In Re Bruener , 178 Wash. 165 ( 1934 )

BLAKE, MITCHELL, and MILLARD, JJ., dissent. This case is here on the petition of Theodore B. Bruener, a disbarred attorney, asking to be restored to the privilege of practicing law in this state.

The petitioner was disbarred December 11, 1930. In reBruener, 159 Wash. 504, 294 P. 254. December 1, 1932, he petitioned this court for reinstatement, and the matter was referred to the then board of law examiners, two of which board, after a hearing, recommended his reinstatement and one member dissented therefrom. The matter was here heard upon the report of the board, and February 6, 1933, the petition was denied. March 9, 1934, a petition was filed before the board of governors of the state bar association (chapter 94, Laws 1933, p. 397, Rem. 1933 Sup., § 138-1 et seq.), asking reinstatement. The board heard the matter, and on April 14, 1934, denied the same.

In the motion, which was supported by all the members of the board, with the exception of the president thereof, no reason is given, but simply a general recommendation that the application for reinstatement be denied. The president of the board, who had previously represented the petitioner, took no part in the proceedings before the board. The board of governors transmitted a copy of the proceedings to this court, and the matter came regularly on for hearing.

[1] Upon the hearing, one member of the board appeared in opposition to the granting of the petition, and stated, if we correctly gathered his thought, that the action of the board was, at least in part, based upon the assumption that to grant the petition would, in effect, be overruling the action of this court in denying the previous petition. In so far as the action of the board was based upon this assumption, if it was so based in any particular, this was a mistaken view. When an application for reinstatement is made by a disbarred attorney, it should be considered on its merits. This court, in a number of cases wherein the attorney had been disbarred and an application for reinstatement had been made and denied, has granted a subsequent application. One of the cases is that of Richard Gowan, who was disbarred November 19, 1918. In re Gowan, 104 Wash. 166,176 P. 7. Subsequently, an application for reinstatement was made and denied January 5, 1927. In re Gowan, 141 Wash. 523, 251 P. 773. Another application was made, which was granted January 31, 1928.

In so far as we are informed, no court has held that an order of disbarment or an order denying an application for reinstatement is res judicata and forecloses any further consideration on the merits. We do not understand that it is contended otherwise, so far as the action of the court is concerned. When an application by a disbarred attorney for reinstatement is made, the question is whether the applicant is a fit and proper person to practice law. In determining this question, the court will take into consideration the applicant's character and standing in the community in which he resided prior to the disbarment, the ethical standards which he observed in the practice of law, the nature and character of the charge for which he was disbarred, his conduct subsequent to the disbarment, and the time that has elapsed between the disbarment and the application for reinstatement. 2 R.C.L. 1113; 6 C.J. 615; In reMash, 39 Cal. App. 548, 179 P. 897; Kepler v. State Bar ofCalifornia, 216 Cal. 52, 13 P.2d 509; State ex rel. Spillmanv. Priest, 123 Neb. 241, 242 N.W. 433; In re Simpson, 11 N. Dak. 526, 93 N.W. 918.

[2] In the present case, the petitioner, prior to his disbarment, had lived and practiced law in one community for twenty years or more, and during all that time was a man of good standing in the community and respected by those who knew him. His ethical standards were high in that profession, and at no time was his conduct as a lawyer ever questioned. Subsequent to the disbarment, he has meticulously observed the order of the court, and, as appears from the record in this case, has retained his standing in the community where he has continuously resided.

We recognize that the charge which resulted in the disbarment of the petitioner was a grave one, and we in no sense here minimize it. If the petitioner, however, is reinstated, nothing can be more certain in human affairs than that he will at no time repeat the offense for which he was disbarred, or one of any similar nature. The petitioner is now fifty years of age, has spent his life in the practice of law and knows no other vocation. The fact that he made one grave mistake, from which it is apparent that he has suffered intensely as the result thereof, should not alone deprive him of the privilege of earning a livelihood for himself and family in the only way open to him.

When the first petition was denied by this court, it was because there were not five members of the court who at that time believed that sufficient time had elapsed since the order of disbarment had been entered. It is now approximately three years and a half since the order was entered, and almost five years since the occurrence which caused the disbarment took place. We are of the opinion that neither the interests of society, the welfare of the bar, nor the integrity of the courts, demand that the petitioner should be further deprived of earning a livelihood for himself and family at the only vocation which he knows, that of the practice of law, and to which he has devoted his life up to this time.

The prayer of the petition is granted, and the petitioner is restored to the privilege of practicing law in this state.

BEALS, C.J., TOLMAN, HOLCOMB, STEINERT, and GERAGHTY, JJ., concur.