IN RE HARRY T. MILLS
No. 130
SUPREME COURT OF HAWAII
23 Haw. 224;
1916 Haw. LEXIS 23
March 28, 1916, Argued
April 5, 1916, Decided
PRIOR HISTORY:
[**1] Petition for
Reinstatement.
HEADNOTES: ATTORNEY AND CLIENT --
disbarment --
reinstatement.
On an application for
reinstatement by a
disbarred attorney it must be made to appear that the applicant has accepted and fully
acquiesced in the judgment of
disbarment, and where, by the applicant's own showing, it appears that he has not fully
acquiesced in such judgment, his petition for
reinstatement will be denied.
COUNSEL: J. W. Cathcart and L. Andrews for petitioner.
I. M. Stainback, Attorney General, amicus curiae.
JUDGES: Robertson, C.J., Watson and Quarles, JJ.
OPINIONBY: PER CURIAM
OPINION:
[*224]
Per curiam: This is a petition of Harry T. Mills praying this court to set aside its
judgment of
disbarment rendered against him at its October term, 1905. The petition sets forth that
petitioner was admitted as a member of the bar of this court on the 16th day of
January, 1905; that on or about the 22d day of June, 1906, as the result of a
trial upon certain charges which had been theretofore made to this court
against petitioner a judgment was entered in and by this court whereby
petitioner was
disbarred and his name stricken from the roll of attorneys and
counsellors at law in the courts of the
[**2] Territory of Hawaii. As grounds why he should now be
reinstated, it is alleged
"That during nine
years last past, or thereabouts, this petitioner has resided in the said County of Honolulu and
has demeaned himself as a law-abiding and respectable citizen; that petitioner
feels that his exclusion from the bar and from the privileges appertaining to
membership thereof, including the opportunity to earn a livelihood in the
practice of his profession, during almost ten
years last past, has been and is sufficient punishment for any wrong that he may have committed
[*225] and in respect of which said judgment of
disbarment was
pronounced." These are the only grounds for relief set forth in his petition. In support of
his petition, endorsed thereon and attached thereto, he has filed a
recommendation signed by a majority of the members of the bar of this court residing in the
first
judicial circuit and by the three judges of the circuit court of the first
judicial circuit, in the following language:
"We, the undersigned, being members of the bar of the supreme court of the
Territory of Hawaii, hereby respectfully
recommend that the foregoing petition be granted." The petition of Mr. Mills,
[**3] as well as the
recommendation of the bar, so numerously signed, deserve and have received our careful
consideration. We do not deem it necessary to review the proceedings in the
action for
disbarment. They are fully stated in the opinion of the court
In re Mills, 17 Haw. 564. In the present proceeding the propriety and justice of the judgment of
disbarment are not questioned, nor for that matter, are they admitted by the applicant,
the petition somewhat evasively stating that the punishment he has undergone
"during almost ten
years last past, has been and is sufficient punishment for any wrong
that he may have committed, and in respect of which said judgment of
disbarment was
pronounced." In passing upon the application for
reinstatement the court will presume that everything stated in the opinion of the court in
the
disbarment proceeding was justified by the evidence (
Danforth v. Egan, 119 N.W. 1021).
As to the correct practice in the matter of making application for
reinstatement, and as to the contents of the application, whether in the form of a motion or
a petition, we are in
thorough accord with the views expressed by the supreme court of Ohio
In re Disbarment
[**4] of Thatcher, 83 Ohio St. 246, 248, where the
following appears:
"Having been removed from the bar he may, in accordance with what we conceive to
be correct practice, file a
[*226] written motion expressly accepting the judgment of the court as to ethical
requirements, and offering such reasons as he may have for the conclusion that
his
reinstatement is justified by the considerations upon which a select few of the masses of
the citizens of the state are permitted to enter and remain at the bar to
participate in the high function of administering justice."
But here, however, as did the court in the
Thatcher case, we will accept the petition in that respect as sufficient.
After the filing of the petition the court called upon Mr. Mills to make a
statement as to what extent, if at all, he had engaged in the practice of law
since the entry of the judgment of
disbarment. From the statement of the applicant it appears that for something less than a
year after the entry of the judgment of
disbarment he resided in Kona, Hawaii, and did not engage in any business or occupation;
that for approximately
nine
years last past he has been conducting a
collection business at Honolulu
[**5] and taking assignments of claims to himself, upon which, in many instances, he
brought suits in his own name in the various courts of the Territory. In these
actions upon such
assigned claims petitioner drew the pleadings, appeared in court in his own behalf,
examined witnesses and had general charge of the cases to judgment and
execution. Some of the claims upon which actions were instituted as aforesaid
petitioner purchased
outright; others he took assignments of upon the payment of a nominal consideration,
under an agreement with his
assignor that if he recovered the money from the debtor, by suit or otherwise, he would
pay a stated cash sum or a percentage of the amount
collected to the
assignor, that if no money was
collected from the debtor no payment was to be made to his
assignor other than the nominal sum paid at the time of the assignment. Petitioner paid
all the costs and expenses of
suits brought by him, and contends that he was the absolute owner of all the
claims upon which he
[*227] brought suit, whether acquired by absolute purchase or in the manner last
above described; that he had a right to appear in his own behalf and
prosecute all of these claims and that
[**6] such
appearance on his part was not in disobedience of the judgment of
disbarment entered against him. In support of this position petitioner cites the case of
Philbrook v. Superior Court, 111 Cal. 31. We make no question of petitioner's right to appear in his own behalf and
prosecute to judgment the claims purchased by him
outright
in good faith, but as to the second class of claims -- those that were
assigned to petitioner under an agreement back that he would undertake the
collection of same and if successful pay to the
assignor a stated sum or an agreed proportion of the amount
collected -- we hold the view that such transactions constituted an evasion of the
judgment of
disbarment and amounted to nothing more nor less than the
appearance in court of petitioner as an attorney upon a contingent fee. We think this
view is in
thorough accord with the holding of the court in the
Philbrook case
supra, where, on page 35, the court said: The duty of the trial court
"is not alone to determine whether or not the transfer is such as will protect
the defendant, but equally to determine whether the transfer be genuine or
simulated to evade the judgment of this court." See
[**7] also
Cobb v. Judge of Superior Court, 43 Mich. 289. While it may be true that under the assignment petitioner took the legal title
to the claim and could
prosecute the same under statutes which exist in many of the code States providing that
actions shall be brought by the real party in interest, there can be no doubt
but that the
assignor was the equitable owner of the claim or at least a portion of the proceeds
that might be
collected thereunder. This, to our minds, is the test as to whether petitioner was the
owner in
good faith of this class of claims, within the meaning of the
Philbrook case.
[*228] It further appeared from the statement of petitioner, made to the court, that
he would be unable to comply with the requirements of the existing supreme
court rule relative to the
qualifications for admission to practice as an original applicant. Authorities are not
lacking to the effect that a petition for
reinstatement should not only set forth the facts touching the proceedings in
disbarment, with reasons why the petitioner should be
reinstated, but should also in all respects comply with the rules applicable to the
admission of candidates to practice law in the
[**8] first instance; that the status of a
disbarred attorney is the same as that of one who has never been admitted to practice (
In re Newton, 27 Mont. 182;
In re Boone, 90 F. 793;
State v. Swan, 60 Kan. 461, 56 P. 750;
Danforth v. Egan, 119 N.W. 1021.
In the view that we entertain, that the
petitioner has not fully
acquiesced in the judgment of
disbarment since the same was
pronounced against him, it will be unnecessary for us to pass upon the question of his
qualifications under the present rule of court, this being a matter which we believe may
properly be made the subject of a rule of court as applicable to cases which
may possibly arise in the future.
Upon the presentation of the petition counsel for petitioner argued that the
only question involved was whether petitioner had been sufficiently
punished. With this view we are not in accord.
"On an application for
reinstatement by one who has been removed from the bar, the sole question to be determined
is whether the granting of his application would probably be promotive of the
right administration of justice."
Disbarment of Thatcher, 83 Ohio St. 246.
In the
disbarment proceeding the punishment
[**9] of the attorney was neither involved nor considered.
In re Thatcher, supra, 246, 248. A statement in the petition, as the sole ground why the
applicant should be
reinstated,
[*229] that in his (the applicant's) opinion he has been sufficiently
punished, which opinion is presumably shared by the attorneys who
recommend petitioner's
reinstatement (although the attorneys, in endorsing the petition and recommending the
granting thereof, assign no reasons therefor), is not sufficient.
In re Enright, 69 Vt. 317, 37 A. 1046;
In re Pemberton (Mont.), 63 P. 1043. The rule applicable to the
reinstatement of
disbarred attorneys is well stated in 2 R. C. L. 1114, as follows:
"Whether or not the applicant shall be
reinstated appears to be a matter left to a great extent to the sound discretion of the
court. The action of the court on such application will, generally speaking,
depend on whether or not the court decides that the public interest, in the
orderly and impartial administration of justice, will be conserved by the
applicant's participation therein in the capacity of an attorney or
counsellor at law, and the character of the
act leading to an attorney's
disbarment
[**10] is also a large factor in determining whether he should be
reinstated."
Holding, as we do, that petitioner has not fully
acquiesced in the judgment of this court disbarring him, but that, on the contrary, by
his own showing, he has evaded the same, we deny the petition.
Petition denied.
