IN THE MATTER OF THE PETITION FOR APPLICATION FOR RESTORATION OF LICENSE OF
THOMAS S. GARRISON, JR., Asheville, North Carolina
No. 7910SC59
COURT OF APPEALS OF NORTH CAROLINA
44 N.C. App. 158;
260 S.E.2d 445;
1979 N.C. App. LEXIS 3190
September 25, 1979, Heard in the Court of Appeals
December 4, 1979, Filed
PRIOR HISTORY:
[***1]
Appeal by petitioner from
Bailey, Judge. Order entered 21 August 1978 in Superior Court, Wake County.
DISPOSITION: Affirmed.
HEADNOTES:
1. Attorneys at Law
§ 12 --
reinstatement of
license of
disbarred attorney -- discretion of State Bar Council -- constitutionality of statute
The statute giving the State Bar Council the discretion to reinstate the
license to practice law of a
disbarred attorney upon
satisfactory evidence of
"proper
reformation" of the attorney, G.S. 84-32, does not constitute an unconstitutional
delegation of legislative power.
2. Attorneys at Law
§ 12 --
reinstatement of
license of
disbarred attorney --
public interest
Where the trust previously
bestowed in an attorney by reason of his office has once been
betrayed, the determination of subsequent
fitness to
reassume such a high public office may
rightfully
hinge upon consideration of the
public interest as well as the existence of minimal requirements required of a new
admittee.
3. Attorneys at Law
§ 12 -- denial of
reinstatement of law
license -- failure to pay judgments
The State
Bar Council did not err in the denial of petitioner's application for
reinstatement of his
license to
[***2] practice law where there was evidence that six judgments were rendered against
petitioner as the result of his misapplication of funds, four judgments which
were
compromised have been satisfied but petitioner has made no
restitution for two other judgments exceeding $ 30,000 which he has been unable to
compromise, and petitioner
renounced funds which would have helped him to satisfy the judgments, since petitioner's
willingness to satisfy only the judgments that could be
compromised constituted evidence of the lack of proper
reformation as required by G.S. 84-32.
SYLLABUS: Petitioner, a disbarred attorney, filed an application with the Secretary of
the North Carolina State Bar Council seeking
reinstatement as an attorney-at-law. A hearing was held by a Hearing Committee, and the
Committee recommended that petitioner be reinstated though it expressed some
reservations:
"2. The Hearing Committee feels some concern about the fact that Applicant has
not paid all of the judgments obtained against him as a result of his
defalcations, the Bertha Aiken judgment (around $ 8,000.00 (R p 56)), the Mayda
Gill judgment (about $ 17,000.00 (R p 56)) remaining unpaid, and a portion of
the Federal
[***3] income tax judgment (around $ 2,000.00 (R p 57)) all remaining unpaid. In
addition, in the Mayda B. Gill case, there does not appear to have been any
criminal charges brought or disposed of with regard to this defalcation.
3. The Hearing Committee feels, however, that, due to the age of Applicant, if
he is ever to have his license
reinstated, it should be reinstated at a time when it will be of some use to
him rather than to delay
reinstatement until the unpaid judgments are paid which will, without question, require a
number of years. He has, through commendable effort, rehabilitated himself to
a marked degree and has gained the respect of the people in his community for
his exemplary conduct in difficult circumstances, even though the circumstances
were the result of his own actions."
Upon consideration and reconsideration, the Council denied petitioner's
application for
reinstatement. Petitioner filed a petition in Superior Court for judicial review. The
petition was denied, and petitioner appealed.
COUNSEL:
Harold D. Coley, Jr., for the North Carolina State Bar.
Long, McClure, Parker, Hunt
& Trull, by Robert B. Long, Jr., for petitioner appellant.
JUDGES: Erwin,
[***4] Judge. Judges Vaughn and Hill concur.
OPINIONBY: ERWIN
OPINION:
[*159]
[**446] Petitioner contends that G.S. 84-32 which provides in pertinent part that
"[w]henever any attorney has been deprived of his
license, the council, in its discretion, may restore said
license upon due notice being given and
satisfactory evidence produced of proper
reformation of the licentiate before
restoration" is an unconstitutional
delegation of legislative power, because it gives the North Carolina State Bar Council unbridled discretion in
the
restoration of
licenses. We disagree.
The Legislature, in its infinite wisdom, has endowed the North Carolina State
Bar Council with the
duty of ascertaining when a wayward attorney has presented such
satisfactory
[*160] evidence of
reformation so as to entitle the attorney to be listed once more on the attorney rolls of
our State. G.S. 84-23 and G.S. 84-32. This, the Legislature may do as long as
it prescribes a sufficient standard of guidance.
In re Willis, 288 N.C. 1, 215 S.E. 2d 771 (1975),
appeal dismissed,
423 U.S. 976, 46 L.Ed. 2d 300, 96 S.Ct. 389 (1975);
Turnpike Authority v. Pine Island, 265 N.C. 109, 143 S.E. 2d 319 (1965);
[***5]
State v. Harris, 216 N.C. 746, 6 S.E. 2d 854 (1940).
The standard set forth in the statute is the production of
satisfactory evidence of
proper
reformation. Whether or not an applicant applying for
reinstatement as an attorney has presented
satisfactory evidence of such
reformation is a factual determination lawfully delegated to the Council.
See
In re Willis, supra, and
Foster v. Medical Care Comm., 283 N.C. 110, 195 S.E. 2d 517 (1973). We find no unconstitutional
delegation of legislative power.
Petitioner further contends that the Superior Court erred in affirming the
Council's denial of his
application for
reinstatement. We disagree.
The term,
"proper
reformation," is not expressly defined in the statute. However, the State Bar Council has
interpreted the term to mean that the applicant must demonstrate
"[b]y clear and convincing evidence that he or she has the moral
qualifications, competency and learning in law required for admission to practice law in this
State and that the resumption of the practice of law within the State by the
petitioner will be neither detrimental to the integrity and standing of the bar
or the administration
[**447]
[***6] of justice nor subversive of the
public interest."
Rules and Regulations of the North Carolina State Bar, Article IX,
§ 25(A)(3),
288 N.C. 767-68 (1975). When viewed in proper context, this interpretation of the requisite showing
cannot be said to be clearly erroneous. The
reinstatement of an attorney is a matter not to be lightly regarded. As Chief Justice Stacy
admonished in
In re Applicants for License, 191 N.C. 235, 239, 131 S.E. 661, 663 (1926):
"[C]onsider for a moment the
duties of a lawyer. He is sought as counselor, and his advice comes home in its
ultimate effect to every man's fireside. Vast interests are committed to his
[*161] care; he is the recipient of unbounded trust and
confidence; he deals with his client's property, his reputation, his life, his all. An
attorney at law is a sworn officer of the court, whose chief concern, as such,
is to aid in the administration of justice. In addition, he has an
unparalleled opportunity to fix the code of ethics and to determine the moral tone of the
business life of his community. Other agencies, of course, contribute their
part, but in its final analysis, trade is conducted on sound legal advice.
[***7] Take, for example, a commercial center of high ideals, another of low
standards, and there will invariably be found a difference between the bars of
the two
localities. The legal
profession has never failed to make its impress upon the life of the community. It is of
supreme importance, therefore, that one who aspires to this high position
should be of upright character, and should hold, and deserve to hold, the
respect and
confidence of the community in which he lives and works.
In re Dillingham, 188 N.C., p. 165;
In re Applicants for License, 143 N.C., 1.
'No
profession,' says Mr. Robbins in his American Advocacy, 251, 'not even that of the
doctor or
preacher, is as intimate in its relationship with people as that of the lawyer. To the
doctor the patient discloses his physical ailments and symptoms, to the
preacher the communicant broaches as a general rule only those things that commend him
in the eye of heaven, or those sins of his own for which he is in fear of
eternal punishment, but to his lawyer he unburdens his whole life, his business
secrets and difficulties, his family relationships and quarrels and the
skeletons in his closet. To him he often
commits the
[***8]
duty of saving his life, of protecting his good name, of safeguarding his property,
or regaining for him his liberty. Under such solemn and sacred
responsibilities, the
profession feels that it owes to the people who thus extend to its members such
unparalleled
confidence the
duty of maintaining the honor and integrity of that
profession on a moral plane higher than that of the merchant, trader or mechanic.'"
Although
In re Applicants for
License dealt with an initial application for admission, it is equally apropos here.
Where, as here, the trust previously
bestowed in an attorney by reason of his office has once been
betrayed, the determination of subsequent
[*162]
fitness to
reassume such a high office may
rightfully
hinge upon consideration of the
public interest as well as the existence of minimal requirements required of a new
admittee.
In re Weaks, 407 S.W. 2d 408 (1966).
"Moreover, the court, in determining the present
fitness of a petitioner for
reinstatement to practice
law will, among other matters, such as the making or failure to make
restitution, take into consideration the applicant's character and standing prior to
disbarment or
suspension or
[***9]
resignation, his present mental and moral
qualifications, the nature and character of the charge for which he was
disbarred or suspended, his conduct subsequent thereto, and the time that has elapsed
between the
disbarment,
suspension, or
resignation and the application for
reinstatement." (Footnotes omitted.)
Annot.,
70 A.L.R. 2d 268, 284 (1960).
In denying petitioner's application, the Council had before it evidence that
petitioner had
compromised four of the six civil judgments rendered against him but had
[**448] failed to make
restitution for two outstanding judgments against him in excess of $ 30,000.00.
Petitioner also
renounced funds which would have enabled him to help satisfy the judgments against him.
Petitioner's willingness to satisfy only the judgments that could be
compromised, while failing to satisfy those not the subject of compromise, is evidence of
the lack of proper
reformation required
by the statute. Determination of the satisfaction of the requirement of
reformation of character involves an exercise of delicate judgment on the part of those
entrusted with the statutory
duty. The ultimate determination belonged to the Council, not the Hearing
[***10] Committee.
See G.S. 84-23 and G.S. 84-32. Petitioner has failed to prove he has carried his
burden.
The judgment entered below is
Affirmed.
