State ex rel. Patton v. Marron

22 N.M. 632

• Court: New Mexico Supreme Court
• Decided: July 30, 1917
• Docket: Nos. 2073, 2074
• Status: Published

Opinions

OPINION OF TI-IE COURT.

HANNA, O. J.

On September 23, 1916, this court made an order suspending each of the defendants from practice in all the courts of this state” for a period of one year. It having come, informally, to the ears of the members of the court that such order was being violated by the. respondents, the matter was referred to a committee of the bar of Bernalillo county, with instructions to investigate the respondents, which was done, and a report was duly made to the court. The report showed such a state of facts that the court deemed it proper and necessary to refer the matter to the Attorney General, with instructions to prepare and file informations as for contempt, which resulted in the present proceedings.

[1] The information, as to the said Marrón, charged in paragraph 2, among other things: That ever since said order of suspension he has maintained a law office in the city of Albuquerque, containing a law library, office furniture and fixtures, and has maintained therein one or more stenographers, and has habitually kept said office open to the public and his clients, and has, upon the windows and at the entrance to said law office, conspicuously displayed signs in words as follows: “Marron & Wood, Law Offices;” and has habitually written letters to clients and others and sent the same through the mails upon stationery at the head of which was printed the following: “Marron & Wood, Attorneys and Counselors, State National Bank Building, Albuquerque, New Mexico. Owen N. Marron — Francis E. Wood;” and has habitually mailed letters in envelopes upon which was printed a return card bearing the words, “Marrón & Wood, Attorneys and Counselors.” That he caused to be inserted in the telephone directory of Albuquerque, issued and published in January, 1917, the following address and telephone number in its proper place in alphabetical iirrhngement: “Miarron & Wood, Attys. State Nat. 'Bnk. N. — 55.” And that in January, 1917, he caused to be inserted in Worley’s Albuquerque City Directory, a business directory circulated in said city for 1917, a card as follows: “Marron & Wood (O. N. Marron, F. E. Wood), Attorneys, 1 — 4, State National Bank bldg., Phone ■ 55.” Respondent answered these charges admitting the use of the stationery as alleged, asserting that the names in the telephone directory were inserted by the telephone companjq without express orders and without his attention being called to the same, as was the case with the Albuquerque City Directory, and that on March 10, 1917, he caused the words indicating that his said offices were law offices to be removed from the windows and entrance of the same, not on account of the order of suspension, but on account of the act of the Legislature which went into effect on that day, and which prohibits unlicensed persons from holding themselves out as attorneys at law. Chapter 4-, Laws 1917, § 4. He alleged that all of the acts with which he is charged were done without any intent to violate the order of suspension, and in the liona fide belief, after advice of counsel, that the order of suspension prohibited him from practice in this court and the district courts only, and that he was; still permitted to practice law in the probate courts and justices of the peace and otherwise to the same extent as an unlicensed person.

He is charged in the fourth paragraph of the information with violating the said order of suspension in this: That on October 19,1916, he prepared, or caused to be prepared in his said law office at Albuquerque a complaint, affidavit, and bond in attachment which were thereafter filed in the district court of Bernalillo county in an action entitled “State National Bank v. F. J. Dye,” No. 10647 on the civil docket of said court. That the name of William A. TCcleher appears upon said files as attorney for the plaintiff, but that in truth and in fact the said Marrón was the attorney for the plaintiff, and that said Keleher was appearing for him. Respondent answered that he was instructed by the officers and directors of the State National Bank of Albuquerque, the plaintiff in said cause, and of which he is one of the directors, to take measures to enforce the note held by the bank against the said F. J. Dye, and to have proceedings instituted to procure a writ of attachment against Dye to enforce the note and to procure an attorney to institute and conduct said proceedings on behalf of the bank, and that he turned the note over to his stenographer, and instructed her to procure the services of either Mr. George S. IClock or Mr. William A. Keleher to act for the bank, and that his stenographer reported that Mr. Klock was out of town and Mr. Keleher was engaged in court, and, haste being necessary to protect the interests of the bank, he directed his stenographer to copy a form used in an attachment suit, deliver it to Mr. Keleher, and assist him in getting up the papers for the attchment, and that his stenographer did so assist Mr. Keleher, and thereupon Mr. Keleher filed the same, and has since had entire charge, direction, and control of said action, and that he (respondent) never was directly or indirectly attorney for the plaintiff in said cause, and that said Keleher was not appearing for him, but was appearing for the plaintiff.

lie is charged in the tenth paragraph of the information with having violated said order of suspension in. this: That he represented one Koy McDonald as administrator of the estate of A .J. Hawley, deceased, in the probate court of Bernalillo county, N. M., with reference to the preparation of papers, pleadings, and orders, the commencement of said proceedings, the appearance in said cause on behalf of said McDonald, and-advising said client upon questions of a legal nature relative to said matter. The respondent answered that during the year 1915, prior to September, 1916, he had represented the estate of A. J. Hawle3q deceased, and Koy McDonald as administrator of said estate, and had performed services in the premises of the value of more than $35, and that subsequent to September, 1916, at the request of said Kojr McDonald and to save expense, he assisted in the preparation of his final report as administrator, and drew certain orders in the probate court to close the account, that the estate was a small one, heavily indebted, and that the respondent made no claim for any compensation for services performed after September, 1916, and that said services were so rendered in the full and honest belief, on the part of the respondent, that under the provisions of our statute he was not barred or forbidden by the order of suspension from appearing for or representing persons in the probate court.

The information contains several other specific charges, some of which are denied by the respondent and some of which are admitted with certain explanations attending the circumstances. It will not be necessary to consider these other charges and they are, therefore, not here set out.

The Attorney General filed a demurrer to each of the answers of the respondent herein before outlined upon the ground that the same failed to state facts constituting a defense to'the charge above specified. This demurrer we have sustained.

The same order of suspension was made by this court on September 23d against the respondent Francis E. Wood, the said Marrón and Wood being partners in the practice of the law at Albuquerque, N. M: The information as to the said Wood, in paragraph 3 thereof, makes the same allegation as is made against the respondent Marrón, in regard to maintaining and keeping open a law office in the State National Bank Building in the city of Albuquerque, the displaying of signs, the use of stationery, an'cl the sending of the same through the mail, the inserting of the names in the telephone directory and in Worley’s Albuquerque City Directory. The same answer thereto is in-. terposed by the respondent Wood as was interposed by the respondent Marrón. Certain other charges are made against the respondent Wood, to the effect that he drew a mortgage and charged a fee of $10 therefor, and' that he did appear at a hearing before the state engineer of New Mexico, and examined and cross-examined various witnesses and did interpose objections to evidence, and that he did examine certain abstracts of title and give legal opinions thereon. It will not be necessary to treat these charges or the denial or the explanations thereof made by the respondent Wood.

In the eighth paragraph of the information the respondent Wood is charged with the same act, in regard to the action entitled “State National Bank v. F. J. Dye,” No. 10647, as are charged against the respondent Marrón. Respondent Wood, however, denies, in his answer, that he had any connection whatever with the said action and was ah-sent from the city-of Albuquerque when the action tras brought, and knew nothing of it until he learned of it after-wards. Certain other charges are contained in the information against the respondent Wood which the Attorney General has elected to dismiss. The respondent Wood avers generally, in regard to the.charges, that each and every act done by him, as charged or otherwise, was done under the honest belief that he had a right to do the act, and that he was not deprived by the order of suspension from any of the privileges enjoyed by citizens generally who are not admitted to practice as attorneys and counselors at law, and that he had taken counsel as to his rights in the premises, and had been advised to that effect, and that his acts were without any purpose or intent to disobey or violate the order of suspension of this court.

The Attorney General filed a demurrer to certain paragraphs of the answer which included the answer to'the charge of keeping open a law office, the keeping of signs upon the window and at the entrance thereof, the causing to be inserted in the telephone directory of the city of Albuquerque the said names and the using of the stationery, and the causing to be inserted the names in the Albuquerque City Directory, upon the ground that the same did not state facts sufficient to constitute a defense to said charge. This demurrer was sustained by the court. Upon the sustaining of the demurrers the Attorney General moved for judgment on the pleadings, the respondents both declining to plead further and filing a statement of their inability to plead otherwise than in their said answers. The motion of the Attorney General has been granted.

This record presents two questions for consideration: First, After an order of suspension by this court from practice in all of the courts of the state, is it a contempt of this court for an attorney to hold himself out as an attorney at law, by means of keeping open an office and displaying a sign or signs upon the window and at the entrance of his said office, indicating that/ the same is a law office and that he is an attorney at law, and by using and sending through the mails stationery indicating that the sender is an attorney at law, and by permitting his name to be published in a telephone directory as an attorney at law, or in a city directory? Second, Does an order of suspension from practice in all of the courts of this state prohibit an attorney at law from practice in the probate or other inferior courts during the term of such suspension? Upon both reason and authority both of these questions must be answered in the affirmative.

It must be apparent to any fair-minded person that the holding of himself out as an attorney at law, by means of the keeping open of the same law office, the displaying of the same signs upon the windows and at the entrance thereof, the use of the same stationery and the sending of the same through the mails, the permitting of his name to be published in a telephone and in a city directory, by an attorney, exactly the same as he had done before the order of suspension from practice, necessarily brings him into direct antagonism of the order. So far as the public are concerned, the invitation to visit the office and consult the attorney remains unchanged, and the order of the court, if known to them, would be seen to be of no avail. To the other members of the bar, who necessarily know of the order, his conduct inevitably must be regarded as a reflection upon the dignity and authority of the court making the order. So far as the court itself is concerned, while always carefully and sparingly exercising the high and more or less arbitrary power of disbarment or suspension of an attorney, when once an order is made, it owes it to itself, the members of the bar, and the public, to see that the order is fully and fairly obeyed and to punish for its violation. That such acts as the respondents are shown to have committed are a contempt of the court, see Re Maximilian L. Lizotte. 32 R. I. 386, 79 Atl. 960, 35 L. R. A. (N. S.) 794; State v. Richardson, 125 La. 644, 51 South, 673; 2. R. C. L. Attys. at Law, § 203. It follows that both of the respondents must be held guilty of contempt of this court.

[2] The respondent Marrón is alone concerned with the second question above stated. Before considering that question it may be stated that it appears that respondent Marrón is clearly guilty of the violation of the order of suspension in causing to be prepared the pleadings, affidavit, and bond in the attachment proceeding heretofore mentioned. He did indirectly what he was forbidden to do directly, viz. practice law in the district court. No matter how urgent haste may have been,, the fact remains that respondent was debarred by the order from doing the acts which he did. There were many other attorneys in Albuquerque to whom the business might have been intrusted if neither of the two attorneys desired could be secured. Respondent also practiced law in the probate court, and this brings us to a consideration of the second question. We do not understand counsel lor respondent to contend that this court has not power to suspend or disbar from practice in the inferior courts, but he contends that, in view of the provisions of the statute, the order in this case did not effectuate that result. The argument is based upon the provisions of section 352, Code 1915, which are as follows:

“No person can practice in any of the courts of this state except probate courts and courts of justices of the peace, nor can any person commence, conduct or defend any action or proceeding in any of said courts unless he shall first have obtained a temporary license as herein provided, or shall have been granted a certificate of admission to the bar under the provisions of this chapter, and any per'son violating the provisions of this section is guilty of contempt of court.”

It is argued that inasmuch as the right to practice law in the probate court and courts of the justices of the peace is not derived from any order of admission to practice by this court, an order of suspension 'from practice by this court must necessarily refer to the practice in those courts where an order of admission is necessary, viz., the Supreme and district courts. The argument is faulty. Section 3 74, Code 1915, defines the effect of suspension and disbarment to be to deprive the attorney of the right to appear in “any of the courts of this state.”' It requires construction to narrow the meaning of the words “any of the courts” so as to include only this court and the district courts. And there is no reason for so narrowing the definition of the words. If an attorney has been guilty of conduct requiring in the judgment of the court, his suspension or disbarment from practice in this and the district courts, the disqualification causing the suspension or disbarment likewise and to the same degree affects his fitness to practice in the probate or other inferior courts, where often some of the most important matters ever coming before courts are heard. Ñor are we constrained by rules of statutory construction to so narrow the meaning of the words. The mere fact that practitioners in probate courts and courts of the justice of the peace require no order of admission to practice is of no controlling force in the construction of the words of the statute. If, after an attorney has been elected into a special class among the citizens, possessed of many high privileges and prerogatives, he is found wanting and is expelled, either temporarily or permanently, from such class, it is not only competent, but the part of wisdom, we think, for the Legislature to provide, as we hold it 'has done, that he shall also lose the right póssessed by the unlicensed citizens, viz. to practice in the inferior courts.

Tt may be stated in passing that a decision of this question is not necessary to a decision of the case and makes no difference in the result reached; but, as it is presented and is properly to be decided, we have considered the same.

It thus appears that respondents are guilty of contempt of this court and it remains to fix their punishment. In approaching such a subject the court does so with great caution, fully realizing the arbitrary nature of the power exercised, and the inability of the respondents to have the action reviewed, thus requiring the court, in common justice, to take care lest injustice be done.

Tn the first place it is to be observed that both respondents disclaim any intent to violate the order of suspension. This disclaimer is entitled to consideration by the court, and under many circumstances might so mitigate the offense as to require no more punishment than a reprimand. They both allege that they took counsel as to their rights under the order and were advised that their course of conduct was proper. This fact reflects upon the degree of punishment required, but has no effect in relieving respondents of the contempt itself. State v. Richardson, 125 La. 644, 51 South. 673. On the other hand, there is something in the conduct of respondents which smacks of contumac3r. Tliej'' are attorneys of great learning and ability and wide experience, and are among the leaders of the bar of the state. It is difficult for the court to convict them of ignorance of the law and of the fact that holding themselves out as attorneys the same as before the order was a direct contempt of the court making the order. Evidence of complete submission to the letter and spirit of the order and a willingness to pay the penalty heretofore imposed seems to be lacking. It therefore becomes the unpleasant duty of the court to impose punishment of a substantial character.

The judgment of the court is that each of the respondents' pay a fine to the state of New Mexico in the sum of $500, and that each stands committed until his fine is paid.

Parker, J., concurs.