The petition in this case simply alleges that the defendant, who had been charged in the United States District Court with evading the payment of income taxes, entered a plea of nolo contendere, and was sentenced to a suspended jail term provided he paid a fine and the costs of court. The exceptions of no right and no cause of action were based upon the ground that the petition fails to inform the accused and the court of any act or acts of misconduct whatsoever on the part of the defendant. The respondent also pleaded *Page 942 that Section 12 of Article 13 of the Articles of Incorporation of the Bar Association, now a part of the Rules of this Court, is inapplicable, but, if held to apply to this case, is unconstitutional, being violative of Article 7, Section 10 of the Constitution of 1921.
This case for all legal purposes is identical with the cases of Louisiana State Bar Ass'n v. Leche, 201 La. 293, 9 So.2d 566, and Louisiana State Bar Ass'n v. Connolly, 201 La. 342, 9 So.2d 582, both of which were decided by a divided court.
In support of the contention that final conviction of a felony is per se an independent ground for disbarment, on the theory that the member of the Bar is disfranchised and loses his citizenship, Article 202 of the Constitution of 1898 and Section 111 of the Revised Statutes of 1870 are relied upon in State v. Gowland, 1938, 189 La. 80, 179 So. 41.
An examination of the original record in the Gowland matter, 1910, reported in 126 La. 262, 52 So. 480, shows that the petition fully alleged the facts charging forgery in the first count, and uttering the forged note in the second count; that the petition also alleged that the defendant was guilty of "professional misconduct" involving moral turpitude, which affected his integrity as a member of the Bar; and that annexed to and made a part of the petition are the indictment and the defendant's plea of guilty to the charge of forgery and uttering, and the judgment of the court sentencing the defendant to the State Penitentiary for a period of four years on each count. *Page 943
The opinion of the Court, in full, is as follows, 126 La. 262, 52 So. 480:
"Per Curiam. This case having this day been submitted to the court upon the evidence adduced, and the law and the evidence being in favor of the plaintiff and against defendant, and for the reasons assigned:
"It is hereby ordered, adjudged and decreed that the judgment by default herein rendered on the 29th day of April, A.D. 1910, be and it is hereby confirmed and made final, and accordingly there is judgment herein forever disbarring the defendant, Joseph Q. Gowland, from practicing in this state as an attorney and counselor at law, and that his license as such, issued to him by this court on December 19, A.D. 1898, be and it is hereby revoked, annulled and avoided.
"It is further ordered that the costs of this case be paid by said defendant."
In the above quoted opinion, it will be noted that it is not stated that the judgment was predicated upon the ground that Gowland had been convicted of a felony and thereby lost his citizenship. In answering Gowland's claim (189 La. 80,179 So. 41) that his disbarment was null and void because the Court acted without jurisdiction as conferred upon it by Article 85 of the Constitution of 1898 — in that the conviction and sentence resulted from a nonprofessional transaction, or acts — it would have been sufficient to state that his plea came too late. In the disbarment proceeding the issue was tendered point-blank by the petition that he was guilty of "professional misconduct" and, *Page 944 therefore, the question of jurisdiction of this Court at that time depended upon the question of fact, that is, whether or not Gowland was guilty of professional or nonprofessional misconduct (State v. Fourchy, 106 La. 743, 31 So. 325; In re Fourchy,175 La. 628, 143 So. 714), and the Court having been satisfied with the proof or "evidence adduced" at that time that he was guilty of the alleged professional misconduct, he could not some twenty-eight years later, when the witnesses were unavailable, resurrect that issue, because the matter was then res adjudicata.
Consequently, the opinion in the Gowland case, 189 La. 80,179 So. 41, 43, is incorrect in stating that the petition for disbarment was predicated solely upon the ground that the defendant was "convicted of a felony" under the laws of the State of Louisiana, and having been convicted of a felony under the laws of this State, he had lost his franchise and was thereby deprived of his status as a citizen of this State and, therefore, was lacking in one of the essential requirements or qualifications of a lawyer — that he be a citizen of the State of Louisiana.
It is stated in the Gowland case, 189 La. 80, 179 So. 41, 42: "According to section 111 of the Revised Statutes of 1870, a person is not eligible to be an attorney at law in Louisiana unless he has `the qualifications (except that of residence) necessary to constitute a legal voter.' That law never was repealed, as far as we know."
Section 111 of the Revised Statutes of 1870 provides: *Page 945
"Any citizen of the United States, possessing the qualifications (except that of residence) necessary to constitute a legal voter, shall be admitted to practice as an attorney at law in any court of this State, upon obtaining a license from the Supreme Court of this State."
Act No. 118 of 1910 reads:
"Be it enacted by the General Assembly of the State of Louisiana: That Section 111 of the Revised Statutes of the State of Louisiana of 1870 be amended and reenacted so as to read as follows:
"Any citizen of the United States or any person who has declared his intention to become a citizen of the United States before any Court of competent jurisdiction, at least, two years prior to his application to be admitted to practice as an attorney at law in courts of this State, and who has resided in this State, at least, two years, shall be admitted to practice as an attorney at law in any court of this State upon obtaining a license from the Supreme Court of this State."
Therefore, the opinion in the Gowland case, 1938, 189 La. 80,179 So. 41, is also erroneous in stating that Revised Statute section 111 of 1870 had not been repealed because Act No. 118 of 1910 does amend and re-enact that Section by providing that anyone who is a citizen of the United States, or anyone who has declared his intention to become a citizen of the United States, before a court of competent jurisdiction, at least two years prior to his application to be admitted to practice as an attorney and who has resided in this State two years "shall be admitted to practice *Page 946 as an attorney at law in any court of this State, upon obtaining a license from the Supreme Court of this State." This act does not state anything about a citizen having to be a qualified elector or voter, as required by Section 111 of the Revised Statute of 1870.
The rules of the Court at the present time only require that the applicant be a citizen of the United States. It is stated in Rule XV of this Court in connection with the "Requirements for Admission to the Bar," that
"3rd. The applicant shall have produced satisfactory evidence that he or she (a) is a citizen of the United States of America, and twenty-one (21) years of age; * * *." 191 La. xlvii.
The loss of the qualification necessary to become a voter or loss of the status of a qualified elector is not equivalent, legally or otherwise, to loss of citizenship either of the State of Louisiana or of the United States of America.
The committee has not cited any federal or state statute or decision to the effect that conviction of a defendant of a felony in the federal courts, the courts of another state, or of this state, shall forfeit that person's status as a citizen of the United States. We know of no federal or state law which provides that conviction of a felony deprives a defendant of his status as a citizen of the United States. As the defendant herein, by his sentence in the federal court for having violated the income tax statute, is neither legally divested of his status as a citizen of the United States nor of the *Page 947 State of Louisiana under any federal or state law, necessarily, he still enjoys that status and, therefore, cannot be said to be lacking in that indispensable requirement of a member of the Bar.
Furthermore, under Article 202 of the Constitution of 1898, cited in the Gowland case, 189 La. 80, 179 So. 41, while a person convicted of a felony is prohibited from occupying a position of honor, trust, or profit, this does not mean that he is deprived of his status as a citizen, but only that he is disfranchised or deprived of the qualification necessary to hold such a public office, or to vote. While a member of the Bar is an officer of the court, I do not think it was intended, by the provisions of the Constitutions of 1898 (Article 202) and 1921 (Section 6, Article 8), that such member was precluded from membership therein solely on the ground that he had been convicted of a felony. Those provisions refer to public offices in their usual accepted sense, that is, an officer by election or appointment in either the executive, legislative, or judicial branch of the government, who, under the law, has to be a qualified elector to occupy such position of public trust, honor, or profit.
It must be borne in mind that under both Article 85 of the Constitution of 1898, and Article 7, Section 10, of the Constitution of 1921, the basis of this Court's jurisdiction to disbar an attorney is misconduct. If the framers of these two Constitutions intended that final conviction of a felony was to be an independent or per se ground of disbarment, they could have *Page 948 easily so stated. Obviously, they did not do so.
To demonstrate this point, suppose a member of the Bar while driving an automobile negligently killed a pedestrian and, as a result thereof, was charged and convicted of involuntary manslaughter, which, under the laws of this State, is a felony. Would he be subject to disbarment on the independent ground per se that having been convicted of a felony he was thereby disfranchised, or had lost his status as a qualified elector and was not eligible to occupy any public office of honor, profit, or trust? I think not.
There are able lawyers at the Bar who are not interested in politics and have not qualified as electors, because they have not registered. Are these lawyers subject to disbarment because they are lacking in this qualification to occupy a public office of trust, profit, or honor? The answer is no.
I have been unable to find any authority to the effect that the violation of an attorney's oath in disobeying the criminal law is a ground for disbarment. All of the cases point to the fact that the question of reprimanding, suspending, or disbarring an attorney depends upon his act or acts of misconduct, and the severity of the punishment is in proportion to the gravity of the offense.
For the above reasons and those assigned in the dissenting opinions in the cases of Louisiana State Bar Ass'n v. Leche,201 La. 293, 9 So.2d 566, and Louisiana State Bar Ass'n v. Connolly, *Page 949 201 La. 342, 9 So.2d 582, I respectfully dissent from the majority opinion.