(dissenting).
I am unable to agree either with the result reached by the majority, or the reasoning upon which it rests.
This action is based upon Supreme Court Rule 3-2.204, providing that the commission of “any act contrary to honesty, justice or good morals” constitutes cause for disciplinary action. The decision turns upon the conclusion of the majority that the unintentional killing of a human being in the commission of an unlawful act, not amounting to a felony, is contrary to “honesty, justice and good morals,” as those words are used in the rule.
We turn first to the definition of the words themselves. Actually, the three words, as used in the rule, have an almost identical meaning, and, as I shall hereafter show, are used synonymously with the term “moral turpitude.” Roget’s Thesaurus, § 939.7 defines “honesty” as synonymous with “integrity” or “adhering to principles.” Used as an adjective, it means upright; honorable; reputable, estimable, worthy, creditable.
“Justice,” as used in the rule, means “The principle of rectitude and just dealing of men with each other; also, conformity with it; integrity; rectitude; one of the cardinal virtues.” Webster’s International Dictionary; Lamborn & Co. v. United States, 65 F.Supp. 569, 576, 106 Ct.Cl. 703. “Immorality,” of course, is the opposite of “good morals.” Webster defines immorality as “the quality or state of being immoral: vice, wickedness; esp: unchastity;” also, “an immoral act or practice.” Bouvier defines “immorality” to be “that which is contrary to bonos mores;” and Ballentine says:
“To constitute immorality, a person’s conduct must be such as to amount to dishonesty, wickedness, injustice, — such action as contravenes the moral or divine law.”
See Poynter v. Phelps, 129 Ky. 381, 111 S.W. 699, 24 L.R.A.,N.S., 729, 735. A reading of the rule indicates that the phrase “honesty, justice and good morals” was intended to be given the above meaning.
The charge to which Morris pled guilty was the unintentional killing of a person while he was in the commission of an unlawful act, not amounting to a felony (driving while under the influence of intoxicating liquor). Black’s Law Dictionary, 4th Ed., defines “moral turpitude” as “conduct contrary to justice, honesty, modesty or good morals.” See, also, Marsh v. State Bar of California, 210 Cal. 303, 291 P. 583, 584. In In re Humphrey, 174 Cal. 290, 295, 163 P. 60, 62, it was said:
“Moral turpitude is njisconduct by an attorney in reference to his duties and obligations as such attorney — conduct, in fact, which is contrary to justice, honesty, modesty or good morals'.”
It is apparent from the very definition of the terms that, as used in the rule, “honesty, justice and good morals” and “moral turpitude” are synonymous. We have held that driving while under the influence of intoxicating liquor is a petty offense, and one charged therewith is not entitled to a jury trial. Hamilton v. Walker, 65 N.M. 470, 340 P.2d 407. The offense of driving while under the influence of intoxicating liquor is not one involving “moral turpitude,” and by the very definition of the terms, is not, in and of itself, one contrary to “honesty, justice and good morals.” State v. Deer, Ohio Com.Pl., 129 N.E.2d 667; In re Jacoby, 74 Ohio App. 147, 57 N.E.2d 932. See, also, Traders & General Insurance Co. v. Russell, Tex.Civ.App., 99 S.W.2d 1079; Groves v. State, 175 Ga. 37, 164 S.E. 822; Ruedas v. State, 143 Tex.Crim.Rep. 291, 158 S.W.2d 500; Flowers v. Benton County Beer Board, 202 Tenn. 56, 302 S.W.2d 335. The majority appear to agree that this is so, but seek to distinguish between the petty offense which resulted in the unintentional killing of a person and the more serious crime which unintentionally resulted from such petty offense. They say this is true even though the death was the unintentional result of the petty offense which, in and of itself, is not contrary to “honesty, justice and good morals.” Thus, the result — not the cause — ■ is the determining factor as they view it.
Neither the question of “honesty, justice and good morals” or of the “moral turpitude” that may be involved in the commission of a criminal offense exists merely because a crime has been committed — a mere violation of the law — on the theory that it is immoral to violate the law. The use of the term “honesty, justice and good morals,” in our rule, clearly contemplates something more than mere conviction of a crime; otherwise, the use of the words would be surplusage of language. If a crime is one contrary to “honesty,. justice and good morals,” it is because the act denounced by statute offends the generally-accepted moral code of mankind. Indeed, the very language of Rule 3-2.206 itself supports the above view. It is only where the offense is one involving “moral turpitude” that mere conviction is sufficient, in and of itself, to warrant disciplinary action.
It logically follows from the majority decision that if the conviction of involuntary manslaughter resulting from the commission of a petty misdemeanor, which itself is not an act contrary to “honesty, justice and good morals,” is sufficient to revoke the license of an attorney, then by the same reasoning, every road law violation by a lawyer which unintentionally results in the death of a person would likewise require such revocation. Some examples of analogous situations are the crossing of a yellow line, driving in excess of the posted speed limit, or any other violation of the laws of the road which, in and of themselves, are petty offenses not contrary to “honesty, justice and good morals.” Under the reasoning of the majority, however, the violation of any such road law, if the death of another inadvertently resulted therefrom, would become contrary to and offend the generally-accepted code of mankind.
I think it is a' generally-accepted medical fact that certain persons lack what is known as depth perception so as to be unable to distinguish the distance to another cár traveling in the same direction. Yet, under the majority holding in this case, a lawyer who drove 65 m. p. h. in a posted 60-mile zone and who struck the rear.of-another car, with resulting death to an occupant thereof, would be just as guilty of involuntary manslaughter as was- Morris. in this case. Yet, I doubt whether anyone wortld be willing to revoke a license to practice law because of such an unfortunate result of a petty offense not in itself contrary to “honesty, justice and good morals.” I am unable to see, and the majority have not pointed out, in what respect the unfortunate, unintended result of such petty offense raises it to the level of being contrary to “honesty, justice and good morals.”
The majority say that disciplinary action is neither required nor justified in every case where a felony has been committed: by a member of the bar. Yet, unless it can be said that the facts which gave rise to the involuntary death in one case are clearly contrary to “honesty, justice and good morals,” but are not so contrary in the other, there would be in fact no basis for distinction nor for the imposition of disciplinary action in one and not in the other.
Furthermore, all of the provisions of the disciplinary rules must be interpreted in the light of the expressed purpose, i. e.:
“The purpose of discipline of lawyers is the protection of the public, the profession, and the administration of justice, and not the punishment of the person disciplined.
“Only persons of integrity and good character should be permitted to practice law.”
Even though Rule 3-2.204 provides that the action need not be committed in the course of his relations as an attorney, it nevertheless requires it to be contrary to “honesty, justice and good morals” which I have pointed out, by definition, is synonymous with “moral turpitude.” An excellent definition of such purpose is found in In re Reily, 75 Okl. 192, 183 P. 728, 730, 7 A.L.R. 89, which was reaffirmed in Warkentin v. Kleinwachter, 166 Okl. 218, 27 P.2d 160, where it was said:
“The law does not demand that every technical infraction of the law by an attorney shall require his disbarment, although an attorney' should endeavor to observe literally the law; but it is those infractions of duty by an attorney that involve moral turpitude and evince a depraved character,' rendering such attorney untrustworthy and a reflection upon the bar and the court, as an officer thereof, that demand his disbarment.”
The majority has not pointed out anything in the mere fact of driving while under the influence of intoxicating liquor which in and of itself evinces a depraved character or which renders a lawyer untrustworthy or a reflection upon the bar or the court, as an officer thereof, as distinguished from the violation of any other law of the road which unintentionally results in the death of another.
I dissent.