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IN RE PETITION OF JOHN HARRIS TO BE RESTORED TO
THE ROLL OF ATTORNEYS.
Argued July 6, 1915-Decided November 9, 1915.
Grounds stated upon which a former attorney, who was disbarred,
is relieved from the disa bility thence arising with respect to his application for admission to the bar.
On March 5th, 1895, the name of John Harris was stricken from the roll of attorneys and counselors of this court. This action was taken upon charges formulated by a committee of the Camden County Bar Association. The testimony taken by this committee was presented to the court and ordered to be filed. At the same time the committee presented the record of the Camden Quarter Sessions showing the conviction of Harris of obtaining money under false pretences. I'pon the inspection of this judgment record a rule was entered striking the name of Harris from the roll. The criminal judgment was reversed by this court at the February term, 1896. State v. Harris, 58 N. J. L. 436.
Harris made applications for reinstatement in 1899 and again in 1900 and 1901, upon none of which was the reversal of the criminal judgment urged as a plenary ground for reinstatement. Upon the occasion of the last application an opinion was filed by Mr. Justice Van Syckel stating the reasons for the denial of the application. In re Ilarris, 66 N. J. L. 173.
Subsequently, Harris made two applications for admission, at neither of which was any testimony taken or opinion filed.
On January 16th, 1915, Harris sent to the Camden ('ounty Bar Association the following letter:
“To the members of the Camden County Bar Association:
“GENTLEMEN—I intend to make application to the Supreme Court at the February term for reinstatement. I write this letter to notify you of the fact and request that your association appoint a committee with full power to investigate the whole subject, with authority to do what may seem proper in the premises.
“The course followed in the case of In re Hawkins, 87 Atl. Rep. 243, seems to be the proper one.
"I want the most thorough investigation, and I stand ready to assist your committee in any way I can. “My name was stricken from the rolls March 5th, 1895. “Very truly,
“JOHN HARRIS. “January 16th, 1915.”
The request contained in this letter was complied with by the appointment of a committee of the bar association to make the investigation requested and report to the association.
On March 3d, 1915, the committee caused the following notice to be given :
“The Camden County Bar Association having appointed the subscribers, a committee to inquire into the conduct and character of John Harris since March 5th, 1895, and his fitness to be reinstated as a practicing attorney of the courts of this state, he having given notice to said bar association of his intention to make application to the Supreme Court for such reinstatement, said committee do hereby request all persons having knowledge or information concerning the said John Harris, bearing upon the question of his character and conduct since the date aforesaid and his present fitness for such reinstatement, to communicate by letter, or otherwise, with William Early, Esquire, No. 426 Market street, Camden, New Jersey, secretary of the committee, on or before
the eighteenth day of March next, at two o'clock in the afternoon, at which time the committee will sit at the law library, in the court house, in the city of Camden, to consider the communications received and to hear oral testimony for or against such reinstatement. ..
“SAMUEL K. ROBBINS,
. "Committee. “Dated March 3d, 1915."
The precise manner of publication of this notice does not appear in the report, but that it reached both the members of the bar of South Jersey and the general public is apparent from the fact that of the seventy-four written responses received by the committee one-half were from members of the bar, and the others from citizens prominent in public life or in the business world, and the like proportion obtained as to the fifty-four witnesses who appeared and testified before the committee.
On April 7th, 1915, the committee made its report to the bar association at a special meeting of which every member had written notice. On motion of Mr. Kraft, seconded by Mr. Ralph Donges, the report was received and directed to be forwarded to the Supreme Court with all proofs taken and letters received, together with the following resolution which was unanimously adopted: "Be it further resolved, that this association hereby recommend to the New Jersey Supreme Court that the petition of the said John Harris for reinstatement, as a member of the bar of this state, be granted, and that he be reinstated by the said court as a member of the bar."
On February 15th, 1915, Harris filed his petition, a copy of which was served upon the Camden County Bar Association.
Argument by counsel for the petitioner was heard by part second of the court and afterward by the court sitting in banc.
Before GUMMERE, CHIEF JUSTICE, and Justices GARRISON, SWAYZE, TRENCHARD, PARKER, BERGEN, MINTURN, KALISCH and BLACK.
For the petitioner, Harvey F. Carr and John W. Wescott.
The opinion of the court was delivered by
GARRISON, J. In the case of In re Branch, 70 N. J. L. 537, it was pointed out that in New Jersey the admission of attorneys is regulated by a local common law peculiar to this state, which, arising prior to the year 1776, had in the year 1844 become a distinctive attribute of the Supreme Court and constituted one of those "powers” which the constitution of that year declared "except as herein otherwise provided shall continue as if this constitution had not been adopted.” Article 10, paragraph 1.
In marked contrast to the foregoing the disbarment of attorneys and their restoration to the roll have from the very earliest period been the subject of express statutory enactment.
On the 14th day of February, 1799 (Pat. L., p. 355), the legislature passed "An act to regulate the practice of the courts of law," the first three sections of which were as follows:
“1. That every person of full age, &c., may appear and prosecute or defend any action in any of the courts of judicature in this state, in person, or by his solicitor-in-chancery or attorney-at-law.”
“2. That no person, except in his own case, &c., shall be permitted to appear and prosecute or defend any action in any of said courts, but such as is a licensed solicitor or attorney-at-law, who shall be under the direction of the court in which he acts."
“3. That if any counsellor, solicitor or attorney-at-law shall be guilty of malpractice in any of said courts he shall be put out of the roll and never after be permitted to act or practice as a counsellor, solicitor or attorney-at-law unless he shall obtain a new license and be again enrolled in due form at law.”
These statutory provisions were in force in 1814 when the constitution was adopted and a fortiori came within the declaration of that constitution already quoted. These statutes now appear in our Practice act as sections 16, 17 and 5.
The provisions of section 5 as to disbarment for malpractice and readmission to practice clearly contemplate that it shall be possible for an attorney who has been put out of the roll to be again admitted to practice, and the policy thus declared by the legislature, and not “otherwise provided” in the constitution, is binding upon us to the extent of forbidding our adoption of a rigid judicial policy, to the effect that an attorney once disbarred shall never again be admitted to practice. Notwithstanding the fundamental policy that is thus inherent in the statute from which we derive our powers, there are certain minor questions of judicial policy that are open to our adoption or rejection, one of which is whether the making of complete restitution by the former attorney shall, in all cases, be a sine qua non to his restoration to the roll.
In the recent case of In re Hawkins, 87 Atl. Rep. 243, Chief Justice Pennewill, speaking upon this question for the Superior Court of Delaware, said: “We do not attach very much importance, as a rule, to the matter of restitution, because that may depend more upon financial ability or other favoring circumstances than repentance or reformation. A thoroughly bad man may make restitution, if he is able, in order to rehabilitate himself and regain his position in the community; and a thoroughly good man may be unable to make any restitution at all.” Without underestimating the importance of restitution, a moment's reflection must convince one that of all the factors that enter into the question of moral fitness, the mere circumstance of restitution is the