I concur in holding that the commissioners of the Idaho state bar had no authority to enter a judgment of disbarment. Such a final judgment, if entered, rests exclusively with the supreme court. In *Page 212 my opinion, inherent power to disbar an attorney is vested, in a proper case, in the supreme court.
In In re Kerl, 32 Idaho 737, 188 P. 40, 8 L.R.A. 1, this court held, inter alia, that when an attorney, admitted to practice in this state, has been convicted of a crime involving moral turpitude and a certified copy of the record of his conviction has been filed in this court, his guilt or innocence of the crime charged is not in issue; the question is, has he been convicted of such offense. C. S., sec. 6578, makes the record of conviction conclusive evidence of that fact, and C. S., sec. 6590, prescribes the judgment which must be entered, said latter section reading in part as follows:
"Upon conviction, in cases arising under the first subdivision of section 6578, the judgment of the court must be that the name of the party must be stricken from the roll of attorneys and counselors of the court, and that he be precluded from practicing as such attorney or counselor in all courts of this state, . . . ."
Kerl was convicted, in the district court of the United States in and for the Omaha division of the district of Nebraska, of a violation of an act amending the Espionage Act, and was sentenced to pay a fine of $2,000. An accusation, accompanied by certified copies of the indictment, verdict and sentence was filed in this court, and it was charged that he had been convicted of a crime involving moral turpitude. A citation was thereupon issued directing Kerl to show cause, if any he had, why he should not be disbarred. A hearing was had upon the charge, and answer made thereto by Kerl. Under the provisions of C. S., secs. 6578 and 6590, judgment was entered disbarring Kerl, and his name was stricken from the roll of attorneys and counselors of this court and he was precluded from practicing as such attorney or counselor in all the courts of this state. The conviction, as in the instant case, was had in a United States district court, and the judgment of conviction was held to be conclusive. The question of whether or not the act or acts of the accused involved moral turpitude under the laws of this state was, as I read the decision, wholly *Page 213 immaterial. The only question was whether or not Kerl had been convicted of an offense involving moral turpitude in the court in which he was tried, and proof of his conviction was conclusively established by a certified copy of the record of conviction in the federal district court filed in this court.
In In re Hofstede, 31 Idaho 448, 173 P. 1087, Hofstede had been convicted in the United States district court for the central division of the district of Idaho of a violation of the provisions of the selective service law of the United States in aiding another to avoid registration thereunder. A certified copy of the record of conviction was transmitted to this court. The crime of which Hofstede had been convicted, and which this court held to involve moral turpitude, was not a crime under the laws of this state but was a crime under the laws of the United States. I cannot agree, therefore, with the holding in the opinion of Chief Justice Lee in the instant case that the crime of which petitioner was convicted must be one involving moral turpitude as prescribed by the laws of this state. I am of the opinion that conviction of a felony or misdemeanor involving moral turpitude either under the laws of the United States or the laws of this state subjects the offending attorney to disbarment as provided in C. S., secs. 6578 and 6590.
Neither am I of the view that an attorney is not subject to disbarment for such acts and conduct criminal in their nature but not committed in the performance of professional duties. (See In re Henry, 15 Idaho 755, 99 P. 1054, 21 L.R.A., N. S., 207.)
No useful purpose would be served by a lengthy discussion or citation of numerous authorities to be found holding contrary to the views expressed in the opinion of Chief Justice Lee. As I view the situation, the well-considered decisions of In reKerl, supra, and In re Hofstede, supra, have been overruled without sufficient reason and contrary to what I consider the weight of authority, and I cannot, therefore, bring myself to agree with the disposition made of this case. *Page 214