This is an original proceeding to disbar Richard W. Leche under Section 10 of Article VII of the Constitution of 1921 providing that the Supreme Court "shall have exclusive original jurisdiction in all disbarment cases involving misconduct of members of the bar, with the power to suspend or disbar under such rules as may be adopted by the court." (Italics mine.) The matter is now before us on an exception of no cause of action filed to a rule issued against the defendant to show cause why his name should not be stricken from the roll of attorneys and why his license to practice law in this state should not be cancelled.
The basic allegation of the petition is that the defendant "was convicted of a felony in The United States District Court * * * as will appear from the certified copy of the judgment of sentence" attached to the petition, which judgment has become final and the defendant is now serving his sentence thereunder. The petition contains no allegation of misconduct on the part of the defendant, nor does it give any of the facts from which a conclusion might fairly be drawn that the defendant is guilty of misconduct. Consequently, the exception of no cause of action should be maintained, for *Page 337 under the express mandate of the Constitution we are powerless to proceed in any disbarment matter where any ground other than the misconduct of the member of the bar sought to be disbarred is being urged.
The author of the majority opinion in the Connolly case, La.Sup., 9 So. 2d 582,1 being handed down today, upon which the majority opinion in the instant case is based, has expressly recognized that our jurisdiction in such matters is limited to cases of disbarment involving misconduct, but in maintaining the action of the committee and overruling the defendant's exception of no cause of action, the majority opinion in the Connolly case holds that the conviction of a felony is prima facie evidence of misconduct, the burden of overcoming such evidence being placed upon the defendant.
Until the adoption of the Constitution of 1898 — wherein this court was given "exclusive original jurisdiction in all matters touching professional misconduct of members of the bar, with power to disbar under such rules as may be adopted by the court" (Article 85 of the Constitution of 1898) (Italics mine.) — the court only had appellate jurisdiction, as in all other cases. See State v. Fourchy, 106 La. 743, 31 So. 325. This article was reproduced under the same number in the Constitution of 1913. The Constitution of 1921 extended the jurisdiction of the court to include "all disbarment cases involving misconduct of members of the bar, with the power to suspend or disbar under such rules as may be adopted by the court." Section 10 of Article VII. (Italics mine.) *Page 338
Pursuant to the authority given the court in this article, the Supreme Court incorporated under its Rule No. XVIII the procedure to be followed in disbarment cases. In Section 7 of this rule it is provided that "The practice before the commissioner [appointed under Section 4 of Rule XVIII to hear the evidence in the case] shall conform as near as may be to the procedure in trials of civil suits before the district courts of this state, except asotherwise herein provided," this exception being, as provided in Section 9, "Whenever any member of the bar shall be convicted of a felony and such conviction shall be final there may be presented to the court a certified or exemplified copy of the judgment of such conviction, and thereupon the court may, without further evidence, if in its opinion the case warrants such action, enter an order striking the name of the person so convicted from the roll of attorneys and cancelling his license to practice law in the State of Louisiana." (Italics and brackets mine.)
The majority opinion in the Connolly case is based on the false premise that while the grant of jurisdiction given this court under Section 10 of Article VII of the Constitution of 1921 in disbarment cases "must be adjudged to be limited to cases of disbarment involving misconduct, [the grant] also contains a recognition of plenary power to suspend or disbar `under such rules as may be adopted by the court,'" and that the framers of the Constitution of 1921 did not intend "in authorizing us to enact rules in aid of our jurisdiction in disbarment cases involving misconduct, to restrict the right *Page 339 delegated to mere rules of practice and procedure." (Brackets mine.) Or, as expressed in another portion of the opinion, "The limitation of jurisdiction with respect to disbarment proceedings contained in the Constitution refers solely to the grounds for disbarment but the recognition of the power of the court to adopt rules in aid of its jurisdiction is not in anywise restricted."
Such an interpretation, in my opinion, has the effect of creating the anomalous situation of permitting the court by the mere adoption of rules in aid of the limited jurisdiction granted it by the Constitution to so frame its rules as to give itself jurisdiction far beyond the limitation expressly placed upon it by the Constitution itself.
As previously pointed out, Rule XVIII provides that the procedure in disbarment cases shall conform to that in civil suits in the district courts of this state. In adopting this rule, the court did not see fit to define "misconduct," or to state what constitutes "misconduct." Nor did it declare that conviction of a felony would be per se ground for misconduct or prima facie evidence thereof. Of course if this court in adopting Section 9 of Rule XVIII intended to make the conviction of a felony, whether constituting misconduct or not, a ground for disbarment, the same would be unconstitutional. The section would likewise be unconstitutional if the interpretation to be placed thereon is that without any allegation of misconduct this court may disbar an attorney upon the mere presentation of a certified or exemplified copy of a judgment of conviction, for in such cases we would not only be relinquishing to a jury *Page 340 of laymen our responsibility of passing upon the worthiness of a defendant by accepting, instead of our own, their appreciation of the facts upon which the prosecution of the defendant is based, but, in such instances, we would not even have an opportunity to ascertain just what those facts were, since no allegation in the petition details them. Furthermore, how are we to determine whether a defendant should be disbarred or suspended in a case of this kind. For example, in the instant case, unless we are to be governed by what we have heard and what we have read in the newspapers, we are completely ignorant of the facts upon which the defendant was convicted, since the petition is totally lacking in this respect.
The Connolly case serves its own good example of our dilemma in such instances. In that case the defendant was sentenced to prison, in addition to paying a fine, when she filed a plea of nolo contendere on a charge of evading the payment of income taxes. The jail sentence was suspended by the trial judge upon the payment of the fine and half the cost of the prosecution. With no other allegation in the petition than the fact that the defendant had been convicted of a felony, the Committee on Professional Ethics and Grievances is seeking to have her name stricken from the roll of attorneys and her license to practice law in this state revoked. Unless we are to assume that the judge had some arbitrary reason for suspending the defendant's jail sentence upon the payment of the fine, we have no recourse but to believe that the judge had at his disposal facts which justified the leniency showed her. Whatever these facts *Page 341 may be, they are unknown to us. Are we to use as a standard the judge's leniency toward the defendant Connolly when judgment is passed on her in this court, showing her leniency on the strength of this alone, without any knowledge of the facts of the case? Or are we to require the defendant to produce such facts for us? The fallacy of such procedure is apparent. Suppose the defendant either makes no defense or permits the judgment to go against him by default, if the court is undecided as to whether the defendant should be suspended or disbarred, what then would be our procedure? In such cases, we could not compel the committee to produce the facts which gave rise to the prosecution and conviction, for it is hornbook law that no evidence can be introduced beyond the pleadings in civil suits and there is no allegation in the petition under which the evidence can be produced.
It is my opinion, therefore, that in all cases where the Committee on Professional Ethics and Grievances of the Louisiana State Bar Association seeks to disbar an attorney, all of the acts of misconduct of the member sought to be disbarred should be alleged, whether the same constitute a felony of which the member has been convicted or not, in order that the defendant may be fairly apprised of the issues he will have to meet so that he may prepare his defense thereto. This has been the interpretation placed on Section 9 of Rule No. XVIII of this court by all previous committees handling such matters from the time this *Page 342 rule was adopted in 1926, and I see no reason to depart therefrom at this late date.
For these reasons, I respectfully dissent from the majority opinion in this case.
1 201 La. 342.