In Re Cummings

9 So. 2d 614, 201 La. 439, 1942 La. LEXIS 1286

• Court: Supreme Court of Louisiana
• Decided: June 29, 1942
• Docket: No. 34859.
• Status: Published

Opinions

ROGERS, Justice.

This is an original proceeding for the-disbarment of George C. Cummings and Edward M. Bostick. The proceeding was brought on April 5, 1938, by the Board of Governors of the State Bar of Louisiana, created by Act No. 10 of the Second Extra Session of 1934,- as amended by Act No. 21 of the Third Extra Session of 1934. The State Bar of Louisiana was dissolved by Act No. 55 of 1940 and pending the creation of the Louisiana State Bar Association in compliance with Act No. 54 of 1940, this court by order issued on August 72, 1940, appointed a committee composed of five members of the Bar, to be known as the Supreme Court Committee on “professional ethics and grievances” to handle all complaints and proceedings for the suspension or disbarment of members of the Bar. 195 La. XLIV.

On September 30, 1940, on motion of the Committee of Professional -Ethics and Grievances, this court issued an order substituting the Committee for the Board of Governors of the defunct State Bar of Louisiana and directed the Committee to prosecute the disbarment proceeding brought against Cummings and Bostick. Subsequently, under Section 1 of Article 13 of the Articles of Incorporation of the Louisiana State Bar Association, the Committee on Professional Ethics and Grievances was charged with and conducted the prosecution of the case.

The gravamen of the charge against the respondents as set forth in the petition of the Board of Governors of the State Bar of Louisiana is that respondents attempted to frustrate the conduct of the proper and honest examination of certain applicants for admission to the Bar at the written examinations which were held in the hall of the House of Representatives of the State Capitol in the City of Baton-Rouge, beginning on Monday, March 7, 1938, and continuing for a period of three days.

The activities of Cummings and Bostick which it is charged constitute gross professional misconduct as set forth in the petition briefly stated are as follows:

That Bostick managed to secure in advance the details of the questions on negotiable instruments to be used at the Bar examinations and that he communicated them to William F. Johnson, Jr., an applicant for admission to the Bar; that the questions were subsequently communicated to Cummings, who made a written memorandum of the questions which he exhibited to various applicants for admission to the Bar stating that the bar examinations were a “racket” and that in order for an applicant to successfully pass the examinations it was necessary to “fix” the Board of Governors of the State Bar of Louisiana by money payments, and that if the payments were made to him it would be helpful to the applicants.

That during the week prior to the holding of the examinations Cummings met Charles G. Lee, a prospective applicant for admission to the Bar, in the City of Shreveport. Lee stated to Cummings that, he felt he was not sufficiently prepared and that he was planning to- postpone taking the examinations; that Cummings represented to Lee that if Lee would pay him $250, Lee would get the help required to pass the examinations; that Lee was impressed by the proposition made to him and informed Cummings that he could not pay $250 but that he could pay $100, which Cummings accepted. On March 6, 1938, Lee paid Cummings $100, subsequently lent him $20, and paid Cummings’ hotel bill in Baton Rouge amounting to $38.

That Cummings made a similar proposition to Robert E. Robinson, an applicant for admission, to the Bar; that Cummings first proposed to Robinson that he be paid $500, but Robinson was impecunious and was unable to pay Cummings more than $67.50, which amount was received by Cummings in five installments.

That on March 4, 1938, Leslie E. Kilpatrick, after receiving a similar proposition from Cummings, paid Cummings $250, for which Cummings gave Kilpatrick a receipt typed on the official stationery of the State Bar of Louisiana.

That Cummings accordingly obtained from Lee, Robinson and Kilpatrick -a total of $475.50 upon representations that he could help them at the approaching bar examinations.

That during the holding of the examinations Cummings made a similar proposition to another applicant for admission to the Bar but his proposition was rejected by the applicant who refused to have anything to do with the matter.

The petition sets forth in detail the method followed in assisting the applicants who had paid Cummings for the help promised them.

Cummings would secure a copy of the questions in advance of each examination, and using the automobile of the applicant Lee would take the questions to Bostick’s hotel room where Bostick would be waiting and that Cummings and Bostick would study the questions and formulate the answers thereto. The applicants in answering the questions propounded by the examiners would use a composition book known as a “blue book”, a supply of which Cummings had managed to secure in advance of the examinations. After Cummings and Bostick had formulated answers to the questions, Cummings with the assistance of the wife of William F. Johnston, Jr., one of the applicants, and of a public stenographer, who was enjployed by Cummings, would write the answers to the questions in a number of the blue books. When the books were completed Cummings, using Lee’s automobile, brought them to the Capitol and at a given signal the applicants who had subscribed to the services would proceed to a lavatory in the building where each received a book containing answers to the questions propounded in connection with the examination then in progress. The candidates would then return to the examination room and answer the questions by copying the answers thereto contained in the books they had obtained from Cummings; that on March 15, 1938, the Board of Governors received information that gross irregularities had been committed in the examinations. The President of the Board immediately sent telegrams to'the applicants who were suspected of participating in the matter, requesting them to appear at his office as soon as possible for an interview regarding the examinations. In due course, sworn statements were taken from various persons, including Bostick, and the Board concluding from its investigation that Cummings and Bostick were guilty of gross professional misconduct in connection with the examinations, instituted the present proceeding.

Cummings appeared in person and filed an answer to the petition which answer in effect amounted to a general denial. Bostick also appeared in person and filed an answer denying that he was guilty of such gross professional misconduct as to deserve disbarment, and setting forth in full his connection with the matter.

Under Section 4 of Rule 18 of the Rules of this court, an order was issued on January 13, 1941, referring the case to Richard T. McBride, Esq., a member of the New Orleans Bar possessing the necessary qualifications, as Commissioner, to hear the evidence and to report to this court his findings of fact and conclusions of law. At the first hearing, held in the City of New Orleans on March 24, 1941, Bostick appeared in person, but Cummings, who could not be found, was represented by Henry F. O’Connor, Esq., a member of the New Orleans Bar, who was duly appointed for that purpose by an order of this court. The second hearing before the Commissioner was held in the City of Shreveport on July 24, 1941. At that hearing Bostick represented himself and Mr. O’Connor, the attorney appointed to represent Cummings, was also present, but Cummings appeared personally and advised the Commissioner he desired to appear in his own behalf, whereupon Mr. O’Connor withdrew from the case.

After the Commissioner had completed the hearing of the evidence and had made ■his report to this court, in which he recommended that Cummings be disbarred and Bostick be reprimanded, the Committee on Professional Ethics and Grievances filed a motion that the report be confirmed so far as the Commissioner’s findings of fact and conclusions of law are concerned as well as the disciplinary action recommended with'respect to Cummings. The committee suggested that considering the gravity of the offense committed by Bostick a reprimand would not be sufficient to promote the ends of justice and the committee respectfully requested that the court take such disciplinary action with respect to Bostick as it deems justified by the findings of fact and conclusions of law submitted by the Commissioner. Bostick did not except to the Commissioner’s report. On the contrary, in what he designated as an answer to the exceptions and opposition filed by the committee to the report he prays that the findings of the Commissioner be sustained.

Cummings did not except to the Commissioner’s report within the time allowed by the Rules. However, on March 18, 1942, he wrote the Commissioner from Jackson, Mississippi, informing him that he had obtained a copy of the report only on March 10, 1942, and requested a short delay be granted him before final action was taken in the matter. The Commissioner filed Cummings’ letter in the court, submit ting 'Cummings’ request for delay for such action as the court might decide to take thereon. Cummings was granted the delay requested and on March 31, 1942, he appeared in person and filed exceptions to the Commissioner’s report, alleging generally that the Commissioner’s findings of fact and conclusions of law were erroneous.

On May 6, 1942, the case was argued and submitted on the Commissioner’s report and the exceptions filed thereto. The committee was represented at the hearing by Benjamin Y. Wolf, Esq., Chairman, and Charles A. McCoy, Esq., and Frank W. Hart, Esq., members of the committee. Cummings was represented by Joseph T. Cawthorn, Esq., a member of the Bar of Mansfield, Louisiana. Bostick was not represented by counsel but appeared in his own behalf.

Cummings did not testify in his own behalf nor did he appear before the Board of Governors of the State Bar of Louisiana when it was investigating the matter. While Bostick did not testify at the hearings before the Commissioner, he did testify in full before the Board of Governors and he consented that his testimony as given at that time might be used in this proceeding.

The report of Richard T. McBride, Esq., the Commissioner, based on the record as made up before him, contains the following findings of fact, viz.:

“Your Commissioner finds that there were gross irregularities in the bar examinations held on March 7, 8, and 9, 1938, in Baton Rouge, and a conspiracy was planned and executed by which a fair examination of certain candidates seeking admission to the bar was frustrated.

“The evidence shows that shortly after •the examinations Mr. Hugh M. Wilkinson, then President of the Board of Governors of the State Bar of Louisiana, received information that some of the candidates taking the examinations had been guilty of cheating, which information resulted in the institution of an investigation of the matter. Statements, under oath, were taken from the candidates suspected of being involved, as well as from others thought to have assisted in the conspiracy. Considering the statements of the various parties, the Board of Governors was justified in bringing the present proceedings, and in making the allegations contained in the petition.

“The Commissioner might state at this point that'in finding the facts herein, no statements (with the exception of those of Mrs. Johnson and Bostick) obtained by the Board of Governors from the various witnesses in the investigation have been resorted to, the Commissioner believing that such statements are not proper evidence herein, as the defendants were not present when the statements were made, and had no opportunity of cross examining the witnesses. The defendants agreed, however, that the statement of Mrs. Johnson might be used in evidence, and Bostick consented that his statement might also be so used,

“Bostick testified that shortly before the bar examinations he was employed by an insurance agency in Shreveport as adjuster, and in connection with his employment it was necessary for him to go to Monroe. That the nature of his assignment in Monroe necessitated his calling upon Mr. George Wesley Smith, a member of the Board of Governors of the State Bar charged with preparing the examination questions on Negotiable Instruments. That Bostick and Mr. Smith conversed generally, and the then forthcoming bar examinations were discussed. During the course of the conversation Bostick asked Mr. Smith ‘well, what kind of exam are you giving the boys’, and Mr. Smith answered ‘What do you think of these’, handing Bostick a list of questions on Negotiable Instruments. Bostick read over the questions, and subsequently communicated such details of the questions as he remembered to William F. Johnson, of Shreveport, who contemplated taking the bar examinations.

“Bostick explained that he and Johnson were employed by the same insurance company in Shreveport, and that he assisted Johnson, who was studying law, in the various legal courses, and quizzed him on the different subjects; that during the studies Bostick quizzed Johnson on the questions on Negotiable Instruments, and indicated to Johnson that those questions would be asked in the bar examinations. Bostick denies that he ever communicated the Negotiable Instruments questions to Cummings, but Cummings did get possession of the questions as he imparted them to candidate Charles G. Lee in Shreveport before the examinations. Johnson admitted that he orally received details of the Negotiable Instruments questions from Bostick, but denies having given same to Cummings. The Commissioner is of the opinion that Cummings obtained the details of the questions from Johnson.

^Cummings, shortly before the bar examinations, called Leslie E. Kilpatrick, of Shreveport, who contemplated taking the examinations, by telephone and asked Kilpatrick if he was ‘ready’. By appointment Kilpatrick and Cummings met in a drug store in Shreveport, and Cummings advised Kilpatrick if the latter would pay $250.00 to him he would see that Kilpatrick got ‘special consideration’ in the examinations; that Kilpatrick was impressed with the proposition, for he went to a bank and increased a note which he owed the bank by $250.00, received that amount, and turned same over in currency to Cummings. Shortly afterwards Cummings handed Kilpatrick a receipt for the payment (Exhibit Committee 7) written on the official stationery of The State Bar of Louisiana, reading as follows:

“ ‘Shreveport, La., March 4th, 1938.

“ ‘Received of L. E. Kilpatrick, of Shreveport, the sum of Two Hundred Fifty and no. 100 Dollars.

“ ‘(signed) Geo. C. Cummings.’

“Charles G. Lee, of Shreveport, submitted his application to take the bar examinations, and as the time for the examinations drew near, became doubtful of his ability to successfully pass the examinations; that Lee communicated his fears to Cummings and Cummings stated that Lee would be foolish' not to take the examinations, as Cummings would get hold of the questions before each examination and could help Lee. Cummings received $100.00 from Lee for “help” Lee expected to get from Cummings.

“In Baton Rouge during the examinations Cummings told Roy G. Caskey, a candidate taking the examinations, of his plan in helping some of the applicants, and intimated that if Caskey would advance him some money Caskey would be “cut in” on the next days’ questions. Caskey refused to have anything to do with the proposition, and thereafter, avoided Cummings.

“Cummings is charged in the petition with having received certain payments from candidate Robert E. Robinson. This candidate made a sworn statement before Mr. Wilkinson, but when his testimony was sought to be taken in Shreveport before the Commissioner, he could not remember what he had told Mr. Wilkinson, nor could he recall any of the details in connection with the bar examinations. Robinson claimed that he was a shell shocked war veteran, and at times suffered mental disturbances and loss of memory.

“There is no doubt in the Commissioner’s mind that Cummings endeavored to obtain money from various candidates for the examinations upon his representation to them that he could ‘help’ them in the examinations. It is certain that he received $250.00 from Kilpatrick, $100.00 from Lee, and propositioned Caskey in Baton Rouge. There is no evidence to connect Bostick with the payments, nor has it been intimated that Bostick was beneficiary of any of the payments.

“The evidence is convincing that Cummings’ scheme was to ‘help’ those candidates who were to get his service by furnishing them with prepared answers to each examination.

“It is not clear how .Cummings obtained the questions, but immediately after the questions, for each -examination were distributed to the candidates, Cummings, using Lee’s automobile, hastened to the Heidelberg Hotel with a copy of the questions, and would later return to the Capitol with four or five blue composition books similar to those used in the examinations, which contained answers to the questions of the examination then in progress; he would enter the examination room and place the keys to the automobile he had used on Lee’s desk; that thereupon those candidates who were to get the benefit of the service would proceed to a toilet in the building where each would receive from Cummings a copy of the answers to the examination; Johnson, Kilpatrick and Lee each admitted receiving such blue books from Cummings in the above manner. That the time consumed by Cummings in carrying the questions to the hotel and returning to the Capitol with the answers would consume about three fourths of the time allowed for each examination, and the candidates receiving the answers from Cummings would have about one fourth of the time left to copy the answers into the blue books which they turned in to the examiner.

“The method of «preparing the answers to each examination is fully shown by the 'testimony, particularly by the statements of Bostick and Miss Vivian Campbell, a public stenographer.

“When Cummings left the Capitol with the questions for each examination, he would take them to Bostick’s room in the hotel, where Bostick, Miss Campbell, and Mrs. W. F. Johnson, Jr., the wife of candidate Johnson, were in waiting. Bostick and Cummings would formulate answers to the questions and the two women would write the answers into four or five blue books. On occasions Cummings himself would write answers in blue books. After the answers had been prepared in a sufficient number of the books, Cummings would carry them from the hotel and return to the Capitol where he distributed the books to his subscribers by the method above recited.

“The manner in which the blank blue books used in the hotel room were obtained is explained by Lee, who stated that at the start of the first examination he obtained a supply of the books, took them from the examination room, and handed them to Cummings in the wash room. Bostick explains that on the morning of the first examination there were no blue books in his room, and it was only after Cummings’ visit there with the questions for the first examination that he saw any of the books in his room.

“It was necessary for Cummings to work with utmost speed in getting the questions answered, and returning the answers to the Capitol. In order to expedite matters, he employed Miss Campbell, a public stenographer, to assist in writing the answers in blue books. Miss Campbell states that each day she was paid by Cummings for her services. Mrs. Johnson states that she accompanied her husband, who took the examinations, to Baton Rouge, and that while she was in her room, during the examinations, Cummings called her by telephone asking her to come down to another room in the hotel and help in doing some writing. That she consented and proceeded to the room indicated by Cummings, where she found Miss Campbell, Bostick and Cummings, and assisted in writing some of the blue books.

“Mr. Wilkinson testified that during the course, of his investigation of this matter, Robinson turned over to him several blue books which contained answers to examination questions. These books have been received in evidence by the Commissioner and are marked for identity ‘Committee 1, 2, 3, 4, 5, and 6’ and pertain to the following subjects: Torts, Code of Practice, Negotiable Instruments, Criminal Law, and Civil Code. Miss Campbell testified that the books marked ‘Committee 2, 3, and 6’ were written by her in the hotel room. Books ‘Committee 1 and 4’ are in the handwriting of.M'rs. Johnson. Both Miss Campbell and Mrs. Johnson testified that the handwriting in book ‘Committee S’ was not theirs and the handwriting in that book has never been identified. As the testimony shows that only three parties, namely: Miss Campbell, Mrs. Johnson, and Cummings, wrote answers in the blue books in the hotel room, the Commissioner must conclude and finds that the handwriting ir. book 'Committee 5’ is that of defendant Cummings.

“The said six books having been turned -over to Mr. Wilkinson by Robinson, definitely identifies Robinson as one of the beneficiaries of Cummings’ service. Robinson obtained the books from Cummings who brought them from the hotel to the Capitol during the examinations.

“The evidence is convincing that Cummings, for a monied consideration, attempted to assist several of the candidates taking the bar examinations to cheat their way through, and is guilty of a reprehensible act, repugnant to good morals and ethics, constituting gross professional misconduct.

“As to Bostick, the evidence shows that he assisted in the scheme to frustrate a 'fair examination of candidates for admission to the bar. It was he who obtained a knowledge of the questions on Negotiable Instruments, and substantially communicated the same to Johnson. He went from Shreveport to Baton Rouge prior to the examinations to help Johnson. He remained in Baton Rouge throughout the examinations, and assisted Cummings in formulating answers to the questions of the examinations. The Commissioner, however, believes Bostick’s explanation that he remained in Baton Rouge and assisted in the scheme solely because of his desire to help Johnson, his associate, to whom he was indebted for past business favors. Bostick freely admitted his part in the affair and throughout these proceedings has shown a repentant spirit. Mr. Wilkinson, testified that Bostick was very co-operative in the preliminary investigation, and assisted materially in clearing up the matter. Four reputable members of the bar, appearing as character witnesses for Bostick, testified that he has always borne an excellent reputation for honesty, integrity and truthfulness, and outside the present charge against him, there is no blemish on his character. Bostick, at the time of the occurrence, was but twenty-six years of age, and had been practicing law for only one year.”

An examination of the report of the Commissioner shows that he carefully reviewed the issues involved in the case and that his findings of fact are amply supported by the evidence in the record.

So far as Bostick is concerned he has admitted that the findings of the Commissioner are correct and he has asked that the recommendation of the Commissioner that he be reprimanded only be permitted to stand.

So far as Cummings is concerned, although he has filed a general objection to the Commissioner’s report, he does not seriously contend that the Commissioner’s findings of fact are erroneous. His counsel has made a most moving appeal for leniency and has asked this court not to impose upon Cummings the severe penalty of disbarment.

Counsel for Cummings brings to the attention of the court that Cummings is thirty-eight years of age and that he was admitted to the Bar on March 5, 1937. Counsel stresses the humility and embar rassment suffered fey Cummings and the fact that after the publication in the press that the investigation by the Board of Governors of the Louisiana State Bar was in progress Cummings voluntarily ceased to practice law and removed to the State of Mississippi where he engaged in other pursuits in order to earn his livelihood.

Cummings was not inexperienced in the ways of life. At the time he became a member of the Bar he was already a man of mature years and should have known, and no doubt did know, that it was wrong for him to procure the questions prepared by the bar examiners and to deliver the questions, together with the appropriate answers, to certain applicants for admission to the Bar. His offense was aggravated by the fact that he demanded and accepted money from the applicants for his so-called services.

As shown by the testimony of Hugh Wilkinson, Esq., President and Member of the Board of Governors of the State Bar of Louisiana, who was in charge of the preliminary investigation in the matter, “the attitude of Cummings throughout this matter was very ugly, and showed that he had no repentant spirit whatever. I sent for him to come to my office during the course of the investigation, and he not only refused to help the committee or give any information to clear up the matter, but he was personally very insolent to myself, who was acting at that time as the president of the Board handling such affairs for the profession, and, in my opinion, Cummings showed a very vicious disposition in the matter, and I think that his attitude, when questioned about his misdeeds, showed signs that made him absolutely unfit to discharge the duties of a lawyer.”

Cummings appeared in this proceeding and personally filed his answer, in which he denied, under oath, the charges contained in the petition filed by the Board of Governors of the State Bar thereby imposing upon the Committee of Professional Ethics and Grievances as its successor the onerous duty of summoning and examining witnesses before the Commission in the Cities of New Orleans and Shreveport in order that the case might be fairly and properly presented to this court.

We find nothing in the record to mitigate the offense with which Cummings is charged and of which he has been proven to be guilty. The record makes it clear that Cummings should not be retained as a member of the Bar. He has demonstrated his unfitness fGr that high office and for the responsibilities which accompany it.

In contrast to the attitude assumed by Cummings, from the time he was first interrogated by Mr. Wilkinson in regard to the matter, Bostick showed a repentant and co-operative spirit. Without any reservations and without any effort to shield himself or to shield anybody else, in the words of Mr. Wilkinson, “he dealt fairly and squarely” with him and was very helpful in his investigation. Mr. Wilkinson testified in part: “I think without Mr. Bostick’s attitude and without Mr. Bostick’s help, the committee would have had difficulty in ever knowing positively what the facts were, because others were inclined to evade a little and not tell us what the truth was.” In the course of his testimony, Mr. Wilkinson expressed the hope that both the Committee on Professional Ethics and Grievances and the Supreme Court itself would take into consideration the attitude of Bostick and the help that Bostick gave him in bringing his investigation to a successful conclusion.

At the time of the occurrence Bostick was twenty-six years of age and had been practicing law for only one year. Four members of the Bar testified that he had always borne an excellent reputation. Feeling that Bostick was entitled to consideration because of his youth, excellent reputation, repentant spirit and whole-hearted cooperation with Mr. Wilkinson in his investigation of the matter, Mr. McBride, the Commissioner, recommended that Bostick be merely reprimanded for his offense. The Committee on Professional Ethics and Grievances has opposed the recommendation of the. Commissioner, on the ground that merely censuring Bostick for his misconduct would not be an adequate punishment. The Committee, however, is not insisting that Bostick should be disbarred, it being the opinion of four of the five members of the committee that it would serve the ends of justice if Bostick were suspended from the practice of law for a definite period.

Bostick did not receive any monetary consideration for his work in assisting certain applicants in their examinations for admission to the Bar. He became connected with the matter, perhaps unthinkingly, because of his desire to help a friend to whom he was indebted for past business favors.

While Bostick’s conduct was reprehensible, he has not attempted to conceal or to-uphold it by false statements. We are impressed with his. apparent sincerity and his desire to make amends for his dereliction. He has learned his lesson and we have every reason to believe from his assertions that the court will never again be called upon to review his conduct, professional or otherwise, in a similar proceeding. Nevertheless, we can not dismiss this proceeding against him with a mere reprimand. Our duty requires that in order to serve as a deterrent to others, to maintain the prestige of the ¡profession, and, to retain the confidence and respect of the public in'the administration of justice, we should impose some punishment on Bostick more in keeping with his offense. ‘ "

From the considerations which we have hereinabove set forth, we have concluded to suspend Bostick from the practice of law for a fixed period, believing that such a penalty will fully serve the nds of justice.

For the reasons assigned, the report of Richard T. McBride, Esq., the Commissioner herein, is approved and confirmed as to its conclusions of law and findings of fact, and it is now ordered that the respondent George C. Cummings be disbarred; that his license to practice law be revoked, and that his name be stricken from the rolls of attorneys of' this State.

It is further ordered that the respondent Edward M. Bostick be and he is hereby suspended from the practice as an attorney and counsellor at law and from appearing as such in the courts of this state for a period of two years from the day this judgment becomes final.

Costs of this proceeding are to be paid by the respondents, George C. Cummings and Edward M. Bostick, in equal proportions.

O’NIELL, C. J., does not take part, HIGGINS, J., dissents in part. FOUB.NET, J., dissents.