to continue in the practice of law. The allegations (which were not denied) were sufficient to vest the court with jurisdiction of the case. Therefore, Gowland's belated attack, some 28 years later, that the court did not have jurisdiction because the crime for which he was convicted had no relation to his professional conduct, involved a question of fact and the court was correct in refusing to set aside the original decree. However, a reconsideration of the ground upon which that decision is pitched — that is that this court has jurisdiction to disbar an attorney because he has been disfranchised by reason of a conviction for a crime and not because he was guilty of misconduct — is in discord with the Weber and Fourchy cases which we believe are based upon sound principles of constitutional law. As a consequence, the expressions contained in the Gowland case, with reference to the incorrectness of the conclusion reached in State v. Weber, will not be followed.
Under the Constitution of 1921, the jurisdictional grant to this court in disbarment cases was enlarged so as to include all misconduct (professional and non-professional) of members of the bar. And, in this grant (Section 10 of Article VII), as an aid to its jurisdiction, the plenary power of the court "to suspend or disbar under such rules as may be adopted by the court" is recognized by specific declaration. But the power to prescribe rules in disbarment matters must be considered in connection with the nature of the jurisdictional grant and the prior jurisprudence which declares that this grant is restricted to cases involving professional misconduct (presently, any type of misconduct). Therefore, in conformity with the rulings in the Fourchy and Weber cases, we hold that, while the court has the right and authority to pass any reasonable rule respecting disbarment cases involving misconduct of attorneys, it cannot extend its jurisdiction by rules creating independent grounds for disbarment not founded upon acts of misbehavior.
The question, therefore, is — Did this court by the adoption of Section 12 of Article XIII of the Articles of Incorporation of the Louisiana State Bar Association establish a separate and distinct ground for disbarment which is not based on the misconduct of the attorney?
A careful consideration of the rule has convinced us that the question must be answered in the negative. The rule provides, in substance, that "Whenever any member of the bar shall be convicted of a felony * * *" and there is presented to the court "a certified or exemplified copy of the judgment of such conviction, * * * 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 * * *". (Italics ours.)
The expression "may, without further evidence" merely indicates that the court will accept the record of conviction as evidence of the misconduct of the attorney, and, after an examination of such record, the court will determine whether the acts for which the attorney has been found guilty in a criminal proceeding constitute such misconduct as to declare him unworthy to continue in the practice of law. As we view it, the rule is based exclusively on the jurisdictional grant for disbarment of attorneys for misconduct and it simply provides for a consideration of the judgment of conviction as prima facie evidence establishing the fact of misconduct. We think that this is a fair and reasonable interpretation of the rule for if the court had intended to adopt a tenet that conviction of crime would, of itself, be an independent ground for disbarment, irrespective of misconduct, it would have provided that the judgment of conviction should be conclusive.
In many of the states of the Union, statutes have been enacted which provide that the conviction of a felony or even conviction of a misdemeanor involving moral turpitude are grounds for disbarment of an attorney. Under these statutes, the judgment of conviction is made conclusive and the court does not exercise any discretion whatever with respect to the penalty to be imposed. These laws are not founded upon misconduct but rather are based upon the premise that "To permit an attorney who has been convicted of a felony or reprehensible misdemeanor to continue to function as an officer of a court of justice would bring discredit upon the court, and tend to cause it to lose the respect and confidence of the public which it must have if it is to function at its best in the administration of justice." See In re Casebier, 129 Kan. 853, 284 P. 611, 612; In re Minner, 133 Kan. 789, 3 P.2d 473, 79 A.L.R. 35; Commonwealth v. Porter, 242 Ky. 561, 46 S.W.2d 1096, and In re Lindheim, 195 App. Div. 827, 187 N.Y.S. 211.
In Louisiana, we have a similar statute (Act No. 129 of 1896) which makes it mandatory that an attorney at law who has been convicted of a felony be punished by reprimand, suspension or disbarment. But original jurisdiction of the disbarment proceedings under that statute is vested in the district court of the residence of the attorney and not in this tribunal. State v. Fourchy, supra.
Since we find that Section 12 of Article XIII of the Articles of Incorporation of the Bar Association is constitutional because it is a rule respecting the trial of disbarment cases based upon misconduct, we pass on to consideration of the next contention presented by counsel for the respondent which is that the rule is invalid for the reason that the rule-making power of this court extends to procedural matters only and not to those affecting substantive law.
This contention is founded on the theory that the rule under consideration, which has the effect of making the judgment of conviction of a felony prima facie evidence of misconduct and of shifting the burden of proof to the respondent to rebut the presumption, is an enunciation of a principle of substantive law by the court and is tantamount to a legislative act. Therefore, it is argued that the rule is unconstitutional because it contravenes Sections 1 and 2 of Article II of the Constitution, which provide for a separation of powers between the legislative, executive and judicial departments and prohibit the exercise by one department of power properly belonging to either of the others, and Section 3 of Article VII of the Constitution which provides in substance that the function of the courts shall be strictly judicial.
The general principle concerning the rule-making power of courts is stated in 21 Corpus Juris Secundum, Courts, § 172, p. 266, as follows: "The principle that courts may prescribe reasonable rules, not contravening the constitution or statutes, nor affecting substantive law, has been applied to rules regulating various matters of practice and procedure." (Italics ours.)
Cases from a vast majority of the states are cited in support of the foregoing doctrine. Considerable difficulty, however, has been encountered by the courts in determining what is a rule of substantive law as distinguished from a rule of practice and procedure, particularly with respect to rules of law concerning the admissibility and effect to be given to evidence. Of course, where the court rule unquestionably deprives the party of a substantive right to which he is entitled under the law of a State, it will be held invalid. See Cities Service Oil Co. v. Dunlap, 308 U.S. 208, 209, 60 S.Ct. 201, 84 L.Ed. 196. And where the rule of an inferior court has the effect of admitting illegal evidence, it will be set aside. See Kennedy's Heirs v. Meredith, 3 Bibb., Ky., 465. Also Pelz v. Bollinger, 180 Mo. 252, 79 S.W. 146. On the other hand, a rule of court, which abrogated a statute providing that the court in a criminal case must instruct the jury that no inference of guilt shall arise against the accused from his failure to testify in his own behalf, has been held not to invade the realm of substantive law but is a valid exercise of rule-making power "since `procedure' is broader term than practice and includes pleading, evidence, and practice; `practice' is course of procedure in courts and `substantive law' is that part of law creating, defining, and regulating rights". See State v. Pavelich et al., 153 Wn. 379, 279 P. 1102.
Questions respecting the difference between rules of practice and procedure and rules of substantive law have generally arisen in cases involving conflict of laws where the courts have been confronted with the duty of determining whether to apply a local rule of evidence or the law applicable in the foreign state. And many close distinctions have been drawn as to whether the local rule involved a matter of substantive law or of procedure. Be this as it may, we do not deem it to be of importance in the case at bar whether the rule of court under attack is to be classed as one of substantive law or not for the reason that we believe that, conceding it to be one of substantive law, it is fully authorized and contemplated by the provisions of Section 10 of Article VII of the Constitution and cannot, therefore, be said to be in conflict with Section 2 of Article II and Section 3 of Article VII as contended for by counsel for the respondent.
It is to be borne in mind that the grant in Section 10 of Article VII of the Constitution of "exclusive original jurisdiction in all disbarment cases involving misconduct of members of the bar", is followed by the phrase "with the power to suspend or disbar under such rules as may be adopted by the court * * *." (Italics ours.) The grant of jurisdiction, while it must be adjudged to be limited to cases of disbarment involving misconduct, also contains a recognition of plenary power to suspend or disbar "under such rules as may be adopted by the court".
We cannot believe that the framers of the Constitution of 1921 intended, in authorizing us to enact rules in aid of our jurisdiction in disbarment cases involving misconduct, to restrict the right delegated to mere rules of practice and procedure. On the contrary, the history of the constitutional provision now under consideration and the language contained therein make it evident that the Constitutional Convention of 1921 gave approval to the existing inherent power of this court to govern the conduct of the members of the bar.
Under the court's admitted inherent power to admit attorneys to practice, it has adopted rules prescribing certain qualifications which must be complied with by the applicant as a condition to obtaining his license. These regulations are unquestionably ones of substantive law. Yet no one would venture to suggest that the court, in pursuance of its implied judicial power, did not have the right to prescribe them. 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.
It is, however, argued by respondent that, if we maintain the rule of court under attack, it will be equivalent to declaring that an attorney should be disbarred on hearsay evidence, i.e. the verdict of a jury, and we are reminded that, since this is a civil proceeding, the law of evidence is well established that convictions of crime are not admissible as proof in a civil case. It is also suggested that approval of the rule will be tantamount to an abdication of our exclusive original jurisdiction in disbarment cases; whereas, the framers of the Constitution, in vesting such jurisdiction in us, intended that we, and not some other court, should investigate the charges of misconduct and determine for ourselves whether such misconduct in fact exists.
We cannot coincide in these postulations. The rule provides in substance that the conviction of a felony makes out a prima facie case of misconduct. There is nothing very strange or inappropriate in receiving the judgment of conviction of another court as presumptive evidence of wrong-doing on the part of the lawyer. He has already been tried and found guilty of a felony by a jury under conditions which would not prevail in a disbarment proceeding. Throughout the trial for the criminal offense, he was clothed with the presumption of innocence; he was entitled to an acquittal if the facts were not such as to prove him guilty beyond a reasonable doubt and he was protected by many other constitutional rights which are particularly applicable to the trial of all criminal cases. Above all, the final judgment of conviction by a court of competent jurisdiction evidences the fact that the trial was fair and that none of the accused's rights were invaded. Why, then, should not such a judgment be admitted in evidence and be considered as presumptive proof of misconduct in a disbarment case? Felonies generally involve wrongful conduct. The rule of court does not deprive the lawyer of his defense, if he has a valid one.
That a judgment of conviction of a felony will be regarded as prima facie evidence of misconduct in a disbarment proceeding, while not necessarily conclusive, is sustained by all the authorities. In the case of State v. O'Leary et al., 207 Wis. 297, 241 N.W. 621, 622, 81 A.L.R. 1193, proceedings to revoke the licenses of the defendants as attorneys at law were brought in the Supreme Court of Wisconsin on the ground that they had been convicted of a conspiracy to defraud the United States. The questions presented to the court were: (1) whether the records of conviction were conclusive evidence of guilt in the proceeding for disbarment and (2) whether such convictions established a prima facie case. There was no statute in Wisconsin which contained provisions constituting the conviction of a felony a separate, distinct and independent ground for disbarment. The court held that the question in every disbarment proceeding is whether the facts show that the defendant did not possess the essential character qualifications to continue in the profession and that, therefore, the record of conviction of a felony should not be considered as conclusive evidence of wrong-doing. However, as to the second question, the court concluded that the record of conviction was not merely evidence of defendant's guilt of the crime and his unfitness to practice law "but that prima facie it establishes both facts". And, in remanding the case to the referee, the court observed: "However, defendants may show, if they are able so to do, that the facts which formed the basis for their conviction are not true, and it is considered that the matter should be referred solely for the purpose of giving defendants this opportunity."
In an annotation which follows the report of the O'Leary case in 81 A.L.R. at page 1196, and which deals with cases where there is no state statute providing that conviction of a crime is an independent ground for disbarment, it is said:
"In some jurisdictions it is held that, where conviction of a crime involving moral turpitude is not made by statute an independent ground for disbarment, a showing of a conviction of such a crime in a disbarment proceeding prima facie establishes the guilt of the convicted attorney and his unfitness to continue in the legal profession."
In support of the statement contained in the text, the cases of State v. O'Leary, supra; In re Kaufmann, 245 N.Y. 423, 157 N.E. 730; Branch v. State, 99 Fla. 444, 128 So. 487; State v. Holding, 12 S.C.L. 379, 1 McCord 379; In re Weare, 2 Q.B. (Eng.) 439; In re Solicitor, 61 L.T.N.S. (Eng.) 842 (affirmed 37 Week Rep. 598 — C.A.); People ex rel. Hirschi v. Payson, 215 Ill. 476, 74 N.E. 383, and People ex rel. Bar Ass'n v. Burton, 39 Colo. 164, 88 P. 1063, 121 Am.St.Rep. 165, are cited.
The text continues with the statement that: "Some of the decisions indicate an adoption of the view that, where conviction of a crime involving moral turpitude is not made an independent ground for disbarment, the showing of such a conviction in a disbarment proceeding conclusively establishes the convicted attorney's guilt and his unfitness to continue the practice of law." Cases cited supporting this statement are State v. Stringfellow, 128 La. 463, 54 So. 943; Underwood v. Com., 105 S.W. 151, 32 Ky.Law Rep. 32; State ex rel. Sorensen v. Scoville, 123 Nev. 457, 243 N.W. 269; the dissenting opinion of Field, J., in Ex parte Wall, 107 U.S. 265, 2 S.Ct. 569, 27 L.Ed. 552; People ex rel. Chicago Bar Ass'n v. Meyerovitz, 278 Ill. 356, 116 N.E. 189; People ex rel. Deneen v. Gilmore, 214 Ill. 569, 73 N.E. 737, 69 L.R.A. 701, and State ex rel. Guille v. Chapman, 11 Ohio 430.
In addition to the foregoing authorities, it is to be observed that in the recent case of Matter of Donegan, 282 N.Y. 285, 26 N.E.2d 260, 263 (a case which is heavily relied on by the respondent as supporting another contention which will be later discussed), the Court of Appeals of New York, while holding that the provisions of Subdivision 3 of Section 88 of the New York Judiciary Law, Consol.Laws, c. 30, did not apply to a conviction for violation of a federal statute and that a disbarment proceeding brought under that particular subdivision could not be maintained solely on the ground of such conviction, it remanded the case for further proceedings under Subdivision 2 of Section 88 of the Judiciary Law authorizing the appellate division to govern the conduct of attorneys and remarked: "The judgment of conviction will constitute at lease prima facie evidence of guilt of the crime charged. cf. State v. O'Leary, 207 Wis. 297, 241 N.W. 621, [annotated], 81 A.L.R. p. 1193."
In People ex rel. Chicago Bar Ass'n v. Meyerovitz, supra [ 278 Ill. 356, 116 N.E. 192], the court said: "It is not the conviction which justifies disbarment, but the commission of the act. The record of the conviction is conclusive evidence of the guilt of the accused, but guilt may be proved without such record."
In State v. Stringfellow, supra, decided in 1911, an original proceeding was instituted in this court to disbar the defendant on grounds of professional misconduct in that he had been indicted and convicted of embezzlement of funds of one of his clients, of conspiracy to forge and utter as true a certain acceptance and waiver of citation in a divorce suit, and of the forgery and uttering as true of this same acceptance of service and waiver of citation. After the defendant had been served with process, he applied to the court for a commission to take testimony on the charges on which he had been already tried and convicted. The state objected to any further inquiry being made into the guilt or the innocence of the defendant on the charges, pleading that the judgment and sentence against the defendant in the Criminal District Court was res adjudicata. The court sustained the objection of the state and disbarred the defendant upon the evidence of the judgment of conviction stating: "That the said judgment, though possibly not technically res adjudicata, yet is conclusive, appears to us to be a plain proposition."
The ruling of this court in the Stringfellow case is obviously more drastic in its effect than the present rule of court now under attack which merely establishes a prima facie case of misconduct against the respondent.
In view of the constitutional grant of power to this court to suspend or disbar an attorney for misconduct under such rules as may be adopted by the court and the authorities hereinabove cited, we hold that the objection of the respondent that the rule of court is unconstitutional because it enunciates a principle of substantive law is not well founded.
Another question raised by the respondent is that the rule of court invoked in this case is inapplicable for the reason that her conviction consists solely of the federal court's acceptance of her plea of nolo contendere followed by a sentence of fine only and a suspension of imprisonment. Many cases are cited in support of this proposition to show that a plea of nolo contendere is not to be regarded as analogous to a plea of guilty and that, while the acceptance of such a plea authorizes the court to impose a sentence, it is not to be considered as an admission of guilt in other proceedings.
We find no substance in this contention of the respondent for the reason that the rule invoked by the Bar Association makes the judgment of conviction prima facie evidence of misconduct. The allegation that respondent has been convicted of a felony, coupled with the presentation of a certified copy of the judgment of conviction, is sufficient to sustain the cause of action. And it makes no difference whether the judgment of conviction was entered as a result of a plea of guilty, verdict of a jury or a plea of nolo contendere. The question of the effect of the plea of nolo contendere is one which is properly addressed to the merits of the case.
A similar contention is made by the respondent that the rule of court is inapplicable to her case maintaining that the offense for which she stands convicted does not involve moral turpitude. The question as to whether the felony for which respondent was convicted constitutes misconduct will be considered on the merits of the case. The rule of this court relied upon by the Bar Association is founded upon the theory that felonies punishable by incarceration in a penitentiary prima facie establish reprehensible behaviour on the part of the attorney. Hence, it will be presumed, on a trial of an exception of no cause of action in a disbarment proceeding based upon allegations that the lawyer sought to be disbarred has been convicted of a felony, that the offense was one which involved acts of misconduct on his part.
The final point raised by the respondent on her exception of no cause of action is that the rule of court is inapplicable to her case because the rule has reference only to the conviction of felonies punishable under the laws of Louisiana and not to a conviction of a federal offense which is not cognizable under the laws of this State. This contention might have some merit if the rule under attack provided that the conviction of a felony was, in itself, a ground for disbarment. However, as we have hereinabove pointed out, the rule is not to be interpreted to mean that disbarment results because of the judgment of conviction but because the judgment of conviction is prima facie evidence of misconduct on the part of the attorney. A careful consideration of the cases relied upon by the respondent in support of her contention, and notably the Matter of Donegan, supra, will exhibit the soundness of this conclusion.
In the Matter of Donegan, disbarment proceedings were instituted in the Appellate Division of the Supreme Court of New York under the provisions of Subdivision 3 of Section 88 of the New York Judiciary Law which declares:
"§ 88. Admission to and removal from practice by appellate division. * * *
"3. Whenever any attorney and counsellor-at-law shall be convicted of a felony, 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."
The conviction upon which the disbarment proceeding was founded was by the United States District Court of the Southern District of New York for the crime of conspiracy to use the mails to defraud. The judgment of conviction had been affirmed by the United States Circuit Court of Appeals, Second Circuit, United States v. Dilliard, 101 F.2d 829, and an application for certiorari had been denied by the Supreme Court of the United States, 306 U.S. 635, 59 L.Ed. 484, 83 L.Ed. 1036. The question presented to the court for determination was whether the New York Judiciary Law, in making an attorney's conviction of a felony an absolute ground for disbarment, included convictions of felonies cognizable under the laws of the United States as well as felonies punishable under the State statutes. The court found that it was the intention of the New York Legislature to include felonies punishable under the laws of the United States as well as those cognizable under the New York law for the reason that Subdivision 4 of Section 88 of the Judiciary Law provided that the Appellate Division should have power to vacate or modify an order of disbarment where the attorney, who had been convicted, had been pardoned by the President of the United States. However, the court resolved that, since the statute, while not strictly a penal one, required the court to automatically and irrevocably disbar the attorney for life, its consequence in effect was most severe and partook of the nature of punishment. "Hence", said the court, "the statute must be interpreted in the light of the fundamental canon that penal statutes must be strictly construed."
Under this strict construction of the statute, the court held that it did not apply to a conviction for a crime made a felony under the federal law, unless the acts which constituted the crime were also punishable under the laws of the State of New York as a felony. And it concluded that, since the crime of conspiracy was only a misdemeanor under the New York law, the statute providing for summary disbarment of an attorney convicted of a felony did not govern the case.
However (as has been hereinabove pointed out), the court did not dismiss the disbarment proceeding entirely. On the contrary, it remanded the matter to the appellate division of the Supreme Court to be proceeded with under Subdivision 2 of Section 88 of the Judiciary Law (which authorizes that court to govern the conduct of attorneys) with the statement that the judgment of conviction "will constitute at least prima facie evidence of guilt of the crime charged".
It will be seen at a glance that the decision in the Donegan case, with which we are in full accord, is not authority for the contention made by the respondent in the case at bar. The rule invoked by the Bar Association in this case is quite different from Subdivision 3 of Section 88 of the New York Judiciary Law. That statute provides for the summary disbarment of an attorney who has been convicted of a felony. The judgment of conviction is conclusive and disbarment follows as a matter of course. Conversely, our rule of court does not so provide, and, if it did, it might be considered to be beyond the power of the court for the reason above stated that our jurisdiction in disbarment cases is limited to matters involving misconduct and we cannot create by rule grounds for disbarment which are not predicated upon wrongdoing. Our rule is one of evidence affecting the burden of proof. It is founded solely on the misconduct of the attorney and under it the court has retained full discretion to render such decree as it deems proper in the case.
In addition to the Donegan case, counsel for respondent places reliance in the cases of People v. Brayton, 100 Colo. 92, 65 P.2d 1438; In re Ebbs, 150 N.C. 44, 63 S.E. 190, 19 L.R.A., N.S., 892, 17 Ann.Cas. 592, and State v. Flynn, 160 La. 483, 107 So. 314.
The question presented in the Brayton and Ebbs cases, like the Donegan case, was whether a state statute, providing that an attorney's conviction of a felony shall be a summary ground for disbarment, should be construed to include crimes which were not cognizable under the State law. The courts held in the negative. The decisions are not apposite for the reasons heretofore set forth.
In State v. Flynn, supra, disbarment proceedings were instituted against the defendant on the ground that he had been found guilty of professional misconduct while practicing in the State of New York and had been disbarred by the Supreme Court of that State. The defendant excepted to the petition on the ground that the judgment of the New York Court disbarring him was insufficient to set forth a cause of action of misconduct against him under our law and that, in order for a cause of action to be stated, the acts of his misconduct would have to be alleged. We sustained the exception, and correctly so, on the ground that the judgment of a court of a foreign jurisdiction in a disbarment proceeding did not, in itself, constitute misconduct since the acts upon which that judgment was based may or may not have been considered wrongful under the laws of this State.
The Flynn case is clearly distinguishable from this one for the reason that there is no rule of this court providing that judgments of courts of foreign jurisdictions in disbarment proceedings will be considered as prima facie evidence of the fact of misconduct.
For the reasons assigned, the exception of no cause of action is overruled and the respondent is ordered to answer within twenty days from the rendition of this decree.
O'NIELL, C.J., recused.
HIGGINS and FOURNET, JJ., dissent.
The petition filed by the Committee on Professional Ethics and Grievances asking for the disbarment of the defendant attorney, alleges that she "was convicted of a felony in the United States District Court for the Eastern District of Louisiana, New Orleans Division, in the matter entitled United States of America v. Joseph H. Connolly and Mary H. Connolly, No. 20,275 of the Criminal Docket of said Court, as will appear from the certified copy of the judgment of conviction attached hereto"; that "the said judgment of conviction is now final"; and that "under the Articles of Incorporation of the Louisiana State Bar Association, Section 12, Article XIII, which said charter is now a part of the rules of this Court, your Committee now presents to the Court the evidence of conviction in order that the Court, if in its opinion, the case warrants such action, may enter an order striking the name of the said Mary H. Connolly from the roll of attorneys and cancelling her license to practice law in the State of Louisiana."
The judgment of conviction annexed to the petition shows that on March 4, 1942, the defendant and her husband entered pleas of nolo contendere to the offense charged in the indictment of "wilfully attempting to defeat and evade the payment of income taxes due the United States for the years 1936, 1937, 1938 and 1939"; that having been convicted upon these pleas, they were ordered to pay certain fines and one-half the costs of court; that the prison sentences were suspended and they were placed under probation for a period of five years, conditioned upon paying the above fines and costs of court, and the income taxes due, with penalties.
The defendant filed an exception of no cause of action and pleaded that the rule of the Court is not applicable to her case, and that, in the alternative, if the Court construed it so as to apply to her case, the rule is unconstitutional, being violative of Section 10, Article VII of the Constitution of 1921.
The relevant part of Article VII, Section 10 of the Constitution of 1921, provides "It [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 * * *." (Brackets ours.)
The first part of the above quoted language of the Article of the Constitution grants exclusively to this Court jurisdiction as a trial court or court of first instance and authority to hear and decide a particular type of case, that is, a disbarment one, arising from misconduct of members of the bar. No other tribunal has the right to entertain jurisdiction of such cases, because our jurisdiction is exclusive. This language not only places upon this Court the responsibility and duty of determining for itself, by competent evidence, whether or not an attorney has been guilty of misconduct warranting his suspension or disbarment but grants to the attorney charged with misconduct the right to have this Court and no other court, or jury, or body, decide from competent and relevant evidence if he has been guilty of misconduct and, if so, what punishment should be inflicted — suspension or disbarment. The language of the second part of the sentence gives this Court the power to make its judgment or decree effective by suspending or disbarring the wrongdoer — the punishment to be in proportion to the gravity of the offense or to the moral turpitude involved. In short, if the offense is a minor one, a suspension for some period of time would be adequate for the protection of the bar and public and for the disciplining of the erring member. On the other hand, if the offense committed shows that the attorney is so lacking in those qualities of character and moral stability as to render him unfit to perform his professional duties, the punishment would be more severe — disbarment. The degree of punishment is left by the constitutional grant of power to the discretion of the Court, and it is to be exercised with wisdom and justice, as the facts of each case warrant. A third provision in the language above quoted authorizes the Court to adopt rules in connection with disbarment cases involving misconduct of members of the bar. Obviously, the rules which may be adopted are those pertaining to and governing pleadings and procedure in such cases. This rule-making power necessarily is merely incidental to the fundamental constitutional grant of jurisdiction with power to punish members of the bar for misconduct. The right of the Court to adopt such rules cannot logically or soundly be said to give the Court the authority to make any rule which would add to its jurisdiction grounds of disbarment per se, independent of misconduct, nor can the Court be said to have authority under its rule-making power to delegate, abandon, or surrender the exclusive original jurisdiction conferred upon it by this constitutional grant. The Court has acted under this constitutional authorization and passed rules of adjective law by providing that a disbarment proceeding is a summary one, that the testimony may be taken before a commissioner appointed by the Court, that the defendant would have the right to offer proof to rebut any evidence tending to show that he was guilty of wrongdoing and to have the Court consider and determine his case as any other civil one — by being informed of the facts thereof through the pleadings and by the evidence in the record, before reaching its conclusion on the question of the guilt or innocence of the defendant, and the proper punishment to be inflicted. In re Kenner, 1933, 1934, 178 La. 774, 152 So. 520.
Under the constitutional authority above referred to, this Court has adopted as a rule, Section 12 of Article XIII of the Articles of Incorporation of the Louisiana State Bar Association, as follows: "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." (Italics ours.)
The above rule is susceptible of several interpretations: (1) That a final conviction, evidenced by a certified copy of such judgment, by mere legal operation ipso facto authorizes the Court to enter an ex parte order striking the name of the attorney from the roll and cancelling his license to practice; (2) that as appears from a certified copy of the judgment, a final conviction of a felony is conclusive evidence of the defendant's guilt, and the Court, without any hearing, has the authority to enter an order striking his name from the roll of attorneys and cancelling his license; (3) that the Court in its discretion may permit the introduction of further evidence in addition to the certified copy of the final judgment of conviction, if it decides to do so; and (4) that the certified copy of the final judgment of conviction per se is sufficient evidence to warrant the disbarment of an attorney.
With reference to constructions (1) and (2), it is apparent that the Court is not hearing and deciding the case upon competent and relevant evidence for itself as it is required to do by the Constitution, but it is substituting for its own judgment (as a trial court or a court of first instance, with exclusive jurisdiction in such cases) the verdict of a jury in another tribunal in a criminal proceeding. Realizing that the Court would be placed in the position of having created under its rule-making power an independent or per se ground of disbarment, that is, conviction of a felony, wholly disassociated from the question of misconduct of the member of the bar, and that in so doing, it exceeded its constitutional authorization, it is said by the Committee that the copy of the conviction would merely establish a prima facie case of misconduct.
It is likewise clear under the first two interpretations of the rule that the Court would abandon the jurisdiction which it is obliged to exercise independently for itself, by accepting in lieu of its own judgment the verdict of the jury representing nothing more than the opinion of the members thereof that from the evidence they heard in the criminal proceeding, the accused was guilty of the crime charged. In re Platz, 42 Utah 439, 132 P. 390, 392. So, again, it is said that the Court is not abandoning or delegating its jurisdiction by substituting the opinion of the members of the jury for its own, but that the certified copy of the verdict is mere prima facie evidence of misconduct. Briefly, it is conceded by the Committee and in the majority opinion that the defendant, whose disbarment is sought, has the right to insist that this Court confine its jurisdiction to the question of misconduct and that she is entitled to a hearing before this Court, to determine the question of her guilt or innocence vel non.
It will be observed that our rule is silent as to whether a certified copy of a final verdict of conviction is prima facie evidence of the misconduct of a member of the bar. The Court could not make any such general statement for the reason that there are a great many offenses classified as felonies under the federal laws and other state laws that are merely made misdemeanors in our State, or are not crimes at all here, and other offenses which are made felonies that do not necessarily involve moral turpitude. State v. Flynn, 1926, 160 La. 483, 107 So. 314; In re Donegan, 1940, 282 N.Y. 285, 26 N.E.2d 260; People v. Brayton, 100 Colo. 92, 65 P.2d 1438; State ex rel. Grievance Committee v. Biggs, 52 Or. 433, 97 P. 713; In re Ebbs, 150 N.C. 44, 63 S.E. 190, 19 L.R.A., N.S., 892, 17 Ann.Cas. 592.
Furthermore, the rule does not expressly or impliedly provide for the changing of the rules of evidence and shifting the burden of proof from the plaintiff to the defendant.
A reading of the rule in question shows that the Court intended that the final conviction of a felony was an independent or per se ground of disbarment, because it does not in such case provide for a hearing and authorizes the Court to enter an order striking the name of the attorney so convicted from the roll of attorneys and cancelling his license. This is made clear because under the rules of evidence a certified copy of the verdict of a jury is admissible in evidence to prove that the defendant was convicted of a felony, but not admissible to prove any facts upon which the verdict was based. The petition of the Committee was presented to the Court solely on that ground and misconduct is no where alleged therein.
The contention that the rule provides that the certified copy of the final judgment of conviction of a felony establishes a prima facie case against the accused is predicated upon the language that "the court may, without further evidence, if in its opinion the case warrants such action", strike the name of the attorney from the roll and cancel his license. Therefore, it is said that the Court has neither made conviction of a felony an independent ground of disbarment nor surrendered its jurisdiction, because it reserves its authority to hear any defense that the accused may wish to make and then determine for itself, if he is guilty or not. It is reiterated that the rule does not say anything about a prima facie case, but merely states that the Court, in its discretion, or at its pleasure, may, if it sees fit, permit the further introduction of evidence, and if it chooses not to do so, it has the right to disbar the lawyer simply upon presentation to it of a certified or exemplified copy of the final judgment of conviction. Now, the defendant has a right, under the Constitution, expressed in the clearest terms, to have this Court, as a court of first instance, with exclusive jurisdiction, determine from competent evidence whether or not she has misconducted herself. The Court, therefore, has no right under its constitutional grant of authority or inherent power to make rules, under which it has the discretion to refuse to permit the defendant to introduce evidence tending to show that she was innocent of any acts of misconduct or wrongdoing. Very plainly, the question here is not one involving the inherent power of the Court, because it cannot be held to have inherent powers superior to constitutional restrictions and limitations. In re Fourchy, 175 La. 628, 143 So. 714.
The majority opinion holds that as the rule in question only establishes a prima facie case of misconduct against the defendant upon an exemplified copy of the final judgment of conviction being presented to the Court by the Committee, the constitutional requirements are met, because the Court has neither delegated nor abandoned its jurisdictional authority nor created an independent ground of disbarment, irrespective of misconduct. It is also stated in the majority opinion that the rule in question is applicable in the instant case. Let us determine if these conclusions are correct. From the petition and the annexed document, all that the Court is informed of is that the defendant was charged in an indictment in the United States District Court with the wilfull attempt to defeat and evade income taxes due the United States government, and that she pleaded nolo contendere to those charges, and was fined and placed under probation.
Assuming, as stated in the majority view, that the petition and annexed document establish a prima facie case against the defendant and that "the court may, without further evidence, if in its opinion the case warrants such action, enter an order striking [her name] from the roll of attorneys and cancelling [her] license to practice law in the State of Louisiana," an anomalous result inexorably follows. If the accused did not appear and let judgment go by default, all the Committee would have to do, in order to establish its case, would be to introduce the certified copy of the final judgment of conviction. If such final judgment is held to be sufficient evidence to establish a prima facie case, then, necessarily, this means that the Court has before it sufficient facts by which it can determine for itself whether or not the defendant is guilty of misconduct, and if so, the extent of the punishment to be inflicted. It will be remembered that the Constitution leaves to the discretion of this Court, the degree or extent of the punishment to be imposed upon the attorney who has been found guilty of misconduct. When the Committee introduces a certified copy of the judgment in question and, of course, this is on the trial of the merits of the case, all we would know is that the defendant had pleaded nolo contendere to an indictment charging her with wilfully attempting to defeat and evade the payment of Federal income taxes. We would not know the facts of the case. We would not know what acts were committed by the defendant tending to show wilfull attempts to defeat and evade the payment of the taxes. We would not know the degree of moral turpitude involved in such act or acts, nor would we know the gravity of the defendant's misconduct. Therefore, the Court would be at a complete impasse, unless it decided to act blindly and disbar the attorney without being informed of the facts of her case. It might well be, as is indicated by the fact that the imposition of a prison sentence was suspended by the learned United States District Judge, that there were extenuating circumstances in the case, or that the attempt to evade the tax was technical and not fraudulent and, therefore, a judgment of suspension would be a more appropriate form of punishment than disbarment. It is certain that the members of this Court would be compelled to request proper evidence of the facts of the case. If the Committee were authorized to obtain those facts ex parte, again the defendant's constitutional right to have the Court determine for itself by competent evidence whether or not she was guilty, would be violated. If the Court were to instruct the Committee that it required evidence of the facts of the case and these facts were to be obtained contradictorily with the defendant, then the Court, because of the constitutional requirements, would be compelled finally to do what it should have done from the beginning, and that is to require the Committee, as in any other civil case, to set forth the allegations of fact in the petition and to prove those facts by competent and relevant evidence. Even in civil cases in our City courts involving only $100, the rule is well-established that the plaintiff must allege the facts of the case upon which he relies and prove them. If this procedure is so essential to justice as to be uniformly established in minor civil matters, then it is apparent that this manner of pleading and procedure should not be lightly cast aside in a disbarment proceeding where the honor of a member of the bar is at stake or something more precious to him than life itself.
Suppose the defendant, on the trial of the case on the merits, attempted to introduce evidence, but the Court — acting under the authority conferred upon it by its rule that it could without further evidence enter an order disbarring the attorney — refused to permit the introduction of that evidence, the defendant would be deprived of his day in Court. To say that this Court would not so act as to deprive the defendant of an opportunity to present her evidence, is begging the question, because the issue is whether or not the rule violates the Constitution in granting to the Court the power to deprive the defendant of her right to introduce such testimony. It is submitted that the rule does give the Court the absolute and unquestionable authority in its discretion to prevent the defendant from introducing any evidence to overcome the prima facie case established by a certified copy of the final judgment of conviction.
It is not an answer to the defendant's exception and plea in this case for this Court to say that the question of whether or not a certified copy of the verdict of the jury will be held to be sufficient evidence to warrant her disbarment will arise only on the merits of the case. The rule of this Court under attack is either applicable or inapplicable, constitutional or unconstitutional. If the rule is applicable here and construed to mean that it establishes a prima facie case by merely permitting the introduction of a certified copy of the final judgment of conviction, and that the Court, in its discretion, without further evidence, may disbar the lawyer by accepting the opinion of the jury in lieu of the judgment of this Court, the rule is unconstitutional and by giving it a strained prima facie case construction, it will not be saved.
The cases from other jurisdictions where the courts have held under legislative acts that a certified copy of the verdict of a jury is prima facie evidence of the defendant's guilt, do not deal with a constitutional provision such as we have in this State and, therefore, they are not apposite here.
The case of State v. Stringfellow, 1911, 128 La. 463, 54 So. 943, does erroneously hold that the final judgment of conviction of a felony is conclusive evidence of the defendant's guilt. However, it will be noted that no authority whatsoever is cited to that effect nor is there any reference to Article 85 of the Constitution of 1898, which is identical with the one in question, except that the word "professional" was used before the word "misconduct" and was deleted in the Constitution of 1921. Ever since the adoption of Article 85 of the Constitution of 1898 (which was re-adopted as Article 85 of the Constitution of 1913, and placed in the Constitution of 1921, except that the word "professional" was eliminated), this Court has always set a disbarment case for trial.
It is respectfully submitted that it would be a useless and vain ceremony to order the defendant to show cause why she should not be disbarred, when the rule makes the final judgment of conviction of a felony conclusive evidence of guilt of misconduct or establishes such a prima facie case of guilt that the Court may, in its discretion, decide the case without hearing any other evidence.
The fact that the Court has uniformly, under all three of the Constitutions, set the cases for hearing, shows its own contemporaneous construction of the Articles of the Constitution in question and that it recognizes the right of the defendant to have this Court hear and decide his case upon proper pleadings and competent evidence. This is conclusively shown by the case of State v. Flynn, 1926, 160 La. 483, 107 So. 314, where this Court, with all of the facts before it upon which the defendant was disbarred in New York for testifying falsely, converting his client's money, and revealing confidential information imparted to him in his professional capacity as a lawyer, held that the exception of no right or cause of action was well founded, because the defendant was entitled to have the specific charges of misconduct alleged in the petition and the disbarment in another jurisdiction was not an independent ground of disbarment in this State. It is stated that this case is not in point for the reason that the defendant in that case had not been convicted of a felony and we did not have any rule with reference to disbarring an attorney, who had been finally disbarred for misconduct in another State. We did not have such rule and the defendant in that case had not been convicted of a felony but the Article of the Constitution in question was the law of this State at that time and the members of this Court properly recognized that this was a Court of exclusive original jurisdiction in disbarment cases involving misconduct of members of the bar, and, therefore, it was encumbent upon the Committee representing the Bar Association to allege and prove the act or acts of wrongdoing which were claimed to be misconduct. In other words, the Court required of the Committee as of any plaintiff in a civil proceeding, that it allege the facts upon which it relied and prove them by competent evidence.
Any uncertainty about the position that this Court has taken with reference to this question surely was clarified and made definite by its decision in the case of In re Edwards, 1929, 167 La. 546, 119 So. 868. In that case, the attorney was indicted by the Grand Jury of Franklin Parish, Louisiana, in five separate and distinct indictments for having embezzled his client's funds. He pleaded guilty and was sentenced to the State Penitentiary. While he was there, the Committee filed a petition for disbarment, alleging all of the facts of the case and annexing certified copies of the indictments, the minutes of the court showing the conviction and sentence, the affidavit of the district attorney, that the attorney and defendant was one and the same person, and an affidavit by the warden of the penitentiary that the defendant attorney was confined in the penitentiary. Notwithstanding all of this, the Court set the case for hearing regularly and required the Committee to prove the case, as shown by the opinion of the Court, from which we quote the following:
"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 the facts 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.)
In all of the original records of this Court where the disbarment of an attorney was sought, it appears that the Committee has consistently followed the practice of alleging the facts in the case as it did in the Edwards case — thus showing the uniform construction placed by the Committee itself upon the rule in question, as well as the section of the Constitution that governs this case.
If the regular manner of pleading and procedure in civil cases is not followed in disbarment cases because the court is proceeding differently under its alleged inherent power or its rule-making power, an attorney who attempts to defend a member of the bar charged with misconduct, would be at a loss to know how to proceed.
The defendant is merely asking the Court to require its Committee on Professional Ethics and Grievances to allege the facts upon which her disbarment is sought and to prove those facts by competent testimony and not by hearsay or opinion evidence.
As this is a civil case, the defendant here is entitled, as the defendant in any civil proceeding, to have the Court direct the plaintiff to allege the facts upon which it relies to state a cause of action.
The petition in this case wholly fails to set forth any act or acts of misconduct whatsoever. It is clear that the Committee presented the petition with the annexed copy of the judgment of conviction to make the conviction of the felony the sole basis for the disbarment suit. The pleadings cannot be otherwise construed or viewed in any other light. The jurisprudence is well-established that where the plaintiff's petition fails to state a cause of action due only to a lack of allegations of fact, the exception of no cause of action will be treated as an exception of vagueness and the plaintiff will be granted leave to amend the petition so as to allege the facts. Reeves v. Globe Indemnity Co., 185 La. 42, 168 So. 488.
It would be sheer nonsense for the Court to adopt rules under its alleged plenary, inherent or implied rule-making powers, which in their scope, would go beyond its constitutional grant of exclusive original jurisdiction to hear and decide disbarment cases involving misconduct of members of the bar, because the lawyers could violate such rules with impunity, as the Court would be without power or jurisdiction to enforce them, unless it arbitrarily assumed or usurped such power and jurisdiction.
As the inherent or implied power of this Court to adopt rules providing for the qualifications of attorneys to be admitted to the bar has not been restricted by the Constitution, but the power to suspend and disbar attorneys has been, the former is not pertinent to the issues in question.
It is my opinion that the interpretation placed by the majority opinion upon the provisions of Section 12 of Article XIII of the Charter of the Louisiana State Bar Association, adopted as the rule of this Court, renders it unconstitutional, and is violative of Section 10 of Article 7 of the Constitution of 1921.
It is also my view that the exception of no cause of action is well founded and 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 asked.
The reasons and authorities set forth in the dissenting opinion in the case of Louisiana State Bar Association v. Richard W. Leche, 201 La. 293, 9 So.2d 566, this day decided, are pertinent here.
For these reasons, I respectfully dissent.
In this case the Committee on Professional Ethics and Grievances of the Louisiana State Bar Association instituted proceedings to disbar the defendant, Mary H. Connolly, under Section 9 of Rule XVIII of the Supreme Court, as they did in the Leche case, La.Sup., 9 So.2d 566, being handed down today, without alleging any act of misconduct on the part of the defendant other than the fact that she had been convicted of evading the payment of income taxes on a plea of nolo contendere, as evidenced by the attached judgment, which judgment shows the jail sentence was suspended upon the payment of the fines levied against her and half of the costs of prosecution.
For the reasons assigned in my dissenting opinion in the Leche case, I therefore respectfully dissent from the majority opinion in this case.