The petitioner was disbarred from the practice of law by this court in a proceeding therefor by the State Bar Association, in which its judgment became final when a suggestion of error thereto was overruled on March 7, 1932. In re Marshall, 162 Miss. 364,138 So. 298. On June 4th, three months thereafter, he filed a petition for reinstatement in the court below, under section 26, chapter 121, Laws of 1932, the constitutional validity of which is not challenged by the parties hereto, and I will express no opinion thereon. The prayer of the petition was granted, and the State Bar Association has appealed from the order therefor.
Before examining the record, it will be well to again set forth the nature of the office of an attorney at law, and his relation to the court, the bar, and the public.
Governments in all civilized countries are organized, among other things, to "establish justice, insure domestic tranquility," and "promote the general welfare." To that end all of the state's judicial power is vested in its courts of justice, whose duty it is to decide all justicable controversies arising under the state's Constitution and laws. A court of justice consists, not of the judge alone, but also of its administrative machinery, a fundamental and essential portion of which is attorneys at law. While not strictly a public officer within the constitutional and statutory meaning, an attorney at law *Page 558 is an officer of the court in which he practices, without whose assistance the English and American courts cannot properly function. "By approved practice, and ex necessitate, an attorney at law is clothed in some measure with the court's power. For instance, his engagement in a case gives him a right to command the court's processes of summons and subpoena, and the court's officers are at his call to execute his will in behalf of his client for many purposes. His retainer gives him the ear of the court, and also affords him the court's protection against a refractory client. He is the only proper vehicle of communication between the court and his client, and upon him the court must rely for the performance of many intimate and responsible duties." 1 Thornton on Attorneys at Law, section 13.
When the petitioner was disbarred we said: "There could hardly be any serious denial of the assertion that the trained and learned lawyer of dependable moral character is an indispensable assistant in the operation of the intricate machinery of efficient government, especially in the courts, to say nothing of the necessity of his presence in the manifold and almost infinite complexities of commercial and civil life. Gratitude for the past would incline us to make this admission, even if candor and common observation in respect to the present did not compel it. Indeed, the Constitution itself has recognized the fact, and has declared that the recognition shall be permanent, for it has, by apt provision, made the continuance of the superior courts therein established conditional, in effect, upon the continued existence of the legal profession, because in its sections 150 and 154, Const. 1890, it expressly ordains that no person shall be eligible to the office of judge of the Supreme Court, of the circuit court, or of the chancery court, who shall not have been a practicing attorney and citizen of the state for five years. . . . The learned lawyer of trustworthy character is essential not only to the continued existence of *Page 559 these three superior courts, but is necessary, as well, to the efficient and beneficial performance of the appointed duties of said courts." In re Steen et al., 160 Miss. 874, at page 884,134 So. 67, at page 69.
The ability of the courts "to establish justice, insure domestic tranquility, and promote the general welfare" depends, in a large measure, on public confidence in their integrity, the instillation and preservation of which rests equally on the judge and the attorney — on bench and bar. That confidence in the integrity of the courts may not be impaired, constitutional and statutory methods have long existed for removing therefrom not only unworthy members of the bench, but also unworthy members of the bar. To the honor of both of these branches of courts of justice, it has seldom been necessary to resort to proceedings for this purpose; and, to the honor of the bar, it can be said that it has generally measured up to its high responsibilities in this regard.
The right to practice law is not a natural or constitutional right, but is a revocable privilege, conferred in this state on persons, "above the age of twenty-one years, of good moral character," having "at least, a high school education or its equivalent," and possessing a prescribed degree of legal learning. Chapter 82 of the Code of 1930. An attorney's good moral character must not only appear when he is admitted to the bar, but must continue thereafter, in default of which, his license to practice may be revoked. Section 3703, Code of 1930; section 26, c. 121, Laws of 1932.
The statute does not set forth the grounds on which a disbarred attorney may be reinstated, leaving that question to the law governing it theretofore in effect, under which the question is, Is the petitioner of good moral character, and a fit and proper person to assist the court in the administration of justice? Or, to state it differently, Would his reinstatement be compatible with the proper respect of the court for itself, the dignity of the *Page 560 profession, and the safety of the public? There are four parties before the court in such a proceeding — the petitioner, the court itself, the bar, and the public.
The petition, among other things, alleges that: "At all times, and especially since the date of his said disbarment, your petitioner's moral character and consequent fitness to practice law, has been above reproach; and in substantiation of this averment, your petitioner does file and present herewith the ex parte affidavits of numerous credible persons acquainted with his character and reputation; said affidavits being hereunto attached, hereby referred to and identified as Exhibit `A' to this petition, and asked to be taken and considered as a part hereof. Your petitioner has been more than sufficiently punished for anything of error that he may have done in connection with the said matter for which he was disbarred; and the reinstatement of your petitioner to the right to practice the profession of law in the courts of Mississippi would not be prejudicial to the interests of the courts, the bar, or the public."
The affidavits referred to as Exhibit A to the petition are said to exceed twenty-five hundred in number and come from all parts of the state. Most of them are in identical, and the others in similar, language. They are to the same effect as the oral testimony hereinafter mentioned. They were introduced in evidence at the trial over the objection of counsel for the State Bar Association; but the chancellor, in a written opinion, said he had left them out of view in deciding the case. This cured the error, for such it was, in their admission in evidence.
The testimony in support of the petition is that of the petitioner himself, and of persons who testified in support of his moral character. The bar association offered no evidence, but rested its opposition to the petitioner's reinstatement on the evidence introduced by him. *Page 561
After the petitioner had introduced forty-eight character witnesses, counsel for the bar association agreed that one hundred and fifty other persons, present for that purpose, would give substantially the same evidence as to the petitioner's moral character as that given by the witnesses who had then been introduced; and the evidence of these persons was not then offered.
This character testimony is, in substance, that the petitioner, prior to his disbarment, was of good moral character; his reputation did not suffer from his disbarment; he is now of good moral character; the administration of justice will not suffer by his reinstatement; and the public desires that he be reinstated. The brief of counsel for the petitioner is grounded on these five propositions, and, in addition, that the petitioner has been sufficiently punished for the commission of the act for which he was disbarred, and the members of the bar with whom he practiced law desire his reinstatement.
Punishment is no part of the purpose sought to be accomplished by the disbarment of an attorney; the purpose sought to be accomplished thereby being simply the eliminating from the practice of law of a person unfit therefor. Punishment for wrongdoing is inflicted by the state, under its criminal laws, imposed by its courts of criminal jurisdiction, to which an attorney is subject to the same extent as, but no further than, all other persons. It is true that the statute recognizes the disciplining of attorneys by methods short of disbarment, on the theory that they will thereby be induced to thereafter observe the duties of their office. But be it said to the credit of the bar, that with few exceptions, its members are faithful to the trust imposed in them, not because of any fear or punishment for violations thereof, but for "truth's sake and conscience." One who abstains from evil merely because of the fear of punishment cannot, in the very nature of things, be morally good. *Page 562
The evidence establishes that prior to his disbarment the petitioner enjoyed, as the vast majority of men do, a good reputation. Reputation is not of itself character, but is accepted as evidence thereof, on the theory that the two generally coincide. This is not always the case, for "a goodly apple" may be "rotten at the heart."
It is difficult to conceive of the disbarment of an attorney not affecting his reputation, and, in justice to the witnesses who testified that the appellant's disbarment did not affect his reputation, it is necessary to say that they explained it by saying that the judgment of this court was not accepted as establishing the fact of the petitioner's wrongdoing; various reasons being assigned therefor. I will refrain from commenting on this, but will say that the administration of justice is on a precarious footing when the judgments of the courts are not accepted as establishing the facts on which they are rendered.
The evidence that the petitioner's moral character has been good since his disbarment amounts simply to a declaration by the witnesses that he had not publicly been guilty of wrongdoing since he was disbarred. This I accept as true; but it falls far short of establishing the petitioner's inner self, his actual moral character. It has evidential value, but we do not have to rest our judgment on it alone, for the petitioner himself testified, and gave a perfect picture of his inner moral self.
That the people desire his reinstatement, if such is the fact, must be laid on one side. The doors of the temple of justice should be closed to popular clamor either for or against a person on trial therein; and "we would be unworthy of the high places we hold" if we permitted it to enter there. Owens v. State, 80 Miss. 499, 516, 32 So. 152, 155. As was said by Judge ETHRIDGE, when we assumed jurisdiction of the proceeding to disbar this petitioner, "We should . . . deliberate in a place that `is imperviously padded against popular *Page 563 clamor and passion.'" In re Steen et al., 160 Miss. 874, at page 917, 134 So. 67, at page 81. Courts of justice should render such judgments only as are warranted by their conception of the principles of law as applied to the facts of the cases in which their judgments are rendered. Were it otherwise, life, liberty, and property would not be safe with them.
It appeared in the petitioner's disbarment proceeding that he had extorted by blackmail the sum of eighty thousand dollars; he disclosed the disposition he had made of eighteen thousand dollars thereof, but declined to say what he had done with the remaining sixty-two thousand dollars, except by an unbelievable story, which the court rejected, leaving that much of the money unaccounted for, and presumably in his own hands. Any disposition he made of this money could not have removed or lessened his moral guilt in obtaining it; and a disclosure by him of what he did with it would simply have disclosed who his confederates were, if, in fact, there were such.
The petitioner has assumed throughout this proceeding for his reinstatement that he was convicted merely of a technical blackmail, whatever that may be. In refusing to comply with a request of counsel for the State Bar Association to clear up, if he could, the charge against him, for which he was disbarred, he said: "I was disbarred by the Supreme Court for a technical or constructive blackmail, or extortion, in that the Supreme Court rejected, as highly improbable, my testimony and that of my corroborating and supporting witnesses as to the disposition of the money. My regard for the propriety is too great for me to do other than bow to the decision of the court, whatever it is, or was, or however disasterously it affects me and those dependent upon me and my friends. I wish to say this, in justification of those who did not believe the explanation given, that for approximately two years the press of the country, *Page 564 inspired by certain motivating influences, bombarded and assailed the credit and credibility of any and all persons, including myself, who might later take the witness stand and testify that that money was paid to any one than one man. That one man was acquitted by the Supreme Court, and is now engaged in the practice of law. I would never attempt to enter the door by attacking the Supreme Court. If I should repudiate the testimony in a way that would please those of opposite thought, it would be an embarrassment to the Court — a contempt of the Court, and an injury to a man whose status has been established as a matter of adjudication — res adjudicata — an act of unspeakable treachery to the witnesses who corroborated my testimony, and I have too much love for the law profession; too much genuine and sincere attachment for it and appreciation of the public importance of its standing to the people to ever wish to be a liability to it by being a member of the bar as a confessed blackmailer and perjurer. That, as God gives me the light to see, I shall not do, regardless of consequences, and at the same time never will I prove myself unfit to be a lawyer — whether I am one or not — by taking issue with the Court of my land after a final decision."
The petitioner was convicted by this court of no technical blackmail, but of blackmail in fact, deliberately planned and executed, as will be disclosed by the reading of its opinion rendered when he was disbarred, In re Marshall, 162 Miss. 364,138 So. 298, and no new evidence has been introduced that would even faintly indicate that his conviction was not in accord with the actual fact. On the contrary, there is an implied admission in the petitioner's testimony, hereinbefore set out, that his testimony in his disbarment proceeding was false, and he gives four reasons why he should continue to stand by, and not repudiate, it: (1) It would be an embarrassment to the court, a contempt of the court; *Page 565 (2) an injury to a man whose status has been established as a matter of adjudication; (3) an act of unspeakable treachery to the witnesses who corroborated his testimony in his disbarment proceeding; and (4) he does not wish to become a liability to the legal profession by becoming a confessed blackmailer and perjurer.
None of these reasons have any foundation in law or morals. For him to now admit that his former testimony was not true, and therefore the court's judgment was correct, could hardly cause this court any embarrassment. For him to confess having committed blackmail and perjury may be humiliating; but to confess wrongdoing — the commission of a crime — may at times be not only necessary, but good. To refuse to confess the commission of a crime, not because it was not committed, but only because its confession would disclose that other persons participated therein, is bad. No man is justified in law, and seldom, if ever, in morals, in shielding criminals from paying the penalty of their crimes. He may not be called on in all cases to voluntarily bring them to the bar of justice; but to affirmatively shield and protect them is a different matter.
The investigation into the petitioner's present moral character begins with two established facts: (1) He committed blackmail and perjury; and (2) his moral character when he committed those crimes was bad. The nature and quality of blackmail and perjury are such that the will to commit them cannot be formed by a mind that is morally good, and their commission demonstrates the moral depravity of the person committing them. If the petitioner's character is now good, the change from bad to good was so rapid as to be probably without precedent. It may be that such rapid and radical reformations are possible, but they are not in accord with human nature; for it is as true now as when it was said two thousand years ago by one of the greatest of the Roman lawyers, that "No one of us can suddenly assume a *Page 566 character, or instantly change his mode of life, or alter his nature." The courts act upon this assumption, for they "will not ordinarily reinstate an attorney where his petition for reinstatement follows closely upon his disbarment." 2 Thornton on Attorneys at Law, section 902. There is, as Thornton says, one remarkable case to the contrary, People v. Essington,32 Colo. 168, 75 P. 394, wherein the court reinstated an attorney by the same order which disbarred him. This case is without a brother, and to follow it generally would bring the courts into disrepute.
In order that character, broken by wrongdoing, may be re-established, it is absolutely necessary for the wrongdoer to repent, with all of its connotations, of the wrong done. This is the verdict of religion, and is inherent in the moral nature of man. 10 Hastings' Ency. of Religion and Ethics, 731. Repentance, to be sincere, involves a realization of one's condition and a definite mental determination to reverse his course and retrace his steps at any risk, an outstanding example of which is that approved by the Master in the parable of the Prodigal Son. It includes confession of wrong done, and restitution therefor, in so far as it is possible so to do. In re Zaccheus, Luke, chapter 19. The petitioner has done none of these. On the contrary, he asserts, in effect, that he has done nothing of which to repent.
The petitioner did express regret for what had occurred. But that regret was in effect, but an assertion that, according to his conception of what he did, he was guilty of no wrong. In reply to this question by his counsel, "I want to ask you with reference to any regrets for having gone into that matter for which you were disbarred, have you any regret?" he said: "Well, regret would be too mild a term, I should think. I am very, very profoundly regretful that I had any connection at all with the matter, that might be open to a construction of evil or the appearance of evil." The answer is in full accord *Page 567 with his contention that he was convicted only of a technical offense.
Repentance, confession, and restitution have long had a fixed and definite place in the law. In equity, restitution must be made when so to do is necessary to purge a complainant or defendant of iniquity. In civil suits for the commission of some torts, repentance, confession, and restitution mitigate damages; and, in prosecutions for crime involving the wrongful taking of property, they mitigate the punishment and under statutes in some states lower the grade of the offense. What the petitioner here asks, in effect, is that the sentence of disbarment pronounced against him be mitigated by being reduced, in effect, to suspension. When an attorney who has been disbarred for wrongfully withholding his client's money applies for reinstatement, the courts require as one condition therefor that he pay to his client the money withheld. 2 Thornton on Attorneys at Law, p. 1337. This court is committed to that doctrine in cases of blackmail; it has applied it in a branch of this particular case. In re Howie (Miss.), 138 So. 324.
Marshall disposed of eighteen thousand dollars of the eighty thousand dollars, extorted by him from the person blackmailed, in this way: One of the elements entering into the extortion of the eighty thousand dollars was the settlement of a lawsuit in which Marshall was acting for Howie's firm, which was counsel therein. He admits retaining five thousand dollars of this money, which he says was his fee for services rendered Howie's firm in effecting the settlement, and paid thirteen thousand dollars to Howie's firm. Howie appropriated a part of the thirteen thousand dollars to himself as his portion of his firm's fee in effecting the settlement. This court held that this eighteen thousand dollars was a part of the money extorted by Marshall — blackmailed by him — from the person who paid it. It acquitted Howie of complicity in the blackmail; but said that after acquiring *Page 568 knowledge thereof he ought not, and would not be permitted, to retain the money received by him, and did not dismiss the petition for his disbarment until he satisfied the court that he had disposed of it in the manner directed by the court. The rule there applied to Howie seems inescapable here. It may be that the person from whom the petitioner obtained this money is not morally entitled, because of his own conduct, to demand its repayment. But that is beside the mark, for the same question was presented in Howie's Case, but nevertheless the court would not permit him to retain the money.
But it is said that the petitioner cannot make restitution, for the reason that he is not in possession of the money he extorted from the person blackmailed, and has no money of his own with which to make restitution. This may or may not be true. It rests wholly on the petitioner's own testimony, and that of other persons, to the effect that they were in possession of no evidence that the petitioner had this or other money of his own. In equity and good conscience, in justice to himself and his professional brethern, the petitioner should disclose why he has not this money; in other words, what he did with it. Then, and not until then, and not then if he has money of his own sufficient for that purpose, should he be relieved of the duty of making restitution.
It may be said that the petitioner cannot make restitution without thereby confessing the commission of blackmail, and subjecting himself to a prosecution therefor. This may be true, and, if so, he has the right to remain silent, and not voluntarily offer restitution; but every right has its correlative duty and sometimes burden. Until restitution or its equivalent is here made, the duty is cast on us of not readmitting the petitioner to the practice of law, and this burden he, of right, should bear unless and until he makes it appear that he did not profit by the wrongdoing, or that he is unable to make restitution. In re Howie, supra. He should make a full disclosure *Page 569 in these two particulars, or bear the burden for not so doing. We must not forget that three cardinal virtues of a lawyer are "truth, simplicity and candor."
We have been continuously reminded that the petitioner is a brilliant and able lawyer, and his counsel say, "If once he has been an ornament (meaning to the Bar) whose value has been destroyed by some single failure, then the court is impelled to the restoration, because the fact that once he had adorned the profession is itself an evidence not alone of ability, but equally of character."
This argument is not without force, for no less a man than Judge SHARSWOOD has said, "Let it be remembered and treasured in the heart of every student, that no man can ever be a truly great lawyer, who is not in every sense of the word, a good man." In this he but followed Lord Coke, who said, "I never saw any man of a loose and lawless life attain to any sound and perfect knowledge of the laws; and, on the other side, I never saw any man of excellent judgment in these laws, but was withal, honest, faithful and virtuous." This is in accord with the general rule, to which, as to most rules, there are, of course, exceptions. Brilliancy and ability do not alone make a lawyer great; counsel may have placed the petitioner on too high a pedestal. Be that as it may, it is our duty to decide the case on the evidence, and try the petitioner by the same rule we would apply to the humblest member of the bar.
It must not be forgotten that the petitioner is not a young attorney just beginning the practice of his profession, who swerved from truth and fairness in a small particular before his moral character had become mature. On the contrary, he is a seasoned lawyer, enjoyed a large and lucrative practice, and has reached that period of life at which moral character has matured, and generally thereafter remains practically the same. When he was disbarred, his moral character was such as to permit him to commit blackmail and perjury; and his own *Page 570 testimony demonstrates that his inner self has not changed, that his moral character is today what it was then. To reinstate him under such circumstances is calculated to, and may, shake public confidence in the courts and in the integrity of the legal profession, the high ideals of which it is our duty to preserve. In the preamble to the American Law Association's Canons of Ethics it is said that: "In America, where the stability of courts and of all departments of government rests upon the approval of the people, it is peculiarly essential that the system for establishing and dispensing justice be developed to a high point of efficiency and so maintained that the public shall have absolute confidence in the integrity and impartiality of its administration. The future of the republic, to a great extent, depends upon our maintenance of justice pure and unsullied. It cannot be so maintained unless the conduct and the motives of the members of our profession are such as to merit the approval of all just men."
The petition for reinstatement was signed by seventy attorneys, said to include all but two of the members of the bars of Jackson, Hancock, and Harrison counties. Many of them testified for the petitioner at the trial. All of them signed the brief for him in this court, though it appears from the brief that six only of them are his counsel in fact.
After quoting this statement by the Supreme Court of California, In re Hahn, 56 Cal.App. 702, 206 P. 473, 474, in a reinstatement proceeding, with reference to counsel for the petitioner, "Their appearance in this behalf carriers with it the guaranty that they act not alone for the best interest of the applicant, but also in the interest of the bar at large," the brief proceeds: "We, the attorneys for the appellee here and in the court below, solemnly and deliberately assume this role. We have confidence in our judgment of men; we know that we are loyal to the ideals of our profession. We have better knowledge *Page 571 of the appellee's character than have others; we and our own people will be affected directly and personally by his future status. With these considerations before us, and conscious of our responsibility, we solemnly vouch for his present moral character, and his future conduct. We respectfully ask the court to affirm the decree of the learned chancellor reinstating the appellee as a practitioner of law in Mississippi."
I will put on one side the propriety vel non of this statement; I do not challenge its honesty and sincerity, and have given due weight to it. The appeal for clemency is a tribute to the hearts of my brethren who made it, and evidences their loyalty to friendship, than which "nothing in the world is more excellent;" but I cannot yield thereto. Judgment should be tempered with mercy when possible, but judges should never let their hearts outrun their heads. Neither can I give full value to the estimate of the petitioner's moral character there expressed, for friendship, if sincere, impels us, in the words of Emerson, to "approach our friend with audacious trust in the truth of his heart; in the breadth, impossible to be overturned, of his foundations."
The writing of this opinion has given me no pleasure. I deeply regret my inability to join my three associates in welcoming the petitioner back to the ranks of our great profession, but my conception of the truth and conscience forbid. I can do no other.
The decree of the court below should be reversed and the petition dismissed. But this cannot be done because three of the members of the court, one-half thereof, are of the opinion that the decree of the court below is correct. Brewer v. Crum,111 Miss. 871, 72 So. 700.
It has been suggested that under section 26, c. 121, Laws of 1932, the trial in this court is de novo, and therefore the case is in the same attitude as if the petition for reinstatement had been originally filed in this court, from which it follows that the petitioner cannot be reinstated *Page 572 unless a majority of this court so say. In re Franklin (Miss.), 138 So. 307. This is true in part, for the judgment which the statute directs this court to render is that which, under its conception of the law and the facts, should be rendered. After giving this court the power to hear evidence not introduced in the court below, and providing that, "The rule that the Supreme Court will not reverse the judgment of the lower court on a question of fact unless it affirmatively appears upon the face of the record that the cause was decided contrary to the evidence shall not apply in cases arising under this act," the statute concludes as follows: "the supreme court shall be the final judge of the facts, and the judgment to be rendered thereon." But the statute further provides that "during the period of such appeal the disbarred attorney shall be prohibited from engaging in the practice of law in the courts of the state." This can only mean that the judgment of reinstatement shall not be effective while an appeal therefrom is pending, but that it does become effective when the appeal ends without another and different judgment being rendered by the Supreme Court. No judgment different from that of the court below can be here rendered because of the equal division of the court thereon; consequently, under the rule announced in Brewer v. Crum, supra, and uniformly followed since, the judgment of the court below must, of course, be affirmed.
I am requested by Judge ANDERSON to say that he concurs in all that I have here said.