In Re Durant

67 A. 497, 80 Conn. 140, 1907 Conn. LEXIS 23

• Court: Supreme Court of Connecticut
• Decided: July 30, 1907
• Status: Published

Opinion

Prentice, J.

An attorney at law is an officer of court exercising a privilege or franchise to the enjoyment of which he has been admitted, not as a matter of right, but upon proof of fitness through evidence of his possession of satisfactory legal attainments and fair private character. Fairfield County Bar v. Taylor, 60 Conn. 11, 15, 22 Atl. 441; Ex parte Garland, 4 Wall. (U. S.) 338, 378; Butchers Union Co. v. Crescent City Co., 111 U. S. 746, 763, 4 Sup. Ct. Rep. 652. For the manner in which this privilege or franchise is exercised he is continually accountable to the court, and it may at any time be declared forfeited for such misconduct, whether professional or nonprofessional, as shows him to be an unfit or unsafe person to enjoy the privilege conferred upon him and to manage the business of others in the capacity of an attorney. Ex parte Wall, 107 U. S. 265, 273, 304, 2 Sup. Ct. Rep. 569; Ex parte Garland, 4 Wall. (U. S.) 333, 378; Ex parte Robinson, 19 Wall. (U. S.) 505, 512; Ex parte Brounsall, Cowper, 829. The power to declare this forfeiture is a summary one inherent in the courts, and exists not to mete out punishment to an offender, but that the administration of justice may be safeguarded and the courts and the public protected from the misconduct or unfitness of those who are licensed to perform the important functions of the legal profession. Ex parte Bradley, 13 Wall. (U. S.) 364, 374; Fairfield County Bar v. Taylor, 60 Conn. 11, 12, 22 Atl. 441; Boston Bar Association v. Greenhood, 168 Mass. 169, 46 N. E. 568; Ex parte Brounsall, Cowper, 829.

The action of the court in the exercise of this power is judicial in its character, but the inquiry made is “ in the nature of an investigation by the court into the conduct of one of its own officers, not the trial of an action or suit,” and the order entered is but an exercise of the disciplinary jurisdiction which it has over such officers. Fairfield County Bar v. Taylor, 60 Conn. 11, 13, 15, 22 Atl. 441; Ex parte Garland, 4 Wall. (U. S.) 333, 378; In re Hardwick, L. R. 12 Q. B. 148, 149. The real question for determination, in such proceedings, is whether or not the attorney is “ a fit person to be longer allowed the privileges of being an attorney. ” Fairfield County Bar v. Taylor, 60 Conn. 11, 16, 22 Atl. 441. Into its determination there naturally and necessarily enters a large measure of judicial discretion. Fairfield County Bar v. Taylor, 60 Conn. 11, 13, 22 Atl. 441; Ex parte Burr, 9 Wheat. (U. S.) 529, 530; Ex parte Secombe, 19 How. (U. S.) 9, 13; Ex parte Wall, 107 U. S. 265, 273, 2 Sup. Ct. Rep. 569; In re Davies, 93 Pa. St. 116, 121; Miles v. Stevenson, 80 Md. 358, 365. This discretion, however, is not an absolute one, so that an attorney may be removed from the bar without notice of the charges against him and an opportunity to be heard, or so that the power of disbarment may be exercised arbitrarily, despotically or at the pleasure of the court, or from passion, prejudice, or personal hostility. The power is rather one to be used with moderation and caution, and the discretion one to be reasonably exercised. The attorney is, in other words, entitled to a fair hearing or opportunity to be heard, and a fair determination of the question at issue, in the exercise of a sound judicial discretion. Fairfield County Bar v. Taylor, 60 Conn. 11, 14, 22 Atl. 441; Ex parte Secombe, 19 How. (U. S.) 9, 13; Ex parte Burr, 9 Wheat. (U. S.) 529, 531; Ex parte Garland, 4 Wall. (U. S.) 333, 378; Ex parte Bradley, 7 id. 364, 375.

In the absence of prescribed regulations the manner of the proceeding, so that it be without oppression or injustice, is for the court itself to determine. Fairfield County Bar v. Taylor, 60 Conn. 11, 14, 22 Atl. 441; Randall v. Brigham, 7 Wall. (U. S.) 523, 540.

It has been questioned by high authority whether an appeal or writ of error would lie from disbarment orders. Ex parte Bradley, 7 Wall. (U. S.) 864, 376; Ex parte Robinson, 19 Wall. (U. S.) 505, 513. In two cases this court has suggested a doubt upon this point and left the doubt unresolved. Fairfield County Bar v. Taylor, 60 Conn. 11, 22 Atl. 441; In re Westcott, 66 Conn. 585, 34 Atl. 505. In O’Brien’s Petition, 79 Conn. 46, 63 Atl. 777, views as to the status of an attorney at law and his rights were expressed by us which lead quite inevitably to the conclusion that in this jurisdiction, as in many others, a disbarred attorney is entitled to have the proceedings which have resulted in his being deprived of the valuable right which he had formerly enjoyed, reviewed upon appeal, for some purposes at least. Randall, Petitioner, 11 Allen (Mass.) 472; Winkelman v. People, 50 Ill. 449; In re Orton, 54 Wis. 379, 11 N. W. 584; Matter of Beggs, 67 N. Y. 120; Ex parte Trippe, 66 Ind. 531; Biggs Ex parte, 64 N. Car. 202; In re Crum, 7 N. D. 316, 75 N. W. 257.

This conclusion appears to us to be the only sound and safe one. The fact that the court exercises a large measure of discretion and is in a position to most intelligently exercise it, furnishes no obstacle to a review to ascertain not only whether a reasonable discretion was used, but also whether the proceedings were regular and fair. We not infrequently inquire to see whether there has been an abuse of judicial discretion. Selleck v. Head, 77 Conn. 15, 17, 58 Atl. 224.

It does not follow, however, that the review which the court will make is one which will be permitted to take as wide a range, or assume the same character, as where the judicial action sought to be reviewed concerns the rights of parties as between themselves and into the determination of which the element of judicial discretion does not enter. On the contrary, there is every reason why, in a proceeding by which a court seeks to inform itself of the personal fitness of one of its own officers to continue in that capacity, an appeal should not be entertained for the purpose of exacting from the court that compliance with technical rules, bom of trial by jury, which are too often suffered to hedge about a trained trier of ordinary actions quite regardless of their purpose or spirit, or their substantial value under the existing conditions. Leonard v. Gillette, 79 Conn. 664, 669, 66 Atl. 502. We have already observed that an attorney whose fitness is challenged before the authority to which he owes and is responsible for the privileges he enjoys, has a right to an opportunity to be heard, a fair and dispassionate investigation, and a reasonable exercise of the judicial discretion; but his relation to the tribunal, and the character and purpose of the inquiry, are such, that unless it clearly appears that his rights have in some substantial way been denied him, the action of the court will not be set aside upon review. Ex parte Burr, 9 Wheat. (U. S.) 529, 530.

The action of the court in the present case may, however, be brought to the test of stricter standards without disclosing error. The facts found left the court no alternative but to enter an order of permanent disbarment. This his counsel concede. Its action upon which error is predicated is confined to rulings upon the admission of testimony. The chief grounds of complaint, if we may judge from the prominence given to them in the brief of counsel, arise from the admission of a deposition and a transcript of testimony which it is said furnished the substantial basis for the most damaging of the facts found. The damaging character of the matters contained in these papers, their relevancy to the issue before the court, and their importance upon that issue, are alike apparent. They were not taken in the proceedings against the respondent, but during the progress of the case whose history furnished the materia] upon which he was presented for disbarment. It is therefore claimed that they embodied what was, as to him, only hearsay testimony, which ought not to have been received.

Murphy’s deposition was clearly admissible. The State’s Attorney had shown that immediately after this witness in the Lathrop case had given the evidence in question and the respondent had been informed of its character, the respondent took the action recited in the finding to intimidate, overawe, and corrupt the witness into a retraction of the testimony he had given, in so far as it related to the respondent, or to change it upon further or cross-examination, or to sign a contradictory statement. This conduct, which of itself would have furnished sufficient cause for removal from the bar, entitled the court to know what the witness’ statements were which called forth this conduct, and rendered the statements admissible as tending to show a consciousness of guilt. 1 Wigm. on Evidence, §§ 267, 277, 278; Commonwealth v. Webster, 5 Cush. (Mass.) 295, 316; Green v. Woodbury, 48 Vt. 5, 6. The deposition was neither offered nor received as evidence of the truth of the facts therein stated, but only in connection with the respondent’s said conduct and for its significance in that connection.

The offer of the transcript of the testimony of the deceased Mrs. Delkeseamp brought the court into touch with the so-called hearsay evidence rule, as that of Murphy’s deposition did not. The logically probative value of the matters therein is beyond question. If its reception in the proceedings against the respondent was improper, it must, therefore, have been by reason of some rule of the kind which Wigmore has denominated “ superadded and abnormal ones,” which make the admissibility of declarations of third persons elsewhere made, although under oath, depend upon their satisfying certain tests, in addition to that of relevancy, which tests are conceived to be all-important, in order that the possible weaknesses of such declarations may be revealed and their real value indicated to the trier as fully as may be. Such a rule is the hearsay one, and the tests which have had the approval of experience, as applicable to the evidence of a deceased witness in another trial, are confrontation and the opportunity for cross-examination open to the party against whom it is offered; and cross-exami nation implies confrontation. Wigm. on Evidence, §§ 10, 1360, 1362, 1365; Chapman v. Chapman, 2 Conn. 347, 348. In the present case the court has found that the respondent had full opportunity in the former examination of Mrs. Delkescamp to cross-examine her in his interest, and availed himself of it. But it is said that the issues were not then the same as the present, and the parties not the same. The issues were substantially the same, and nothing more is necessary in that regard. The topics which were the subjects of examination, in so far as the witness’ testimony was concerned, were the same as those under examination in the present proceedings, and her evidence had the same bearing upon and important relation to the issues in the two cases. Wigm. on Evidence, § 1387; 1 Greenl. on Evidence (16th Ed.), § 163a. The requirement of an identity of parties is only a means to an end. This end was attained when the defendant availed himself of the unrestricted opportunity to cross-éxamine Mrs. Delkescamp. He was then fully aware of the importance to him in his professional capacity of her damaging disclosures. He had been forewarned of what might be expected ' from her, that her assertions might furnish the basis for disbarment proceedings against him, and had had ample opportunity to prepare to put her statements to the test of such an examination as he might think desirable. Under such conditions, to now say that the tests which the law prescribes for his protection against the witness’ then assertions, were not, for the purposes of such a disciplinary proceeding as that before us, fully satisfied, would be to dispense with common sense in the application of the rule invoked, and to lose sight of its spirit and purpose in a blind adherence to the letter of some attempted expression of it. Wigm. on Evidence, § 1377.

The respondent, however, insists that the finding ought to be corrected, so that it should disclose that Mr. O’Neill did not represent him, that the cross-examination made by that attorney was in no way in his behalf, and that no opportunity was in fact given him to cross-examine the witness. Were the correctness of this contention conceded and the desired corrections made, it would then ✓ appear that the respondent—present when the damaging disclosures were made, having advised with counsel as to his proper course of conduct in respect thereto, having obtained from the committee a statement of his willingness that he, the respondent, be heard, and fully aware of the gravity of the situation—took no steps to challenge the truth of the disclosure by asking the privilege of examination, and let them pass in silence and unnoticed. Such conduct, in the presence of the witness’ assertions, made it competent for the court to know the whole situation, and to draw therefrom such inferences of guilt of the charges made by the witness as it reasonably might. Wigm. on Evidence, § 173.

The court refused to permit the respondent to ask a question of a witness designed to elicit testimony that Mrs. Delkescamp’s reputation as respects morality was bad. In this there was no error. State v. Randolph, 24 Conn. 363, 367; Bore v. Babcock, 74 Conn. 425, 430, 50 Atl. 1016. Such evidence, furthermore, would seem to have been quite superfluous, in view of the nature and purpose of the employment which the court finds that she accepted at the hands of the respondent.

Judge Burpee, counsel for the defendant in the Lathrop case and who, it was claimed, had been active in the present proceedings, was offered as a witness by respondent’s counsel, and upon his direct examination was asked whether he had not kept in touch with Murphy since his deposition referred to was given, and paid him money to prevent the respondent’s communication with him. These inquiries were claimed as tending to cast discredit upon said deposition. As it was not offered or received as of itself furnishing substantive evidence of the truth of Murphy’s revelations therein, the credit to which the deponent was entitled was a matter of no importance. He had not been made to assume the position of a witness.

The respondent sought to show by a New York detect ive that Murphy had been arrested with burglar’s tools upon him, that his occupation had been that of a burglar, and that his moral character was bad, but was prevented. These rulings are sufficiently supported by the considerations just noted.

The respondent claims that the finding should be corrected in several important particulars, some of which have been noticed. Our examination of the evidence has failed to disclose that any material fact has been found without justification, either in direct evidence or reasonable inference from such evidence.

There is no error.

In this opinion the other judges concurred.