I readily agree with the opinion of Mr. Justice HIGGINS that under the facts and circumstances of this case the two decrees imposing disbarment against one member of the bar and suspension of two years against the other are altogether out of proportion.
The Commissioner appointed by this court to hear the evidence in this case found as a fact that "* * * a conspiracy was planned and executed by which a fair examination (held on March 7, 8, and 9, 1938) of certain candidates seeking admission to the bar was frustrated." (Brackets mine.) He concluded that both Cummings and Bostick were guilty, but he recommended that Cummings be disbarred and that Bostick "be sentenced to a reprimand by the Court."
In the majority opinion this court has adopted the conclusion of the Commissioner that both Cummings and Bostick were guilty, as well as the Commissioner's recommendation that Cummings be disbarred. The punishment meted out to Bostick, *Page 467 however, is that of suspension for a period of two years. The reason assigned for the leniency shown Bostick is that "* * * from the time he was first interrogated by Mr. Wilkinson in regard to the matter, Bostick showed a repentant and co-operative spirit. Without any reservations and without any effort to shield himself or to shield anybody else." In this connection Mr. Wilkinson stated: "I think without Mr. Bostick's attitude and without Mr. Bostick's help, the committee would have had difficulty in ever knowing positively what the facts were, because others were inclined to evade a little and not tell us what the truth was." The majority opinion states further: "At the time of the occurrence Bostick was twenty-six years of age and had been practicing law for only one year. Four members of the Bar testified that he had always borne an excellent reputation. * * * Bostick did not receive any monetary consideration for his work in assisting certain applicants in their examination for admission to the Bar. He became connected with the matter,perhaps unthinkingly, because of his desire to help a friend to whom he was indebted for past business favors. While Bostick's conduct was reprehensible, he has not attempted to conceal or to uphold it by false statements." Italics mine.
My appreciation of the evidence in the record does not support the conclusion reached by the Commissioner or by the court in its majority opinion. The record shows that Cummings and Bostick had been members of the bar about a year, both having *Page 468 been admitted at the same time, that is, one year prior to the time when the episode which gave rise to this proceeding occurred.
In the first place, a mere reading of Bostick's testimony unmistakably shows that he was not only reluctant to testify and to give any details with respect to the pertinent facts of the case, but that he was very evasive in many instances deliberately concealing facts in an attempt to shield some of the other parties involved, including himself. It was only when he was confronted with the fact that Mr. Wilkinson, who was investigating the matter for the Board of Governors at the time, had complete and detailed information as to what had actually transpired in Baton Rouge, gathered from the statements and confessions of other parties involved in the matter, that he finally admitted as much as he did, and even then it was with much reluctance.
Bostick testified that he and Johnson had offices on the same floor in the Slattery building in Shreveport both working for insurance companies. In answer to the question "Now, who was it that got you into this cheating business at Baton Rouge?" Bostick said: "Well, may I explain it rather than answer it by name? * * * I don't recall just when, but Johnson came into my office one day and made this approach to me: He said that he had quite a few notes that he hadn't been able to study, that he knew I was fairly well up on the stuff, and asked me if I would come down Sunday night (the night before the examinations) and go over the whole Code Courses with him." (Brackets mine.) *Page 469 He further testified this was about two weeks before the examination and that since he was not going to New Orleans that particular week-end, as was his custom, he answered: "Well, I told him that I wasn't going in that week-end, but I would beglad to go down with him if he would pay my expenses. * * *." Italics mine.
It is interesting to note that about the time Bostick claims he was thus approached by Johnson (about two weeks before the examination), he obtained from the office of a member of the board in Monroe the questions that were to be given by the board (prepared by the attorney from whom they were obtained) on Negotiable Instruments, that is, about February 23. Up to this time, in so far as the record shows, there was no conspiracy in existence to frustrate the giving of an honest examination.
Bostick stated he did not make a copy of the questions on Negotiable Instruments, but that he did retain the substance of the majority of them and although he denies he told any one either what the questions were or about having seen them, not even his friend Johnson, he states he did quiz Johnson thoroughly on the subject matter covered in the questions, suggesting to him that he had better study up on those points. In this he is contradicted by Johnson, who, in answer to the question "From whom did you get those questions?" said "From Mr. Bostick," and in answer to the further question "Do you know where he got them from?" he replied: "He said he got them *Page 470 from someone that was making the questions up."
Despite Bostick's denial that he wrote the questions down or divulged them to any one, we find that Cummings, subsequently, was using these same questions, in skeletonized form, as a means of inducing prospective candidates to join in a scheme to cheat in the examinations, Cummings stating, as testified to by Lee, one of the candidates approached, that he already had the questions to be given on Negotiable Instruments, and that they had been prepared by a member of the board in Monroe and had been secured. Lee also stated Cummings told him Johnson, Bostick's friend, was in on the deal, and that he would be accompanied to Baton Rouge by Bostick. He further testified that he was told the exact manner in which the remainder of the questions would be secured in Baton Rouge and the answers gotten to the candidates. This was the same method that was used later in carrying out the scheme.
Analyzing Bostick's testimony further we find he stated that upon his arrival at Baton Rouge, where he registered under the name of Edward McKinney (which he said he customarily did whenever he was away from his territory without the knowledge of his company), he met a Miss Callahan by previous arrangement; that he and Miss Callahan dined with Mr. and Mrs. Johnson and one of Johnson's relatives from Houston. He positively denied having seen Cummings at all and contended he only learned of the plan to prepare *Page 471 the answers to the examination questions on Monday morning. He further denied having told Miss Callahan during an automobile drive Sunday night the exact plan which was employed on the succeeding days in carrying out their scheme to assist the candidates for the bar saying: "As I recall, I told her it was to give Johnson a hand. That's the way I believe I explained it." However, when he was informed by Mr. Wilkinson that Miss Callahan in a complete statement made by her told him Bostick had explained the scheme to her on the Sunday night previous to the examinations while they were riding around Baton Rouge, and was asked how she could have found out this information if he (Bostick) had not told her, he said: "Well, I would like tochange my statement on that; I was trying to protect her." He reiterated, however, that he had gone to Baton Rouge on that Sunday night for the sole purpose of helping Johnson review the Code and that it was his intention all along to return to Shreveport the following morning, or Monday. However, when Mr. Wilkinson said: "Now, I state to you that that is not the truth, because you told Miss Callahan on this automobile ride Sunday night all about this plan to write these answers," he stated: "Well, I will change it in this way — this is the way I remember now, and I am not certain it is true: I talked — I think Italked to Charles Lee. Lee had been talking to Cummings, I understood. * * * Lee asked me what I was doing in Baton Rouge. I told him that I had come down to give Johnson a hand. Lee evidently thought I meant something besides what I did, but, anyway, he talked a *Page 472 little. * * * Lee made the statement that one of the boys, as I recall, was going to give the questions to Cummings." In answer to the question "Who was one of the boys that was going to give the questions to Cummings?" Bostick replied: "I don't know; one of the fellows taking the exam; I never had met them, and he seemed to think that was my mission." In answer to the question "What did Lee say was going to be done with those questions when this party, whoever it was, gave the questions out?" he said: "Well, he didn't go into details, but I could assume that they were going to find some way to get the answers to the boys." Italics mine.
Although Bostick's protestation throughout these entire proceedings has always been that he remained in Baton Rouge for the sole purpose of assisting Johnson, when he was asked "* * * following this conversation with Lee, you had a pretty good ideaof what was going to be done, didn't you?" he answered: "Yes, butI did not know that Johnson was in any way connected, and I do not yet know that he was connected with the other boys who were going to be in on it." Furthermore, he never did squarely admit that he had told Miss Callahan of the whole scheme that Sunday night before the examinations, which scheme was subsequently employed in assisting some of the candidates taking the examinations, but he did finally say: "I may have; I am notcertain. If she says I did, I undoubtedly did." He also admitted that Miss Callahan endeavored to discourage him from his undertaking because she was worried about it. All of *Page 473 this, be it remembered, took place on Sunday night, the night before the examinations began, although Bostick began by saying he only knew of the scheme the next day (Monday). In addition, we find Bostick denied having told Miss Callahan that Johnson had promised to pay him $50 for helping him with one of the examinations and had agreed to pay him $300 on March 15 following the examinations if he would stay in Baton Rouge and work the entire three days of the examination. However, he admitted he may have said something to Miss Callahan along that line, in order to justify his staying in Baton Rouge, though he says he never intended to stay after that Monday morning. When he was asked "But you did tell Miss Callahan that Johnson had promised you $300.00?" he said: "I do not remember saying that, no sir;emphatically not. If I said any amount at all, it was only to impress Miss Callahan, and it was not the truth." Italics mine.
However, after Mr. Wilkinson had questioned Bostick thoroughly with reference to the fact that on the Saturday night after the examinations Miss Callahan had cashed a $10 check for him in New Orleans in order that he might pay for soft drinks purchased by him for both of them at Rodriguez' near Newcomb College and suggested in his question that Miss Callahan could not understand why he had no money since he was supposed to have gotten the $300 from Johnson, he answered: "I do not recall her asking me that.Now, I do not say she did not, because I don't remember. I may have written her something *Page 474 like that to justify my staying up there." It was then that Mr. Wilkinson turned to Mr. Lambert, an attorney in his office, and requested him to "Ring up old man Callahan and ask him to bring those letters here," Bostick immediately remonstrated saying: "I would rather you not get him over here. I will admit anything youwant me to. * * * If you will go on, I will tell you just what happened. There was no mention of any money made up to that time." In his answer to the next question, he explains that by "up to that time," he meant up to the Sunday night before the examinations and that up to that time the only money that had been mentioned had been the matter of expense money as between himself and Johnson. Italics mine.
It was after this that Bostick began to explain what happened on Monday night (after he had worked all day with Cummings preparing the answers to the questions in accordance with the pre-arranged plan as explained to Miss Callahan) although he had previously said that according to his pre-arranged plan he was supposed only to coach Johnson Sunday night on the Code and return to his office on Monday. He stated that when he was about to check out of the hotel on Monday night, Cummings requested that he stay until the following day, he (Bostick) replying: "Well, all right, for five thousand dollars I will," to which Cummings countered "Well, I'll tell you what I will do; I will give you $100.00." Explaining his reaction to this counter-offer during his examination before Wilkinson, Bostick *Page 475 said: "Naturally I didn't know Cummings, and so I just ignoredthe offer, and probably would have ignored it anyway. Then Johnson said, `Well, listen, please stay over and help me out and I will guarantee it.' Well, at the time I told Johnson I knew itwas foolish to accept anything like that from Cummings, that Icertainly would not do so from him, but I would stay over and that it would not — there was no cost involved in it at all." When he was asked the next question: "Wasn't that arrangement on the basis of $100.00 per day?" he said: "Well, that was for Tuesday, you see. Nothing was said about me staying over Wednesday until Tuesday night. As it turned out, I was the `fall guy.' Do you want me to go on to Wednesday?" When he was told to proceed by Mr. Wilkinson he said: "Because you know everythingelse that happened." Continuing he explained: "So Tuesday night the same thing was said, and Mr. Johnson said, `Oh, well, I will guarantee it.' Well, I said the same thing again, `You know very well I will not take any money from you, especially for this,' and I also told Mary Jane (Miss Callahan), too — I told her Sunday night that I certainly would not take any money from Bill or anybody else." Brackets and italics mine. It will be remembered that just previously he had said, in order to justify his staying in Baton Rouge the entire three days of the examination, he told Miss Callahan he was to receive $300 for doing so. Yet in the next breath he testified he had told Miss Callahan he would not have taken money from Johnson or any one else. *Page 476
There is another answer of Bostick's that speaks for itself. He said: "Johnson knowing that I had no faith in Cummings, said, `Iwill guarantee it,' and I told Johnson at the time, `I will stay over to help you out, but I don't want any money in this, and I also don't want anything to do' — by that time I knew that Cummings had a gang in it, and Johnson said `O.K.' and the next day Cummings was right up there again. Well, I just let it go on. By that time, I wasn't thinking about before or after; it was just a job then." Italics mine.
On this score I find Johnson denied asking Bostick to stay in Baton Rouge or that he offered to either pay him or to guarantee the offer made to him by Cummings. Johnson did admit that he offered to lend Charles Lee $100.
Lee not only testified he had been apprised by Cummings of the fact that Johnson was in on the deal before he left Shreveport, but he also stated he was informed the questions were to be prepared in Baton Rouge by an attorney, whose name was not at the time divulged to him, and that he was also told by Cummings, Johnson would be accompanied to Baton Rouge by Bostick. He further testified that while he was attending a meeting in Johnson's room he agreed to advance Johnson $50 if he would persuade Bostick to remain.
J. Roy Caskey, one of the candidates taking the bar examination, testified that two of the conspirators, in an effort to induce him to join in the scheme, told him of their method of operation and explained *Page 477 that since they had to pay the attorney preparing the answers to the questions $100 a day, they were running short of funds and he was threatening to quit.
In the face of all of these facts, I cannot quite agree with the conclusions of the Commissioner and the majority opinion that Mr. Bostick was such a willing and helpful witness; that he was not in the scheme for what he could get out of it; or that he did not make any false statements in order to conceal material facts. It is my opinion that the evidence to the contrary is most clear and convincing.
When Mr. Bostick appeared before this court in his own behalf, he represented to us that he had been a most willing witness in helping the committee in its investigation of the entire incident; that his mission to Baton Rouge was for the sole purpose of helping his friend Johnson, to whom he owed a debt of gratitude; and that he had repented. He asked the court to accept the Commissioner's findings of fact, conclusions of law, and recommendations in so far as he was concerned.
In an attempt to refute the suggestion that he had (in order to evade the members of the committee who were investigating this unfortunate episode) left the State of Louisiana and remained in hiding for several days after the matter was brought to light, only returning after he had been traced through the efforts of the police, Bostick denied the inference and stated his mission in Texas, to which state he had gone from Louisiana, was on business and that as soon as he learned that he was *Page 478 wanted, he immediately contacted Mr. Wilkinson by long distance telephone and, without further delay, drove to Mr. Wilkinson's office in New Orleans the next morning.
However we find that when Bostick was examined by Mr. Wilkinson in his office on the day of his arrival from Texas, he was questioned with respect to his movements during the entire time that Mr. Wilkinson was using every means at his command to locate him (Bostick) and analyzing his testimony on this phase of the case, we can readily ascertain whether or not he was evading Mr. Wilkinson and whether or not he proceeded to New Orleans as soon as he learned he was wanted to give his version of what took place in Baton Rouge on these three eventful days.
Bostick admitted knowing that the men from Shreveport who had taken the bar examinations, including Johnson, had received telegrams from Mr. Wilkinson advising them to go to New Orleans, having heard of it first from his secretary and later from Johnson himself. (It is not quite clear just whose secretary is referred to throughout this part of the testimony, whether Bostick's, Johnson's, or the secretary of both.) He said he had a conversation with Johnson about the matter and they had agreed that "possibly they discovered something was amiss." Sometime later, he said, Johnson called and advised him of the exact nature of the telegram sent by Wilkinson, saying it was "something about what you thought," that is, "that they had discovered that something was wrong." All of this took place *Page 479 prior to the time Johnson left for New Orleans. Bostick admitted he was in Texas at the time the discovery of the fraud was publicized in the Shreveport newspapers in large headlines. He first stated that while in Texas he communicated with Johnson through his secretary and kept Johnson posted of his whereabouts because he was constantly moving around. It now becomes evident that Bostick's testimony is full of inconsistencies and contradictions, for he later declared that he did not think Johnson's secretary knew where he was, although he did think that maybe he had told her he was going to be at the home of a friend of his in Alvin, Texas, whom Johnson knew he visited frequently. He then turned his story around, this time stating Johnson knew where he was because he had gotten the information from the house where he (Bostick) lived in Shreveport, Bostick contending he had left word with some one in the household as to where he could be located. When he was informed by Mr. Wilkinson that attempts had been made to locate him through inquiries at his home and that no information could be obtained, Bostick said: "Well, I will have to thank them for sticking by me, even though it did inconvenience you."
It is apparent that Bostick was staying with his friend at Alvin, Texas, and not moving around. He remained there, as he first said, from the time he went to Texas until he discovered he was being traced. Bostick next stated he had never called Johnson, but that Johnson had called him, having obtained the information as to his whereabouts first one way and then *Page 480 another. His story after that story was to the effect that he called his landlady in Shreveport and had her call Johnson and tell Johnson where to call him, admitting that the purpose of his call was to discuss with Johnson what he should do. He stated that during the telephone conversation Johnson advised him not to return to Louisiana. He also stated the reason he did not communicate further with Johnson was because Johnson warned him the wires were being tapped. Finally we find Bostick admitting, when he was pressed by Mr. Wilkinson who asked him a number of suggestive and pointed questions, that he had actually met Johnson in Longview, Texas (to which place Johnson was accompanied by Bostick's landlady from Shreveport, by appointment and had there talked the matter over with Johnson). This was on the Monday following the Saturday when he left Shreveport, or two days after the story of the discovery of the fraud was carried in the Shreveport newspapers. The entire topic of conversation during this meeting was what was best for Bostick to do under the circumstances, he being advised by Johnson not to go to New Orleans. It was after this meeting that Johnson sent Bostick $20 in cash in an envelope addressed to Bostick's friend in Alvin, Texas.
After he was asked several leading and suggestive questions by Mr. Wilkinson, Bostick admitted that it was during the conference with Johnson at Longview, Texas, that he wrote out his resignation from the Maryland Casualty Insurance Company, which resignation was predated February 15, 1938, and was to take effect *Page 481 March 1 following. This resignation, written on hotel stationery, was handed to Johnson to be mailed to the company in Shreveport, Bostick's explanation of his action being as follows: "And frankly, I didn't want them to give out any information, or have to give any, so I pre-dated it so that they could say, if they wanted to, that I hadn't worked there the last few days." In answer to the question "In other words, you were apprehensive that you might be traced through the Maryland Casualty Company?" he replied: "Yes, sir."
If all of the foregoing does not prove that Bostick was hiding out in Texas and evading Mr. Wilkinson (as against his protestations that he returned to New Orleans immediately upon learning that he was wanted), I think that it is impossible to get around his admission that after he discovered his telephone calls were being traced, he left Alvin, Texas. This was two days before he finally went to New Orleans.
On this phase of the case Mr. Wilkinson testified that he went to Shreveport and tried to find Mr. Bostick, going to Johnson's office, Johnson giving him no information except that Bostick was in Texas, and that it was only by using the license number of Bostick's automobile that he was able to have him traced to Longview, Texas, where he had had a conference with Johnson only the night before the day on which Wilkinson quizzed Johnson about Bostick's whereabouts. Mr. Wilkinson stated it was only after he had finally located Mr. Bostick at a tourist camp in *Page 482 Houston, Texas, through the efforts of the New Orleans and Houston police, and Bostick finally decided to come out of hiding and call him.
It is my opinion, therefore, that Bostick's conduct throughout the trial of this case does not justify the findings of fact and the conclusions of the Commissioner as expressed in the majority opinion of this court. Nor does it justify the leniency showed to Bostick and the lack of leniency showed to his co-conspirator Cummings, who is being disbarred.
I am not contending that both of these defendants should be disbarred, for, as was pointed out in the Novo case, 9 So.2d 201, handed down May 25, 1942, where we quoted with approval the opinion of Justice Field of the United States Supreme Court in the case of Bradley v. Fisher, 13 Wall. 335, 10 L.Ed. 646, to the effect that "A removal from the bar should * * * never be decreed where any punishment less severe — such as reprimand, temporary suspension, or fine — would accomplish the end desired," and Thornton on Attorneys at Law to the effect that "It is a generally accepted principle * * * that since the primary purpose of a disbarment proceeding is not punishment, but the protection of the courts and the public, disbarment should never be decreed, if any discipline less severe would accomplish the desired result, as when there are prospects that the attorney's conduct and character may undergo reformation" (Vol. 2, Section 894), a policy of leniency should be followed in cases of first offenders. What I am contending is that the sentence meted *Page 483 out to one of the defendants in this case should also be meted out to the other.
The suggestion that Bostick bore an excellent reputation until this unfortunate occurrence applies with equal force to Cummings. According to the record Cummings was only admitted to the bar a year before the Baton Rouge episode (at the same time, as a matter of fact, as Bostick) and one of the prerequisites for his admission was that his character and reputation in the community he excellent. There is nothing in the record to show that the contrary was true.
I therefore respectfully dissent.