Theard v. United States

RESPONDENT:United States
LOCATION:California State Capitol

DECIDED BY: Warren Court (1957-1958)
LOWER COURT: United States Court of Appeals for the Fifth Circuit

CITATION: 354 US 278 (1957)
ARGUED: Dec 13, 1956
DECIDED: Jun 17, 1957

Facts of the case


Audio Transcription for Oral Argument – December 13, 1956 in Theard v. United States

Earl Warren:

Number 68, Delvaille H. Theard, Petitioner, versus United States of America.

Delvaille H. Theard:

If the Court please.

Earl Warren:

Mr. Theard.

Delvaille H. Theard:

This is a disbarment suit brought in the federal court in which I am, the defendant.

I’m representing myself.

The disbarment suit in the federal court was based on a judgment of disbarment in the state court in accordance with the rules for the Eastern District of Louisiana.

I would like to go back just a bit so that Your Honors may have a short history of the facts of this case.

I was admitted to practice in 1910 into state law and very shortly thereafter, in the federal court.

I practiced law from 1910 until 1936 quite actively.

I also undertook the other matters in line with my professional duties.

I was the editor of the Southern Law Quarterly printed by and published by Tulane University which came to an end at the beginning of the First World War.

And subsequently, after the First World War, I became one of the editors of the Southern Law Quarterly of Tulane which is going on.

I taught at Tulane University in the law school, part time as a gracious act contribution of love for a profession which I cherish without salary of course, for 16 years.

In 1935, I realized myself that my health was impaired.

I found it almost impossible to go on.

I have been very active, trial work over the years.

I had tried many cases.

I couldn’t begin to give you an idea of how many.

And I had to give up the law school.

I felt that I couldn’t go on, although it was one of the great things in my life.

In the summer of 1936, I collapsed.

There was trouble in my business.

There was trouble in my affairs, and I was moved by my family and my friends to a mental institution.

It is a fact that I remained there as patient for more than 10 years, seven years in De Paul Sanitarium, seven months in the state institution for mentally afflicted at Jackson, Louisiana and about three years in the parish infirmary in the City of New Orleans.

I received fine care, good treatment.

I was taken cared of.

I myself reached the point gradually where I’ve realized that I must get well and I wanted to get well and that I mustn’t hurry my cure.

I reached the point where some charges which had been made against me, there were two charges that were made against me of mishandling of funds, and one of those charges involving a large sum of money, $42,000.

The District Attorney and the Attorney General on the recommendation of a coroner and a committee reached the conclusion that I was well enough to be tried criminally for this embezzlement or alleged embezzlement.

By that time, I was well enough to take care of myself.

Delvaille H. Theard:

By that time, I was well enough to go through my records such as they were and particularly through my checks and to assist the gentlemen, my friends who had finally consented to represent me in that criminal prosecution.

And the case was tried on this charge of an embezzlement of $42,000, tried to seven or eight days before a jury in the criminal court in the parish of Orleans where the result with the evidence that I was able to offer, but I was acquitted.

The result being that I was not guilty, I hadn’t taken the woman’s money.

Instead of having embezzled $42,000, she owed me $5,000 in round figures plus the interest that I had paid her on the money for years.

I had repaid the principal.

Immediately, the criminal authorities undertook to bring up the second suit which they had allowed to remain dormant for these 10 years and l pleaded prescription under the statute.

And that went to the Supreme Court on the appeal of the Attorney General, it was a great feeling in my case for some reason or other.

And the Supreme Court of Louisiana held that my plea of limitations was well founded.

In that decision, which was rendered in 1948 — remember, I had already have been sick and whatnot since 1936, even since 1935 when I left the school.

That decision became quite important as I appreciate it because it’s all mentioned in the brief because there was the question of prescription or the statute of limitations in the argument that we made that the prescription was well founded in the counter argument made by the authorities that they haven’t been able to prosecute me because of my illness.

And then, this important question to me came up whether because of the way in which the time had divided itself between what I call free time when I might have been prosecuted and close time when I was under a decree and couldn’t be prosecuted.

Whether that fact had interrupted the prescription, destroyed where it had gone before, so that it will have to start all over again, or whether it had merely suspended the prescription during the period of enforced inaction on the part of the State.

And the Supreme Court in the unanimous case on this plea of prescription held, “The question was new and had never heard of or raised by anybody.”

They could find no case in point and they had to decide it as they said, at 212 Louisiana.

According to their sense of justice, and they decided in so many words that since the inability to prosecute me in that criminal action then 11 or 12 years old, had not been due to any act on my part to nothing willful, to know misconduct.

But since on the contrary and these are the words of the Court, “If the act, a situation was neither deliberate nor intentional,” and again, using the words of the Court, “that resulted from a condition which I could not prevent,” or as the Court said exactly over which I had no control, that they would hold that the prescription had been suspended and not interrupted.

Of course, that was the end of that particular case.

Now, there had been only two cases against me that I’ve just told Your Honors.

This first case which I won before the jury and this other case which they had been holding back for 10 years in a hope of being able to use it, if they could.

I have never been convicted of any felony or other offense.

My mental condition required this hospitalization for 10 years, running into from roughly a little over 10 years, running from 1936 to 1948.

In 1948, I was quite well.

I knew I was well.

I think everybody else in the City of New Orleans knew that I was well, although I had been always institutionalized.

I was never out of an institution from 1936 to 1947.

Shortly thereafter, the committee proceeding which had been held against me which we call interdiction in Louisiana was lifted at a regular contested hearing of the probate court which — with our civil district court which handles those matters.

And in 1948, no charges against me whatever, being perfectly well having gone through 10 years of care and treatment and having been completely restored to health, I undertook to begin again the practice of civil law.

I must say that my friends and my clients knew that I had what I may call a tough time.

Well, they’re pleased, I think.

Old clients flocked to me and for six years without a word of complaint — or for four years without a word of complaint from the Bar Association.

Delvaille H. Theard:

And for six years concurrently with no objection from anyone, any lawyer, any opponent, any member of the public, I undertook again the practice of law which had been stopped by my illness in 1936.

I was very successful, very active as I had always been.

And from 1948 to 1954, during those six years that I was permitted to resume practice and that I actually resumed practice, it is a fact and I — that’s in the record, that I tried 37 cases in the appellate courts of the state, real cases, contested cases and — but they’ve seen themselves on an act which during my illness, I had committed on — as they say, I have no recollection of it, on the 2nd of January 1935.

In June 1952, the Bar Association, which is a prosecuting unit for disbarment in Louisiana, brought a disbarment suit against me, nothing having made in examination, preliminary examination.

I went on practicing law because as I tell you, the period of my activity was from 1936 to 1954.

It only stopped when there was a final decree of disbarment against me in the state court.

During which time as I say, I’ve tried 37 hardly contested cases which are all in the books and which I have tried alone.

I have had associates, but I’m not in the habit of shaking work or turning it over to other people.

I like to do things myself.

I never had direct other partners at any time in my career which as I say started in 1910.

This proceeding for disbarment as I say based on an act which was said to have been committed in 1935 was tried in the way in which we try it.

Under our — under the Constitution of the State of Louisiana, the exclusive jurisdiction and I must say — ask you to let me emphasize that.

The exclusive jurisdiction for disbarment is vested by the Constitution, not by any statute in the original jurisdiction of our Supreme Court.

The Supreme Court doesn’t actually try disbarment cases.

It takes a complaint from a bar committee, we have an Integrated Bar.

And of course, the defendant has afforded every opportunity to defend himself, and if I claim that there has been a warrant of due process in my case, let me make clear at once that I’m not complaining of any lack of procedure of due process.

I’ve got plenty opportunity to defend myself.

What I claim is a lack of substantive due process for the reasons which I would just — would mention in just a moment.

I — the — in accordance with the rules applying in that case, the matter was referred to a Commissioner and the testimony was taken before it.

All I could testify to was that I had signed the documents that they showed me.

I admitted that they were my signature.

I couldn’t remember why or under what circumstances.

Remember, this was already 18 years since 1935, but then it come into period of my illness.

In the same period of time referred to by the Supreme Court and holding in the case in the 212, that they must take into consideration the fact that whatever I had done was not deliberate or intentional but the result of what they call a — a condition over which I had no control.

The Commissioner or the Bar Association was quite vehement.

They’ve always been very aggressive in my case and they protested that this was a criminal act and they continued to protest and have always protested.

They’ve had to protest because they lost the suit as I appreciate it in this — although I was disbarred by the state court, they lost the suit.

The report of the Commissioner was that unquestionably, I was suffering from some kind of insanity or lack of mental control.

And then under our practice, exceptions were filed to the report of the Commissioner and the matter was argued on these exceptions before the Supreme Court of the State.

The Supreme Court of the State held that — apparently, that my insanity had been proved.

Delvaille H. Theard:

They put it in this way.

They said, “We don’t think insanity is a defense, but we will concede it.

We will concede it for the purpose of this discussion or for the purpose of this decision,” as I say.

And therefore, we — we will disbar Theard.

And then, to emphasize if it was possible to emphasize the fact that they went out finding me guilty of any criminal act, they took up the exception which had been filed to the master’s report by the bar committee and they said, “The bar committee who separates that the Master made a report that Theard was guilty of a criminal act, that the way he wrote that shows that in 1935.

He was guilty of a criminal act.”

And we accept to the Master’s report and the Supreme Court said, “Under the view that we have taken over the matter, we are conceding the insanity.”

Under the view that we have taken here the matter, we don’t have to consider this charge of criminality which I think was a loss of the case by the Committee which knew that there was something fatally wrong with the decree of disbarment based on an insane act which was conceded by the Court which decreed the disbarment, but which decreed the disbarment just the same.

Now, because it was conceded by it, I say as the basis for the disbarment excluding specifically all other claims made in that case.

Now, that was particularly distressing I think and perhaps say in with respect, particularly wrong because the Constitution of Louisiana which as I have just told you, controls disbarment absolutely, and vest it with the Supreme Court also provides in so many words.

And that’s the history of a law or condition which arose through the years and goes back 60 years, that the Court is vested with jurisdiction for disbarment in cases of misconduct.

I say and I think anyone would agree that under that constitutional fiat, there can be no — no disbarment in Louisiana and there should be no disbarment in Louisiana and there can be no disbarment in Louisiana except for the cause set forth, namely, misconduct.

The rules of the Court and the rules of the integrated bar association which has been made the rules of the Court by an order of the Court, go further and say that the lawyer shall be disbarred who is guilty, of course I couldn’t say of anything in contravention of the Constitution, but they make it I think a little stronger because they say and it’s all quoted in the brief.

That disbarment will be — will result from the willful misconduct of an attorney.

Now, how does the Supreme Court could hold that I should be disbarred because — or despite the fact that I was insane and not from any other cause where the only cause under the Constitution should have been misconduct, more than I can say.

Now, Your Honors would say that this is not an appeal from the decree of the state court, no, but immediately after the Supreme Court had rendered this judgment in 1954.

I prayed for a rehearing which had been refused.

I have done everything else that I could.

Immediately, the Bar Association notified the United States Attorney that I should be — the proceeding should be taken against me to disbar me in the federal court and this is the proceeding that we are discussing now.

The United States Attorney I suppose could have disbarred me for any — any kind of act that he thought was — which involved justification, but he chose to bring a suit for my disbarment in the federal court based exclusively on this judgment, exclusively on this judgment which said that eliminating all other causes, I should be disbarred because I was sick.

So, I raised several defenses.

This is a proceeding that went to the Court of Appeals and that comes here.

I raised the proceeding that of course the Court had deprived me of my property, had deprived me of my property without due process of law just as to why it raised that proceeding in the state court.

That no man, no matter what the basis may be for disbarment and most people agree that disbarment is not based on the idea of punishment, but it’s based on the protection of the community.

That no man should be sued no man — under either basis because he was sick especially, especially when the disbarment suit was brought in the state court 17 years after the act, and in the federal court, 19 years after the act.

In two weeks, the act will be 21 years old.

And in the meantime, he had regained his health, nobody questions my complete sanity and my health mentally and physically at this time.

Nobody conceded and nobody questioned it then, but I have had 10 years of — of sorrowful treatment, quiet and the kind of help to — or the kind of care and treatment to which I think I was entitled and which brought out no matter what the case may bring.

A very satisfactory help so far as my personal condition was concerned.

So, I urge that defense, or is a complete violation of the State’s statute which limits disbarment to misconduct as I have just told you.

Delvaille H. Theard:

And I urge the long period that had ensued.

I think that I’ve told Your Honors all that I can say about my complete recovery and about the cause of the disbarment which was illness.

I raised the question.

It was in the state court and in the federal court too because there, I think that the application of that doctrine was quite quoted.

I said that the long delay had changed everything in my life, made it almost impossible for me to defend myself in 19 years since the act was committed or now sued in the federal court, and that I had absolutely recovered, that I had practiced for six years without any complaint from anybody except this belated complaint from the Bar Association.

No one else, no judge has ever questioned my right to appear before him.

I appeared before the Supreme Court during that period any number of times.

I can’t tell you because I haven’t really undertaken to find out.

I can’t tell you how many of these 37 cases were cases in the Orleans Court of Appeal or in the Supreme Court.

I dare say that the majority was in the Orleans Court of Appeal, but there were questions of great importance which I tried before the Supreme Court.

I was the first person who ever succeeded in getting a Louisiana — in getting a judgment in Louisiana against the Coca Cola Company in the Supreme Court or in where else if I know in state.

I won a lot of tax cases and land cases which I tried some succession matters which — land matters which have been a specialty of mine during my many years of practice.

And I call the attention of the Court to the fact that we had in Louisiana a state — a statute which provides a liberative prescription or a statute of liberative limitation, which provides that in any personal action for which in the language of our Civil Code, there is no enumerated prescription.

No special prescription that the prescription of 10 years will apply.

Now, there was a — and this was brought in the state court 17 years after the act of 1935.

In the federal court, 19 years after the act, I think the Supreme Court of Louisiana — and I told the federal court because the Solicitor General has said this.

He said a number of things.

He says for example that the federal court is bound by the description of the — or the interpretation of the statute by the state court.

And I answer that it must be a — an interpretation that doesn’t do violence to language.

You can’t say that any court under the direction to disbar only for misconduct can interpret overturn — upset the statute by saying that that means that the — the subject can be disbarred for illness.

Nobody can say that — that illness is misconduct.

And of course, in a question in which a man’s property and right to practice has been taken from him which is a right of property, I’m not going to argue that to Your Honors.

It’s been many times decided by you and that no frail or incorrect interpretation of the statute by the state court is binding on this Court.

When you grant certiorari, the case is yours and you don’t shed your power by undertaking to look into the case.

Now, may I say before I sit down and perhaps I can have a few more minutes for rebuttal, I don’t know.

May I say that the Court of Appeals who took this case, the District Judge listened to a short argument, decided that I should be disbarred.

They filed no brief.

It didn’t seem to be an insensitive file of brief there, but we took an appeal to the Court of Appeal and we argued the very same points that we are arguing here.

And the Court of Appeal landed a memorandum —

Earl Warren:

Mr. Theard —

Delvaille H. Theard:

— opinion —

Earl Warren:

— Mr. Theard, if you’re going to have any time at all —

Delvaille H. Theard:

I must keep it now.

Earl Warren:

— to reply, you better save it now.

Delvaille H. Theard:

Well, I’m going to save it right now —

Earl Warren:

(Voice Overlap) —

Delvaille H. Theard:

— say merely this that the Court of Appeal — I didn’t want to fail to mention what the Court of Appeals said.

Earl Warren:


Delvaille H. Theard:

The Court of Appeals said that I’d offered no evidence and that the — I had offered no evidence and that my arguments were not persuasive, that’s all.

Well, there was no evidence to offer because I was being sued on a judgment of the Court which was the sole cause of action.

And my arguments were not persuasive, I’m sorry.

I’ve done the best I could here.

I’ll save a few minutes if you’ll allow them to me.

Earl Warren:

Mr. Hickey.

Edward H. Hickey:

Mr. Chief Justice, may it please the Court.

On March 22nd, 1954, the Supreme Court of Louisiana entered an order of disbarment against the petitioner, excluding him from practice in the state courts of Louisiana.

Petition for certiorari from that judgment was denied by this Court.

On March 16, 1955, the District Court for the Eastern District of Louisiana entered an order of disbarment pursuant to Rule 1 after that Court.

The Court of Appeals for the Fifth Circuit on appeal affirmed.

This Court granted certiorari and it is that judgment that is under inquiry in this case.

Felix Frankfurter:

And their Government stated the opposite, to what these proceedings were on the District Court.

Edward H. Hickey:

Yes, sir.

In the District Court, following the entry of the judgment and opinion of the Supreme Court of Louisiana, United States Attorney filed a motion pursuant —

Felix Frankfurter:


Edward H. Hickey:

Pursuant — pursuant to Rule 1 (f) of the federal rule of the court rules which are printed on the Government’s brief at page 2, which provides that whenever it is made to appear to the Court that a member of the Bar of that Court has been suspended or disbarred, or convicted of a felony in any other court, he shall be forthwith suspended from practice before this Court, the District Court.

And unless upon noticed mail to him at his last known place of residence, he shows good cause to the contrary within 10 days.

There shall be entered an order of disbarment or of suspension for such time as the Court show fit.

William J. Brennan, Jr.:

Well, do those —

Edward H. Hickey:

That was —

William J. Brennan, Jr.:

— proceedings ordinarily follow the course after either a disbarment or a conviction of — for the other events named?

Edward H. Hickey:

As a matter of — of cause, the practice is banned.

I can quote only the instruction that is contained in the United States Attorney’s manual that when it has come to the attention of the United States Attorney that a member of the Bar has been disbarred or convicted of a felony or has acted in such fashion as to be disciplined by the Court of the State in which the federal court sits and of which he is a member of the Bar, United States Attorney shall give serious consideration to bringing appropriate proceedings before the District Court of the district in which he is an officer.

And it is in that —

Earl Warren:

He shall do what I — he shall do what?

I thought —

Edward H. Hickey:

He — he shall give serious consideration to what has occurred and to bring appropriate proceedings before the District Court.

Earl Warren:

It doesn’t — compelling to bring the proceedings, the serious considerations to —

Edward H. Hickey:

No, no, Mr. Chief Justice, it does not.

William J. Brennan, Jr.:

And unless the United States Attorney here who initially —

Edward H. Hickey:

The United States Attorney here did file this motion in this Court —

William J. Brennan, Jr.:

Can you tell us on —

Edward H. Hickey:

— pursuant to that rule.

William J. Brennan, Jr.:

And who brought it to the United States Attorney’s attention?

Edward H. Hickey:

The Committee on Professional Ethics and Grievances of the Louisiana State Bar Association as I understand it brought it to the attention of the United States Attorney.

And pursuant to that notice, the United States Attorney then filed a motion to which he attached, to which he attached a copy of the opinion and decree of the Louisiana Supreme Court which had ordered the disbarment for admitted misconduct done under an allegedly abnormal mental condition.

It brings me to a statement I think of the question that’s presented here.

Felix Frankfurter:

Before you do that, would you — you don’t have to finish Mr. Hickey, what it plays in the District Court after the District U.S. Attorney moved.

Edward H. Hickey:

All right, Your Honor.

Felix Frankfurter:

Did this follow automatically, then?

Edward H. Hickey:

No, Your Honor, following the issuance — following the filing in of that motion and pursuant to the rule of that Court, an order to show cause was issued to petitioner.

And pursuant to the rule, he was given the appropriate time within which to respond as to why an order of disbarment should — should not enter.

Attached to that order to show cause was a copy of the motion and a copy of the opinion and decree of the State Court of Louisiana.

The petitioner responded to that motion by attacking the legality of the decision of the Louisiana Supreme Court, in effect, grounding his attack on one that the Louisiana Supreme Court had not interpreted Louisiana law and Constitution properly.

And therefore, the judgment was defective in ordering disbarment under what he considered was admitted misconduct but done under — in some form of insanity.

Secondly, he said in his order — just answer to the order to show cause in which also was a point which he urged before the Louisiana Supreme Court in the initial proceeding.

That under the doctrine of Louisiana of latches in prescription, the disbarment proceedings should have been barred because they were grounded on a charge that had occurred at that time some 16 years before.

And then lastly, he attacked the judgment of the Court of Louisiana and thereby questioned the propriety of the judgment of the — the court of the District in Louisiana, the Federal District Court, on the ground that to enter an order of disbarment, on circumstances which, while misconduct had been admitted, were done under what were allegedly an abnormal condition, was the deprivation of his property right in the practice of the law and therefore, in this particular instance, it would be unconstitutional for the District Court to adopt the standard applied by the court in Louisiana.

Hugo L. Black:

You said abnormal condition, do you mean mentally?

Edward H. Hickey:

Yes, Justice Black, mentally abnormal condition.

Now, if I may just recast the sequence of facts in what —

Felix Frankfurter:

(Inaudible) what happened?

Edward H. Hickey:


Then, the District Court, following a hearing after that order was returned and in which no evidence was taken.

Entered an —

Felix Frankfurter:

An argument of counsel.

Edward H. Hickey:

Argument of counsel.

Felix Frankfurter:

On the motion and —

Edward H. Hickey:

On the motion and the return.

And I believe Mr. Theard submitted a — a brief, statement of points in authorities to support his position.

The District Court entered an order without opinion, making the rule absolute and issuing an order of disbarment.

Felix Frankfurter:

In short then, is it fair to say, Mr. Hickey, that the basis of the order of disbarment in the District Court for the conclusion it moved from the judgment of the Supreme Court of Louisiana.

Edward H. Hickey:

It — there is a fair statement to say in the light of the response of the petitioner.

Felix Frankfurter:

That is attacking — I’m just trying to undermine their judgment.

Edward H. Hickey:

In other words, the arguments which were made in the District Court were found as unpersuasive to that Court as the arguments that were made by Mr. Theard.

Felix Frankfurter:

But there was no — no testimony of Mr. Theard that he didn’t stand.

He was cross-examined.

There weren’t proof of — or excerpts of the Federal Government.

Edward H. Hickey:

Absolutely not, Your Honor.

I think —

Felix Frankfurter:

Can I ask one more thing?

Is admission to the District Court automatic upon showing or representation that the move granted to the member of the Louisiana Bar?

Edward H. Hickey:

It is, Your Honor, upon also a statement of — of character.

Felix Frankfurter:

Up here?

Edward H. Hickey:

Well, yes.

In other words, as I have pointed out in my brief, there is a very intimate close relationship in the whole federal system between the federal bar and the bars of the State.

The federal courts draw the members of their bar from the state bars.

They look to the State for standards of admission.

They look to the States as in this particular instance for the original standards of exclusion and discipline.

The present rule, for example, of the District Court of Louisiana is a rule that we were able to find in our research with the files of the department in 26 District Courts.

There are some 22 District Courts, the District Court for the Southern District of New York for example, which makes automatic disbarment upon a showing that the members of the bar had been disbarred by the State.

Edward H. Hickey:

There are 10 courts which provide for disbarment on independent inquiry and there are some 22 courts which indicate that they have no rules and depend on their inherent thought.

Felix Frankfurter:

The rule of —

Edward H. Hickey:

So, it’s —

Felix Frankfurter:

(Voice Overlap) go down there as — as — and substantially the rule of his bar in relation to the members of his bar.

Edward H. Hickey:


William J. Brennan, Jr.:

Well, Mr. Hickey, I — I think you suggested that the factor was an independent redetermination by the District Court of the basis of the Louisiana Court judgment.

Edward H. Hickey:


Well, under its rule, it’s not unlike the Southern District.

William J. Brennan, Jr.:


I’m — I’m trying to get to the fact.

Do I understand that your view is that in — actually, there was a redetermination of the grounds upon which the Louisiana Court disbarred.

Edward H. Hickey:

Let me — let me put it this way.

The District Court did not write an opinion, so what I am going to answer you to is my reading of the — of the record as was presented to the District Court.

And based on that reading of the record in the absence of opinion, it’s my view under the rule that what the District Court did was to find upon a return of the order to show cause, that it did not change its view.

That the standard applied by the Louisiana Supreme Court to members of his bar should be the same standard that the District Court for the Eastern District of Louisiana should apply because there had been no showing to the contrary.

William J. Brennan, Jr.:

Well, that — that —

Edward H. Hickey:

And in that sense, it adopted the rule.

William J. Brennan, Jr.:

Well, except that that might almost say to me, I think, that merely because the Louisiana Court disbarred, that suffice to require disbarment by the District Court.

Do I understand it?

Edward H. Hickey:

Their purpose, sir, there wouldn’t have been an issuance of an order to show cause.There wouldn’t have been a hearing on that order to show cause and —

Felix Frankfurter:

Let me ask you this.

Would — would in term — in carrying out Justice Brennan’s question.

In your view on the record that was before the District Court, namely, the order to show cause and the return plus the judgment of the Supreme Court of Louisiana for this opinion.

Will the District Court, in your view of its power — of its power, had been free to say including — Mr. Hickey, we take a different view on those excepting everything that’s free, Court of Louisiana sets forth in its opinion.

We take a different view and reach a different conclusion.

Edward H. Hickey:

I think the District Court, as this Court had pointed out in — in (Inaudible) and Selling and Radford had — has an independent standard to follow in its bar.

It does not, in other words, follow the state judgment as a matter of comedy.

It follows the state judgment as a matter of substantive law.

And on this case, in the circumstances of this case, it found the substantive standard applied in this case which was an admitted misconduct.

It had nothing to do with the state of the petitioner’s mental condition.

Edward H. Hickey:

It was the fact that he had embezzled certain funds and forged and added certain documents.

And as a result of that, the innocent clients had lost funds and property.

And the fact that the state of mind, the state of mind or the motivating force behind that misconduct may have been one which could have excused him in the court of law.

The Supreme Court of Louisiana and in turn, the District Court felt that in disbarment, which is not punishment.

In disbarment which is a case of protecting the public and maintaining the integrity of the profession that the state of mind was irrelevant.

The fact was that the conduct occurred, the public was injured, clients have suffered and therefore, the individual involved was unfit to continue to practice the law in those circumstances.

That in sum is the — the motivating course of decision in Louisiana and in the District of —

Felix Frankfurter:

Mr. Hickey, have I read the opinion of the Louisiana Supreme Court correctly in is saying and I adjust my — my eyes rapidly over the pages of all the opinions, a lot of quotations — judicial padding?

I arrive in to say that there is no information that their order of disbarment was based on their conclusion of the petitioner’s present incapacity to practice the law or the hazard of the community with having to allow it into the fact, is that right?

Edward H. Hickey:

I think that is a — correct reading.

Felix Frankfurter:

They merely go on the historic premise facts, is that right?

Edward H. Hickey:


If I may — if I may underline that for the benefit of the Court, I think it’s very important that — to stress to the Court that on this bare record, there has been no finding by either court, the Supreme Court of Louisiana or in turn, by the District Court for the Eastern District of Louisiana that the petitioner was sane or insane at the time he committed the acts which grounded the petition for disbarment, one.

Two, I think it important that if this Court considered it relevant as to whether there is a danger of recurrence or relapse in the event that insanity or sanity is a relevant issue, that there is nothing in this record — there is nothing in record to show as a matter of evidentiary fact that there is a present state that — of mind or of condition that would allow anyone to say that there is no danger of recurrence.

There’s no danger of relapse.

There’s no danger that any dereliction would continue in the future.

Felix Frankfurter:

Or — or any allowable basis for an inference, that the past will continue —

Edward H. Hickey:


Felix Frankfurter:

— for the past is —

Edward H. Hickey:


Felix Frankfurter:

(Voice Overlap) —

Edward H. Hickey:

Right, right Your Honor.

In fairness to the petitioner —

Hugo L. Black:

May I ask you one question?

Edward H. Hickey:

Excuse me?

Hugo L. Black:

May I ask you on what you’ve just said.

In your brief that you state, and I — I may have misunderstood you — what you said then.

In your brief, you state that the Commissioner passed and the Supreme Court adopted this finding that it must then from the record be held that petitioner must have pled was suffering on the — an exceedingly abnormal mental condition, some degree of insanity, at the time he committed the offenses.

Edward H. Hickey:

Your Honor, that is a correct reading and what happened was this.

Hugo L. Black:

Do we have to take that as being the basis in the disbarment.

Edward H. Hickey:

Well, the — the only qualification I would make to Your Honor’s summary is that the Supreme Court did not adopt that finding.

The Supreme Court preadmitted that finding.

The Supreme Court found in its view of the case, the question of whether the petitioner was sane or insane at the time was not significant to the decision and that —

Hugo L. Black:

In other words — in other words —

Edward H. Hickey:

Consequent —

Hugo L. Black:

— would you think it that it would have done the same however, if it had approved this finding, I suppose.

Edward H. Hickey:

Well —

Hugo L. Black:

Well, because you say that they didn’t find it one way or the other and said they didn’t need to.

Edward H. Hickey:

Well, on the contrary, they might very well not have because the Bar Association and I am a bit off the record in this except to suggest that the Bar Association objected — objected to the finding of the Commissioner that the petitioner was suffering from an abnormally mental state at the time he committed the alleged misconduct.

And on appeal, they strenuously urged in the appellate court that that finding was not supported by the record.

Indeed, the finding should be to the contrary based on the —

Hugo L. Black:

Suppose —

Edward H. Hickey:

— evidence that was presented.

Hugo L. Black:

— suppose they did.

Edward H. Hickey:

But the —

Hugo L. Black:

Suppose the Supreme Court without repudiating that finding has disbarred him because of the offenses committed at the time the Commissioner said he was insane.

Edward H. Hickey:

Well, if you suppose — if you suppose that.

Hugo L. Black:

I don’t — not supposed, is that not —

Edward H. Hickey:

That is not the fact, Mr. Justice Black, if I may —

Hugo L. Black:

Do you — did they repudiate that finding, the Supreme Court?

Edward H. Hickey:

They refused to pass on the finding.

Hugo L. Black:

Well then, they neither repudiated it nor affirmed it.

Edward H. Hickey:

That’s —

Felix Frankfurter:

If they worked on the — isn’t this to the fact, Mr. Hickey, that the Supreme Court said, “Here is an admitted external fact that somebody signed his names in checks, and these checks constituted misconduct because the funds weren’t there whatever is before us.

They went on the — on the objective fact with total disregard for the state of mind in which the signature was made.

Edward H. Hickey:


If — if I may quote from the opinion.

Hugo L. Black:

They went on the — they went on a finding that he committed forgery and disregarded and refused to pass it all on the finding that he was insane when he did it.

Edward H. Hickey:


In the opinion, the — the Court — the Supreme Court said that this misconduct being admitted, it matters not and I think I’m coming as close to the language as I can on my memory.

Edward H. Hickey:

It matters not whether the act was caused by an inability to discern between right and wrong, or by a specific criminal intent.

It was immaterial, the act having been committed.

And as a result, Mr. Justice Black, the finding of the Commissioner that he was insane at that time was not passed on because they considered it unnecessary for their decision and that’s why —

Hugo L. Black:

Well now, on the District Court, did he allege that he was insane at the time?

Edward H. Hickey:

Now, let — on that point, he — he alleged that he was insane at the time and if I may say so, in fairness to the petitioner, he suggests.

He suggests that in this criminal case of 212 Louisiana, the Supreme Court and incidentally he’s the same justice who wrote that opinion on prescription in 212 Louisiana that wrote the — the final decision of the Supreme Court of Louisiana on disbarment.

But in 212 Louisiana, petitioner does rely — does rely on that case as wholly, that the Supreme Court has found that he was of unsound mind at the time this particular act was committed.

I might say in passing that that particular criminal case involved another embezzlement, not this particular embezzlement as the subject of the present disciplinary action.

But a reading of that case, it seems to me as I point out in the brief, clearly indicates that the Court was there considering the question of insanity at the time the criminal case was brought.

And then, adding the two periods of time, indeed if I may say so parenthetically, they assumed lucidity from the time that the act was committed in order to attack on that period, namely, 1936 through 1937 when the Lunacy Commission found that petitioner could not stand criminal trials.

In attacking that period on, they had to assume that he was able to — to stand trial at that point, the inference would be, if I may close?

The inference would be that at that time, the Court was not ruling on this State but only on the time when the trial was to take place.

So, I don’t believe that on the point of insanity, at any time was there a judicial inquiry on that as an issue because both the District Court and the Supreme Court of Louisiana considered that unnecessary once the misconduct was admitted —

Felix Frankfurter:

The Supreme Court of Louisiana took it out of the case.

They decided that objectively, an offense was committed.

The District Court of Louisiana for the Eastern District, although it had the power to make an independent investigation or make an independent judgment on what was be before the Supreme Court of Louisiana, accepted at its judgment, the judgment of the Supreme Court of Louisiana, that’s the case.

Edward H. Hickey:

In substance, that is the case.

That’s the record that is — is here and it is our view that in adopting that substantive standard, there was no violation of the constitutional right of the petitioner.

One, an absent valid constitutional objection, it’s our view that in adopting that substantive standard, there was not such a gross abuse of discretion that this Court would consider it unreasonable and therefore reversed because in both instances when we consider that disbarment is not being treated as a matter of punishment, it’s not being treated indeed as a matter of reformation.

It’s not being treated indeed as a matter of setting example.

It’s being treated as a means by which the Court and the Bar working together in the administration of justice can best protect the public, can best ensure that that profession of the law would permeate it with the highest public importance, will have the confidence of the public so that those who transgress, those who do forge or other regardless of the state of their mind, whether it’s economic necessity, whether it is an inability to distinguish between right and wrong as long to use the language of the Court —

Hugo L. Black:

Or — or whether that’s from insanity?

Edward H. Hickey:

Or some form of insanity, the — the fact is that as a result of that particular act, the pubic has been defrauded, clients have been injured and the standard of objectivity as Mr. Justice Frankfurter had noted is the standard that Louisiana has — has followed in this case.

And if I may say so, the only case as we have been able to find have been the (Inaudible) case in Illinois and the Manhattan case which is more dictum than the fact in Minnesota.

But in each one of those cases, both state courts in arriving at the same problem as — as Louisiana in treating the same question as Louisiana, arrived at the same result.

And in — in one phrase in — in the — Illinois Court had said, “In effect that where the activities of a man who has claimed to be insane, result in the defrauding of the clients so that the symptoms of the — of the act of the defrauding, then it’s the defrauding that this Court is protecting the public against, and it is on for that reason that the act of disbarment occurs.

Was there anything in the record to show the reason for the delay of whatever it was 11 years before the state —

Edward H. Hickey:


— disbarment proceeding was —

Edward H. Hickey:


Edward H. Hickey:

There — there is in this sense —

— triggered?

What — what is it?

Edward H. Hickey:

— Your Honor.

There are two Supreme Court opinions, 222 Louisiana and 225 Louisiana that contained statements which — the basis upon which one can state as we put in our footnote in the brief, that following the discovery of these embezzlements and forgeries in 1936, the petitioner was placed in an insane institution for some years and was put under a judgment of civil interdiction from August 1941 to 1948.

And that as result, the Louisiana Courts found and the law is unquestioned that the Bar Association could not file its proceedings of discipline during that whole period from — from 1936 to 1948.

Now, I’m talking about the period — I’m talking about the period from 1948 to 1954.

Edward H. Hickey:

Now, from 1948 to 1954, I think that probably petitioner has telescoped the time unnecessarily by leaving out two or three steps that the Bar Association had taken.

In 1950 — in 1950, some two years after the civil interdiction, judgment was — was lifted, the Bar Association Grievance Committee served notice on petitioner in 1950 that it was undertaking to investigate 11 acts of misconduct in connection with his practice.

From 1950 to 1952, there was a series of informal conferences and so on in connection with that investigation.

In 1952 — in 1952, on June 6th and June 7th, by stipulation, the first specification only was the basis upon which the Bar Association proceeded to inquire into the misconduct of the petitioner.

And in 1952, at that hearing, it was stipulated that the question would turn on whether — on — in 1935, he had forged the signatures of two clients to a note for $20,000 then draft it to make it look like a mortgage.

In following that, sold it and misappropriated the proceeds.

As to that, as petitioner indicated in his opening, he admitted that but claimed that he was of unsound mind.

Following that, there was an exception to the petition being filed in the Supreme Court, a hearing at that time in 1953 following that a remand of the Commissioner back to the Supreme Court of Louisiana again.

And in 1954, Mr. Justice Harlan, at that time, the Supreme Court entered its order disbarring the petitioner.

So that there was no undue delay, in fact, in — in terms of — of the basis for the disbarment as well as the proscriptions of the Supreme Court in its opinion, had indicated that it adhered exclusively to its reading of Louisiana law which in the absence of any constitutional objection, or conflict with the federal statute I believe this Court is prepared to adopt.

And for the reasons I have outlined in the earlier aspect of my argument, I feel that the decision and judgment of the District Court in adopting the same standard as the standard of the State in which it sits, not only did not violate any constitutional right of the petitioner, but it was a reasonable exercise of discretion in order to maintain the integrity of the Court, protect the courts as instruments of justice and also to carry out the responsibilities of maintaining the public confidence and trust in our profession.

So that, regardless of the intent, regardless of the motivation of the lawyer, he who concedes embezzling funds should not be continued in a place of trust and fiduciary relationship where he can advise clients.

And for that reason as we view the record, the decision of the court below should be affirmed.

Earl Warren:

Mr. Theard, we’ve run half hour over our time now and you have used all of your time.I am going to give you five minutes if you will stay within five —

Delvaille H. Theard:

I appreciate it.

Earl Warren:

— five minutes.

Delvaille H. Theard:

— very, very much.

Earl Warren:

So you won’t have to come back another time.

Delvaille H. Theard:

I want to say this.

I find it difficult to workout a plan of thought as it must have existed in the thought of the District Judge in this case because the proceeding in the District Court presented for his decision, nothing but what was perfectly apparent on the judgment of the state court which was, that here was a disbarment suit with the Bar Association not claiming insanity, the Bar Association claimed criminality.

We’re told that the — the forgery and the — the embezzlement was proved.

All that was proved was that I said “yes” after I’ve realized that it’s my handwriting.

I don’t remember a thing about it and nothing else was proved.

William J. Brennan, Jr.:

Mr. Theard, are you —

Delvaille H. Theard:

But —

William J. Brennan, Jr.:

Are you — is it your position that actually, the District Court disbarment was nakedly upon the Louisiana Court judgment —

Delvaille H. Theard:

Well, I —

William J. Brennan, Jr.:

— without any inquiry into the matters which you raised in response to your adversary?

Delvaille H. Theard:

Well, I raised them because they appeared to me to be on the face of the decree of the state court just as I’m raising them now because they were on the face of the decree of the state court.

There was nothing that I could add to what the state court had said.

William J. Brennan, Jr.:

Well, do you think or do you not think that you had a determination in the District Court upon the issues that you raised in your response to the order of disbarment.

Delvaille H. Theard:

Oh, I don’t know about that, sir.

I couldn’t say that.

I — I don’t believe that as my friend has conceded, the manual which I know nothing about says that there is no duty on a federal district judge to bring a suit for disbarment on the basis of a state court.

Therefore and certainly, they are two separate and distinct things.

I don’t know what the result would be if Your Honors held that this holding me insane and therefore subject to disbarment was now — I don’t know what effect that would have on the states court.

I’m not trying that now and I — I haven’t reached that point, really.

William J. Brennan, Jr.:

The only — only thing I’m trying to get at is whether — if you’re telling us that you feel that in the District Courts, you did not get an independent determination of the — the facts that you’ve raised.

Delvaille H. Theard:

I think I’ve got, Mr. Justice, I think I’ve got the only determination that could be given to me, although I think the result was incorrect.

Here are — you have the views of the state court.

We don’t care whether this man was guilty or not guilty.

He says he was insane.

The evidence proves that he was insane.

There was no evidence offered by the Committee on the question of insanity.

I offered my witnesses, my two doctors, and so on, but they offered no evidence.

They apparently thought that because a man while insane had signed a document.Therefore, he was a criminal.

And that was what they denied — relied on.

And therefore, when the case came up before the state court, what I think they held and what I believe is a fair statement from reading their opinion is this.

We concede for this discussion.And now, that’s a finding, a concession is a finding.

We concede for this discussion the insanity of this defendant, of this petitioner now.

And we don’t care Mr. Bar Association to listen to your exception saying that he was not insane but that he is a criminal and he ought to be disbarred for that reason.

We refuse to pass on that.

However, it’s what they’ve said in view of the conclusion reached and hear and above declared.

Delvaille H. Theard:

We need not determine the Committee’s exception.

Now, that was brought to the federal court by the United States Attorney and that’s all that was brought to the federal court.

And of course, if the state judgment — and I was ordered under their practice because there are 83 — I think there are 83 District Courts in the United States.

And only a certain number have one form of action and the others have another.

Now, in the Eastern District of Louisiana, the fact that a judgment has been rendered for disbarment in the state court is by no means binding in the federal court for the Eastern District.

That’s why they ordered me to come into court to present what I had to say and what I believe with reference to that judgment.

If it had been otherwise, why the — the disbarment in the federal court would have been automatic and unfortunately, I could not be here.

I do thank you gentlemen for your kindness.