State Bar Commission Ex Rel. Williams v. Sullivan

1912 OK 527, 131 P. 703, 35 Okla. 745, 1913 Okla. LEXIS 157

• Court: Supreme Court of Oklahoma
• Decided: July 23, 1912
• Docket: 3506
• Status: Published

Opinions

DUDLEY, Special Judge.

This is an original proceeding in this court by the State Bar Commission, oh the relation of Ben F. Williams, against P. M. Sullivan, a member of the bar of this court and the inferior courts of the state, residing at Oklahoma City. The regular judges of the Supreme Court were disqualified, and this fact was certified by them to the Governor of the state, who thereupon appointed five special justices of the Supreme Court to hear and determine this cause, who there after assembled at Oklahoma City and qualified as such, and heard the testimony in this case. Before proceeding to a discussion of the merits of the case, it becomes necessary to determine some preliminary questions raised and urged by counsel for defendant.

The-specification of charges was filed January 13, 1912. The defendant was duly notified of the filing of the charges and furnished with a copy thereof, and in due course of time filed an answer to and an explanation of the charges and specification filed against him, to which the plaintiff filed a reply, by way of general denial. Upon the hearing of the cause, the defendant objected to the introduction of dny evidence upon the part of the plaintiff in support of the specification' of charges, for the reason that the petition or specification of charges was not verified, as required by law, in that it was verified upon information and belief and not positively; and thereupon C. W. Stringer, the attorney for the plaintiff and the person who verified the specification of charges upon information and belief, asked leave cf court to amend the verification of charges by making the verification positive. .Leave was granted to do so and the amendment was made, and after the conclusion of the taking of testimony upon the part of the plaintiff the defendant again challenged the sufficiency of the verification of the specification of charges, for the reason that the .testimony clearly showed that Mr. Stringer had no personal knowledge of the allegations contained in the specification of charges, and that by reason thereof the court did not have jurisdiction. The position of counsel for defendant is not well taken, for two reasons: (1) This proceeding was commenced by the Bar Commission.of the State of Ok-' lahoma, by the order and direction of this court, and therefore, under section 267, p. 229, Comp. Laws 1909, it was not necessary for the specification of charges to be verified at all; and (2), even though it were necessary for the specification of charges to be verified, after the amendment was made as to the verification, it was then a positive verification and its sufficiency must bd determined by an inspection of the verification itself; and, even though it developed upon the hearing of the case (a point which we do not concede) that the person who made the verification did not have actual knowledge of the statements contained therein, this fact cannot be taken for the purpose of showing that he had no personal knowledge. In re Collins, 147 Cal. 8, 81 Pac. 221.

It was also contended by the defendant that his right to practice law in the courts of this state was a vested right, and that therefore as a matter of right he was entitled to a trial by a jury in this court, upon the charges preferred against him, under chapter 56, p. 97, of the Session Laws of 1910, providing for trial by jury in this court. To this contention of the defendant we cannot agree. The right to practice law is not a vested right, but a mere privilege. 4 Cyc. p. 898, and cases cited; State ex rel. Mackintosh, Pros. Atty., v. Rossman, 53 Wash. 1, 101 Pac. 357, 21 L. R. A. (N. S.) 821, 17 Ann. Cas. 625. Section 268, p. 229, Comp.. Laws 1909, on the subject of “Trial in Disbarment Pro-ccedings,” specifically provides that the issues joined shall in all cases be tried by the court. This is a specific statute covering this class of proceedings, and should govern over the general statute. Section 1, c. 56, p. 97, of the Session Laws of 1910, provides :

“That in any cause now pending or hereafter brought in the Supreme Court wherein said court is exercising its original jurisdiction in which an issue of fact is presented properly triable by a jury, and either party to said cause demands a jury trial, said court-shall not dismiss such cause for the reason that a jury is required, but shall proceed in the manner hereinafter prescribed.”

The issue of fact presented here is not properly triable by a jury, for the reason that the special statute governing the trial of proceedings of- this kind specifically provides that all questions of fact shall be tried by the court. The provision of the Constitution as to the right of a trial by a jury means the right of trial by jury as it existed at the time of the adoption of the Constitution. Williams’ Ann. Const., sec. 27, p. 15; State v. Cobb, 24 Okla. 662, 104 Pac. 361, 24 L. R. A. (N. S.) 639; Baker v. Newton, 27 Okla. 438, 113 Pac. 1034. A disbarment proceeding, under our statute, is a civil proceeding (In re Biggers, 24 Okla. 842, 104 Pac. 1083), and the right to a trial by a jury in a disbarment proceeding did not exist at the time of the adoption of the Constitution (Dean v. Stone, 2 Okla. 13, 35 Pac. 578). We therefore are clearly of the opinion that the defendant was not as a matter of law entitled to a trial by jury, and his application was denied.

This disposes of all preliminary questions raised and urged by the defendant, and we now proceed to a discussion of the merits of the case.

It is alleged in substance in paragraph 2 of the specification of charges that the defendant is not a fit and proper person to engage in the practice of law in this state and should be disbarred, for the reason that he has been guilty of gross misconduct and has violated his oath and duty as an attorney and counselor at law. This paragraph is subdivided into five specific charges. However, we only deem it necessary to consider two of them, namely, the second and fifth, and we will therefore discuss them in their order. In the second subdivision of this general charge it is alleged that the defendant has been guilty of gross misconduct and violated his duty and obligations as an attorney and counselor at law, in that he, within a year prior to the filing of the specification of. charges in this court, falsely, maliciously, and without reasonable justification or excuse caused to be printed and published a certain book or pamphlet entitled “A Criminal Combine,” consisting of the Governor, the Attorney General, the Supreme Court, district courts, district clerks, district attorneys, referees, perjurers, murder plotters, and crooks galore in the state of Oklahoma; that said book or pamphlet was printed and published by the defendant for the purpose of giving vent and expression to his own personal spleen and malice, and to excite and create an ill will and prejudice against the courts of this state and the judges thereof, and the other officers and attorneys mentioned in said publication.

The defendant in his answer admitted the printing and publication of the pamphlet, but claims that the publication was in good faith and without malicious motives, and that the statements and allegations therein contained are true; he denies, however, that the pamphlet was printed and published at any time within one year prior to the filing of the specification of charges herein, and claims that, if he clid violate any of his duties and obligations as an attorney and counselor at law, he cannot be disbarred on account thereof, for the reason that the same is barred by the statute of limitations.

In the fifth subdivision of the specification of charges it is alleged that the defendant has been guilty of misconduct and violated his duties and obligations as an attorney and counselor at law by preparing and filing in the district court of Oklahoma county, Okla., a certain document styled a “Petition,” in case No. 11,054, wherein he is plaintiff and the Watch Tower Bible Tract Society and others, including the district, superior, and county judges of Oklahoma county, the district judge of Cleveland county, the judges of the Supreme Court, C. N. Haskell, Governor, and Chas. West, Attorney General, are defendants, in which he charges these defendants and others mentioned therein with a conspiracy to judicially rob him of certain real estate in Oklahoma City, and in connection with this general charge of conspiracy he charges them with robbery, bribery, perjury, and numerous other offenses; that the preparation and filing of said pleading was not actuated by an honest purpose to present and state- in said petition any issuable or triable matters of fact or law, but was prepared and filed maliciously and for the purpose upon his part to slander and libel said defendants and bring the courts of this state, and the judges thereof, and the other officers mentioned therein, into contempt, ridicule, hatred, and malice, and to injure the defendants in their reputations as citizens and public officials. Defendant in his answer admits that he prepared and filed said petition, but claims that the statements and allegations therein contained are true; that he filed the action for the purpose of recovering the lands which he had lost by reason of the acts and conduct of the defendants, as therein stated; and that the filing of said petition was no misconduct upon his part, nor a violation of any of his duties and obligations as an attorney and counselor at law, and, even if it were, he cannot be suspended or disbarred on account thereof under the statutes of this state.

We think the statements and allegations of the second and fifth subdivisions of paragraph 2 of the specification of charges are sustained by the testimony, and it therefore becomes pertinent to determine whether or not the conduct upon the part of the defendant, as set out in these two subdivisions, justifies his suspension or disbarment under the statutes of this state. Section 266, p. 228, Comp. Laws 1909, enumerates three causes for which an attorney may be suspended or disbarred. The one applicable, if at all, to the facts in this case, is subdivision 3, which is, “For the willful violation of any of the duties of an attorney or counselor.” Section 257, p. 227, Comp. Laws 1909, defines the duties of attorneys. The part of the statute applicable to the case at bar is: “Not to encourage either the commencement or continuance of an action or proceeding upon any motive of passion or interest.” Section 255, p. 226, Comp. Laws 1909, prescribes the oath that attorneys and counselors at law of this state shall take in open court. The part of the oath applicable to this case is:

“You shall not wittingly, willingly or knowingly promote, sue or procure to be sued, any false or unlawful suit, or give aid or consent to the same; you shall delay no man for lucre or malice, but shall act in the office of attorney in this court according to your best learning and discretion, with all good fidelity as well to the court as to your client.”

These are all of the sections of our statute that in any way apply to the facts and circumstances of this case; and, if the conduct of the defendant does not come within these provisions, then there is no statutory authority for his suspension or disbarment upon the charges brought against him.

The pamphlet or book referred to is a 36-page document, with defendant’s picture on the front page. A mere casual reading of this pamphlet by one familiar with the judicial history of this state will convince.him that it is a false, malicious, and unwarranted attack upon the courts and the judges thereof mentioned and referred to in the publication. It bristles with malice and hatred from start to finish, and was 'published for .the purpose of creating an ill will and prejudice against the Supreme Court, the inferior courts, and the judges thereof mentioned therein. The pamphlet gives a detailed history of the proceedings instituted by defendant in the district court of Oklahoma county to recover a certain piece of valuable real estate located in Ok lahoma City. The case, or some phase of it, has been before three or four district judges and as many special judges and referees, the superior and county judges of Oklahoma county, and the regular district judge and special judge, W. J. Jackson, of the district court of Cleveland county, and finally reached the Supreme Court, where the judgment of the district court of Cleveland county, was reversed and a new trial granted. The publication charges every judge, special or regular, and the referees to whom said cause, or some phase thereof, has been referred, with a conspiracy to judicially rob the defendant of the piece of land in Oklahoma City, and in furtherance of this general conspiracy he charges them with bribery, perjury, and other crimes and misdemeanors too numerous to mention. Finally, after the case got into the Supreme Court, even though he secured a reversal, he takes exception to the action of the Supreme Court because they did not r.ender a judgment in his favor on the merits of the.case, and then proceeds to accuse them with bribery, forgery, perjury, and other serious charges. The publication, upon its face, is conclusive of the falseness and maliciousness of the statements therein contained. It would take too much space to refer to the various charges contained in this pamphlet, but the following paragraph from what is styled the “Introductory” in the publication is a fair index to the contents thereof:

“And I know from a bitter, boycotted, persecuted experience that not only the Supreme Court, but the Governor (C. N. Has-kell), the Attorney General, four district judges, two district clerks, three county attorneys, and other county and state officials of Oklahoma, are impure and guilty of many high crimes and misdemeanors in office for which they can and should be driven from power to prison.”

Upon the trial of the case the defendant offered no apology for the publication of the document, but asserted that the statements therein contained were true. This assertion, however, was made in his pleadings, and not under oath in open court, because he did not see proper to testify in his own behalf upon the hearing. An attorney has a right to criticise the courts of this state, so long as his criticisms are made in good faith and in respectful language, and with no design to willfully or maliciously mis represent the position of the courts, or tend to bring them into disrepute or lessen the respect due them. Is this publication a criticism? Certainly not. It is a willful, malicious, outrageous, and unwarranted attack upon the integrity of the courts of this state and the judges thereof, with the sole and only purpose of creating a feeling of ill will and prejudice against the courts of this state and lessening the respect due them. Freedom of speech is one of our boasted guaranties of liberty; but even this right should be curbed when the integrity of the courts are willfully and maliciously assailed. The court has the inherent right to protect itself from such malicious attacks, and we think the publication of this pamphlet by the defendant a willful violation of his duties as an attorney and counselor at law, in that it violates that part of his oath as an attorney which provides that he shall act in the office of an attorney according to- his best learning and discretion, with all good fidelity as well to the court as to his client.

Our statute undertakes to limit the grounds upon which an attorney may be suspended or disbarred, and one of these grounds is the willful violation of any of the duties of an attorney or counselor. The statute also in a general way defines the duties of an attorney, but it in no sense attempts to define and set out all of the duties of an attorney. An attorney is an officer of the court, and as such it is his duty not merely to observe the rule of courteous demeanor in open court, but also to abstain, out of court, from all insulting language and offensive conduct toward the judges personally for their judicial acts. 4 Cyc. 908. The oath which an attorney is required to take before being permitted to practice law in the courts of this state is not simply to be obedient to the Constitution and laws of the state, but to maintain at all times the respect due the courts of justice and judicial officers (Bradley v. Fisher, 80 U. S. [13 Wall.] 335, 20 L. Ed. 646; In re Breen, 30 Nev. 164, 93 Pac. 997), and for a violation of these duties an attorney may be suspended or disbarred. The defendant in this cause has not shown the proper respect due the courts of this state and the judges thereof.

In the petition above referred to, which the defendant prepared and filed in the district court of Oklahoma county, he reiterates, to a very large extent, the contents of the pamphlet or book, and in fact attaches the pamphlet to the petition as an 'exhibit and makes it a part thereof, and asks judgment against the defendants, including the district, superior, and county judges of Oklahoma county, and the district' judge of Cleveland county,, and the members of the Supreme Court and others, for $250,000. It is insisted by counsel for defendant that he cannot be suspended or disbarred for filing a pleading in court under our statutes. This contention, we think, is correct, but we think the petition and the exhibit are competent evidence to be considered along with other evidence in the case, as affecting the defendant’s mental and moral fitness to continue to practice law before the courts of this state. He certainly did not expect to recover a judgment against the judges of the Supreme Court and the inferior courts of the state. He evidently sought this means to harass and attack the courts of this state and the judges thereof with the hope that he might create a feeling of ill will and prejudice against them, and we think the pleading, with the exhibit attached thereto, are competent evidence upon the general charge of misconduct and moral fitness in the specification of charges.

The Supreme Court of this state has exclusive power to admit attorneys to practice law before it and in the .inferior courts independent and aside from the statutory grounds of disbarment, the inherent power to suspend or disbar attorneys. In re Ex parte Wall, 107 U. S. 265, 2 Sup. Ct. 569, 27 L. Ed. 552; Bradley v. Fisher, 13 Wall. 335, 20 L. Ed. 646; 4 Cyc. 905; In re Newby, 76 Neb. 482, 107 N. W. 850; In re Robinson, 48 Wash. 153, 92 Pac. 929, 15 L. R. A. (N. S.) 525, 15 Ann. Cas. 415; In re Wilson, 79 Kan. 450, 100 Pac. 75; In re Durant, 80 Conn. 140, 67 Atl. 497, 10 Ann. Cas. 539; In re Breen, 30 Nev. 164, 93 Pac. 997; In re Ebbs, 150 N. C. 44, 63 S. E. 190, 19 L. R. A. (N. S.) 892, 17 Ann. Cas. 592; In re Thatcher, 80 Ohio St. 492, 89 N. E. 39; In re Egan, 22 S. D. 355, 117 N. W. 874; Danforth v. Egan, 23 S. D. 43, 119 N, W. 1021, 139 Am. St. Rep. 1030, 20 Ann. Cas. 418; Underwood v. Commonwealth (Ky.) 105 S. W. 151; In re Simpson, 9 N. D. 379, 83 N. W. 541; State ex rel. Atty. Gen. v. Burr, 19 Neb. 593, 28 N. W. 261; State v. Mosher, 128 Iowa, 82, 103 N. W. 105, 5 Ann. Cas. 984.

After a thorough consideration of all the testimony in this case, we are of the opinion that his conduct is such that he is not a fit and proper person to practice law in the courts of this state, and that his license should be revoked.

It is therefore ordered, adjudged, and decreed by the court that the license of the defendant to practice law before this court and the inferior courts of this state be and the same hereby is revoked, and that the costs in this case be taxed against the plaintiff.

JOHNSON and ZEVELY, Special Judges, concur; BUR-FORD and HUBBELL, Special Judges, dissent.