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In re Van Bever

Supreme Court of Arizona

April 29, 1940

In the Matter of EMILE V. VAN BEVER, a Member of the State Bar

Original proceeding in disbarment under "State Bar Act" and upon record filed in Supreme Court by Board of Governors of State Bar of Arizona. Order to show cause discharged.

Mr. James E. Nelson, Attorney for State Bar of Arizona.

Messrs. Struckmeyer & Flynn, for Respondent.

OPINION

[55 Ariz. 369] LOCKWOOD, J.

James E. Nelson, as secretary of the state bar of Arizona, hereinafter called petitioner,

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filed in this court a petition setting up the following facts. Emile V. Van Bever, hereinafter called respondent, was admitted to practice before the Supreme Court of Arizona in 1917. On or about September 25, 1939, respondent called on petitioner at the office of the latter, and stated that he had been out of Arizona for [55 Ariz. 370] a number of years, but had returned and was making his residence in the city of Prescott; that he had just learned of the organization of the state bar, under chapter 66 of the regular session of 1933, and desired to pay up his arrearages of dues because he intended to engage in the practice of law in Prescott. He further stated that he had been for several years in an intelligence service and traveling almost continuously, but had now retired from that employment. Relying upon this statement, and learning upon inquiry of the clerk of this court that her records showed respondent was a member of the bar in good standing, petitioner collected the amount of arrearages due under chapter 66, supra, and issued to respondent a certificate therefor, whereupon the latter commenced the practice of law in Prescott. Shortly thereafter petitioner learned from other sources that respondent, between the years 1922 and 1933 had practiced law in the city of Santa Barbara, Alifornia, and that while engaged in such practice he was charged before the state bar of California with unprofessional and unethical conduct. The charges took their regular course and eventually resulted in the Supreme Court of California, on August 28, 1933, permanently disbarring respondent from practice in that state.

It was further stated that at the time respondent paid his arrearages he did not in any manner disclose to petitioner, or to any officer of the state bar, that he had been disbarred in California. Petitioner, therefore, submitted the matter to this court for such action as was appropriate, and this court issued a citation requiring respondent to appear and show cause why he should not be disbarred for his failure to disclose the fact of his disbarment in California.

Respondent answered, admitting in substance all the allegations of the petition and his disbarment in California, and stating that although he knew of the disbarment [55 Ariz. 371] proceedings pending against him, he did not appear in the Supreme Court of California to contest the disbarment, but removed to Chicago, where he had previously been admitted to the bar, and practiced there for several years, and then became engaged in the work of investigating crime, in which he continued for some time. Thereafter he returned to Arizona and paid to petitioner his arrearages in dues, but that the latter never asked him any questions which related directly or indirectly to his standing as a member of the California bar.

Petitioner demurred to the answer on the ground that it did not constitute a defense to the charges pending against respondent. Briefs were submitted, and the whole matter is now before us for our determination as to what, if anything, should be done in the premises.

Respondent admits very frankly that this court has the power at all times to investigate the moral fitness of one who has been admitted to practice before it, and if it appears that it is not in the best interests of the public and the profession that he be permitted to continue such practice, to disbar him. He also admits that one who seeks admission to the bar is under the duty of making full disclosure of any fact material to the issue of his moral fitness, and that a willful concealment of such facts warrants disbarment if the admission was procured by reason of such concealment. He contends, however, that under all the facts and circumstances of the present case there was no duty incumbent upon him at the time he paid his arrearages to the state bar to disclose the fact that he had been disbarred previously in California.

Respondent was admitted to practice in this state in 1917, and from that time to this no action has been taken by this court disciplining him in any manner. He was, therefore, a member of our bar in good standing [55 Ariz. 372] at the time of his payment of the arrearages of bar dues, except as such good standing was affected by chapter 66, supra, commonly known as the "State Bar Act." That act creates a public corporation known as the state bar, and says that its first members shall include all persons who were at the time of its enactment entitled to practice law in Arizona. By its terms respondent automatically became a member of the state bar when the act was adopted. It was further provided that all members of the state bar should pay an annual membership fee. This fee was payable on or before February 1st of each year, and it was further provided that any member who failed to pay the annual fee after it became

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due, and after two months' written notice of his delinquency, should be suspended by this court from membership in the bar, but that he might be reinstated upon payment of the accrued fees, and ...


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