STATEMENT BY THE COURT.
This is an appeal from a judgment of disbarment from the practice of law rendered by the circuit court of Pulaski County against Harney M. McGehee, attorney-at-law.
The prosecuting attorney of the circuit with the members of the Grievance Committee of the Little Rock Bar Association filed charges of three specifications against the appellant upon the first and third of which he was acquitted and convicted upon the second, which roads as follows:
"The said Harney McGehee caused the plaintiff, Andy Johnson, and one Clarence Winburn, to come before the court and testify under oath that Andy Johnson was a resident of Pulaski County. Plaintiff, Andy Johnson, at that time, was a resident of Crawford County, Arkansas, and that fact was well known to Harney McGehee. A decree of divorce was granted the plaintiff on December 5, 1929; but it was obtained by reason of a gross fraud perpetrated upon the court by the said Harney McGehee, and by the perjured testimony which was given at his suggestion."
It appears from the testimony that appellant was elected representative from Crawford County to the 1927 session of the General Assembly, where he served as desk mate with an attorney of long experience in the practice, a representative from the county of Pulaski. After the end of the session he remained in Little Rock and studied law, using the office of Mr. Rotenberry until he was admitted to the bar after passing the examination. He brought some clients to Mr. Rotenberry during his stay *Page 605 in Little Rock, where he first worked as a "gate man at the Fair" and later with the Gus Blass Company for means with which to support himself while here. He introduced among other prospective clients Mr. Johnson, as charged in the specification, who desired a divorce. The complaint for divorce was prepared in Mr. Rotenberry's office, by the stenographer probably, and signed by Rotenberry. The clerk appointed McGehee attorney for the non-resident defendant, but at whose instance this was done does not appear. The testimony showed that the client and his witnesses came to Rotenberry's office and conferred with him about the case, and were told that it would be necessary to prove by witnesses that the plaintiff was a resident of Pulaski County in addition to the corroboration of the testimony of plaintiff relative to the grounds of divorce alleged. One of the witnesses, Clarence Winburn, stated in this proceeding that he told Mr. McGehee that he would not testify that plaintiff, Andy Johnson, was a resident of Pulaski County. This witness also said that he attended the trial of the divorce case, and that appellant was not present at the hearing. The memorandum of the court for the decree showed that the divorce was granted on the testimony of plaintiff, "and Clarence Winburn corroborating witness"; and witness stated herein that he was not asked by the court on the trial whether Johnson was a resident of Pulaski County and made no statement that he was, and would not have done so had he been asked. In the affidavit given to the attorneys and persons instigating the disbarment proceedings witness stated that Mr. McGehee had told him that it would be necessary for him to testify in the divorce case that he knew Johnson was a resident of Pulaski County and he had done so because of appellant's suggestion. This witness, after appellant was unable to procure a continuance of the case on the motion, therefor, made another affidavit, giving it to Mr. McGehee, in which he stated that McGehee had made no suggestion to him about what he should bear in the divorce *Page 606 proceeding, and that he did not testify therein that Johnson was a resident of Pulaski County. During the pendency of the suit and shortly after the divorce was obtained, Johnson wrote to Mr. Rotenberry suggesting that his name was spelled wrong in the divorce proceeding and that it ought to be corrected, and Rotenberry replied that he should take the matter up with Mr. McGehee in Van Buren, who was chief counsel in the case.
Rotenberry testified that the clients were brought to his office by Mr. McGehee and the fees for professional services paid to him, and that he divided the fees with Mr. McGehee, appellant, through whose acquaintance and influence the business came to the office; that he had no idea whatever, in telling the witnesses in the conference before the trial that it must be proved, in addition to the grounds for divorce, that Johnson was a resident of Pulaski County, that he was not such resident or to intimate even that they should give false testimony in this regard.
The court refused to grant the continuance and set the disbarment proceedings for another day upon appellant's motion that he was engaged in a hot campaign in the Democratic primary election for the nomination of prosecuting attorney of the district in which he lived, that he could not continue the campaign and get ready for the trial, and asked a postponement until the next term or until after the election in order to get ready, notwithstanding it was supported by the affidavits of other witnesses.
The jury returned a verdict against appellant, and the court rendered a judgment disbarring him from the practice of law in all the courts of the State, from which this appeal is prosecuted. (after stating the facts). It is insisted that the circuit court was without jurisdiction to hear the cause and that the testimony is not sufficient to support the verdict. It is true that the Supreme Court only can license attorneys to practice law in the courts of the state of Arkansas under the statutes now existing, 598, C. M. Digest, and amendatory act 32 of 1929. The court held in Wernimont v. State ex rel Bar Association,101 Ark. 210, 142 S.W. 194, Ann. Cas. 1913d 1156, that the power to disbar an attorney is inherent in all courts having authority to admit attorneys to the practice off law. The statute, however, now authorizes the circuit court to hear and determine disbarment proceedings and provides for a trial by jury. Sections 610-26, C. M. Digest; State ex rel. v. Huddleston 173 Ark. 686,293 S.W. 353; Maloney v. State, ante p. 510.
The court also held that defendant in a disbarment proceeding was entitled to a trial by jury, that such proceedings were informal, and could be conducted in the name of the State by the prosecuting attorney or by any member of the bar required by the court to present the charges, which were to be heard according to the ruled of practice adopted by the court, and not contrary to the procedure adopted by statute. It was also said that such power should be exercised with caution and only for reasons which would render the continuance of the attorney in practice "inimical to the just and proper administration of justice or subversive of the integrity and honor of the profession," and "if an attorney is guilty of unprofessional conduct, he is subject to suspension or disbarment by the court according to the degree of the moral turpitude evinced by such unprofessional conduct."
The statute, 621, C. M. Digest, also provides: "That in all cases of conviction, the court shall pronounce judgment of removal or suspension according to the facts found." In State ex rel. v. Huddleston, supra, the court held that the statute vests the trial court with discretion, either to remove or suspend the attorney, which *Page 608 discretion should not be disturbed on appeal, save for its abuse.
The majority of the court is of the opinion that the court abused its discretion in pronouncing the judgment of removal — permanent disbarment — of appellant, from the practice of law under the facts of this record. The attorney had but recently been admitted to the practice, was grateful to his brother attorney, in whose office he read law and under whose instruction he was able to pass the bar examination, and in whose ability he had great confidence, had brought such clients to him for redress of their wrongs as he came in contact with or applied to him for advice and professional services. The suits were instituted by the experienced attorney, the fees were paid to him and he made division thereof, and also conferred with the witnesses about the proof that was necessary and could be produced on the hearing of the cases. There was no testimony tending to show that the appellant was appointed attorney for the non-resident defendant in this case act his own instance, and the positive statement of the witness, whose testimony is relied upon for the conviction, is that he refused to agree to testify that the plaintiff in the divorce suit was a resident of Pulaski County, and that he did not testify to any such fact, the court not inquiring of him on that point, and would not have done so had such inquiry been made. The affidavit of this witness, procured after the charges had been preferred and the refusal of the court to grant a continuance to appellant, that he might have opportunity to prepare for the trial, in which he had no notice until after the charges were filed, has little weight and is entitled to no consideration at all, having occurred long before the alleged unprofessional conduct and was admissible only to go to the credibility of the testimony of appellant, who denied having made any suggestive statements or suggested to the witness that his testimony should reflect anything but truth in the trial of the divorce case.
The majority is of opinion, therefore, that the court erred in rendering the judgment of disbarment, and *Page 609 should not have rendered judgment of more than a temporary suspension from the practice beyond one year in extent, and on this account the judgment is modified to show such suspension and as modified will be affirmed. It is so ordered.
SMITH and HUMPHREYS, JJ., dissent from the modification.