I am unable to reconcile the ruling in this case with the ruling in the proceeding entitled In re Steiner, No. 36,315 of the docket of this court.
Steiner and two other persons were indicted for the use of the mails in furtherance *Page 92 of a scheme to defraud, in violation of section 215 of the Criminal Code. 18 U.S.C.A. § 338. The indictment charged that Steiner and his codefendants evolved and put into practice a scheme to procure fraudulent reductions on tax assessments on real and personal property in the City of New Orleans. Steiner, a lawyer, solicited and secured taxpayer clients, agreeing for a fee to secure a reduction of tax assessments from the Louisiana Tax Commission. One of Steiner's codefendants, the chief clerk of the New Orleans office of the Tax Commission, by virtue of his position, had the client's assessments reduced on the tax rolls and approved by the Commission. Thereafter the taxpayer paid the taxes on the basis of the fraudulently reduced assessment. The other codefendant, a woman, acted as a go-between for Steiner and the chief clerk.
Steiner charged the clients a fee of usually one-half of the tax savings and it was agreed that upon collection of the fee he was to receive one-fourth, the remainder to be divided between his codefendants. Steiner was also indicted in the State Court for the crime of bribery.
The indictments of Steiner for offenses affecting the public fisc became generally known to the community. By reason of their notoriety, knowledge of these criminal prosecutions was brought home to the Committee on Professional Ethics and Grievances.
After the prosecution had been pending in the State court for more than a year without any attempt being made to bring *Page 93 the case to trial and when the case in the Federal court, which had been pending several months, was about to be fixed for trial, the Committee, acting under the authority of Article 13 of the Articles of Incorporation of the Louisiana State Bar Association, undertook to investigate, contradictorily with Steiner, his alleged unprofessional conduct with a view of determining whether it was of sufficient gravity so as to require that the Committee institute in this court a suit for his suspension or disbarment. Accordingly, on June 15, 1941, Steiner was notified in writing that the matter of his alleged unprofessional conduct, based on his connection with certain fraudulent tax reductions in the Parish of Orleans, would be considered by the Committee in its office on a date and hour fixed and that he was required to be present at that time with any witnesses or documentary evidence he might wish to produce in his behalf. Whereupon Steiner presented a petition to this Court seeking a writ of prohibition against the Committee. In his petition he alleged that under Article 13 of the Articles and Rules of the Louisiana State Bar Association, as approved by this Court, the Committee was only empowered to investigate complaints of professional misconduct on the part of members of the Bar; that inasmuch as there were no complaints pending against Steiner and no charges filed against him, the Committee was without right or jurisdiction to institute an investigation against him; that on July 2, 1941, Steiner appeared before the Committee and, through his attorney, notified it that it was without right to investigate him, as no *Page 94 charges were pending against him and he was not given an opportunity to answer any charges or to know what they were. Steiner alleged, in paragraph 9 of his petition, "that despite this the said Committee refused to stop the investigation but continued to attempt to go on with the said investigation in violation of law and in violation of the rules of this Court."
The Committee filed an opposition to Steiner's application for writs of prohibition in which it alleged its creation by this Court as a Committee on Professional Ethics and Grievances and that its powers to act had not been restricted by the Court but were inherent in it; "that this Committee has knowledge as a matter of common notoriety that Arthur A. Steiner, the applicant for writs of prohibition, has been indicted in both the State and Federal Courts; that although these indictments have been pending in the State court for more than one year and in the Federal court for several months, no attempt has been made in the State court by the authorities to bring the charges to trial; that the charges in the Federal court will be fixed for trial for some time shortly; that the conduct of the said Arthur A. Steiner, as alleged in the indictments, if true, constitutes misconduct and that it is the duty of this Committee to investigate any unethical conduct on the part of lawyers; that Article XIII of the Articles of Incorporation of the Louisiana State Bar Association does not require that a written complaint of unprofessional conduct be made against a member of the bar, but simply provides that notice shall be given to any person complained against; *Page 95 that this Committee notified Steiner that it would investigate his conduct and a copy of the notice was attached to the Committee's opposition.
The Committee further set forth that section 10 of Article VII of the Constitution vested this Court with exclusive original jurisdiction in all disbarment cases involving misconduct of members of the Bar and that the Court has vested in the Committee the same inherent power which the Court has of initiating investigations of any alleged misconduct of members of the Bar.
The Committee further averred that section 2 of Article XIII of the Articles of Incorporation of the Louisiana State Bar Association does not apply to investigations made by the Committee on its own initiative, but only to a complaint made by some party against a lawyer for unethical conduct and even then a bill of specifications of the complaint is not required but simply notice of the filing of the complaint would be sufficient.
And the Committee prayed that Steiner's application for writs of prohibition be refused.
After considering the allegations of Steiner's petition and the Committee's opposition thereto, this Court refused to grant Steiner a writ of prohibition on the ground that "the Committee is not exceeding its authority." See In re Arthur Steiner, No. 36,315.
Steiner was subsequently tried and convicted in the Federal court on the indictment *Page 96 charging him with using the mails in furtherance of a scheme to defraud. On appeal to the United States Circuit Court of Appeals, Fifth Circuit, his conviction was affirmed. See Steiner v. United States, 134 F.2d 931. Steiner's petition for a writ of certiorari to the Circuit Court of Appeals, Fifth Circuit, was denied by the United States Supreme Court, 319 U.S. 774, 63 S. Ct. 1439.
After Steiner's application for a writ of prohibition was refused by this Court, the Committee instituted disbarment proceedings against him. The Committee's petition alleged that after due investigation had been made of Steiner as provided in section 3 of Article XIII of the Articles of Incorporation of the Louisiana State Bar Association, in the opinion of the Committee sufficient cause existed for the filing of charges for his disbarment. The Committee then alleged the specific acts of misconduct committed by Steiner as a member of the Bar in connection with his procuring, in association with other persons, fraudulent reductions in tax assessments on real and personal property situated in the City of New Orleans. Steiner appeared and filed an exception of vagueness to the petition of the Committee. The case was heard on the exception which was overruled. See In re Steiner, 199 La. 500, 6 So.2d 641. Steiner then answered the petition and on application of the Committee a Commissioner has been appointed to take the evidence in the case, which is now pending in this Court.
The Committee is not limited in its investigation to cases in which complaints are *Page 97 made against an attorney. It has power to act itself whenever it has probable cause to believe that an attorney has been guilty of unprofessional conduct. It was so held by the Court in the matter of the disbarment proceeding instituted against Henry E. Fallon, La.Sup., 16 So.2d 532. It was also held in the majority opinion handed down in this case, thus: "The defendant pleaded also that the Committee did not have authority to investigate matters which were brought to the attention of the Committee merely by the disclosures made in the Meraux Case and without any formal complaint being made to the Committee. Our ruling on that point is that it is not necessary that someone should demand of the Committee the bringing of a suit to disbar or suspend or even reprimand an attorney at law in order to give the Committee authority to make the investigation provided for in Sections 2, 3, 4 and 5 of Article XIII." After announcing that correct principle of law, the author of the majority opinion says: "What we do hold is that before the Committee can make such an investigation as the basis or prerequisite for the filing of a suit to disbar or suspend a lawyer, the Committee must give him reasonable notice and information of the matter or matters to be investigated, so as to give him a reasonable opportunity to defend himself before the Committee; and if the defendant demands it the Committee must furnish him a specification of the nature and cause of the accusation against him, in such detail as to give him a reasonable opportunity to defend himself before the Committee." *Page 98
As I view this case, it is immaterial whether the investigation undertaken by the Committee was based on the complaint of some third person or was initiated by the Committee itself, because the Committee or some member thereof acquired knowledge of certain facts or circumstances that lead to the belief the defendant, Armstrong, has been guilty of unprofessional conduct. In either case, the procedure set forth in Article XIII is the same. I do not understand that the provisions of the Article contemplate or require two investigations by the Committee, that is to say, an ex parte preliminary investigation to determine whether a contradictory final investigation should be undertaken with a view of determining whether there exists probable cause for instituting a suit for the suspension or disbarment of the attorney whose conduct is being investigated.
I can perceive no difference in principle between the investigation conducted by the Committee in the case of Steiner and the investigation conducted by the Committee in the matter of Armstrong. In each case, the notice to the attorney involved was to appear before the Committee at its office, at a time fixed, to answer certain charges of alleged misconduct which are referred to in the notice, with the further direction that the attorney present at that time any witnesses or documentary evidence he might wish to produce in his behalf. In my opinion, therefore, the Committee was justified in relying on the ruling of this Court in the Steiner case in its reply, through its Chairman, to the objection made by the defendant, *Page 99 through his attorney, to the authority of the Committee to investigate his alleged misconduct, and to defendant's contention that he was entitled to a notice of the complaint and a reasonable opportunity to defend himself.
Neither the investigation in the Steiner case nor the investigation in this case was merely a preliminary investigation to determine whether a further investigation should be had for the purpose of determining whether probable cause existed for the institution of a disbarment proceeding against the respective attorneys. In each case, the Committee attempted to conduct the investigation contradictorily with the attorney involved for the purpose of determining after a hearing whether, in the opinion of the majority of the Committee, the charges of professional misconduct were of sufficient gravity for the Committee to institute a disbarment proceeding. As a matter of fact, it was the only investigation undertaken by the Committee in each case before the disbarment proceeding was actually filed. The only reason that Steiner and Armstrong, the present defendant, were not heard by the Committee is due to the fact that they refused to appear at the hearing fixed by the Committee when they were invited to do so.
It is difficult for me to perceive how the defendant in this case could be under any misapprehension as to his alleged professional misconduct which it was the purpose of the Committee to investigate. The investigation was the direct result of the proceeding instituted by Perez, District Attorney v. Meraux, Judge, 201 La. 498, *Page 100 9 So.2d 662, in which Judge Meraux was removed from the office of Judge of the district court for the 25th Judicial District, composed of the Parishes of St. Bernard and Plaquemines. One of the charges against Judge Meraux was that his court had been conducted as a divorce mill in that divorces and annulments of marriages had been granted in 100 cases described in the petition as collusive and fraudulent lawsuits. In these lawsuits, four lawyers, one of whom was the defendant, were involved as the attorneys of record, representing either the plaintiff or the defendant. This is shown by the majority opinion in this case which also sets forth: "In the petition in this case it is alleged that the defendant, Armstrong, acted in his professional capacity as attorney at law in 29 of the 100 suits for divorce or for annulment of a marriage, and that judgments were obtained in the 29 cases by fraud or collusion between the plaintiff and defendant and with the concurrence of the presiding judge. The 29 suits are listed and identified in the Committee's petition by their title and number on the docket of the 25th Judicial District Court in and for the Parish of St. Bernard."
The trial of the case for the removal from office of Judge Meraux obtained wide publicity throughout the State, particularly in the Parishes of Orleans, St. Bernard and Plaquemines. All the charges on which the proceeding was based, particularly the charge that Judge Meraux had been conducting his court as a divorce mill in collusion with defendant and three other lawyers whose names were given, became matters of public notoriety. The testimony *Page 101 taken and the documentary evidence offered in the case were filed in this Court. A portion of the documentary evidence, consisting of the records of the district court in the divorce and annulment cases in which defendant and the other lawyers were involved, was brought to the Court in the original form. On the record as thus made up, this Court rendered an opinion and decree removing Judge Meraux from office. The author of the opinion in that case, among other matters, discussed extensively the charge that Judge Meraux illegally granted judgments of divorce and annulments in collusion with the attorneys and litigants in the cases enumerated in the petition for Judge Meraux's removal. See Perez v. Meraux, 201 La. 498, 9 So.2d 662. The discussion in the Court's opinion of that particular charge against Judge Meraux was what prompted the Committee under the duty imposed upon it to undertake to investigate contradictorily with the defendant and the other attorneys involved their alleged misconduct in connection with the divorce and annulment suits in the Parish of St. Bernard in which they respectively appeared as attorneys. The notice addressed by the Committee to the defendant, Armstrong, specifically informed him that it was investigating the "alleged improper obtaining of divorces by you in various cases in the Parish of St. Bernard."
In these circumstances, it is inconceivable that the defendant had no knowledge of the matters which the Committee proposed to investigate in connection with the divorce suits in St. Bernard Parish in which he appeared as attorney. Certainly a lawyer *Page 102 who prosecutes or defends a suit in which the proceedings are not legal has or should have notice and knowledge of the illegalities. In any event, the records were open to public inspection and defendant could have easily obtained information, if he did not already possess it, as to what particular cases the Committee had in mind. If the defendant, Armstrong, had appeared at the hearing fixed by the Committee as did Henry E. Fallon, one of the attorneys also charged with misconduct in connection with divorce and annulment cases in the Parish of St. Bernard, he would have been furnished with a list of the cases if he had requested it and been given a reasonable opportunity to make his defense before the Committee. The fact that Fallon did not see fit to present his defense to the Committee does not alter the situation. Instead of cooperating with the Committee, which is merely an arm of the Court, defendant assumed an antagonistic attitude, leaving the Committee no other recourse than to institute the proceeding for his disbarment after the Committee had investigated the charges against him as best it could in the absence of any explanation on his part.
In my opinion there is nothing to be gained by dismissing this proceeding with the reservation to the Committee of the right to renew the proceeding after further investigating the defendant's conduct in connection with the divorce and annulment suits in the Parish of St. Bernard with which he was connected. I regard such a proceeding as a useless formality. The suggestion contained in the majority opinion that the defendant might convince the *Page 103 Committee that he was innocent of the charges is, I respectfully suggest, more theoretical than factual. The defendant is now in possession of all the facts which the Committee alleged constitute his professional misconduct. It serves no useful purpose to require the Committee to serve defendant with a copy of the charges contained in the petition for disbarment since defendant has already been served with a copy of the petition containing the charges. The defendant was not deprived of any substantial right by the action of the Committee. He contested the notice sent to him by the Committee and refused to appear at the hearing to cross-examine witnesses and to present his evidence. The Committee could not force defendant to appear and testify. There is no assurance that defendant will act differently on a reinvestigation by the Committee of his alleged professional misconduct. Whatever humiliation or embarrassment has been caused the defendant by the institution of the suit for his disbarment has already been suffered by him. If the Committee, after reinvestigating defendant's conduct, adheres to its opinion that the suit for defendant's disbarment should be reinstituted, he will only suffer further humiliation and embarrassment by the filing of the new suit.
Therefore, in the final analysis, defendant's complaint that he was not given reasonable notice and sufficient information of the matters the Committee intended to investigate loses its force, if any it had, because he has now been given the notice and information which he desires. The investigation the Committee is required to make *Page 104 into the alleged misconduct of an attorney under Rule XIII is not the trial of an action or suit. No judgment can be taken against the attorney who is the subject of inquiry. The investigation imposed upon the Committee by Article XIII is merely for the purpose of determining whether the conduct of the attorney under investigation exhibits probable cause for the institution of a suit for his suspension or disbarment. The ultimate decision in all disbarment proceedings rests with the Court and not with the Committee.
No more delicate responsibility is placed upon the Court than that of determining whether a member of the Bar should be disciplined for unprofessional conduct. In all such proceedings necessarily every facility is afforded the defendant to make a proper defense. The responsibility imposed upon the Committee is no less delicate than that imposed upon the Court for which it acts in such matters. Article XIII provides a simple and expeditious method for regulating the conduct of members of the Bar, and the work assigned to the Committee for effecting that purpose should not be retarded or made more onerous by the rigorous interpretation placed upon the Article by the ruling in this case.
Because of the facts and circumstances which I have hereinabove set forth, it is my opinion that the Court should proceed to hear and dispose of the case and not dismiss it. In such a hearing, the burden would be upon the Committee to sustain the charges by the production of lawful evidence; otherwise, the proceeding would be dismissed. *Page 105