Bar Ass'n v. Greenhood

46 N.E. 568, 168 Mass. 169, 1897 Mass. LEXIS 186

• Court: Massachusetts Supreme Judicial Court
• Decided: March 22, 1897
• Status: Published

Opinion

Knowlton, J.

This is an appeal from a judgment of the Superior Court removing the respondent from the office of an attorney at law in the courts of the Commonwealth. The petition for his removal alleges that he was admitted as an attorney by the Supreme Judical Court on January 20, 1885, and that he “ has ceased to be of good moral character, and has been guilty of deceit, malpractice, and other gross misconduct.” Under this general charge there are specifications, of which the fourth, fifth, and so much of the first as charges the respondent with misconduct at the trial of the probate of the will of Howard Gill were found to be proved by the justice of the Superior Court who heard the petition.

Upon these findings the justice found that the respondent “ was guilty of deceit, malpractice, and gross misconduct in his said office” of attorney, and entered judgment “that for these causes he be removed from the office of an attorney at law within this Commonwealth.”

The proceedings were on the common law side of the court, and our jurisdiction is strictly defined by statutes. An appeal from the Superior Court to the Supreme Judicial Court in an action at law can be taken only from a judgment founded upon matter of law apparent on the record. Pub. Sts. c. 152, § 10; c. 150, § 7. In such an appeal the case cannot be transferred, but only the questions of law involved. These questions alone, and the necessary papers relating thereto, are entered in the law docket of the Supreme Judicial Court. Pub. Sts. c. 153, § 15; c. 152, § 12. Commonwealth v. Scott, 123 Mass. 418. In this case the only question of law apparent on the record is whether the general finding of “ Guilty of deceit, malpractice, and gross misconduct in his said office,” could legally be made on the pleadings and the elementary facts and findings set out in the record. This general question may be divided into two parts; first, whether the elementary findings and the general finding could properly be made upon the charges and specifications which were before the court without other charges and specifications; and secondly, whether the general finding of guilty was in substance warranted by the facts which appear on the record.

The Pub. Sts. c. 159, § 39, contain the following provision: “ An attorney may be removed by the Supreme Judicial Court or Superior Court for any deceit, malpractice, or other gross misconduct, and shall always be liable in damages to the party injured thereby, and to such other punishment as may be provided by law.” This provision is in accord with the general doctrine of the common law, under which courts have always deemed it a part of their duty to remove from his office any attorney who in character and conduct has ceased to be a person proper to be held out by the court to the public as trustworthy. If, as it seems probable, the provision was intended to cover only deceit or misconduct in the performance of his official duties, it does not limit the power of the court at common law to remove an attorney from his office, either permanently or temporarily, for crime or other gross misconduct not connected with any official act. It has been held in' other jurisdictions that similar statutes do not take away the jurisdiction at common law to remove an attorney for causes not included in the statute, such as ceasing to be of good moral character within the meaning of these words as used in a statute prescribing the requirements for admission to the bar. Delano’s case, 58 N. H. 5. State v. McClaugherty, 33 W. Va. 250. Sanborn v. Kimball, 64 Maine, 140. Ex parte Wall, 107 U. S. 265. In re 0-, 73 Wis. 602, and cases cited. In re Percy, 36 N. Y. 651. Serfass’s case, 116 Penn. St. 455. In re Mills, 1 Mich. 392. We are of opinion that under this statute, as well as at common law, the removal may be absolute, leaving the party to apply to the court for readmission if his offence was of such a kipd that, after a lapse of time, he can satisfy the court that he lias become trustworthy; or for a stated time if the court is of opinion that the interests of the public will thereby be sufficiently protected. See In re Hill, L. R. 3 Q. B. 543; In re Blake, 3 El. & El. 34.

The first objection to the findings in this case is that they do not exactly conform to the specifications under which they are made. It is true that not all of the matters charged in these specifications are proved, and that some fundamental facts, previously charged, to which these specifications refer, are not exactly as alleged. If this were a criminal prosecution, the respondent might be entitled to a verdict of “ Not guilty by reason of variance.” But it is not a criminal proceeding. Its primary purpose is not punishment, but the preservation of the purity of the courts and the protection of the public from attorneys who disregard their oath of office. Randall,petitioner, 11 Allen, 473. Ex parte Secombe, 19 How. 9. Randall v. Brigham, 7 Wall. 523. Ex parte Wall, 107 U. S. 265. Ex parte Brounsall, Cowp. 829.

As was said in Randall, petitioner, ubi supra, in reference to procedure at common law, “No complaint, indictment, or information was ever necessary as the foundation of such proceedings. . . . No formal or technical description of the act complained of is deemed requisite to the validity of such a proceeding.” It is enough if in some proper way the attorney is reasonably and definitely informed of the matters alleged against him, and given an opportunity of being heard in answer to them. See also cases cited supra. Iii the present case it sufficiently appears that the matters relied on by the petitioner were made known in the charges and specifications, even though they were not stated accurately, and it is evident that the facts and evidence bearing upon the conduct in question were as fully presented on both sides as the parties chose to present them. If there had been objection on the ground of a variance, the specifications might have been amended. The general charge was in proper form, and it is immaterial that the specifications were not proved exactly as alleged.

We now cometo the question whether the particular facts found were sufficient to warrant a general finding of guilty of ■deceit, malpractice, and gross misconduct in office. The respondent, in resisting the probate of a will, called as a witness Florence W. Lowe, who had entered into an agreement in writing with his clients to aid them to the utmost of her power in the contest against the allowance of the will. Two other persons entered into the same agreement, and the pay of all of them was made contingent on the success of his clients in the litigation. If they succeeded, she was to have five hundred dollars and the other two were to have one seventh of the net amount obtained by the contestants; if they failed she and her associates were to receive nothing. She had lived in the family of the testator for a considerable time before his death, and was a material witness upon the subject of his mental condition. The respondent drew this agreement, and signed it in behalf of his clients. In pursuance of the agreement Florence W. Lowe interviewed witnesses, and aided in procuring evidence, and testified at the trial. The temptation held out by this arrangement, and the danger that it would lead to a trial in part upon untrustworthy testimony, bring it perilously near, if not within the rule that forbids the making of similar agreements on grounds of public policy. Patterson v. Donner, 48 Cal. 369. Marshall v. Baltimore & Ohio Railroad, 16 How. 314. Dawkins v. Gill, 10 Ala. 206. Gillett v. Logan County, 67 Ill. 256. The respondent, although he had a duplicate of the agreement in his possession, did not make known its existence, produced Florence W. Lowe as a witness without disclosing that she had an interest of this kind, and when the existence of the paper was finally shown, on cross-examination, and when the presiding justice requested that the paper be produced by the witness, and it was understood that she would produce it, he excused her from further attendance, or sent her away, and told her “ that when he wanted her again he would send for her.” This was on May 25. On May 29, the witness not having returned, and the court having called for her and called upon him for an explanation, he said that he had a duplicate original among his papers in court, and he then searched for it, but did not find it. The paper was not exhibited until on May 31 the witness returned to the court and produced it. We think the finding of the court, that he tried to suppress this evidence, was well warranted. Whatever may be thought of his conduct up to the time when the existence of the paper was disclosed in cross-examination and the paper was called for by the judge, it was clearly his duty then, if not to do what he could to obtain and present the evidence, at least to do nothing to conceal or suppress it. He had taken an official oath to “ do no falsehood, nor consent to the doing of any in court,” and to conduct himself “ with all good fidelity as well to the courts ” as to his clients. Pub. Sts. c. 159, § 36. Fidelity to the court required him, when he had in his possession an important paper which the court called for to be put in evidence, to produce it. Instead of producing it, he waited four days without disclosing that he had any connection with it, and it was two days more, after a formal order from the judge, before the paper was obtained from his witness, who, in the mean time, had been staying away under his direction.

The question before us on this branch of the case is, not whether these facts necessarily show deceit, malpractice, or other gross misconduct, but whether they furnish any evidence of it from which the court could find it by way of inference or otherwise. With reference to the question with what purpose and intent he was acting, it is to be remembered that much importance is to be attached to evidence which was before the tidal court that cannot be put upon paper. Hot only were other witnesses personally present before the court, but the respondent himself was a witness whose look and manner in giving his testimony may have been even more significant upon this question than his words. There is nothing upon the record to indicate that there was any error of law on the part of the court in making the original finding of guilty on this branch of the case.

In regard to the fourth and fifth specifications, it appears that when Rich filed, his first account the respondent knew that he had failed to charge himself with as much by about nine hundred dollars for the stock as he ought to have done. He did not act in the interest of his clients at this time by objecting to the account and having the error corrected. So far as appears, he did not disclose his knowledge to anybody. Rich owed him a sum of money which he declined to pay unless the respondent would assent to the allowance of the account in behalf of his clients. The respondent, therefore, signed his assent in their names, obtained his pay, and the account was allowed. His signing tended to mislead the judge of the Probate Court and all who were to share in the balance in the bands of the executor. He testified that when he signed his assent he intended to wait until the second account was presented, and then to object to the allowance of that unless the executor would correct, to the extent of the interest of his clients, the first account which had been allowed with his assent, given for his personal advantage in such a way as to deceive the executor, the judge of the Probate Court, and the persons interested in the proceeds of the estate, including, so far as appears, his own clients. Thereupon, on the filing of the second account, he wrote a letter to the executor’s counsel threatening the executor with an attack unless he paid the amount which his clients should receive, and proposing to keep the whole matter a secret if a payment was made. His conduct in reference to Rich, in giving his assent to the account and thereby obtaining his pay, and professing to make a written assent of his clients that would be valid and effectual, when all the time he had a secret intention to avoid the assent on the filing of the second account, was dishonest. In reference to his clients, it is not to be inferred that they consented to his signing their assent to the allowance of an account which he knew gave them much less than they were entitled to, on the chance of subsequently getting the account opened to correct the error. His testimony that it was his intention when Rich should file his second account to object to the allowance of it “if his clients would authorize him so to do,” plainly implies that he signed their assent without telling them of the error or conferring with them about the action to be taken in regard to it. His own interest to get his pay, which was the inducement to him to sign this assent, coupled with his threatening letter and proposal of secrecy after the second account was filed, warranted the judge of the Superior Court in inferring that in this he was wanting in fidelity to his clients, as well as to the court. To represent that his clients assented to the account under these circumstances was a direct fraud upon the Probate Court. His subsequent attempt to obtain what belonged to them, not by having the account corrected, but in an indirect way, does not relieve his conduct of its deceit and impropriety. We do not intimate that an attorney may not settle a claim in behalf of his clients, without stopping to see that justice is done to others who may have a similar claim, and without always disclosing irregularities of which he has knowledge, and for which he is not responsible. But what the respondent did was much more than this. The facts found, with the inferences that may be drawn from them, well warrant a finding that he was guilty of deceit and gross misconduct in his office of attorney, and it is immaterial that, in making his findings of fact, the judge has not attempted to make a complete analysis of the conduct described, nor to state all the particulars in which it was culpable.

It is important that the oath of office taken by attorneys on admission to the bar should not be considered and treated by those who take it as an empty form. Nothing in the life of the people more deeply concerns their welfare than the administration of justice in our courts. The high standard of integrity which is prescribed by our Constitution and our laws for the officers of our courts should be maintained. The removal or suspension of an attorney is necessarily damaging to him, and may even be ruinous. It should only be ordered after a careful investigation of the alleged causes for it. But when it appears that one has ceased to regard the principles of morality, and that fidelity to truth and justice without which the practice of law is mockery, a court should not hesitate to remove him.

The question whether the interests of the public require a judgment of absolute removal, or of removal only for a time, is not before us. Like the imposition of a sentence on conviction of a crime, it involves a consideration of questions of fact, and is to be determined by the trial court in the exercise of its discretion.

Judgment affirmed.

The Chief Justice and Justices Holmes and Morton do not agree with the decision upon the fourth and fifth specifications. In their opinion the report of the judge shows that his judgment upon them went upon a finding that the charges of those specifications were true as alleged, and was not reached from the point of view taken by the decision, which avowedly differs from that of the specifications. They are apprehensive that the decision of the Superior Court on these specifications was founded upon a questionable conception of a lawyer’s duty, and now is supported upon grounds which have not been considered or passed upon by the Superior Court.