People ex rel. Rogers v. Green , 9 Colo. 506 ( 1886 )

Per Curiam.

The relators in each of these proceedings seek to have the names of respondents stricken from the roll of attorneys admitted to practice before the courts of this state. The cases, although submitted together and upon the same evidence, will, so far as practicable, be separately discussed in this opinion.

1. The petition and answer in People v. Rogers present the following issues, viz.: Did Marsh proffer, and did Judge Rogers accept, a bribe in the Newton Case? Was the decision of Judge Rogers in said cause the result of a corrupt partiality on his part? Did Marsh and Judge Rogers, or either of them, induce Topping, by bribe or otherwise, to commit the crime of perjury before the grand jury? . Did Marsh, or- Rogers, or either of . them, tender a bribe to Rhodes,? or otherwise corruptly endeavor to influence him in the discharge of his official duties with reference -to the indictments in question? Did Rhodes accept this bribe, or a bribe from any person, to enter a nolle prosequi in connection with said indictments, or was he in any other manner corruptly influenced so to do?

It is not necessary for us to say that, if either of the respondents is guilty of the foregoing acts, he has disgraced the legal profession, and his license to practice should be promptly revoked. Such conduct, if tolerated, would soon bring the bench and the bar of the state into disrepute, and confidence in a pure administration of justice would be effectually destroyed.

The offenses charged against Judge Rogers and Mr. Rhodes are acts committed in their official capacities as judge of the superior court of Denver and as district attorney of the second judicial district, respectively. Therefore they are grounds of impeachment under the constitution and statutes of this state. But both of these gentlemen have seen fit to waive legal objections, if any there be; against the present proceeding. They have appeared in response to the rule and filed an answer, putting in issue before us the truthfulness of the charges specified. They have, moreover, demanded a thorough and complete investigation by this court of their official conduct in the premises. We are not here called upon to review the decision of Judge Rogers in the case of Newton v. Joslin. Whether error supervened for which that judgment, upon a proper presentation, would be set aside, is a matter that is not and cannot be involved in the proceeding before us. This is not one of the methods provided for correcting the errors of inferior courts. Nor is the question whether or not the judgment in the Newton Case was obtained by the fraud or perjury of Joslin, his agents or witnesses, to be settled in this investigation. Neither can we now inquire whether the witness Topping committed the crime of pei-jury before the grand juiy. It might be conceded, for the purposes of this case, that the judgment of Judge Rogers should be reversed for error, or that it should be treated in equity as wholly void because procured by fraud upon the court or by perjury; and it might also be assumed that Topping should be convicted of the latter crime. Yet these circumstances would not necessarily, in and of themselves, have any bearing upon the case now under consideration.

Impressed with the supreme importance of the questions presented, we devoted nearly a week to hearing the evidence and arguments of counsel in the two cases at bar. All evidence offered to sustain the foregoing charges was admitted. A great deal of testimony which might, under a strict application of technical rules of evidence, have been excluded, was received. Petitioner and her attorneys were given a most unlimited discretion in the production of documents and witnesses to support the several matters averred by the petition. Since the trial we have most patiently and industriously weighed the proofs in all their bearings, and our conclusions are the result of a deliberate and careful consideration thereof. No useful end would be'subserved by. a discussion or analysis here of the evidence in detail. Besides, such analysis takes place, of necessity, in determining the case against Messrs. Green and Johnson. We are glad to say that, so far as this branch of the case is concerned, the good name of the judiciary and bar of the state remains untarnished. It is with profound satisfaction that we find ourselves compelled to declare each and every of the foregoing charges unsustained. We discover nothing which justifies a finding that either of respondents, in the transactions mentioned, committed a dishonest act, or entertained a corrupt motive. Their conduct was not inconsistent with a conscientious endeavor to honorably perform their official duties.

The rule in this case must be discharged.

2. It remains for us to consider the pleadings and evidence .in the case against Messrs. Green and Johnson.

A bill filed in the circuit court of the United States by the respondents, as attorneys for Mrs. Newton, is made the basis of the petition for their disbarment. By reference to the pleadings set forth in the statement of facts preceding this opinion, it will be seen that the bill complained of charges, in substance, that Marsh gave, and Judge Rogers received, a bribe in the case of Newton v. Joslin, already referred to; .also that Marsh told one Topping that he could bribe the judge of the superior court of the city of Denver, and had done so in said case. It will be noticed also, by reference to tbe answer of respondents, that they admit the filing of the bill, but claim that in so doing they acted in good faith, and without malice, as the attorneys for Mrs. Newton. They also reassert the charges made in their bill' against Marsh and Rogers, and aver their ability to prove them. It will be further seen, by reference to their answer, that respondents therein allege a new and distinct felony, namely, that when these charges of bribery and corruption were, at the suggestion of this court, brought to the attention of the grand jury, the said Marsh and Rogers were guilty of subornation of perjury, in that, with a view to their exculpation, they suborned one Topping to testify falsely before said body, and they further allege a conspiracy between Marsh, Rogers and the prosecuting attorney to defeat the investigation before the grand jury. These charges were so grave, were accompanied with such emphatic averments of ability to prove them, touched so closely the most vital interests of the public, that, as already suggested, we felt it our duty to depart from our general practice, and hear the entire casein open court, giving respondents the widest latitude in the introduction of testimony. Although we could not, on this proceeding, in any legal sense, review the trial in the superior court of the case of Newton v. Joslin, wherein Judge Rogers is alleged to have been bribed by Marsh, we nevertheless admitted all the pleadings and evidence in that case for the purpose of examining their bearing upon this case, but chiefly as affecting the motive of respondents in preparing and filing the bill in the federal court.

As we have seen, the respondents interpose two defenses: First, that the charges made in the bill complained of are true; second, that the pleading is privileged.

We have already considered these charges in connection with the petition of the respondents for the disbarment of Rogers and Marsh. No satisfactory evidence has been presented to us showing that they are true. Before commenting further on the evidence we pass to the consideration of the second defense.

In actions for libel and slander, the English rule appears to be that judges, counsel, parties and witnesses are absolutely exempted from liability to an action for defamatory words published in the course of judicial proceedings. The American courts, we think, as a rule, accept this doctrine, with the qualification, as to parties, counsel and witnesses, that their statements made in the course of -an action must be pertinent and material to the ease. This modification of the English rule is adopted in this country in order that the protection given to individuals in the interest of an efficient administration of justice may not be abused as a cloak from beneath which to gratify private malice. McLaughlin v. Cowley, 127 Mass. 319. Subject to this restriction, it is thought, on the whole, for the public interests, and best calculated to subserve the purposes of justice, to allow counsel full freedom of speech in conducting causes, and advocating and sustaining the rights of their constituents. Hoar v. Wood, 3 Metc. 198. The foregoing is the rule in actions of libel and slander. This is a disbarment proceeding, and we. apprehend that the question presented is different, and must be determined upon different considerations.

“An attorney is liable to be removed from office by the court for sufficient reason and on proper showing. This reason and this showing are not necessarily limited to criminal offenses, or to an act which Would create a civil liability. In the case of an attorney of the court, he may be removed from his office of attorney absolutely or for a limited period of time, or, in the common phrase, may be suspended or disbarred, for any matter or thing proved against him which shows that he is unfit to be permitted to practice in the court as one of its officers.” “ This unfitness may be shown by his guilt of a crime, as theft, murder, burglary. It may also be shown by proof of such bad moral character as is inconsistent with such an honorable office. It may be shown by specific acts done in connection with his business in the court, or out of it, if it be in the practice of the duties of an attorney, which may show him unfit to be trusted as such, but which are short of any criminal offense.” Ex parte Cole, 1 McCrary, 407; Penobscot Co. Bar v. Kimball, 64 Me. 153,

The powers, duties and privileges of an attorney are conceded. No question is made concerning them. The point made is that he is unfit to exercise and enjoy them. In an action for libel or slander for defamatory words, published or spoken, in the course of a judicial proceeding, it may be conceded that he may plead his privilege, and his plea must be allowed if the matter be pertinent and material to the issue. He enjoys this privilege by virtue of his license as an attorney. The gist of the complaint in this proceeding is that the respondents have abused this privilege, and that they are unfit persons to hold the license of this court, and to exercise and enjoy the rights and privileges which it confers. The petitioners in this case do not claim that respondents can be made to respond in damages in an action for libel or slander, but they come to this court, and allege most flagrant misconduct, and ask us to protect them and the public by withdrawing from the respondents, as unfit persons, our license authoi-izing them to practice as attorneys. We think there is an undoubted inherent right and power in this court to inquire into the abuse men- ' tioned, and, if it be proven that the charges alleged in the bill referred to were made with malice and without probable cause, to disbar the respondents therefor. Our former opinion assumed and proceeded upon this theory, although we did not then discuss our right to enter upon such an inquiry. To say that a court which licenses an attorney cannot inquire into an abuse of its license is to establish a class absolved from the demands of justice and privileged to do injury — legibus soluti. The argument that an attorney cannot be proceeded against civilly or criminally only demonstrates the greater necessity for the possession and exercise of the power to suspend or disbar. It is true that the pleading complained of was filed in a federal court, but the attack was upon a state court by an attorney holding a license of the state, and of such a character as to bring into disrepute, and to destroy public confidence in, the administration of justice by a state tribunal. Whether made in a federal court or in a state court, such charges, made maliciously and without probable cause, show the attorney making them unfit to enjoy the rights and. privileges of an attorney. Aside from this, as we shall hereafter notice, the answer of the respondents, and Green’s separate petition for the disbarment of Rogers, Marsh and Rhodes, afford distinct and independent grounds for disbarment sua spontQ. That this power of disbarment is to be exercised guardedly, with full reference to the importance of freedom of speech in conducting causes and in advocating and sustaining rights, is matter of course.

With the foregoing propositions in view, we proceed to' an examination of the facts in this cause, and the claim of respondents that they acted in good faith and upon probable cause.

We are cited by respondents to the character of the decision rendered by Judge Rogers in the superior court in the case of Newton v. Joslin as a sufficient ground to justify both the belief and charge of bribery. It may be conceded, for the purposes of this case, that Judge Rogers erred in his decision in that case, and that Mrs. Newton thereby suffered injustice. These facts alone would not constitute ground for charging the judge with having acted corruptly in the premises. It would be indefensible to say that, because a judge commits error of law or of fact, he is therefore corrupt, and that attorneys aggrieved, by the decision may, without other evidence, denounce him upon public records as a taker of bribes. The claim, however, of the respondents is that the decision complained of was so monstrous in its character as to shock the moral sense, and, taken in connection with other circumstances given in evidence, such as to justify both the belief and charge of bribery. However erroneous the decision complained of may have been, we do not think that it can be fairly or justly, on the pleadings and on the evidence, characterized as a monstrous judgment. There was much conflict of testimony; there was evidently perjury upon one side or the other; and much would depend upon the ability of the judge to determine the credibility of witnesses. Much stress is laid upon the allegation that Joslin, on the trial of the cause before Judge Rogers, confessed the fraud. While the testimony of Joslin may not free him from suspicion, it is not correct to say that upon the trial he confessed the fraud.

In addition to this alleged wrong and unjust judgment, the respondents aver and attempt to prove circumstances which tó them strongly corroborated their theory of bribery. They allege that, during the trial of the cause, the said judge and the said Marsh were frequently “secretly closeted together” at the judge’s chambers, and at the office of the said Marsh. Upon this point the evidence shows that Marsh, during a noon intermission of the court, while the trial of the case was in progress, was upon one occasion seen sitting in the judge’s chambers talking with the judge. No evidence was offered to show what the conversation was between the parties, or that it was not perfectly proper. On the other hand the testimony of Marsh and Rogers is that, if they were together at said time and place, the meeting resulted from a casual call of the former upon the latter, while waiting for the incoming of the court, and that, if any conversation occurred, it had no relation whatever to the case on trial. The judge’s room was part of the sheriff’s office, divided by a partition reaching part way to the ceiling. The door of this room and' the one communicating with the sheriff’s office and hall were, at the time, both open. The employees and deputies in and about the court and the sheriff’s office were coming and going.

The respondents also proved that, upon one occasion during the progress of the trial, Judge Rogers was found coming out of Marsh’s office. But the evidence shows that, prior to leaving the court-room, the judge had told the deputy sheriff that he (Judge Rogers) would call on his way to dinner at the office of Marsh and at the office of respondent Green, and notify theln, as the attorneys in the case, to be present at the incoming of the court to receive the jury. The testimony further shows that, in pursuance of this declared intention, the judge did call at the said Marsh’s office and so notified him; that he did not remain in the office; that he did not even take a seat; that he merely stepped within the door, and, having notified Marsh, turned to leave the office, when he met the bailiff sent for him by the deputy sheriff. While it must be remembered that the respondents, at the time they filed their bill, had no knowledge of these explanatory facts, the naked facts themselves, as they saw them, by no means justified the offensive, and, in the connection in which it was used, crime-imputing, allegation that the judge and Marsh were frequently found, during the pendency of said suit, “ secretly closeted together.” Such intercourse is common between judges and attorneys, and is no evidence, to a fair and candid mind, of bribe-giving and bribe-taking. Delicacy and prudence may suggest, upon a given occasion, to both attorney and judge, a limitation, if not a suspension, for the time being, of social intercourse; but the subject must be left to these guides. The proposition that attorneys and judges shall cease to call and converse because of pending litigation cannot be admitted. That no reputable attorney would take "advantage of social intercourse to approach a judge concerning litigation pending before him, and that no upright judge would permit of such an approach, is well understood by the profession. The only result of the rule contended for by respondents would be to inhibit social amenities between judges and members of the profession. It would not prevent a corrupt attorney and a corrupt judge from negotiating.

The respondent Johnson, in his testimony, tells us that ■upon the next day, or soon after the trial of the case of Newton v. Joslin, he met Marsh, and that, in the course of a conversation about the trial, the latter said to him: “It is better for attorneys to submit when they are beaten,” or words to that effect. We confess to some surprise that we are cited to this as a circumstance worthy of consideration in connection with the charge that Marsh had bribed the judge, and do not deem it necessary to notice it further.

We come now to consider the alleged declarations of Marsh that he could bribe the judge of the superior court, and that he had bribed.him in the case of Newton v. Joslin. These declarations, respondent Green testifies, were communicated to him by Topping. It may be questioned, if the declarations of Marsh were proven as alleged, they would be admissible as evidence against Rogers. Marsh denies under oath that he ever made any such declarations to Topping. Topping' testifies to the same effect, and further denies, in toto, that he ever informed respondent Green that Marsh had made any such declarations. The respondent Johnson, upon this point, derived his information from Green, and does not claim that he ever had any conversation with Topping upon the subject. Let it be conceded that Topping made these statements to Green and also to the witness Robinson, and that Green, and not Topping, speaks the truth in this particular. The respondents do not appear to have taken any steps, or to have made any inquiry, to verify the statement of Topping, although he was a non-resident and a comparative stranger to them, and although, according to their own testimony, he was a person willing to bribe a judge. We are unwilling to say that the unsworn statement of a comparative stranger, about whose integrity, veracity and standing the respondents knew nothing, constituted “probable cause” for believing, charging and publishing upon official records that a brother attorney and the judge of an important court were guilty of an infamous crime.

When our attention, at the last term, was first called, to the charges made by respondents against Marsh and Rogers, we directed that the whole matter be laid before the grand jury as a proper subject for their investigation. Such an investigation was had; and, while the grand jury found an indictment against Lamb and Joslin, they failed to find any bill against Marsh or Rogers. On the other hand, it appears in evidence that, while they thought that Judge Rogers erred in his judgment, they made a report to the district court entirely exonerating him from the charges of bribery and corruption. Thereafter the respondents came into this court, and by their sworn answer in this case, and Green by the petition for disbarment against Rogers, Marsh and Rhodes, advise and inform us of this investigation, and do not hesitate to charge subornation of perjury by Marsh and Rogers, perjury upon the part of the witness Topping, corruption upon the part of the prosecuting attorney by bribe-taking or otherwise, conspiracy between Marsh, Rogers and the prosecuting attorney to defeat the investigation, and a purpose to “whitewash” upon the part of the sworn members of the grand jury. Of these wholesale charges of bribery and corruption, of subornation of perjury, and conspiracy before the grand jury, we invited proof. The respondents have offered us substantially nothing. It is true that Rhodes entered a nolle prosequi as to the indictments against Joslin and Lamb, but this appears to have been with the consent of the court, in open court. There is no evidence that Marsh and Rogers ever had any conference or conversation or communication whatever with Rhodes touching the investigation before the grand jury. On the other hand, all of these parties testify without equivocation that not a word, written or .spoken, passed between them upon, the subject of the investigation, except the written communication of Judge Rogers asking the prosecuting attorney, in accordance with the suggestion of this court, to lay the charges made by Green and Johnson before the grand jui-y. The respondent Green testifies that some of these things charged were told him on the street; and this, taken in connection with the nolle prosequi entered by Rhodes, and other circumstances not of sufficient importance to enumerate, is regarded by him as sufficient to justify these charges of felonies, deliberately made in written pleadings in this court. We notice these new and distinct charges of felonies in the answer and the petition against Rogers and Marsh, and the evidence in support of them, as matter pertinent to the motive of respondents ifi this entire proceeding; as illustrating how grave the charges, and how insufficient the proof in support of them, and as constituting in and of themselves an abuse of the confidence of this court, which justifies the .disbarment of at least one of the respondents, sua sponte.

The foregoing is a brief statement of the evidence upon which respondents claim to have acted. Whether the averment in respect to the declarations of Marsh and Topping that he (Marsh) could bribe Judge Rogers, and did bribe him in the Newton Case-, was material, we do not consider. We determine the issues as though ’this allegation were not questioned as immaterial.

We appreciate all that can be properly said touching the independence of the bar. We recognize fully the importance of such independence to all good government, and its value as a means of securing the fair, impartial and pure administration of the laws. We have no desire to abridge it, and upon all proper occasions will take care that it shall find full protection and vindication in the decisions of this court. But under no considerations applicable can we find justification for the conduct of respondents in the matters before us. We have declared that the charges made in the bill, the petition and the answer are wholly unsustained by the evidence. They therefore must be regarded as false. The language employed by bill, petition and answer, in connection with the charges,' is of such a character to produce a strong impression that its author, Green, must' have been actuated by malice. This impression is strengthened into conviction by the slender foundation uppn which the charges are shown to have rested. Respondent Green, in our judgment, considering the facts proven, singly or together, cannot be said to have acted upon probable cause. These charges were made upon such slight information, governed apparently by such unfounded suspicions, and with such reckless disregard of injury to professional and judicial character, that the inference of malice, at least with regard to him, becomes irresistible. Neither the letter nor the spirit of the attorney’s privilege permits him to enter our courts and spread upon judicial records charges of a shocking and felonious character against brother attorneys, and against judges engaged in the administration of justice, upon mere rumors, coupled with facts which should, of themselves, create no suspicion of official corruption in a just and fair mind. And although, in actions of libel and slander, it has been thought wise to exempt them from liability for .defamatory words, published or spoken, in the course of judicial proceeds ings, provided such words are material, in a disbarment proceeding the recognition of such a privilege could neither secure justice nor advance the independence of the bar. On the contrary, its inevitable tendency would be to destroy the respect due to the profession as well as to the bench, and cripple the influence and usefulness of both. Upon a careful review of the evidence, therefore, we are forced to the conclusion that the conduct of respondent Green in the premises was prompted by malice, and was without probable cause.

As to whether respondent Johnson acted with malice in connection with the bill filed in the federal court, the evidence is not so satisfactory. Differences appear in the grounds upon which the conduct of the two respondents is predicated. Green was the senior counsel, and Johnson was called in by him as assistant. Johnson had nothing to do with planning or preparing the bill referred to. When he was called into the case, this bill had been drawn by Green and had been signed and verified by Mrs. Newton. Topping had been favorably introduced to Johnson by a gentleman in whojn the latter had confidence. Johnson relied upon the reports given by Green and Robinson of Topping’s assertions relating to the bribery of Judge Rogers in the Newton Case. Topping had never employed Johnson; he was a client of Green. Johnson depended upon Green’s statements as coming from a brother attorney. The evidence clearly shows that previous tó and during the trial of the Newton Case the strongest ill-will existed between Green and Marsh. On the other hand, the relations of Johnson and Marsh and of Johnson and Rogers were perfectly friendly. Johnson would therefore be less likely to act with malice to- ' wards one of these defendants in filing said bill. The 'petition for disbarment in People v. Rogers, submitted and tried with this case, was prepared by Green. Johnson had no knowledge of its contents until the same had been filed. Upon learning that this independent proceeding had been instituted and his name connected therewith as attorney, he withdrew entirely from that case and declined to have anything to do with the prosecution thereof. It is a fact of which, in determining the degree of punishment, this court may properly take judicial notice that the name of Green has once before been stricken from its roll for malconduct in office; such malconduct being a malicious verbal assault upon the judge of a district court for rulings in a case before said judge wherein Green was of counsel (People v. Green, 7 Colo. 237), while, on the other hand, respondent Johnson has hitherto, so far as we are informed, always conducted himself in accordance with the highest demands of professional dignity and courtesy. Under these circumstances, we are not prepared to say that Johnson’s conduct in filing the bill in the federal court was not the result of undue .zeal for the welfare of his client, rather than of malice towards Judge Eogers or either of the other defendants. We cannot, however, view his action in the premises as blameless. We think he proceeded without that caution and circumspection which the gravity of the charges demanded; and that his conduct, especially in connection with the answer filed in this court, is highly censurable. Before .signing his name to the bill or to the answer he should have made a much more careful and thorough investigation as to the truthfulness of their averments. But while we cannot excuse his conduct in the premises, we have concluded to vacate the judgment of disbarment hitherto pronounced. We think the suspension from practice which has already taken place, and its continuance until the April term of this court, a sufficient punishment. The judgment of disbarment- is accordingly revoked, and his name is restored to the roll of attorneys. He will, however, remain suspended from practice until the first day of the April term aforesaid. The judgment of disbarment pronounced against respondent Green will remain undisturbed.

The opinion heretofore filed is withdrawn, and the foregoing will be substituted in lieu thereof as the opinion of the court.