In Re Lieberman

It is clear that the views of this court must now be made to conform, as nearly as it is possible to do so, with the announcement of the Supreme Court of the state in its decision in reference to the degree of proof required in order to establish the charges involving moral turpitude, although as stated in the prior opinion of this court in its decision on the appeal, it was then our view that the degree of proof required should be greater than a mere preponderance of the evidence.

The docket entry intended to express the conclusion of this court, following its previous review of the record and evidence on appeal, was as follows:

"5048 — In the Matter of the Disbarment Proceedings against Emanuel H. Lieberman: Judgment of the Court of Common Pleas reversed and final judgment for appellant Lieberman for reasons stated in opinion on file and cause remanded thereto for execution for costs. See journal entry to be approved by counsel and the court."

Through inadvertence, although the journal entry purporting to record the judgment of this court was approved by the appellant and members of the bar committee, it was not submitted to nor was it approved by the members of this court before being filed, as was intended and for that reason it probably did not express clearly the conclusions and judgment which had been arrived at by this court.

It had been my view, and also the view, I believe, of the other members of this court, that the proceeding in disbarment involved in this case is neither a criminal nor a civil proceeding, but is a special proceeding provided by legislative enactment, and is in the nature or character of what is ordinarily referred to as being a quasi-criminal proceeding and therefore was not subject to the rule respecting the degree of proof governing in the determination of ordinary civil actions.

Therefore, my prior conclusion and judgment in this case as comprehended in the docket entry appearing above, although not stated specifically, had been reached in conformity with what I considered as being the rule of law governing this court in a consideration of the record on appeal, as announced by the Supreme Court of the state in the syllabus and opinion in the case of Cooper v. State, 121 Ohio St. 562, 170 N.E. 355. The syllabus in the Cooper case, supra, is as follows:

"It is the duty of the Court of Appeals, in reviewing a case upon the weight of the evidence, to determine whether the verdict and/or judgment is supported by the degree of proof which the character of the case requires, and to render its judgment according to such determination."

In the opinion of the Supreme Court in the Cooper case,supra, following the making of an analysis of the evidence in the case and the interpretation of several prior decisions of the court, both criminal and civil, where the degree of proof required is greater than a preponderance, the rule respecting the duty of the reviewing court to weigh the evidence is stated as follows, at page 569:

"Although this court is not required to pass upon the weight of the evidence, it necessarily follows that, if it is its duty, when it does elect to review the evidence to determine whether the trial court has observed the correct rule in weighing the evidence, to reverse when it finds that it has not, it is likewise the duty of the Court of Appeals, which is obliged to pass upon the weight of the evidence when its jurisdiction in that respect is invoked, to determine whether the proof attains to the degree which the character of the case requires, and to render its judgment according to such determination. The duty of the Court of Appeals in such a situation cannot be less than the duty of this court.

"The Court of Appeals, in reviewing a criminal case upon the weight of the evidence, owes a greater duty than to determine merely whether there was ``some evidence' tending to support the verdict. In such situation, if the Court of Appeals is unable to determine from the record wherein the truth lies between conflicting evidence, it may well adopt the conclusion of the jury and the trial court; they being in a better situation to judge of the truth by reason of their opportunity to see the witnesses and observe their conduct. But where the truth is manifest upon the record itself, by reason of the absence of conflict, or by any other sound reason, the Court of Appealscannot escape its duty to determine whether the verdict and/orjudgment is supported by the degree of proof which the characterof the case requires." (Emphasis added.)

In the opinion of the Supreme Court in this case — In reDisbarment of Lieberman, 163 Ohio St. 35 — it is stated that the jurisdiction of this court in a consideration of the case on appeal includes the power and authority as follows:

"Whether there is sufficient evidence to sustain the finding of the trial court is a question of law. If the Court of Appeals had determined in this case that the finding was not sustained by sufficient evidence, it would have been justified in dismissing the charges."

It will be noted that the foregoing announcement is in harmony with the duty of this court as announced clearly by the Supreme Court in the syllabus in Cooper v. State, supra, as quoted above.

In the decision by the Supreme Court in this, theLieberman case, supra, the opinion makes reference to and cites the prior decisions of the Supreme Court in the cases ofState v. Robinson, 161 Ohio St. 213, 118 N.E.2d 517, andState v. Robinson, 162 Ohio St. 486, 124 N.E.2d 148.

Since the Robinson cases involved a criminal prosecution analogous in all respects, so far as a consideration of the questions now being considered is concerned, to the criminal prosecution involved in the case of Cooper v. State, supra, and in view of the authority of this court to weigh the evidence as stated in the opinion of the Supreme Court in this case as quoted above, it is not clear to me as a member of this court what the authority and duty of this court now is, concerning the weighing of the evidence in reaching the decision on this appeal.

It does appear in the decision of the Supreme Court, however, in this case, that the degree of proof required in order to establish the charges involving moral turpitude should be a preponderance of the evidence only, and it is also indicated quite clearly in the opinion as I view it that it is the view of a majority of the Supreme Court that this court does not have the authority on the evidence in the record now before us to enter a final judgment for the appellant. I therefore concur in the conclusion that the judgment of the trial court is manifestly against the weight of the evidence and for that reason should be reversed and that the cause should be remanded for a new trial on all specifications and charges previously sustained by the trial court.

CONN, J. I concur in the judgment of reversal. However, I am of the opinion that the finding and judgment of the court upon the original hearing was supported by the record and that final judgment should again be entered for the appellant. As briefly as possible, I shall undertake to show the basis for my conclusion.

First, we call attention to the fact, as pointed out in the concurring opinion of Judge Deeds, that the docket entry expressly provided that the journal entry should be approved by the court as well as by counsel.

Due to some inadvertence or oversight, the judgment entry, which we assume was prepared by the bar committee, was not submitted to nor approved by the judges of the Sixth Appellate District, nor any one or more of them, who had been designated to hear and who did hear and adjudge the issues raised on the record.

Furthermore, the judgment entry filed in the Court of Appeals for Franklin County did not and does not set forth the grounds of reversal of the trial court or the basis upon which final judgment had been entered for appellant.

The judges who heard and reviewed this case were entitled to have the opportunity to withdraw the journal entry filed without their approval, and in lieu thereof, prepare and file an amended entry, setting forth therein the errors found in the record, pursuant to the provisions of Section 12223-21, General Code (now Section 2505.21, Revised Code).

Since the court speaks from its journal, it follows that the work and labor of the court in the instant case was done and performed in vain, so far as it concerns the review of the issues raised on the record and the adjudication of appellant's guilt or innocence of the charges of unprofessional conduct in his office, involving moral turpitude, as disclosed thereon.

It is respectfully pointed out that when the Supreme Court had this case for review and observed that the journal entry did not set forth the errors upon which the judgment of reversal was predicated, it could have remanded the case for the purpose of having the judgment entry conform to the mandatory provisions of the statute and also have the approval of the judges who had heard the case.

Had this course been followed, it is respectfully suggested that the judgment of the Supreme Court would have had a tangible basis upon which to rest and it would not have been necessary to predicate its judgment in part on an assumption as to reasons for the reversal of the trial court, or in relation to the basis for the judgment of the reviewing court.

No issue was raised or suggested in the trial court, or in this court, touching the competency of witnesses to testify, called by the bar committee, and who had been charged with or convicted of a felony, nor was the right of appeal from the judgment of the trial court on questions of law challenged, nor was any issue raised as to the character of the appeal.

Moreover, this court at no time intended to substitute its judgment for that of the trial court on the issue of credibility of witnesses. The predicate for the judgment of this court was the failure of proof and not the character of the testimony adduced by the bar committee as to the degree of proof.

By way of emphasis, this court did call attention to what we considered the rule to be in this state, prior to the judgment of the Supreme Court, that is to say, before an attorney at law could be disbarred where charges are predicated on the statute, it should appear, by clear and convincing evidence, that he has been guilty of unprofessional conduct, involving moral turpitude. The weight of authority outside Ohio recognizes the "clear and convincing rule," or at least evidence of greater weight than mere preponderance, and a similar procedure obtains in the federal court.

There is embraced here, in the situation thus presented, not only a material procedural question but, broadly speaking, an issue of grave import. A charge of unprofessional conduct, involving moral turpitude, laid against any member of the Bar, calls for an impersonal approach and every step taken should be taken with reasonable caution to the end that no injustice be done. The courts should not hesitate to protect a lawyer against charges of unprofessional conduct or fail to safeguard the privilege granted to him to practice his profession, where the record discloses a fatal infirmity of proof, as in the instant case.

Disbarment is perhaps the severest penalty that can be imposed on a lawyer in his professional status. Under the statute, disbarment is limited to unprofessional conduct involving moral turpitude. This limitation excludes all personal likes and dislikes, or want of popularity among members of the profession, or on the part of the public generally.

Appellant's denial of charges of soliciting professional business was unequivocal. The testimony of the jailor and turnkeys who were called by the appellant and who testified fully as to the rules governing visitation by lawyers whose clients at the time were imprisoned tended to show that there was no irregularity in the conduct of appellant during his visitations of clients at the county jail.

Is there evidence having probative value that appellant has been guilty of unprofessional conduct involving moral turpitude, in one or more of the several specifications? From a study of the record, it is my opinion that this inquiry should have a negative answer.

With respect to the evidence relied on to support specifications numbers one, five, six and seven (two, three and four having been dismissed for failure of proof), it was pointed out in the original opinion of the court that there was a failure of proof and that the judgment of the trial court was contrary to law.

Frankness suggests that some toleration in the original opinion of the court must be allowed by reason of inept diction and want of clarity. However, the fault at this point would not have been material had the journal entry set forth the grounds upon which the judgment of reversal was based.

It is my opinion that, on the whole record before us, no evidence of a substantial character, having probative value, was adduced upon which to rest the judgment of the trial court in finding appellant guilty of unprofessional conduct involving moral turpitude; that the judgment should be reversed and final judgment rendered for appellant; and that he be restored to all his privileges and rights as an attorney at law in this state, and recover his costs in this proceeding.

FESS, J., concurs in the foregoing, except the conclusion that final judgment should be entered for appellant.