In Re Petition of Leo Stalnaker for Reinstatement

9 So. 2d 100, 150 Fla. 853, 1942 Fla. LEXIS 1095

• Court: Supreme Court of Florida
• Decided: June 30, 1942
• Status: Published

Opinions

CHAPMAN, J.:

On Dec. 2, 1930, Leo Stalnaker was by an order of the Circuit Court of Hillsborough County, Florida, suspended from the practice of law for a period of twelve months and until such a day as he should have fully paid off, satisfied and discharged the indebtedness of $9,018.49 due by him to the guardian of Florine Brandon, a minor. On appeal to this Court the aforesaid order of suspension of Leo Stalnaker was affirmed. See Stalnaker v. State, 102 Fla. 638, 136 So. 318.

On December 2, 1941, Leo Stalnaker, by petition filed with the Clerk of the Circuit Court of Hills-borough County, Florida, applied for an order of reinstatement under the several provisions of Rule C, Section 8, adopted by this Court on January 27, 1941, and effective April 1, 1941, applicable to Circuit Court Commissions. See Rules of the Supreme Court, 145 Fla. 763, (text pages 805-6) ...... So........ Pertinent provisions of the Rule are viz:

“8. Reinstatement, (a) No person who has been disbarred or. has resigned from the bar of Florida shall be reinstated unless he shall first file his petition for reinstatement with the Clerk of the Circuit Court of such county wherein he last practiced and maintained an office; and shall publish such notice as shall be fixed by the order of the circuit judge longest in service and able to act, requiring any one opposed to such reinstatement to appear and show cause why reinstatement should not be granted at a time fixed in the notice and order, and a copy of such order shall be served on the President of the Commission forthwith by the party seeking reinstatement.

“(b) Petitions for reinstatement shall be considered by the judges of the circuit sitting en banc and a majority shall constitute a quorum.

“(c) By Supreme Court. Upon a hearing of any petition for reinstatement of any disbarred or resigned attorney, the petition, and any orders, notice and all written pleadings and motions shall be forwarded together with the findings or recommendations of the said circuit judge or circuit judges to the Clerk of the Supreme Court, and when ordered by the trial judge or judges a certified transcript of the proceedings of said hearing, whereupon same shall be progressed by the clerk as a cause for the consideration of said Supreme Court.”

The- petitioner represented that he had paid, off, satisfied and discharged the indebtedness due Florine Brandon, an orphan girl, attached and made a part of the petition was a release signed by Lorine Evelyn Osborne, also known as Florine Brandon, who had on April 17, 1941, procured a court order removing her non age disabilities. The Circuit Court Commission of Hillsborough County filed an answer to the petition, and, while admitting that the petitioner had made a settlement of the indebtedness, the . settlement was void because the petitioner had given to Florine Brandon the sum of $1,000.00 and deeded or conveyed to her some real estate of uncertain value; and that the settlement was not bona fide in that the petitioner took advantage of the distressed financial condition of Florine Brandon to obtain a satisfaction of the debt.

The attention of the Court was directed to and requested that it consider the entire record prior to reaching a decision in the cause.

Testimony was presented in support of the issues made and on final hearing the Honorable Harry N. Sandler, Circuit Judge, under the aforesaid Rule, made written recommendations to this Court. Pertinent statements made therein are viz:

“Since proceedings for the reinstatement of a suspended attorney partake as much of the nature of petitions for pardons as of ordinary law suits, I consider the propriety of requesting Honorable W. T. Harrison, Circuit Judge before whom the original proceedings were had, to appear before me and, at my request, he did appear and state that he was glad of the opportunity to do so as: ‘the object in a hearing of this kind is merely seeking to do justice between a member who has been suspended or disbarred and the public and the bar as a profession.’

“The purpose of this proceeding is not to retry the petitioner for the misconduct which resulted in his suspension, but to determine whether or not at this time ‘he has been sufficiently rehabilitated in his conduct and character to be safely readmitted to practice law and this question we must decide from the record as it exists before us at the time of the decision upon that question.’ Ex Parte Marshall, 147 So. 791 (Miss.).

‘One applying to the courts for reinstatement to practice law, after having been disbarred for misconduct, has duty to show court that he is at the time of such petition for reinstatement a person of good moral character whose conduct and reputation are such as to warrant his reinstatement as an attorney at law.’ Branch v. State, 163 So. 48, 120 Fla. 666.

‘Upon the whole we conclude that there should be no hard and fast rule upon the subject of restitution, but that each case should be considered and dealt with in the light of its own circumstances, bearing in mind that the aim of the court is to search the heart of the petitioner in order to arrive at a just judgment as to his moral standards as shown in his conduct.’ In re: Harris, 95 Atl. 761 (N. J.).

Other cases might be cited but these are indicative of the general rule on this subject.

On the subject of restitution the courts hold generally that restitution does not mean payment in full but means payment to the extent of one’s ability to pay, honestly and fairly made.

‘Ordinarily settlement will not be given much weight in determining the question of moral fitness for reinstatement since it may depend more upon financial ability than upon repentance or reformation.’ State ex rel. Spillman v. Priest, 242 N.W. 433 (Neb.).

‘We do not attach 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. Repayment of the money wrongfully withheld is eminently proper, and especially so if done from a good motive, but it does not absolve the crime, or, in itself prove that the offender is inherently a better man.’ In Re: Hawkins, 87 Atl. 243 (Del.). Neither on the other hand does restitution in full automatically constitute reinstatement. See, also, 6 C. J., Sec. 97.

“The genera] rule is that suspension on condition of repayment means according to one’s ability and not merely payment in full. Suspensions on condition that money may be repaid are not unusual. It is true that in this case the settlement was small, approximately $1400.00, but the only evidence in the record is that the petitioner .was unable to do better at any time during the entire period of his suspension; and this is corroborated by the testimony of the guardian who stated that while he was not satisfied with the settlement that, after an investigation of the petitioner’s financial ability, he was convinced that this was the best that could be done.

“While the purpose of disbarment and suspension is not solely one of punishment, yet that is one of the purposes. I have given careful consideration to the record in this case. I have considered carefully the objections of the Circuit Court Commission, which are based primarily upon the fact that the petitioner at no time made any effort to assist the minor in this case, but I fail to find in the record that he was at any time financially able to do so. There is no evidence before me of any misconduct or even criticism of the conduct of the petitioner since the date of his suspension. I am naturally impressed by the testimony of the judge who imposed sentence and who states that at the time of the hearing, which was brought as a disbarment proceeding, that ‘the Court announced that it did not feel that it would be a proper case to permanently suspend or to disbar, but did feel that it was a case in which there should be a suspension.’

“The denial of the right to practice one’s profession for more than eleven years is of itself no small measure of punishment. To me there is considerable force and logic in the following extract from one of Judge Bleckley’s opinions:

‘Society demands protection, but does not thirst for vengeance ... In so far as human punishment is without necessity, it is without justification no matter who may be its author or its minister.’ Colbert v. State, 91 Ga. 711.

“While cases may be found to the contrary the practice of the Courts as a general rule is to favor reinstatement in cases of this kind. Numerous illustrations may be found cited in Ex Parte Marshall, supra.

“I find from the record in this case that the settlement though small was in accordance with the petitioner’s financial ability and clearly and fairly understood by the parties involved. Also, that there is no evidence of any misconduct on the part of the petitioner since date of suspension.

“I, therefore, recommend that he be reinstated.”

The application for reinstatement is heard here under the Rule supra by the Court sitting en banc. The record, inclusive of the testimony and written recommendations of the Circuit Judge on the merits, has been lodged here. The briefs, in compliance with the Rule, have been filed by counsel for the petitioner, the Hillsborough County Circuit Court Commission and the Hillsborough County Bar Association. Likewise exhaustive and oral arguments have been presented by counsel for the parties, when it developed that the attorneys engaged in the case were serving and rendering their services without compensation, and for the sole purpose of aiding and assisting the Court in reaching such a conclusion as will do justice to the bench and bar, the petitioner, and Florine Brandon, as well as the public. We acknowledge the invaluable assistance rendered by counsel in this con-, troversy. The zeal and determination manifested to the effect that only men and women possessing a seasoned character and of approved integrity shall practice law and assist in the administration of justice is not only to be commended, but encouraged by the judiciary of Florida and approved by the general public.

The words of this Court in an opinion prepared by Mr. Justice TERRELL in In Re: Petition State Bar Association Re: Proposed Court Rules, 134 Fla. 851, are here appropriate and are viz:

“. . . We would not in the least minimize scholarship, but we do not consider it the most important part of a lawyer’s equipment. It is important, of course, but in our zeal for scholastic attainment, we are overlooking and permitting to atrophy human attributes for which no amount of erudition will compensate. Let us say for example that seasoned character, a disciplined mind, industry and legal lore are the primary essentials of a good lawyer. Other essentials might be named, but I cannot conceive of a good lawyer without these and the secondary ones that are comprehended in them.

“Seasoned character has to do with one’s appreciations. It is generated in an environment of stern realities and rigid discipline. It grows strong by surmounting obstacles, but degenerates if permitted to sail nothing but a smooth sea. The lawyer possessed of it appreciates the distinction between his own money and that of his client, and his conviction of that distinction is so intense that he will go hungry and suffer his loved ones to do likewise before he will misappropriate the latter. Seasoned character is gilt-edged collateral at the bank and is to the good lawyer what the foundation is to his home. It contemplates moral sense, that sense by which the lawyer conceives and imposes on himself a correct rule of conduct to guide him in social and professional relations. It is by such a rule that he chooses between right and wrong and only through it that he is rescued from his own vices. It embraces intuition, the attribute in man that is akin to instinct in the lower animals and more than any other, made Marshal, Tanney, Miller, Harlan, and White the greatest judges in this country. It is the most important factor in the lawyer’s equipment; it holds honor and integrity above price, regards sacred the rights of others and is the only virtue that withstands recession and decay in man or society. A lawyer may be great without broad scholarship; he cannot be great without character and intuition. Seasoned character comprehends a sense of professional ethics which can be best improved by excluding from the profession all those with a tendency to a low standard of moral conduct. Failure in the observance of proper standards of professional conduct is more'ruinous to the profession than ignorance of the law or lack of skill in its execution.”

It is admitted by counsel of record that the twelve months period of suspension fixed by the order has expired. If the petitioner has paid or caused to be or otherwise returned to Florine Brandon the indebtedness in the sum of $9,018.49, with interest, then it legally follows that a fro forma order of reinstatement must be entered, because the terms of the suspension order dated December 2, 1932, have been complied with and discharged by the petitioner. Florine Brandon’s release attached to the petition “acknowledges payment and settlement in full of all money and obligations due,” while the Commission and its counsel point out that the settlement is spurious, and not bona fide and was obtained by the petitioner for the sum of $1,000.00 and. a conveyance of real estate of uncertain value and that the settlement ipso facto reflects the moral unfitness of Leo Stalnaker when asserting the fruits of an advantageous settlement obtained from a girl of tender years, an orphan, and at a time of financial distress.

The conclusion to be reached necessarily turns on the yardstick of measurement applied to the facts in controversy. Shall we return to the order of suspension and require that the petitioner pay the amount named, with interest, or shall he be required to return such a sum or sums as may be within his financial ability to pay? Several years have intervened since suspension and complete restititution has not been made. If he is required to return the money with interest, then it is shown that an order of reinstatement can not be obtained because of his financial inability to raise the sum. It was Judge Sandler’s views that restitution meant the payment according to the extent of one’s financial ability to pay. This rule is sanctioned by the weight of authority.

Judge Harrison, of the Twelfth Judicial Circuit, entered the suspension order dater December 2, 1932, and was called as a court witness. It was his conclusion that the order of suspension of the petitioner requiring that restitution should be made prior to the entry of an order of reinstatement as construed and interpreted by him meant “accord and satisfaction,” or to satisfy or to make settlement with. The record discloses that several prominent and substantial people of the City of Tampa and environs appeared and gave testimony as to the good reputation of the petitioner. Argument is advanced to the effect that the money was obtained, invested and lost during the “boom” period. Honorable Rex Farrior points out that the “boom”- ended in the Spring of 1926 and the argument as to the loss of the money during the boom period is not sustained by'the testimony.

If we hold that restitution must precede reinstatement, then a strong probability exists that the petitioner’s suspension is permanent, which was not intended, and. he is thereby forever precluded from resuming the practice of the law; if restititution precedes reinstatement, then we withhold the usual reward given to a fellow citizen for exemplary living; although the citizen may possess a contrite conscience and diligently strive to atone for the error of the past, but for the lack of money with which to make restitution he is branded as morally unfit to practice law; the doors of the temple of justice under such a ruling is forever closed to him. Such a rule is not only harsh or severe but unworkable. The more reasonable and just rule, which is sustained by the weight of authority, is to the effect that restitution in full need not necessarily precede reinstatement; that restitution means payment to the extent of one’s ability to pay, honestly and fairly made. The latter rule was applied to the facts in controversy by Judge Sandler and we hereby hold that his conclusion is correct.

The recommendation made to this Court by the Honorable Harry N. Sandler, Circuit Judge, is hereby approved, ratified and confirmed by this Court. The petitioner, Leo Stalnaker, is hereby reinstated to the office of attorney at law and authorized to practice in all the courts of Florida.

It is so ordered.

BROWN, C. J., THOMAS and ADAMS, JJ., concur. BUFORD, J., concurs specially. WHITFIELD and TERRELL, JJ., dissent.