author: PER CURIAM. OVERTON, Chief Justice, and ENGLAND, Justice

text:
    THE FLORIDA BAR, Petitioner, v. Frederick C. PRIOR, Respondent.
    No. 46442.
    Supreme Court of Florida.
    March 31, 1976.
    Richard C. McFarlain, Tallahassee, for The Florida Bar, petitioner.
    William H. Pruitt, West Palm Beach, for respondent.
   PER CURIAM.

The petition for suspension filed by The Florida Bar is granted, and Frederick C. Prior, respondent, is hereby suspended from the practice of law in Florida until further order of this Court, effective thirty days from this date.

OVERTON, C. J., ENGLAND and HATCHETT, JJ., and McCRARY, Circuit Judge, concur.

OVERTON, C. J., and ENGLAND, J., concur specially with an opinion.

BOYD, J., concurs in part and dissents in part with an opinion.

ROBERTS, J., dissents with an opinion.

ADKINS, J., dissents and concurs with ROBERTS, J.

OVERTON, Chief Justice, and ENGLAND, Justice

(concurring specially).

This cause was initiated by a petition of The Florida Bar to suspend Frederick C. Prior from the practice of law in Florida because of his multiple felony convictions in the United States District Court for the Middle District of Florida. Respondent has petitioned to “modify or terminate” the suspension under Rule 11.07(3) of the Integration Rule of The Florida Bar, thereby causing the matter to be deferred until the Court enters an order on his petition. For the reasons which follow, we believe that respondent should have been summarily suspended from the practice of law.

Chronology of the Case

The issue of suspension before us stems from respondent’s testimony before a federal grand jury investigating possible violations of the Internal Revenue Code and other federal criminal statutes. The focus of the investigation was former State Comptroller Fred O. Dickinson, Jr.

On June 6, 1974, respondent was indicted on seven counts of violating Title 18, Section 1623, of the United States Code, which makes it a felony knowingly to make any false material declaration in sworn testimony before a federal grand jury. On September 25, a jury found respondent guilty on five of the seven counts, and on November 1 the trial judge adjudicated him guilty and sentenced him to imprisonment for two years on each count. Respondent has appealed his convictions to the Fifth Circuit Court of Appeals, where they are now pending.

The Bar’s petition for suspension was filed on November 6, five days after adjudication of respondent’s guilt. On November 8, the respondent filed a petition to stay his suspension. The Bar responded on November 25, and the Court heard oral argument on December 2. On February 25, 1975, the Court directed that sequential briefs be filed on the question of suspension, with respondent’s first brief to be filed not later than March 17. Respondent filed his brief on that date together with a compilation of ten “Good Character Letters” from judges and other law enforcement personnel. These letters were submitted in a standard brief cover containing a cover page formally captioned for this proceeding, and as an appendix to respondent’s brief. On March 18, the Bar objected to the filing of these letters and moved to strike the brief on the ground that their inclusion was improper hearsay. The Bar’s objection and motion were supplemented on April 4 with a copy of an opinion issued on March 27 by the Committee on Standards of Judicial Conduct on the impropriety of judicial character reference letters.

On April 7 the Bar filed its brief on suspension pursuant to the Court’s directive. On April 14 respondent’s reply brief was filed and on May 2 he requested leave to supplement his reply brief with additional facts, asserting in general that on April 16 a federal jury had acquitted Fred O. Dickinson, Jr., of all charges against him in a proceeding involving matters related and germane to respondent’s jury conviction.

Issues and Jurisdiction

There is no dispute between the parties as to the fact of respondent’s convictions. The main issue for our consideration has been whether he should be suspended from the practice of law pending his appeal.

It is clear and uncontroverted that this Court has jurisdiction to suspend respondent in accordance with our inherent and constitutional authority.

In 1969 this Court adopted new Rules of Discipline as Article XI of the Integration Rule of The Florida Bar. Within these rules is Integration Rule 11.07(3), which governs this proceeding and states:

“(3) Suspension by judgment (other than by state court). If any such determination or judgment of guilt is entered by any court other than a court of the State of Florida, the convicted attorney shall stand suspended as a member of The Florida Bar on the 11th day following the filing with the Clerk of the Supreme Court of a certified copy of such determination or judgment, accompanied by proof of service of notice of such filing upon the convicted attorney; provided, however, that if the convicted attorney shall prior to the 11th day file a petition with the Supreme Court to modify or terminate the suspension, then the suspension will be deferred until entry of an order upon the petition.”

The respondent, Prior, contends the suspension rule should not be applied against him (1) because he has a meritorious appeal pending; (2) because of his substantial contributions to the profession and the absence of previous misconduct; and (3) because of the nature of the crime and its investigation.

Relevancy of a Pending Appeal

Respondent contends he should not be suspended pending his appeal, citing In re Ming and this Court’s decisions in The Florida Bar v. Cohen and The Florida Bar v. Smith He also cites The Florida Bar v. Ragano, which was two separate proceedings.

The real issue requires us to determine the relvancy of a pending appeal to any suspension proceeding. In analyzing the effect of an appeal on our Integration Rule 11.07(3), it is immediately apparent that paragraph (3) is not self-contained. It cannot be understood without reference to other provisions in Rule 11.07. Its opening reference is to “any such determination or judgment of guilt” (emphasis added). The adjective “such” necessarily refers elsewhere in the rule for meaning. Moreover, the corollary paragraph pertaining to state court convictions, and the paragraph authorizing discipline after appeal, can only be comprehended and operate fully if they are read with paragraph (3). An integrated reading of the entire Rule 11.07 demonstrates clearly that the status of a convicted attorney’s appeal is irrelevant to his suspension under that Rule.

Regarding the term “such,” the obvious reference is to Rule 11.07(1), the relevant portion of which provides:

“(1) Determination or judgment of guilt. Determination or judgment of guilt of a member of The Florida Bar by a court of competent jurisdiction upon trial or plea of any crime or offense that is a felony under the laws of this state, or under the laws under which any other court making such determination or entering such judgment exercises its jurisdiction, shall be conclusive proof of the guilt of the offense charged for the purposes of these rules.”

Unquestionably this sentence in Rule 11.-07(1) was designed both to trigger the Rule and to establish proof of guilt for the purpose of suspension when a determination or judgment of guilt is made “upon trial or plea.”

Regarding Rule 11.07(2) governing state court convictions, subparagraphs (b) and (c) expressly describe the later effects of an appeal on a suspension previously entered. In like manner, Rule 11.07(4) directs the continuance of any suspension under the Rule (whether resulting from a Florida, a federal or another court’s determination or judgment of guilt) upon its becoming “final without appeal or by affirmance on appeal.”

These related provisions, and the consistent use of the phrase “determination or judgment of guilt” throughout the Rules to mean a trial-level event, are uniform and uncontradicted. It cannot seriously be contended that our Rule is ambiguous or contemplates suspension only after a felony conviction is upheld by the last appellate court whose jurisdiction may be invoked.

Even beyond the technical clarity and internal consistency of Rule 11.07, the immateriality of appeal on the issue of suspension is commanded by logic. Paragraph (1) has made a trial-level determination of guilt “conclusive proof” of the underlying facts for the obvious purpose of preventing suspension proceedings in this Court from becoming factual retrials. There is neither an adequate record nor an inherent capability in this Court to pass upon the validity of the attorney’s conviction or the merits of his appeal. Attempts to assess the likelihood of reversal from the arguments of counsel invite a form of speculation with which this Court should have no part. A majority of other states interpreting rules or statutes similar to our rule have held that suspension may be ordered where a conviction is being appealed, even though (as our rule provides) it may be lifted if the appeal results in a reversal.

Respondent contends In re Ming, supra, absolutely requires the exhaustion of all direct appeals before conviction of a criminal offense may be used as a basis of suspension. We emphatically disagree. The Ming court, in reaching its decision, recognized there was authority to suspend a lawyer while his appeal was pending, saying: “We do not, however, tie the hands of the district court so that it can never suspend a person until his conviction reaches finality.”

Ming’s suspension was under a federal rule applicable solely to misdemeanor charges, which is neither comparable to nor as specific as the Florida rule. We do not even have a misdemeanor rule in Florida. It is clear from Ming that the federal court was only construing its own rule and was not establishing a federal constitutional guideline. The treatment of a felony conviction in the federal system more nearly parallels our own, as illustrated by the United States Supreme Court’s suspension of former Attorney General John Mitchell pending an appeal, upon being furnished proof that he had been convicted of a felony.

The standard for withholding suspension under our rules is identical for felony convictions emanating from both Florida and other courts. Although the procedure for initiating a suspension case necessarily differs, the standard in all cases has been that the convicted attorney must show “good cause.” This standard is expressly set out in subparagraph (a) of Rule 11.-07(2) for suspensions arising from Florida convictions, and there is nothing in Rule 11.07 to suggest a different standard for suspensions arising from federal convictions. The Court recently applied a “good cause” standard in a federal conviction case by quoting the Florida conviction provision.

Except in three out of 42 felony suspension cases brought to this Court since 1965, the Court has consistently held that an attorney who has been convicted of a felony should be suspended pending the appeal of that conviction. These three exceptions are The Florida Bar v. Cohen, The Florida Bar v. Ragano and The Florida Bar v. Smith. The circumstances in those cases are vastly different from the instant case.

In Cohen, the Court exercised its discretion to defer suspension until an appeal had been decided because the Bar had failed to request suspension until approximately one year after the appeal had been filed. Significantly, Cohen also agreed voluntarily to withdraw from the practice of law pending his appeal. When later faced with another convicted attorney seeking to rely on Cohen, the Court was obliged in The Florida Bar v. Levenson to note that Cohen was an extraordinary decision necessitated by the Bar’s dilatory action. In Levenson the Court returned to its previous pattern and ordered the suspension of an attorney convicted of federal felonies under technical provisions of the national banking laws, even though an allegedly meritorious appeal was pending and the federal trial court had found that the attorney did not deserve serious punishment. In so doing, the Court stated:

“We do not overlook the possibility of a reversal of a conviction. While circumstances will vary situations, generally a conviction of a felony should justify suspension until the blot is removed. Conviction of a federal felony automatically suspends a lawyer from practicing in the federal courts. In the ordinary case we are not inclined to impose a lesser standard of professional responsibility in our state system.” 211 So.2d at 174.

After Levenson, convicted attorneys continued to ask us to defer suspensions pending appeals. In every subsequent instance but Ragano and Smith we steadfastly adhered to the principle that a pending appeal was not an extraordinary circumstance which would provide good cause to allow a convicted felon to practice law.

In the 1972 Ragano case this Court applied a relaxed standard in large part because good character letters were written by “numerous judicial and other public officers” at the request of the convicted attorney. These laudatory letters were written before the promulgation of the new Code of Judicial Conduct, and no one then suggested that they were improper. As we will discuss later in this opinion, such letters are not proper. In any event, the 1972 Ragano case is simply not consistent with earlier decisions of this Court.

Similarly, Smith can only be reconciled with precedent on the basis of the convicted attorney’s agreement to suspend his practice voluntarily.

In reviewing these three past decisions, we believe it would be appropriate to recede from them insofar as they authorize this Court to consider the assertion of a meritorious appeal as a controlling factor in suspension cases.

Past Contributions to the Profession and Absence of Previous Misconduct

Respondent contends that his past contributions to the profession and the absence of previous misconduct on his part demonstrate that there is no risk to the legal profession or to his clientele for him to remain an active member of the Bar while his conviction is being appealed. We recognize that respondent has demonstrated substantial service to the Bar and has no prior disciplinary offenses. Respondent now stands convicted on five counts of making false and material declarations under oath before a' grand jury. This conduct is so antithetical to the oath, the standards, and the ideals of the legal profession that it is difficult to conceive of any mitigating circumstance which would justify the respondent’s continuing as a practicing member of the Bar. A lawyer is an officer of the Court, and it is our opinion that whenever a lawyer is convicted of a criminal offense directly involving the court system of which he is an officer, there must be an immediate suspension. As we stated in The Florida Bar v. Craig, the appearance of a convicted attorney continuing to practice does more to disrupt public confidence in the legal profession than any other disciplinary problem. Members of the Bar must maintain a high standard of conduct. If the law is to be respected, the public must be able to respect the individuals who administer it. By failing to swiftly discipline an attorney found guilty of a serious offense, we necessarily impair the public’s confidence in the law and in this Court’s willingness to enforce the law evenhandedly.

The immediate suspension procedure set forth in our rules is designed to remove from public counseling and from the court system as promptly as possible, but not irrevocably, individuals who stand convicted of a felony offense. All events in an attorney’s life prior to his conviction are, in effect, overwhelmed by a felony conviction. The purpose of the rule is to cleanse the profession of those who cannot themselves abide by the law. Preconviction prominence is not a balancing factor. We are not alone in this view, as is reflected by the recent decision of the Supreme Court of Washington in In re Krogh,

The Nature of the Crime and Its Investigation

Respondent contends that his criminal conduct is mitigated because it occurred during the course of an investigation into activities of another person, that the grand jury was not primarily concerned with the respondent’s conduct, and also because no one was injured. We emphatically disagree. When an officer of the court is convicted of knowingly making false statements to a grand jury investigating corrupt practices in the government of this state, every citizen and every institution of government is harmed. More broadly, the very act of lying to a judicial tribunal strikes at the heart of the legal process and leaves as victims all who strive for justice. This Court has never condoned such conduct. On the contrary, the Court previously said in Dodd v. The Florida Bar that an attorney who gives false testimony in a judicial proceeding “deserves the harshest penalty.” We are not alone in this view.

Character Letter Use in Disciplinary Proceedings

The procedural circumstances of this cause require us to consider the ethical and procedural use of character letters as evidence in disciplinary proceedings. In asserting his claim of good character, respondent filed with his brief character letters from twelve Palm Beach County officials consisting of six circuit judges, four county court judges, the state attorney, and the sheriff. Character letters are not proper evidence in any court proceeding. Further, this Court’s directive to file briefs is not a license to submit evidence.

Character letters from members of the judiciary present an additional problem because of the restrictions contained in new Judicial Canon 2(B). Recognizing that this was a new Canon and that it should be interpreted more clearly to define proper and improper conduct in the circumstances of character letters, the Judicial Qualifications Commission directed its general counsel to request an opinion on this very issue from the Committee on Standards of Judicial Conduct. The Committee determined that the signing and tendering of character letters by members of the judiciary in a case pending in this Court involving an attorney’s suspension from practice “violated the spirit and intent of Canon 2(B).” So that the judiciary and the Bar are fully aware of the Committee’s response, we have attached as an appendix to our opinion, without the formal parts, both the proposed question and the opinion response. We note that the judicial officers who submitted the character letters in this cause had no knowledge of this opinion since it was not sought or published until after the letters were submitted and filed in this cause.

The purpose of the restriction in Canon 2(B) is to ensure that the weight and prestige of judicial office will not be used to “advance the private interests of others.” Respondent solicited these character references in order to avoid professional discipline. The Canon states expressly that a judge “should not testify voluntarily as a character witness.” This does not mean that information and knowledge of judicial officers concerning a lawyer charged with a disciplinary violation cannot be submitted to the Court in a proper manner. When evidence of this nature is desired to be presented, it must be offered in a manner that complies with the Canon and affords Bar disciplinary counsel an opportunity to cross-examine and rebut that evidence. Character letters, irrespective of who submits them, are not proper evidence in any court proceeding and certainly should not be considered proper in a disciplinary proceeding.

It has been suggested that the letter opinion from the Florida Committee on Standards of Judicial Conduct may be in conflict with the 1973 informal opinion rendered by the American Bar Association Committee on Ethics and Professional Responsibility. We disagree. The American Bar Association opinion concerned a request from state disciplinary counsel for information from local judges regarding an attorney under investigation. Responding to this request does no violence to the purpose of Canon 2(B). In no way does that request inject the prestige of judicial office for the private interests of others.

Conclusion

We conclude that respondent has not shown good cause to avoid suspension. We would grant the motion of The Florida Bar to strike from the record the character letters filed in this cause and the copies of those letters appended to respondent’s brief. We would also deny the motion to supplement the record with evidence consisting of documents and testimony from the trial of Fred O. Dickinson, Jr. Finally, we would have suspended Frederick C. Prior from the practice of law in Florida summarily at a much earlier date, giving him the customary reasonable time (typically 30 days) to conclude matters then pending in his office.

APPENDIX A

“The question you present is whether or not the signing and tendering of these letters by the several judges in the case pending in the Supreme Court of Florida involving the attorney’s suspension from practice was in violation of Canon 2 of the

Code of Judicial Conduct governing judges in Florida.

“We quote excerpts from these letters:
“1. ‘ . . . I know - enjoyed a good reputation with the judiciary, practicing attorneys, and other members of the Bar.
“2. ‘ . . . It is my opinion that - has conducted himself with honesty and integrity. . I feel he will be deserving of any consideration that this honorable Court will see fit to afford him.’
“3. ‘ . . . I found him to be highly competent, honest, and frank with other persons and the Court.’
“4. ‘ . . . He has always been aboveboard in his dealings with the Court.’
“5. ‘ . . . He is an asset to the community and the Bar.’
“6. ‘ . . . appreciate your consideration of these remarks on -’s behalf. . . . ’
“7. ‘ . . . He is straightforward demonstrated professional skill and courage as well as sensitivity to the rules of Court and the rights of others. Thanking you for your consideration of my remarks.

“The Committee is of the opinion that the nature of these letters and the purpose they were intended to serve clearly indicates they were character reference letters and under the circumstances which they were signed and tendered to the Supreme Court, violated the spirit and intent of Canon 2(B) . . . i. e., ‘a Judge . should not testify voluntarily as a character witness. . . . ’

“This Canon is sufficiently broad to encompass written statements voluntarily submitted with the knowledge and understanding that such statements may be used directly or indirectly in some adjudicatory proceeding. A written statement bearing upon the character of an individual involved either in a civil, criminal, or administrative proceeding would result in injecting the prestige of the judge’s office into that proceeding to the same extent as if he voluntarily appeared at such proceedings and testified. Of course, he may be required to testify as a result of an official summons or a comparable obligatory process.

“The Committee would emphasize that while Canon 2(B) ‘prohibits voluntary character reference letters’ written by judges on behalf of persons involved in some types of proceeding, this prohibition should be limited to investigatory or adjudicatory proceedings either of an administrative, civil, or criminal nature where a person’s legal rights, duties, privileges or immunities are ultimately determined.

“The character reference letters submitted on behalf of persons seeking employment or being considered for membership in certain organizations should not necessarily be included within the provisions of Canon 2B, except as the specific case circumstances might reflect misuse or abuse of the prestige of the judicial office.

“As one member of the Committee pointed out, it is not uncommon for many recognized organizations to submit questionnaires on behalf of persons seeking membership in that organization, nor is it uncommon for federal agencies to ascertain the character of an individual being considered for federal appointment, or employment.

“We hope that the foregoing will be of some assistance to the judiciary of Florida.

“Respectfully yours,

/s/ Gunter Stephenson

GUNTER STEPHENSON, as Chairman COMMITTEE ON STANDARDS OF JUDICIAL CONDUCT”

Re: Informal Opinion 1275 July 6, 1973 Judge Answering Inquiry From State Disciplinary Counsel About the Character of a Lawyer

You ask, if a complaint is made against a lawyer by Disciplinary Counsel in ( ) and Disciplinary Counsel writes to a judge or judges in the county where the lawyer is located asking for information as to the experience of the judge with that particular lawyer and his opinion as to his ethical attitudes and practices, whether or not it would be improper for the judge to answer these questions. If he does answer them, should he confine the information he gives the Disciplinary Counsel to facts appearing of record in some litigation with which the judge is familiar ?

The Code does not prevent a judge from answering questions about a lawyer addressed to him by Disciplinary Counsel (Canon 2(B) of the Code of Judicial Conduct obviously does not apply), but, likewise, it does not require him to answer such questions. As you know, the rules of this Committee do not permit it to give opinions on questions of law, and the Committee finds it undesirable to get involved in questions of fact except those placed before it by the inquiry. Accordingly, we find nothing unethical in Disciplinary Counsel referring such inquiries to judges, but we do not think that judges have the obligation to answer the inquiries. We also find no restrictions on the answers the judges can give, as long as the answers are unbiased and truthful. Relations between lawyers and judges are not usually confidential unless some special facts exist which have not been called to the attention of the Committee.

BOYD, Justice (concurring in part and dissenting in part).

The present rule does not provide for the automatic suspension of all attorneys convicted of felonies. I have long sought to change the rule to require such suspensions to protect the public from possible detriment and maintain confidence in the profession. We must apply the existing rule to this case in view of all facts and circumstances known to the Court.

Petitioner had maintained a successful practice for many years with a reputation unmarred except for the convictions mentioned in the majority opinion. He has continued to practice since he was convicted on September 25, 1974, without other charges of misconduct known to this Court.

We have held that suspension and disbarment are not used as punishment but as protection of the public and to maintain high standards in the profession. State ex rel. Florida Bar v. Rubin, 142 So.2d 65 (Fla.1962). The Florida Bar v. Winn, 208 So.2d 809 (Fla.1968).

I disagree with the dissenting opinion’s contention that convicted attorneys are not subject to the rule requiring suspension until their appeals have been unsuccessfully concluded and I disagree with the majority view criticizing judges who, in good faith, under what I consider American Bar standards, wrote character letters to this Court concerning Petitioner’s fitness to practice law. At that time there was no construction of rules of judicial conduct in Florida prohibiting same. If the Court considers such letters improper, it is my view that it would be more appropriate to simply strike same from the record without the comment contained in the special concurring majority opinion.

I agree with the majority opinion that persons convicted of felonies in state or federal courts should be suspended from the practice of law until such time as their convictions may be reversed.

The records of this Court reveal that after being convicted of felonies forty-five attorneys have petitioned this Court to delay their suspensions from the practice of law while their criminal convictions were being appealed. Two of them voluntarily withdrew from the practice of law while their convictions were under appeal. One was permitted to practice law pending his criminal appeal under conditions which the Court considered to be extremely unusual, and the other forty-two attorneys were suspended shortly after their criminal convictions, subject to being reinstated upon reversal of such criminal convictions. Equal protection of the law requires that Petitioner be accorded the same treatment as other attorneys under similar conditions.

Accordingly, I concur in the order suspending Petitioner, but for the benefit of his clients and in order that he may orderly conclude an unusually busy law practice, I would make the suspension effective at the end of sixty (60) days from the date of this order.

ROBERTS, Justice (dissenting).

Petitioner, Frederick C. Prior, a member of The Florida Bar with an outstanding record for citizenship and service to the Bar, responding to a subpoena, testified before a federal grand jury in Tampa, Florida, which was investigating the State Comptroller. As a result of his testimony, he was indicted and convicted of violation of Title 18, Section 1623, of the United States Code which makes it a “federal” felony knowingly to make any false material declaration in sworn testimony before a grand jury, and in the fall of 1974, was found guilty of five of the counts. His conviction was promptly appealed to the Fifth Circuit, Court of Appeals of the United States, while appeal is now pending. As a result of the action of the trial court, The Florida Bar shortly after his conviction filed a copy of the trial court judgment with this Court seeking his suspension under Florida Integration Rule 11.07, Subsection (3). Prior timely filed a petition as provided in the rule to stay the suspension pending the consideration of his appeal.

Section 15, Article V, Constitution of Florida, provides:

“Attorneys; admission and discipline. —The supreme court shall have exclusive jurisdiction to regulate the admission of persons to the practice of law and the discipline of persons admitted.” (Emphasis supplied)

I construe the word “exclusive” provided in the Constitution, supra, to mean that this Court has the exclusive, sole and only jurisdiction in the matter. Rules, Bar Proceedings, depositions, letters, testimony and otherwise are merely aids to this Court in the exercise of it exclusive discretion under the Constitution. The question, sub ju-dice, is whether or not Prior should be accorded the consideration given to a common criminal, the latter having the right to a supersedeas and stay of a trial court action pending an appeal. The Integration Rule of The Florida Bar involved in this proceeding provides:

“Article 11, Rule 11.07, Integration Rule, Subsection (3). Suspension by judgment (other than by state court). If any such determination or judgment of guilt is entered by any court other than a court of the State of Florida, the convicted attorney shall stand suspended as a member of The Florida Bar on the 11th day following the filing with the Clerk of the Supreme Court of a certified copy of such determination or judgment, accompanied by proof of service of notice of such filing upon the convicted attorney; provided, however, that if the convicted attorney shall prior to the 11th day file a petition with the Supreme Court to modify or terminate the suspension, then the suspension will be deferred until entry of an order upon the petition.” (Emphasis supplied)

Obviously, it was the intention of the Court in approving the rule to reserve jurisdiction, as it should, for the ultimate exercise of discretion here. This view was recognized by this Court in The Florida Bar v. Smith, 301 So.2d 768 (Fla.1974), in its unanimous decision authored by the distinguished former Justice of this Court and former Attorney General, Richard W. Er-vin, in which the Court said:

“This Court does not consider that it is discretionless in the premises or that it must pro forma disapprove of every petition of a convicted attorney to defer suspension of him pending appeal. The rule as written does not dictate such an inexorable or Draconian result or remove from this Court what has traditionally been the province of the courts in punishment or disciplinary proceedings to take into account mitigating circumstances in particular cases. There is abroad in the nation today a great deal of thinking that harsh and indurate punishments are self-defeating in many cases and that a large number of the convicted can be trusted even after conviction not to be a present danger to the public if they are extended rehabilitative assistance and humane treatment and are not pushed to the point of no return for re-entry upon a sober law abiding productive life.
“It is our view that Respondent Smith and his counsel have in this matter demonstrated sufficient good cause to justify our modification of the suspension of Respondent pending his appeal to the United States Court of Appeals for the Fifth Circuit.”

Furthermore, this Court in the case of Duggar v. State, 43 So.2d 860 (Fla.1949), many years ago held that conviction of a felony in a federal court is not synonymous with conviction of a felony in the state court.

Prior buttressed his petition by filing letters of recommendation that he not be barred from the practice of law pending his appeal from every Circuit Judge in his resident Circuit before whom he practiced, the County Judge, the State Attorney, and the Sheriff. Excerpts from the letters which urge that Prior not be suspended pending his appeal of the federal conviction provide interesting and valuable assistance in the exercise of our discretion here.

Honorable James R. Knott, the distinguished veteran Circuit Judge in Palm Beach (Fifteenth Circuit), where Prior resides said:

“I have known Mr. Prior since his graduation from law school and have observed him closely as a lawyer and as a fellow citizen. He has maintained an excellent reputation in the community, as a citizen and as an attorney, and has been particularly well known throughout this area for his leadership in civic activities and charitable endeavors. His reputation for ability and integrity have never been questioned here, in his home town, where he is best known.”

Honorable Culver Smith, Circuit Judge, Fifteenth Judicial Circuit, said:

“Mr. Prior, in his practice, has conducted himself in accordance with the best traditions of the Bar. His conduct in court has always been above reproach and I have never heard of any question concerning his representation of his clients ably and ethically.”

Honorable Hugh MacMillan, Circuit Judge, Fifteenth Judicial Circuit, said:

“I have known Mr. Prior and his family as good friends since his admission to The Florida Bar in 1951. He has been outstanding in his family life, and civic activities, and has always enjoyed a high professional reputation with the bench and bar of this Circuit.”

Honorable Paul Douglas, Circuit Judge, Fifteenth Judicial Circuit, said:

“Not only has he been a leader in civic and charitable activities, but he has made an even larger contribution of time and effort toward improving the legal profession. . . . He is respected by the Bench and Bar in this community as well as by his many friends and clients. He is totally reliable and trustworthy and I believe it is highly unlikely that any harm would be done to allow him to continue as a member of the Bar pending his appeal.”

Honorable Emery Newell, Circuit Judge, Fifteenth Judicial Circuit, who has known Mr. Prior for 25 years, said:

“I do know he is a skilled attorney and has always conducted himself in a proper and ethical manner before the bench.
“. . . My point is this — if one individual is enabled to prove his integrity and responsibility after many convictions in a relatively short period of rehabilitation [referring to a young man who was convicted of numerous felonies admission to a law school], then another individual whose worth and value to the community has been demonstrated for more than two decades should be allowed to continue in his profession until the judicial process has run its full course and guilt or innocence finally determined.”

Honorable Thomas Sholts, Circuit Judge, Fifteenth Judicial Circuit, who has known Mr. Prior for 15 years, said:

“To my knowledge, he has never been convicted or tried for any criminal offense (other than the present conviction) or become the subject of any grievance committee investigation or any other proceeding questioned his ethical conduct as an attorney. On the contrary, he has been active in charitable organizations and bar functions.”

Honorable W. C. Williams, III, County Court Judge of Palm Beach County, who has known Mr. Prior for more than thirty-five years, said:

“Mr. Prior’s reputation for honesty and integrity in public service is widely known, not only in Palm Beach County, but throughout the state of Florida.
“Certainly there could be no reason whatsoever why he should not be allowed to continue in his practice, pending his appeal.”

Honorable Howard Harrison, Jr., County Court Judge, Palm Beach County, said:

“We have been acquainted with Mr. Prior for some time and have observed him to be a capable attorney who enjoyed unimpeccable reputation within this Court and the community.”

Honorable David H. Bludworth, State Attorney, Fifteenth Judicial Circuit, said:

“In my capacity of State Attorney in Palm Beach County, Florida, and former State Attorney, I have had the occasion to know Mr. Ted Prior both socially and professionally. It has always been my experience in dealing with Mr. Prior that he is a person who has laid his cards on the table and whose word was totally reliable. I know his legal ability is excellent and that his clients are ably represented when he is their attorney. It appears to me that his continuing to represent these clients pending the outcome of his appeal would not prejudice either the clients or the other members of the Florida Bar Association.”

Honorable William R. Heidtman, Sheriff of Palm Beach County, said:

“During these years, I have known of Mr. Prior as being a very capable attorney who, to the best of my knowledge, always conducted himself in a professional manner.
“. . .To the best of my recollection, I have never known of him to request or suggest anything improper on behalf of himself or his clients.”

But The Florida Bar contends that we should blind ourselves to the tributes paid Prior by the Judges before whom he practices and strike the testimonials in deference to an opinion by the Florida Circuit Judge Disciplinary Committee which has no responsibility or authority to bind this Court. For many decades, Florida has followed the American Bar Association in prescribing rules pertaining to judicial conduct and the construction thereof, and we are, therefore, more impressed by an opinion of the Advisory Committee of the American Bar Association of July 6, 1973, which said:

“You ask, if a complaint is made against a lawyer by Disciplinary Counsel in ( ) and Disciplinary Counsel writes to a judge or judges in the county where .the lawyer is located asking for information as to the experience of the judge with that particular lawyer and his opinion as to his ethical attitudes and practices, whether or not it would be improper for the judge to answer these questions. If he does answer them, should he confine the information he gives the Disciplinary Counsel to facts appearing of record in some litigation with which the judge is familiar?

“The Code does not prevent a judge from answering questions about a lawyer addressed to him by Disciplinary Counsel (Canon 2(B) of the Code of Judicial Conduct obviously does not apply), but, likewise, it does not require him to answer such questions. As you know, the rules of this Committee do not permit it to give opinions on questions of law, and the Committee finds it undesirable to get involved in questions of fact except those placed before it by the inquiry. Accordingly, we find nothing unethical in Disciplinary Counsel referring such inquiries to judges, but we do not think that judges have the obligation to answer the inquiries. We also find no restrictions on the answers the judges can give, as long as the answers are unbiased and truthful. Relations between lawyers and judges are not usually confidential unless some special facts exist which have not been called to the attention of the Committee.”

From our personal standpoint, since we have the “exclusive” responsibility for the exercise of discretion in this matter, I take my stand to lean on the expressions of confidence and certificates of good character by the judges before whom he practices and other law enforcement officers in his area who know him best rather than the finding of a jury in a strange area more than 200 miles from his residence and which case was tried during a hostile flow of media propaganda. My view in this matter is supported by the logic and reasoning opined and judgment in In re Ming, 469 F.2d 1352 (7th Cir., 1972), in which the United States Court of Appeals, Seventh Circuit, in a comparable situation said:

“Irrespective of whether Ming’s conduct on which he was convicted would suffice as a basis for suspension, his professional interregnum was for the conviction not the constituent conduct thereof. Although we have not been shown any case directly on point, interpretation of the word ‘convicted’ was before this court in an analogous casé involving a conviction for possession of marijuana and whether it would serve as a statutory basis for deportation under 8 U.S.C. § 1251(a)(ll). We there stated, the Section contemplates a convictioin which has attained a substantial degree of finality. . . . We therefore hold that as long as a direct appeal is pending, it is sufficient to negate finality of conviction. . . .’ Will v. Immigration and Naturalization Service, 447 F.2d 529, 531 & 533 (7th Cir., 1971).
“We are not unmindful of policy factors which underlie the case of a lawyer convicted of a crime. The public may generally and justifiably entertain doubt as to whether an attorney, supposedly devoted to upholding the law, should himself participate as a practitioner in the profession while in the position of having been recently found guilty of conduct in derogation of the law. .In Will, the convicted defendant was an alien. It has been said the ‘lawyers also enjoy first-class citizenship,’ Spevack v. Klein, 385 U.S. 511, 516, 87 S.Ct. 625, 629, 17 L.Ed.2d 574 (1967). In looking at the panoply of individual rights, we do not find a basis for awarding a citizen lawyer a lesser position than the alien.
“. . .if the conviction itself is to be used to show that the appellant actually committed the underlying acts which are of such a nature as to form the basis for disbarment or suspension that that conviction must have reached finality, at least to the extent of exhaustion of direct appeals. Since appellant has the possibility of filing for a writ of certiorari in the United States Supreme Court, we do not think that the affirmance of his criminal conviction by this court moots this point.” (Emphasis supplied)

Under the American system of jurisprudence, the lowest criminal that roams the earth is entitled to the presumption of innocence until that presumption has been removed by a final judgment of guilt and our great constitutional system guarantees to every person at least one appellate review before his conviction is final. To me it is illogical and unthinkable to extend this presumption to a common criminal of the worst type but withhold it from a citizen of exemplary conduct save the one matter involved in -this proceeding. The Florida Bar in court appearances often take the lofty position that they are only trying to protect the public against unscrupulous lawyers. I ask now what unscrupulous misconduct would adversely affect the welfare of the people in the resident area of the petitioner, particularly when every Circuit Judge and other officials have vouched for his prestige, reliability, good character, and standing.

I cannot accept the weak explanation of the Bar that they are not trying at this time to disbar Prior but only to suspend his pendente lite. From a practical standpoint, the result is the same. He must close his office in either event.

This Court has long been committed to the proposition that a license is a property right and may have a definite fixed value. Likewise, an established clientele, built over a long period of years, is a valued asset. It is doubtful whether this established clientele built over a long period of time could ever be rebuilt, even if the criminal conviction should be overturned. In the posture in which we now view this case and the defendant not having yet exhausted the appellate review to which he is constitutionally entitled, it would, in my opinion, violate the whole concept of American jurisprudence to take his license and destroy his clientele prior to the running of the appellate process, and in my opinion to do so would be to deprive him of a property right without due process of law in violation of the Fourteenth Amendment to the Constitution of the United States. It is fundamental that a determination by a trial court does not amount to a conviction until the time for the appeal has expired or the appellate process has run its course. For that reason and the other reasons herein-above set forth, I exercise our exclusive discretion vested in us under Section 15, Article V, Constitution of Florida, and Article 11, Rule 11.07, Integration Rule, Subsection (3), of The Florida Bar Rules, to withhold the suspension until the appellate process has run its course. If his conviction should ultimately be affirmed, perhaps disbarment would be in order, but until we reach that stage in the proceedings, the property right of Frederick Prior to use his license to practice law and to service the clientele which he has established must remain inviolate, so, the Motion to Strike the Testimonials should be denied and the Petition to Stay Pendente Lite should be granted.

For the foregoing reasons, I respectfully

Dissent.

ADKINS, J., concurs.

      . United States v. Prior, Case No. 74-117-Cr. T-H (MJD.Fla.1974).

      . See Fla.Const., art. V, § 15 (formerly Fla.Const., art. V, § 23 (1885)) ;

        The Florida Bar v. Massfeller, 170 So.2d 834 (Fla.1964).

      . In re The Florida Bar, 225 So.2d 881 (Fla.1969). The Rule is reproduced in 32 F.S.A., beginning at 86 (1975-76 Pocket Part). Later amendments to Article XI have not changed paragraph (3), which governs this proceeding. Before 1969, a similar set of disciplinary rules were in effect. See 32 F.S.A., beginning at 511 (1967).

      . Rule 11.07 (3) appears in 32 F.S.A. at 105 (1975-76 Pocket Part). Its comparable pre-1969 predecessor, Rule 11.08(3), appears at 32 F.S.A. 544 (1967).

      . 469 F.2d 1352 (7th Cir. 1972).

      . 191 So.2d 49 (Fla.1966).

      . 301 So.2d 768 (Fla.1974).

      . The first suspension proceeding concerned Ragano’s initial conviction in 1972. 270 So.2d 3 (Ma.1972). The second concerned a suspension proceeding for a 1974 felony conviction. Case No. 45,680 (Fla., filed November 27, 1974), vacated and superseded (Fla., filed November 4, 1975). Accordingly, the Court’s 1974 opinion now is not precedent.

      .The adjective “such” is also used in paragraph (2) to describe the class of Florida judgments which trigger suspensions.

      . It is important to note that the record before this Court contains no facts relative to Prior’s trial or supportive of his suggestion that a “Watergate atmosphere” surrounded his trial. His brief contains a narrative of unverified circumstances which, it is alleged, produced his convictions. These are not matters of which we can properly take cognizance. Respondent Prior apparently recognizes that we cannot go outside the record when he states: “No attempt is made here to retry that matter before this Court.” Respondent’s Br. 8.

      . The danger of guessing the outcome of an appeal in another tribunal was illustrated when the Court was required to vacate, after an affirmance of the convictions, an opinion which had taken cognizance of the circumstances surrounding the trial, the nature of the crime, and the prospects of reversal on appeal. The Florida Bar v. Ragano, supra note 8. Even more recently a conviction was affirmed on November 17, 1975, by the Fifth Circuit Court of Appeals in the case which generated The Florida Bar v. Smith, supra note 7. In that case this Court had reviewed trial testimony submitted in support of Smith’s plea to defer suspension and concluded “that his counsel’s representation that good cause may exist for a reversal should not be rejected by us out of hand.” 301 So. 2d at 772.

      . See, e. g., Ex Parte Alabama State Bar, 285 Ala. 191, 230 So.2d 519 (1970) ; Williford v. State, 56 Ga.App. 840, 194 S.E. 384 (1937) ; In re Minner, 133 Kan. 789, 3 P.2d 473 (1931) ; In re Lindheim, 195 App. Div. 827, 187 N.Y.S. 211 (1921) ; In re Kirby, 10 S.D. 322, 73 N.W. 92 (1897).

      . “Federal Rule 8. Discipline of Attorneys ; Reinstatement.
      “ . . . After notice and opportunity to respond, the judges of the Executive Committee may order the disbarment or suspension of any attorney who (1) has resigned from the bar of another court, or (2) has been convicted of a misdemeanor . . . .” [Emphasis supplied] Our rule is set out in 32 F.S.A. at 86 (1975-76 Pocket Part).

      . In re Disbarment of Mitchell, 420 U.S. 1001, 95 S.Ct. 1442, 43 L.Ed.2d 759 (filed March 31, 1975). See also Barnes v. Lyons, 187 F. 881, 885-86 (9th Cir. 1911) ; In re Kirby, 84 F. 606 (D.S.D.1898).

      . The 1969 change from Rule 11.08(3) to Rule 11.07(3) was described to the Court in the Bar’s brief in support of the change in the following way: “This rule provides for automatic interim suspension upon conviction of a felony by a court other than a court of the State of Florida. It places convictions by such courts on the same basis as convictions by courts of the State of Florida. Under present Rule 11.08(3) suspension in the former case is not automatic but must be requested by The Florida Bar.” Appendix to Brief for Petitioner at 23, In re The Florida Bar, 225 So.2d 881 (Fla. 1969).

      . Automatic filing of Florida trial court judgments is required by Rule 11.07(1).

      . The Florida Bar v. Smith, supra note 7 at 772.

      . Since 1965 the Court has considered 42 suspension cases. Eleven of these involved federal convictions during the pendency of an appeal. See The Florida Bar v. Clark, 323 So.2d 579 (Fla., filed November 19, 1975) ; The Florida Bar v. Rothstein, Case No. 48,074 (Fla., filed November 7, 1975) ; The Florida Bar v. Ragano, supra note 8; The Florida Bar v. Smith, supra note 7; The Florida Bar v. Ferrer-Roo, Case No. 44,354 (Fla., filed March 7, 1972) ; The Florida Bar v. Matthews, Case. No. 42,-018 (Fla., filed March 7, 1972) ; The Florida Bar v. Kastenbaum, 241 So.2d 688 (Fla.1970) ; The Florida Bar v. Jenkins, 254 So.2d 785 (Fla.1971) ; The Florida Bar v. Von Zamft, 212 So.2d 303 (Fla.1968) ; The Florida Bar v. Levenson, 211 So.2d 173 (Fla.1968) ; The Florida Bar v. Cohen, 191 So.2d 49 (Fla.1966). Four involved Florida convictions in which a pending appeal was asserted in mitigation. See The Florida Bar v. Barket, Case No. 48,125 (Fla., filed November 7, 1975) ; The Florida Bar v. Spiegel, Case No. 48,168 (Fla., filed December 1, 1975) ; The Florida Bar v. Craig, 238 So.2d 78 (Fla.1970) ; The Florida Bar v. C. Smith, Case No. 38,703 (Fla., filed June 10, 1969). Suspension was ordered in 39 out of the 42 cases.

      . 191 So.2d 49 (Fla.1966).

      . 270 So.2d 3 (Fla.1972).

      . 301 So.2d 768 (Fla.1974).

      . 211 So.2d 173 (Fla.1968).

      . 238 So.2d 78, 80 (Fla.1970).

      . 85 Wash.2d 462, 536 P.2d 578 (filed June 6, 1975). On June 6, 1975, the Supreme Court of Washington disbarred Egil Krogh, an attorney whose felony conviction arose out of his behavior while acting as counsel to the President of the United States. The court there went to great lengths in weighing Krogh’s felony conviction against the good character testimony that had been generated on Krogh’s behalf. It concludes (at page 586) : “The record supports the panel’s findings to the extent that those who testified in his behalf asserted that his reputation is very good indeed. However, we cannot lose sight of the fact that the vast majority of the people do not have the advantage of this intimate knowledege of the respondent and his character. They know only his crime and the role that he played We cannot rightly assume that with them, his reputation is ‘beyond reproach.’ We are not prepared to agree with the panel that the respondent’s reputation was established beyond cavil by the testimony of the witnesses who appeared in his behalf.”

      . 118 So.2d 17 (Fla.1960).

      . The precise statutory offense for which respondent has been convicted has been described as perjurious by the United States Supreme Court, United States v. Kahan, 415 U.S. 289, 240, 94 S.Ct. 1179, 39 L.Ed.2d 297 (1974) (per curiam), and the giving of false testimony has been held actionable for the purpose of disciplining attorneys in Alabama, In re Sullivan, 288 Ala. 514, 219 So.2d 346 (1969) ; New York, In re Abrams, 38 A.D.2d 334, 329 N.Y.S.2d 364 (1972) ; Oklahoma, State ex rel. Oklahoma Bar Assn. v. Pate, 441 P.2d 393 (Okl.1967) ; and Utah, In re King, 7 Utah 2d 258, 322 P.2d 1095 (1958) (subornation of perjury actionable).

      . The commentary for Canon 2, which was adopted as a part of the new Code of Judicial Conduct effective September 30, 1973, distinguishes between the prohibited testimony of a judge as a character witness in a proceeding, as here, and the required testimony of a judge in furtherance of the administration of justice. In re The Florida Bar — Code of Judicial Conduct, 281 So.2d 21, 24 (Fla. 1973). In contrast to this relatively new standard, Section 13 of Florida’s prior Code of Ethics Governing Judges only required that a judge “should not suffer his conduct to justify the impression that any person can . . . unduly enjoy his favor, or that he is affected by the . . . position of influence of any . . . other person.” 32 F.S.A. 594 (1960).

      . The Committee on Standards of Judicial Conduct was created by resolutions of the Conference of Judges of District Courts of Appeal and the Conference of Circuit Judges of Florida. The responsibility of the committee was to receive for the executive authority of The Florida Bar, the Judicial Qualifications Commission, and active members of the Florida judiciary, hypothetical questions involving the obligations, duties, and responsibilities of judges under the official standards governing the conduct of judges. The committee has been rendering opinions since 1973, which are reported in the Florida Bar Journal.

      . Informal Opinion 1275 dated July 6, 1973, of the American Bar Association Committee on Ethics and Professional Responsibility is attached as Appendix B.


source: Caselaw Access Project

author: HATCHETT, Justice. SUNDBERG, Justice BOYD, Justice ROBERTS, Justice ADKINS, Justice

license: Public Domain

text:
    THE FLORIDA BAR, Complainant, v. David Lucius McCAIN, Respondent.
    No. 48385.
    Supreme Court of Florida.
    March 24, 1976.
    Rehearing Denied May 18,1976.

      Bernard H. Dempsey, Jr., Bar Counsel, Orlando, Richard C. McFarlain, Asst. Director — Legal and Wilson ].■ Foster, Jr., Asst. Staff Counsel, Tallahassee, for The Florida Bar, complainant.
    R. J. Beckham of Beckham & McAliley, Miami, for respondent.
   HATCHETT, Justice.

We have for decision a “motion to dismiss and/or motion to quash” a report of probable cause dated October 31, 1975. In the challenged report, the Board of Governors of The Florida Bar found “probable cause justifying further disciplinary proceedings against the respondent [movant here]” in connection with seven separate allegations of misconduct occurring “while [McCain was] a member of The Florida Bar and serving as a judicial officer of the State of Florida.” By the present motion, McCain asks this Court to halt all proceedings brought against him under the Integration Rule. We deny the motion, and direct that appropriate disciplinary proceedings go forward.

Ordinarily this Court does not entertain interlocutory questions arising in the course of proceedings under the Integration Rule for the discipline of attorneys. In re: The Florida, Bar, 329 So.2d 301 (Fla., 1974). Today, however, we decide on its merits McCain’s original motion, which is in the nature of an appeal from the decision of the Board of Governors to go forward; the Board’s decision, reflected in its report of probable cause, is an apparent rejection of the various jurisdictional arguments made to it, and it is with the basic question of jurisdiction that we are concerned. The present proceedings bear some resemblance, therefore, to proceedings on suggestion for writ of prohibition. Cf. In re Proposed Disciplinary Action By The Florida Bar Against a Circuit Judge, 103 So.2d 632 (Fla.1958) (on application for cease and desist order); In re Investigation of Circuit Judge, 93 So.2d 601 (Fla.1957) (on .motion to quash subpoena).

In support of the motion, it is argued that there is no “jurisdiction of The Bar” to discipline an attorney for misconduct occurring while he was a judicial officer. This contention reflects a misconception of the nature of proceedings under Article 11 of the Integration Rule of The Florida Bar. “In disciplinary matters the Board of Governors of the Integrated Bar serves merely as an adjunct or administrative agency of this Court with authority to make [findings of fact subject to our review and] recommendations [which are in no way binding on us].” In re Investigation of Circuit Judge, supra at 608. The responsibility for disbarring, suspending or otherwise disciplining lawyers who are admitted to practice in Florida rests with this Court alone. Fla.Const. art. V, § 15 (1973) (“The supreme court shall have exclusive jurisdiction to regulate the admission of persons to the practice of law and the discipline of persons admitted.”) Admission to the Florida Bar means admission to the bar of this Court.

We are ill-equipped to function as a fact finding tribunal, however, when questions arise as to a lawyer’s fitness to continue to practice law. In grievance cases, we have by rule delegated to the organized bar the task of preliminary screening and, where necessary, of ferreting out all pertinent facts. Integration Rule of The Florida Bar, art. 11. When The Florida Bar operates in this capacity, it acts not as an independent agent but as an “arm of the Court”.

While we are dealing directly here with a power of the Board of Governors of the Florida Bar to conduct such disciplinary proceedings, we are actually talking about our own authority, because such officials of the Florida Bar in conducting disciplinary proceedings are mere arms of this Court and can have no greater jurisdiction or authority than this Court possesses.

In re Proposed Disciplinary Action etc., supra 103 So.2d at 634.

The assertion that a lawyer’s conduct during judicial service cannot be considered in proceedings like those begun in the present case is a challenge to this Court’s jurisdiction and is tantamount to a claim that a lawyer is immune from discipline for the most egregious ethical improprieties, so long as his misconduct disgraced not only the bar but the bench as well. We reject any such proposition.

Other courts have concluded almost unanimously that a judge who is no longer sitting may be disqualified from practicing law on account of misconduct exhibited as a judge. In a case involving misconduct by a Georgia superior court judge, Chief Justice Duckworth wrote:

The relation of courts and attorneys to the people is one of high responsibility, involving complete trust and confidence and absolute fidelity to integrity. We know of no sound reason why the courts must allow lawyers, solely because of their position or business, including judges of the courts, to retain their licenses despite their conduct which would disbar other lawyers. We therefore hold that, irrespective of whether one is engaged in the practice of law, or activities disconnected with the practice, including judge of the superior court, his license will be canceled for conduct that would constitute grounds for disbarment of any attorney.
Gordon v. Clinkscales, 215 Ga. 843, 114 S. E.2d 15, 19 (1960).

An early Wisconsin case to the same effect is often cited for this language:

In response to the contention that the misconduct complained of was misconduct in his character as a judge, and bore no relation to his duties and responsibilities as a member of the bar, we have only this to say: One’s morality or lack of morality is revealed by general conduct. One may lack morality in a great many ways. Where this lack of morality has no relation to, and does not affect, his duties and responsibilities as an attorney at law, the delinquencies are generally overlooked by the courts. But where there is lacking honest, probity, integrity, and fidelity to trusts reposed in him, it matters not whether the lack of such virtues is revealed in transactions with clients, in the conduct of lawsuits, or any other business dealings or relations. These qualities are highly essential on the part of those who are to exercise the privileges and responsibilities of members of the bar. When the lack of them become apparent, no matter what the character of the deal or transaction that may furnish the evidence, it becomes the duty of the court to purge its roster of an unreliable member. So if the respondent, by or through his acts as judge of the superior court, betrays a lack of the moral qualifications demanded of attorneys at the bar, it becomes the duty of this court to strike his name from the roll of its attorneys.
In re Stolen, 193 Wis. 602, 214 N.W. 379, 383 (1927)

We are in complete agreement with this view. In Jenkins v. Oregon State Bar, 241 Or. 283, 405 P.2d 525 (1965), which was followed only last year in In re Piper, 534 P.2d 159 (Or.1975) and In re Sisemore, 534 P.2d 167 (Or.1975), the Court said simply:

As far as his duty to his profession is concerned, a judge is a lawyer whose labors are performed behind the bench instead of before it. 405 P.2d at 528.

And, like the Supreme Court of Oregon, we have been

. . unable to discover a valid reason for holding that while a judge can be stricken from the roll of attorneys for criminal behavior he should be immune from disciplinary action in cases involving reprehensible conduct that falls short of crime.
Jenkins v. Oregon State Bar, supra, at 527.

We reject the contention that a lawyer’s status as former judge or justice immunizes him from discipline for ethical violations occurring during judicial tenure. We adopt for Florida the general rule that “misconduct in . . .a judgeship, reflects upo'n an attorney’s fitness to practice law and is consequently a proper ground for discipline.” Annot., 57 A.L.R.3d 1150, 1158 (1974).

For the proposition that a lawyer cannot be disciplined for his misconduct as a judge, McCain relies on four cases: In re Proposed Disciplinary Action, etc., supra; In re Investigation of Circuit Judge, supra; In re Jones, 202 La. 729, 12 So.2d 795 (1943); and In re Meraux, 202 La. 736, 12 So.2d 798 (1943). The two Louisiana cases are no longer followed even in Louisiana. Louisiana State Bar Ass’n v. Funderburk, 284 So.2d 564 (La.1973). The Florida cases involved judges who were sitting at the time disciplinary proceedings against them began.

This Court, in In re Investigation of Circuit Judge, supra, 93 So.2d at 604, took as its major premise the proposition that:

where the constitution creates an office, fixes its term and provides upon what conditions the incumbent may be removed before the expiration of his term, it is beyond the power of the legislature or any other authority to remove or suspend such officer in any manner than that provided by the constitution. Falloon v. Clark, 61 Kan. 121, 58 P. 990; Lowe v. Com., 3 Metc., Ky., 237; Throop, Pub.Off., Section 341; State ex rel. Holmes v. Wilts, 11 La.Ann. 439; State ex rel. Robinson v. McNeely, 24 La.Ann. 19; Brown v. Grover, 6 Bush., Ky., 1; Page v. Hardin, 8 B.Mon., Ky., 648; Mechem, Pub.Off., Section 457.

Justice Drew succinctly stated the minor premise the following year in In re Proposed Disciplinary Action, etc., supra, 103 So.2d at 633, when he wroté:

Disbarment would not, of course, operate directly to remove petitioner from office, but all parties concede that disqualification proceedings would logically follow therefrom. This is, in fact, the only practical purpose which would be served by disciplinary action against such a judicial officer, since under the law of this State he is, during his incumbency, clothed with no other right by virtue of his membership in the Bar.

Completing the syllogism, the Court concluded that application of the Integration Rule to a sitting judge was impermissible as “accomplishing] indirectly what cannot be done directly.” Id.

Obiter dicta in the very cases McCain cites make unmistakably clear the importance of the distinction between a judi-r cial officer who is sitting and one who like McCain has left the bench. Since he has already resigned, there exists no danger that disciplinary proceedings can eventually effect his unconstitutional removal from office. A sitting judge “is still an attorney at law and may be subject to discipline by The Bar but not until he is found guilty in an impeachment proceeding or until his tenure as judge ends.” In re Investigation of Circuit Judge, supra, 93 So.2d at 606. A judge or justice whose tenure as a judicial officer has concluded “would automatically resume his status as attorney at law subject to be disciplined under the Integration Rule provided he has committed acts of unprofessional conduct of such nature as to subject him to- discipline by The Bar.” Id. at 608. The analogy to prosecution for crime is a close one. “If trial and punishment for infractions of state law may follow impeachment it would seem that discipline for infractions of the Integration Rule would be permitted and should take the same course.” Id. at 607.

The present case closely resembles State ex rel. Oklahoma Bar Ass’n v. James, 463 P.2d 972 (Okl.1969) where, citing its earlier opinion in State ex rel. Oklahoma Bar Ass’n v. Tallent, 299 P.2d 162 (Okl.1956), the Court said:

The Respondent points out that the alleged acts of misconduct on the part of the Respondent occurred while the latter was serving as a judicial officer and therefore the Bar Association “has no jurisdiction of the subject matter — exclusive jurisdiction being in the Court on the Judiciary.” We do not deem it necessary to decide the question. Suffice it to say that before the institution of these proceedings Respondent resigned his judgeship. 463 P.2d at 976 (emphasis supplied).

An explicit statement of the rationale for disciplinary proceedings against a former judge who is licensed to practice law may be found in In re Mattera, 34 N.J. 259, 168

A.2d 38 (1961), where Chief Justice Wein-traub writes:

A single act of misconduct may offend' the public interest in a number of areas and call for an appropriate remedy as to each hurt. Thus it may require removal from public office. It may also require criminal prosecution. Still further it may require that the roster of attorneys be cleansed of a miscreant. The remedies are not cumulative to vindicate a single interest; rather each is designed to deal with a separate need. We can think of no reason why a prescription in the Constitution of a remedy for one purpose should be found to bespeak an intention to deny government the power to protect the public in its other interests or to immunize the offender from the further consequences his act would otherwise entail. At 42.

The present disciplinary proceedings should go forward, and we so hold.

By his motion in this Court, McCain seeks to raise two additional questions. He argues (1) that the Court should take this occasion to adopt a sort of statute of limitations; and (2) that it is improper for lawyers to pass judgment on the way a judge or justice has voted, regardless of the circumstances surrounding his vote, because the judiciary’s independence might be compromised by the prospect of such scrutiny. In the posture of the present case, we reach the merits of neither of these contentions.

By order entered November 24, 1975, we stayed the disciplinary proceedings instituted against Mr. McCain. In consequence, the Board of Governors has refrained from filing a complaint pursuant to Rule 11.06(5) (a), Integration Rule, specifying with particularity the misconduct of which they believe Mr. McCain guilty. Without the specific allegations of the complaint, it can be of theoretical interest only whether, as McCain argues, a two year time limitation should apply; or whether “judicial acts” should be ruled out as a basis for discipline. These questions may forever remain merely academic, depending on the allegations in the complaint.

It may be that the complaint, when it is filed, will conform to Mr. McCain’s expectations, and the issues he now anticipates may then be squarely raised. But questions of laches and questions about precisely what conduct may be the basis for disciplinary measures are common to numerous disciplinary cases. It does not foster orderly consideration of these cases to interrupt routine preliminary proceedings, in order to decide questions which are bound to come to this Court, for decision, in any event.

We have treated extensively the aspect of this case which sets it apart from the run of disciplinary cases: The attorney involved formerly sat as a justice of this Court, and, before that, as a judge of the District Court of Appeal. We anticipate that these proceedings will now go forward in the same manner as all other disciplinary proceedings. In any event, we foresee no occasion for further interlocutory participation by this Court.

The motion is denied.

OVERTON, C. J., and ENGLAND and SUNDBERG, JJ., concur.

SUNDBERG, J., concurs with an opinion, with which OVERTON, C. J., and ENGLAND, J., concur.

BOYD, J., concurs in part and dissents in part with an opinion, with which ROBERTS, J., concurs.

ROBERTS, J., dissents with an opinion, with which ADKINS, J., concurs.

ADKINS, J., dissents with an opinion.

SUNDBERG, Justice

(concurring).

I concur completely in the disposition of the motion before the Court in the fashion structured by Mr. Justice Hatchett’s opinion. It makes it clear that at this juncture we have passed on the only question before the Court, i. e., the jurisdiction of this Court to discipline an attorney for acts which bear on his current fitness to practice law, when those acts occurred while he held judicial office. Our decision does not hold that the disciplinary procedures of The Florida Bar, as adopted by this Court, can be utilized to treat with judicial misconduct. Obviously, that is a matter under our Constitution for proceedings before the Florida Judicial Qualifications Commission (Art. V, § 12) or before the Legislature (Art. Ill, § 17). However, as indicated by the opinion of Mr. Chief Justice Drew in In re Proposed Disciplinary Action, 103 So.2d 632 at 633 (Fla.1958) disciplinary procedures are “designed simply to [ijnsure that such rights and privileges [to engage in the practice of law] shall not be exercised by one who has shown himself unfit to practice law, and not to penalize or punish the offending member,” citing Application of Harper, 84 So.2d 700 (Fla. 1956). The language in Harper relied upon is found at p. 702 of the opinion:

“ ‘The purpose of suspending or disbarring an attorney is to remove from the profession a person whose misconduct has proved him unfit to be intrusted with the duties and responsibilities belonging to the office of an attorney, and thus to protect the public and those charged with the administration of justice, rather than to punish the attorney.’ ”

The rule, then, is made simple. Since it is the object of the disciplinary program to protect the public from unfit lawyers, conduct which demonstrates a person to be presently unfit to represent the public in the practice of law, whenever occurring, is a proper subject for disciplinary action. Mr. Chief Justice Drew’s opinion in In re Proposed Disciplinary Action, supra, quite logically held that disciplinary action should be suspended during the incumbency of a judge because his right to practice law is suspended during such incumbency.

Concern is expressed that to permit The Florida Bar to initiate disciplinary proceedings against a former judge will affect the independence of the judiciary. This is premised upon the hypothesis that members of the bar will institute disciplinary proceedings against former judges to retaliate for unpopular judicial acts or opinions. Such an hypothesis fails to consider two facts: First, that it is this Court which renders the ultimate decision in disciplinary matters, not The Florida Bar. Second, The Florida Bar as an arm of this Court is charged to act responsibly. If it acts irresponsibly this Court has the power and the duty to impose appropriate sanctions against the offending members.

OVERTON, C. J., and ENGLAND, J., concur.

BOYD, Justice

(concurring in part and dissenting in part).

This is a landmark case of first impression. It is the duty of this Court in this unusual case to adopt procedures which will give justice and fairness to respondent as well as present and future former judges similarly situated.

I concur in that part of the majority opinion holding that the Supreme Court can discipline attorneys who are former judges for misconduct committed while serving in the judiciary. The Florida Constitution grants to this Court exclusive jurisdiction to discipline Florida attorneys. The Constitution authorizes the Supreme Court to suspend justices or judges charged by the Judicial Qualifications Commission and upon recommendation of two-thirds of the members of such Commission to reprimand or remove a member of the judiciary.

The Constitution is silent on the question of discipline of members of The Florida Bar for misconduct committed while formerly serving in judicial office. The problem is unique because it has long been generally understood that the Bar would initiate disciplinary action against lawyers and the Judicial Qualifications Commission would move against judges. Before the Commission was created this Court held that the Bar could not institute action against an incumbent judge for his conduct while serving as a lawyer prior to becoming a judge.

Recognizing that the power to discipline both lawyers and judges is vested in this Court, it seems that the constitutional intent is to permit this Court to discipline former judges now practicing law for improper conduct committed while on the bench, if such actions render them unfit to practice law. Applying the above reasoning to this particular case, I agree that this Court has constitutional authority to consider respondent’s conduct while a Justice of this Court and a judge of the Fourth District Court of Appeal, in order to determine whether he is presently qualified to practice law.

I must dissent to that part of the majority opinion authorizing the Bar to initiate charges of misconduct against former judges for their conduct while in judicial service without prior specific approval of this Court. The Florida Bar performs a useful service to this Court and to the public in maintaining high standards of professional conduct, but I consider the majority opinion extremely detrimental to independence in the judicial system. The very nature of judicial service requires judges to displease and often offend at least half the litigants and their attorneys. Many of the losing attorneys are on grievance committees and are present or future leaders of the organized Bar. Frequently a judge does not fully explain the legal and factual basis of his decisions and if he did the losing attorneys might be even more dissatisfied. In many communities “peoples’ judges” are not admired by the Bar and although they are elected by voters, never gain popularity with the Bar. Secret polls show that all judges, have some lawyers who consider them unqualified and the standings of judges, from year to year, rise and fall. To permit the Bar, without specific direction and authority of this Court, to initiate proceedings against former judges who may have been regarded as incompetent, autocratic, lazy, or otherwise to have misbehaved while serving as judges, is detrimental to the public and litigants. For example, if a timid judge is about to leave office to practice law and a powerful and influential lawyer is opposing the efforts of an inexperienced and obscure lawyer, the litigants on both sides should never feel the judge might be intimidated to render a decision for the powerful lawyer out of fear of reprisal through the Bar after leaving the bench. Surely everyone everywhere has done something controversial and it would normally be rather easy to find something in any judge’s personal or official life about which to file a complaint.

If we lived in Utopia or Shangri-La one might expect there to be absolute fairness and justice toward former judges, but this is the imperfect world of reality. Philosophers unfamiliar with politics might reason that if unfair allegations should be made by a local grievance committee the affected former judge would not suffer because the charges would soon be quashed. At a time of government in the sunshine with inner secrets of the Central Intelligence Agency and Federal Bureau of Investigation being exposed to the whole world, surely no secrecy would protect investigation of a former judge. The investigation would be newsworthy. Even if the charges were found to be without merit the investigation could cause irreparable harm.

Society’s best interests require that incumbent judges be free from harassment by any segment of the Bar after leaving office, except with specific prior approval of this Court. Whenever the Bar wishes to investigate a former judge for misbehavior stemming from a judicial or non-judicial act which occurred while he was in office, a confidential petition should be filed with this Court and a copy served upon the former judge. Only after a showing in camera that such investigation was required should this Court authorize the Bar to proceed in specifically designated areas.

A judge should leave office normally with a presumption that he or she is competent and worthy to practice law. If all of their acts over the years while in the judiciary are to be subject to discipline by the Bar, self-preservation could cause a timid or weak judge to be influenced to decide cases to prevent future attacks from the Bar. There is also a presumption that if a judge is doing wrong the Judicial Qualifications Commission or the Legislature would act against him while in office.

In considering the majority opinion we must not overlook the constitutional provisions which place upon judges standards of discipline far greater than other state officials. In addition to being subject to suspension, reprimand and removal from office, justices and judges may also be impeached in the same manner as the Governor, Lieutenant Governor and Cabinet officers. A member of the Legislature may be punished only by the house in which he or she serves for contempt or disorderly conduct and be expelled by two-thirds vote.

The above constitutional provisions clearly demonstrate that if a Cabinet officer, a member of the Legislature and a judge were all tried for joint misconduct by the Legislature and all three were found wholly without fault, the Cabinet officer and Legislator would not be subject to further discipline for misconduct in office, but the judge could be charged by the Judicial Qualifications Commission and suspended, reprimanded or removed from office by the Supreme Court special panel hearing the matter. If a Justice or judge had been exonerated by this Court, he could still be removed from office by the Legislature for the same charges. Without lengthy discussion of double jeopardy, res judicata or equal protection of the law, it should appear that sufficient burdens now rest upon Florida Justices and judges without making them directly accountable to The Florida Bar for all conduct while on the bench. If they escape the discipline of the Judicial Qualifications Commission and the Legislature for improper conduct while in office, they should be subject to Bar actions against them only after careful screening by this Court.

The people of Florida, through Article V of the Florida Constitution, have vested this Court with exclusive authority to admit, discipline and expel members of The Florida Bar. The Florida Bar was not created by the Constitution but rather by order of this Court. As an arm of this Court, the Bar has the responsibility of assisting the Court in maintaining high standards of conduct in the profession. I am personally distressed over the emerging tendency of this Court to approve recommendations of the Bar concerning discipline of lawyers without full recognition of the growing power of the Bar, a power which is peculiarly susceptible to abuse since the Bar is not directly accountable to the people of Florida. The historical role of the Bar in presenting matters to this Court concerning lawyers has been prosecutorial in nature. It is the duty of this Court to be clinically objective in dealing with such matters.

The majority opinion tends to create, a new relationship between the bench and Bar in this State and will encourage the Bar to keep records on all judges in order that they may be disciplined by the Bar after leaving the bench if their conduct while on the bench is found unacceptable. Incompetent members of the judiciary will be encouraged to remain in office as long as possible, while competent attorneys may choose to avoid judicial service. I sincerely believe that this majority opinion will be highly detrimental to the judiciary, to the legal profession and to the public.

Applying the above standards to this case, I would enter an order specifying which areas of respondent’s conduct, if any, may be investigated by the Bar and in future cases I would require the Bar to submit a confidential petition before such an order would issue.

ROBERTS, J., concurs.

ROBERTS, Justice

(dissenting).

I cannot concur in the majority opinion. As the author of the Florida Judicial Qualifications Commission section of the constitution and as the one who sponsored it through the Florida Legislature, making all committee appearances, and then presenting it to the people of Florida as a constitutional amendment, this author knows that the majority opinion produces a result at substantial variance from the result for which the Commission was created. It was the clear intention of the author-sponsor that the Judicial Qualifications Commission and the Legislature would have the exclusive jurisdiction (other than the criminal court) to try alleged judicial misconduct. This is clearly reflected in Article V, Section 12(g), of the Florida Constitution, which says:

“The power of removal conferred by this section shall be both alternative and cumulative to the power of impeachment and to the power of suspension by the governor and removal by the senate.”

Having thus spoken to the question of jurisdiction and providing two methods of review, there must be a clear application of expressio unius est exclusio alterius, or having spoken to the question, no other body or organization has jurisdiction to review alleged judicial misconduct. The authority of The Florida Bar is to pursue violations of the Code of Professional Responsibility by persons engaged in the practice of law. When the Respondent was performing service as a member of the Supreme Court of Florida, he was not practicing law and indeed could not have done so because the Florida Constitution, Article V, Section 13, provides:

“All justices and judges shall devote full time to their judicial duties. They shall not engage in the practice of law or hold office in any political party.” (Emphasis supplied)

Since the Constitution clearly distinguishes between discipline of persons engaged in the practice of law and discipline of judges for judicial misconduct, it takes a wide stretch of the imagination to extend the jurisdiction of The Florida Bar to judicial misconduct. The entire rationale of the Judicial Qualifications Commission as authored and sponsored was that the Judicial Qualifications Commission plus the limited jurisdiction of the Supreme Court would have jurisdiction shared only with the State Legislature in reviewing the conduct of the judiciary and The Florida Bar with the jurisdiction of the Supreme Court would have the exclusive jurisdiction shared only with the Circuit Courts to review alleged professional misconduct while engaged in the practice of law. Nor am I persuaded by the precedents cited in the exhaustive majority opinion that flow from jurisdictions which did not have at the time of the decision a Judicial Qualifications Commission or comparable tribunal. For example, Gordon v. Clinkscales, 215 Ga. 843, 114 S.E.2d 15 (1960) — The Georgia Qualifications Commission was created twelve years after this decision; In re Stolen, 193 Wis. 602, 214 N.W. 379 (1927) — Wisconsin as of this date does not appear to have a Judicial Qualifications Commission nor a related tribunal; Jenkins v. Oregon State Bar, 241 Or. 283, 405 P.2d 525 (1965)— The decision preceded by two years their Judicial Qualifications Commission which was adopted in 1967; Oklahoma Bar Association v. Tallent, 299 P.2d 162 (Okl.1956) —Their Court on the Judiciary was established in 1966, ten years after the cited decision; In re Piper, 534 P.2d 159 (Or.1975) —The judge was charged directly with the practice of law while holding a judicial office in violation of the Oregon Constitution and the complaint was made jointly.,by the Commission on Judicial Fitness (their Judicial Qualifications Commission) and the Trial Board of the Oregon State Bar. The facts are entirely different in that the misconduct was while engaged directly in the practice of law and did not charge any other judicial transgression; In Re Sisemore, 534 P.2d 167 (Or.1975) — Judge Sise-more was a part of the transgression of Piper, supra, in that he and Piper were working together in Piper’s unlawful practice of law; State ex rel. Oklahoma Bar Association v. James, 463 P.2d 972 (Okl. 1969) — At first blush, this would appear to support the majority view, but not so. Reference Article 7-A, Section 4(d), Constitution of Oklahoma, which says : “ . . . but such a proceeding, regardless of result, shall not bar or prejudice any other proceeding, civil or criminal, au-thorised by law.” Thus, the Constitution of Oklahoma left wide open the door for action by the Oklahoma Bar, whereas the Florida Judicial Qualifications section of the Constitution closed the door by limiting such action to the Judicial Qualifications Commission or the State Legislature. The decision has no application in this case. (Emphasis supplied)

So, therefore, all of the precedents upon which the majority rely as a foundation fall for the reasons hereinabove stated and the majority view has no support in precedent or logic.

The objective of the Judicial Qualifications Commission and the Florida Legislature has been accomplished in that the'Respondent is no longer a member of the judiciary. The jurisdiction of The Florida Bar is limited to misconduct occurring since he left the judiciary and became a practicing member of The Florida Bar. For that reason, this Court should prohibit any action resting on conduct of the Respondent occurring while he was a member of the judiciary but without prejudice to the right of the Bar to proceed against him for misconduct, if any, before or after his judicial tenure.

ADKINS, J., concurs.

ADKINS, Justice

(dissenting).

I dissent.

The dissenting opinion of Justice Roberts, the “father” of the Florida Judicial Qualifications Commission section of our Constitution, explains the inapplicability of the alleged precedents upon which the majority opinion relies. I concur in Justice Roberts’ opinion.

In this proceeding we are not concerned with the merits or demerits of the grievance against petitioner. This Court is concerned only with a question of law: Under the Constitution of Florida and the Rules of this Court, does The Florida Bar have the authority to recommend that a retired or resigned judge be reprimanded or disbarred for conduct while holding judicial office?

In my opinion it is incumbent upon this Court to maintain the independence of the judiciary so that every county court judge, circuit judge, and appellate judge may make judicial and administrative decisions without thought or fear of 'possible retribution or reprisal by any attorney filing grievance procedure or The Florida Bar entertaining such grievance procedure. In expressing my sincere belief that all judges should conduct their court without any possibility of outside intimidation, I have some idea of the emotional and practical problems facing John Adams as he defended the British soldiers accused in the Colonial court for their involvement in the Boston massacre. Devotion to the betterment of the judicial system by insulating the independence of the judiciary should not be determined, swayed, or guided by public opinion or political pressure.

An attorney is an officer of the court and subject always to the appropriate orders and judgments of the court. Upon motion of the state attorney, a circuit judge has the right to disbar or reprimand an attorney under appropriate circumstances. Any reprimand or disbarment recommended by The Florida Bar is ineffective unless approved and ordered by this Court. Under the majority opinion we have this anomalous situation: All attorneys are under the supervision of this Court (in fact The Florida Bar was created by this Court) and all judges are under the indirect supervision of The Florida Bar.

Under the majority opinion, any attorney would have the right to institute grievance procedures against the judge who resigns or retires, even though the attorney himself may have been before the judge on disciplinary matters. In other words, he who judges may then be judged if he lives until retirement or resignation.

It is said that the attorneys and The Florida Bar will “act responsibly” so that the rule pronounced by the majority opinion will be properly enforced. I do not quarrel with the desire of The Florida Bar and any attorney to act in a responsible way and with good motive. However, no legal principle of such magnitude should depend upon the good intentions of others for its proper enforcement. The possibility of abuse is sufficient to chill the free exercise of judgment by members of the judiciary.

Under the basic principle of “checks and balances” inherent in our form of government, some other branch should be given control of The Florida Bar. Otherwise, under the procedure established by the majority opinion, the justices required to regulate and control The Florida Bar are themselves subject to disciplinary proceeding by The Florida Bar upon retirement or resignation. This chills the free exercise of judgment. For that reason, control of The Florida Bar and the discipline of attorneys should be in the legislative branch. The Supreme Court should not be expected to exercise disciplinary control over The Florida Bar when that organization has ultimate control over the justices of the Supreme Court.

I do not mean to imply that a judge enjoys absolute immunity. If he is impeached or convicted of an offense after suspension, retirement, or resignation, then the fact of impeachment or the fact of conviction would be ground for disciplinary action.

Furthermore, the majority opinion has not considered the status of a retired judge. If a judge retires and The Florida Bar institutes disciplinary proceedings, such proceedings would be proper under the majority opinion though he may be recalled for judicial service. On the other hand, The Florida Bar has no jurisdiction to discipline a person who is acting as a judge. When the retired judge is assigned to a case, is he subject to disciplinary proceedings brought by the attorneys after judgment is entered? Would this have a chilling effect upon the judge’s free exercise of his judgment?

If a judge serves the judiciary without removal, it must be presumed that he was fit to serve the public as a judge. However, upon resignation or retirement, such a judge is subject to a proceeding by The Florida Bar which may question his fitness to serve the public as an attorney. This is odd, to say the least.

The possibility of an accusation and the resulting proceeding are of sufficient magnitude to cause the judge great concern while on the bench regardless of the ultimate decision in such a proceeding by this Court.

We are, unfortunately, subjugating the judiciary to the attorneys so that any attorney unhappy with a judicial decision could complain to The Florida Bar, who will then become the “Big Daddy” of the judicial system.

      .These allegations were set forth in a notice of hearing dated October 2, 1975, as follows:
      I. Interfering with, impairing and obstructing the proper administration of justice through improper attempts to influence the outcome of cases pending in the Courts of Florida.
      II. Demonstrating bias, favoritism, and partiality toward certain attorneys and litigants and allowing those feelings to significantly influence your acts, decisions and judgments.
      III. Soliciting and receiving unlawful compensation from a litigant before you in exchange for your favorable judgment.
      IV. Failing to recuse yourself from judging litigation in which you had a personal interest.
      V. Soliciting campaign contributions from attorneys engaged in litgation before you.
      VI. Placing yourself in a compromising position by entering into business transactions which reflected adversely on your impartiality, interfered with the proper performance of your duties and improperly involved you with attorneys and persons with pending litigation before your Court.
      VII.Engaging in conduct contrary to honesty, justice and good morals, the reasonable and probable consequences of which degraded your office and brought the Supreme Court of Florida into disrespect and prejudiced public confidence in the administration of justice in Florida.
      These allegations lack the detail required to be set forth in a complaint filed pursuant to Rule 11.06(5) (a), Integration Rule. At this juncture, no complaint has been filed in the present proceedings.

      . Rule 11.05(2), Integration Rule, provides in part, as follows:
      The Board of Governors of The Florida Bar, sua sponte . . . may by majority vote find probable cause and direct the filing of a formal complaint against an attorney . . . . Provided, however, that if such finding is not based upon grievance committee investigation or report of bar counsel in pending proceedings against the accused, then before such finding is made the accused shall be advised in general terms the nature of the conduct which, is being considered, and he shall be given an opportunity to make a statement, personally or by counsel, verbally or in writing, sworn or unsworn, explaining, refuting or admitting the alleged misconduct.

      . The Court’s logic does not apply to disciplinary proceedings where disbarment is not a possibility. See In re Mussman, 112 N.H. 99, 289 A.2d 403 (1972). As to misconduct occurring on or after November 1, 1966, however, the question of discipline short of disbarment has been mooted by creation of the Judicial Qualifications Commission, as all similar questions having to do with Integration Rule proceedings against sitting judges have been mooted. See Fla..Const. art. V, § 12 (1974) ; State ex rel. Turner v. Marie, 295 So.2d 609 (Fla.1974).

      . Article V, Section 23, Florida Constitution.

      . Article V, Section 12(a), Florida Constitution.

      . In re Proposed Disciplinary Action, 103 So.2d 632 (Fla.1958).

      . Article III, Section 17 and Article V, Section 12(a), Florida Constitution.

      . Article III, Section 17, Florida Constitution.
      “SECTION 17. Impeachment,- — ■
      (a) The governor, lieutenant governor, members of the cabinet, justices of the supreme court, judges of district courts of appeal and judges of circuit courts shall be liable to impeachment for misdemeanor in office. The house of representatives by two-thirds vote shall have the power to impeach an officer. The speaker of the house of representatives shall have power at any time to appoint a committee to investigate charges against any officer subject to impeachment.
      (b) An officer impeached by the house of representatives shall be disqualified from performing any official duties until acquitted by the senate, and unless the governor is impeached he may by appointment fill the office until completion of the trial.
      (e) All impeachments by the house of representatives shall be tried by the senate. The chief justice of the supreme court, or another justice designated by him, shall preside at the trial, except in a trial of the chief justice, in which case the governor shall preside. The senate shall determine the time for the trial of any impeachment and may sit for the trial whether the house of representatives be in session or not. 'The time fixed for trial shall not be more than six months after the impeachment. During an impeachment trial senators shall be upon their oath or affirmation.. No officer shall be convicted without the concurrence of two-thirds of the members of the senate present. Judgment of conviction in cases of impeachment shall remove the offender from office and, in the discretion of the senate, may include disqualification to hold any office of honor, trust or profit. Conviction or acquittal shall not affect the civil or criminal responsibility of the officer.”

      .Article III, Section 4(d), Florida Constitution.
      “SECTION 4. Quorum and procedure.— * * * * *

      “(d) Each house may punish a member for contempt or disorderly conduct and, by a two-thirds vote of its membership, may expel a member.”

       Judge Sisemore received a public reprimand.