People v. Spencer

61 Cal. 128, 1882 Cal. LEXIS 557

• Court: California Supreme Court
• Decided: September 21, 1882
• Docket: No. 7,956
• Status: Published

Opinion

The Court:

In the year 1874, respondent, as District Attorney of Lassen County, drew up an indictment against one Harris, which was returned to the County Court by the Grand Jury, indorsed “ a true bill.”

In 1881, Harris appeared in the Superior Court, and respondent, as his counsel, moved to set aside the indictment. The motion was granted.

In preparing for and making the motion—which was based upon the omission of certain forms—respondent was not assisted by information received by him in his capacity of District Attorney; and we are convinced that when the motion was made, he had no actual knowledge of the statutory provision which made his act a misdemeanor.

But independent of the statute, there can be no doubt that his conduct was reprehensible. By appearing both for plaintiff and defendant in the same action, he was guilty of “ a violation of his duty as an attorney,” for which it is our duty to remove or suspend him; (C. C. P., § 287.) Neither his ignorance of the laws, nor the crudity of his notions of professional ethics, can excuse an offense against professional propriety by one whose duty it is to assist in the administration of justice. The degree of turpitude involved in the breach of his duty by an attorney, however, must appear in the circumstances of each case. The punishment which should follow an inadvertent or ignorant departure from professional propriety—no seriously evil consequences having resulted—should be less severe than where the offense is a deliberate or corrupt violation of official oath.

The circumstances presented by the record, while they go towards showing an absence of intentional wrong, do not justify respondent. However innocent his motives, his conduct must be condemned. Yet, in consideration of the facts, we are disposed to inflict a penalty which, while it shall satisfy the provisions of the Code, and mark our disapprobation of his act, shall not forever debar the respondent from the further practice of his profession.

Counsel for the people does not insist that the other charges are sustained by the evidence.

Ordered, that respondent be suspended from practice as attorney or counselor in all the Courts of this State for a period of three months from the date of the filing of this order.