Fahey v. Brennan , 136 W. Va. 666 ( 1951 )

Given, Judge,

dissenting:

It is not doubted that Section 25 of Article VI of The West Virginia State Bar By-Laws vests in courts of record jurisdiction to hear and determine malpractice charges against attorneys at law in cases coming within the requirements. of that section. I do not believe it will be questioned that such jurisdiction is limited to cases coming within the requirements of that section.

The petitions in the two instant proceedings allege that “The defendant has not observed, and has had no opportunity to observe, any such acts of malpractice on the part of the petitioner as are mentioned in ‘the charges’ nor any circumstances rendering the observed acts of the petitioner improper- acts.” This, I think, goes to the jurisdiction of the court, since the court can, on its own motion, cause such a proceeding to be commenced only where the malpractice was “observed” in “court”. If this be true, it deprives the Circuit Court of Hancock County of the power to proceed in the cases against petitioners. The only jurisdiction of the circuit court to entertain a proceeding to annul the license of an attorney, as distinguished from the right to strike the name of the attorney from the rolls of the particular court, must rest, upon statutory authority. In the proceedings against petitioners the statutory authority rests upon Section 25 of Article VI of the By-Laws. In Re Daugherty, 103 W. Va. 7, 136 S. E. 402.

We must look to that section alone for such authority.. We find therein certain absolute requisites as to such authority. The malpractice must have been “observed”. ♦It must have been “observed” by the “court”, not by a judge of some court; and the observation of such malpractice must have been, with reference to the court,, “therein”. If any one of the necessary requirements is absent, the court can obtain jurisdiction of such a proceeding only upon the filing of a “verified complaint”' by The Committee on Legal Ethics of The West Virginia State Bar, pursuant to Section 19 of Article VI of the By-Laws, or by the filing of a “verified complaint” by an attorney pursuant to Section 25 of that article. It is not contended that any verified complaint has been filed in either of the proceedings against petitioners.

The only allegation contained in. the notices of the charges against petitioners with reference to the observation- of the malpractice is “* * *, which malpractice has come to the personal observation of the undersigned Judge of the Circuit Court of Hancock County.” I think it very significant that the allegation is that the malpractice was the “personal observation” of the judge, and not that it was “observed” by the “court”. The judge of a court is not the court. See Johnston v. Hunter, 59 W. Va. 52, 40 S. E. 448. It is also significant that the observation is not alleged to have been in the court. It could have been “observed” by the judge outside of the court. A judge may observe things miles from the court, and “personal observations” of a judge are not observations of a court. Little semblance, if any, exists between the facts stated in the notices and the jurisdictional facts upon which jurisdiction of the circuit court must rest. Clearly the charges in these notices were insufficient to bring the cases within the requirements of Section 25.

The allegations contained in the petitions in the instant proceedings, quoted above, are not denied, there being only demurrers to the petitions filed by defendant. Are we not bound by the often applied rule to the effect that all matters properly pleaded, together with reasonable inferences to be drawn therefrom, are to be considered as true? I would obediently apply the rule in the instant proceedings, notwithstanding the defendant happens to be a highly honored judge of a circuit court. Important principles and valuable rights involved, I believe, require its application. No doubt the defendant desires it so. His action in initiating the proceedings could have been only because of a high sense of duty believed to have been required of him by Section 25.

One of the purposes of Section 25 was to relieve judges of courts of record of the burdensome and always unpleasant duty of policing their own bars, not to deny jurisdiction in such cases. Another purpose was to prevent unwarranted or premature publicity as to accusations made against attorneys at law before any investigation of charges, it being known that a mere accusation against an attorney at law, as to unprofessional conduct, though unfounded or false, greatly injures, and sometimes destroys, his practice of the profession, and his usefulness to the courts and to the public. These evil effects will be largely, if not entirely, avoided if the court accuses only upon matters “observed” in the “court”, and an attorney accuses only upon a verified complaint; and The Committee accuses only upon a verified complaint after a full investigation and hearing. It is undoubted that those who drafted and promulgated the Constitution and By-Laws of The West Virginia State-Bar intended that charges of malpractice ■ against an attorney should be investigated and reported by a proper committee, except those cases falling within a certain-classification. This position is more adequately stated in the opinion in In Re Herron, 212 Calif. 196, 298 P. 474, as follows: “In short, the act clearly contemplates an investigation and a finding or conclusion as to whether or not it is advisable to institute proceedings against a member and cause a hearing to be held. It is to be noted that in these ‘investigations’ the officers are clothed with the power to compel the attendance of witnesses and production of books, papers, and documents pertaining to the matter under inquiry. All this investigation takes place before a proceeding is formally instituted or a ‘hearing’ had. This procedure completely and adequately occupied the same field held by the verified accusations under the system provided for in the Code sections. It is an effort to take an advanced step over and to improve upon the system provided for in the Code. In fact, the preliminary investigation is an inquiry by officers of this court selected for the purpose of ascertaining the probable truth of the charge made. Such an investigation doubtless does and it should allow an opportunity for the accused to be heard before a proceeding is begun. With competent officers, acting conscientiously and impartially, who can say that this system is inferior to or less just than that provided in the Code? What, innocent man would not prefer this method of handling a complaint to a public proceeding against him resting alone upon the affidavit of a partisan, if not a prejudiced, client? There is nothing in this proceeding which in any way weakens our firm belief that the board of governors and committees functioning under it are all competent, patriotic, and unselfish members of the profession, acting for its best interests, it is true, but also in full sympathy with all rights and privileges of the members as attorneys at law.”

The Constitution and By-Laws of The West Virginia State Bar are of statutory dignity. They supersede prior statutory provisions in conflict therewith. The State Bar By-Laws now provide several methods for trying malpractice charges against attorneys at law, not provided by prior statutes. The changes were brought about in an attempt to improve that procedure, in “an effort to take an advanced step over and to improve upon the system provided for in the Code.” This Court should not destroy the hoped for improvements by holding that the jurisdiction of courts of record is the same under the new provision of law, ■ the State Bar Constitution and By-Laws, as under ancient statutes.

Other allegations in the pleadings in the. instant proceedings relating to lack of jurisdiction of the circuit court being admitted to be true by demurrers, are also, in my opinion, sufficient to establish lack of jurisdiction. I deem it unnecessary, however, to detail such other matters in this note.

Being of the views indicated, I respectfully dissent. I am authorized to say that Judge Riley joins in this dissent.