In Re Cummings , 201 La. 439 ( 1942 )

Under Article 7, Section X of the Constitution conferring jurisdiction upon this court in disbarment cases involving misconduct of members of the bar, we are granted the greatest latitude in imposing punishment upon the offender. We are authorized to suspend or disbar an attorney who has been found guilty of misconduct. While the power to punish is left to the discretion of the court, there should be reasonable and substantial uniformity in the punishment imposed upon erring attorneys, otherwise the court will appear to be inconsistent.

In the recent disbarment case, In re Lee J. Novo, 9 So.2d 201, we established a policy of leniency to a first offender by imposing upon him a suspension from the practice of law for a period of six months. In the instant case, the defendant Bostick is suspended for a period of two years, and the defendant Cummings is disbarred. The reasons assigned for the difference between the respective punishments inflicted were that Bostick was 26 years of age; that he had been practicing law about a year; that he previously bore an excellent reputation; that he showed a repentant spirit; that he co-operated with the investigators in the case; that he had entered into the conspiracy to frustrate a fair and honest bar examination through a feeling of friendship for an applicant; and that a former president of the Bar Association, the Commissioner and some of the members of the Committee recommended leniency for him. On the other hand, it is pointed out that Cummings is 38 years of age; that he elected to stand trial rather than plead guilty to the charges; that he did not show the repentant and co-operative spirit displayed by Bostick; that he accepted money for his assistance to some of the applicants, who were taking the bar examination; and that the commissioner, a former president of the bar association, and the members of the Committee recommended that he be disbarred.

The record shows that, while Cummings was older than Bostick, he too had only been practicing law for the same period of time as Bostick; that he had not been in any trouble before; that he previously bore a good name; and that he was sorry for his misdeed and begged the court to be considerate and lenient with him.

Bostick, while at Monroe, when a friend confidentially permitted him to read a set of examination questions on Negotiable Instruments which were to be given the applicants for admission to the bar, without any prompting by Cummings, conceived the idea of resorting to cheating by subsequently writing the questions out with the answers and giving them to a young man, who was scheduled to take the examination. Cummings was not implicated in this whatsoever and, therefore, it cannot be said that he in any way enticed Bostick to commit this fraudulent act. The chairman of the Committee on Professional Ethics and Grievances discerned from the testimony and evidence that Cummings was not the sole and only moving spirit in this fraud, because he differed with the other members of the Committee by stating that he thought Bostick and Cummings should both be disbarred. The other members of the Committee disagreed with the Commissioner, who recommended that Bostick be reprimanded because they stated a reprimand is not sufficient punishment for him.

Both Bostick and Cummings had sufficient experience and were old enough to know that what they conspired to do was dishonorable and dishonest. They had an opportunity during a period of several days within which to realize that their undertaking was reprehensible, but, notwithstanding this fact, they persisted in it to its final conclusion, and they have both justly been found guilty of gross professional misconduct.

There is only one real distinction between Bostick's and Cummings' case and that is, that Cummings accepted certain sums of money totalling less than $500 for the help he gave to the applicants taking the examination. This, unquestionably, makes his offense graver than Bostick's. However, the difference between the moral turpitude involved in what these two young men did is not so great as to justify in one case a suspension of two years and in the other, lifetime disbarment.

The mere fact that one of the defendants elected to feebly defend himself against the charges is no good reason why he should be unreasonably penalized any more than that the other defendant should be unduly rewarded for having most reluctantly assisted the Committee after the fraud he practiced had been revealed by others. The Constitution of this State gives the party accused of such misbehavior the right to defend himself in the trial and, therefore, electing to exercise this right (resulting in our Committee and the court having more work to perform than if he had pleaded guilty) should not be too seriously weighed against him. In arriving at the proper punishment to be inflicted, the court should consider the gravity of the offense, the moral turpitude involved, the fact that the defendant previously bore a good name and was a first offender, the chances of the repetition of the misconduct, the defendant's attitude of repentance, and the degree of punishment necessary to protect the bar and the public against unfaithful members as well as the proper discipline of them. If the policy of the court is to be lenient to first offenders, it may also take into consideration any other extenuating circumstances.

In the instant case, although Cummings stood trial and did not co-operate with the Committee, after all of the testimony was taken and the Commissioner's report was made with his recommendations as to both Bostick and Cummings, he (Cummings) did exactly what Bostick did and that was to throw himself on the mercy of the court. Both men made a plea for leniency and appeared to be exceedingly remorseful for their transgressions.

I am unwilling to hear the plea of one defendant and turn a deaf ear to the other. If it is adequate punishment for Bostick to serve a suspension of two years, then, I can not see any justification for the complete disbarment of Cummings. Under the facts and circumstances of this case, the two decrees imposing the punishment are altogether out of proportion and are entirely lacking in uniformity.

Considering our lenient policy towards a first offender as established in the Novo case, supra (where he elected to stand trial and did not co-operate with the investigators, the Commissioner and the Committee, all of whom recommended he should be disbarred), and the attitude of the court herein to show leniency and compassion to Bostick, I think that Cummings is entitled to the same kind of consideration, leniency and even handed justice.

I am not opposed to treating a first offender with leniency, because by doing so he is afforded an opportunity to turn over a new leaf and rehabilitate himself. This is the humane thing to do in keeping with our fundamental moral and spiritual philosophy. I am not complaining about the court extending leniency to Bostick, but am making the point that our attitude in that respect should be consistent in every case and carried out in our decrees with a fair degree of uniformity.

It is my opinion that if the decree of the court suspending Bostick from the practice of law for a period of two years is adequate punishment, then the punishment of Cummings by disbarment is too severe. It is my view that because of the difference in the moral turpitude and the gravity of the offenses, Cummings' punishment should be a suspension for a greater period of time than Bostick's.

I respectfully dissent in so far as the disbarment of Cummings is concerned.