Bartos v. United States District Court , 19 F.2d 722 ( 1927 )

LEWIS, Circuit Judge.

The plaintiff in error pleaded guilty to the charge of making beer in his home for the use of himself and family. When guests were present they were offered a glass and it was usually served in this way at meals, and only in his home. There were no sales, no traffic of any kind. On his plea punishment was imposed. He was a member of the Bar in good standing and had a substantial practice in both Federal and State courts. Having suffered the punishment imposed, he was cited to show cause why he should not be disbarred from practice in the United States District Court for the District of Nebraska; and after a hearing the court, on the facts stated, disbarred him for a period of three years. No claim was made that he had ever been guilty of malpractice or unprofessional conduct, or that he had ever been accused or charged with any other offense.

The learned District Judge based his order of disbarment on two grounds, as appears in a written opinion whieh is found in 13 F. (2d) 138: First, the commission of the offense charged involved moral turpitude; and, second, it was a violation of the oath taken on admission to practice, — to support the Constitution and laws of the United States. Both grounds are challenged here. If either ground is well taken the order should be affirmed, but if both are untenable it should be reversed and vacated.

We take it to be a sound principle that the court has no regulatory power over the private life of members of the Bar, and that it cannot exclude them from practice for acts in that capacity unless they be such as to clearly demonstrate their unfitness to longer enjoy the privileges of the profession. Neither ground on whieh the order was made has any tendency to show malpractice or unprofessional conduct on the part of Bartos; nor was it found, nor is it expressly claimed here, that his act is convincing or persuasive that he will be derelict in duty to the court, to clients or to other members of the Bar. His future' dereliction is implicated from the grounds on which the order was made.

It was not a felony (Criminal Code, § 335 [Comp. St. § 10509,]), and hence not infamous. Nor was the act malum in se, but malum prohibitum; .and yet it is found that its commission involved moral turpitude. This is an old phrase in the law, and its meaning is demonstrated in eases in which a prior conviction is attempted to be proven for the purpose of impeaching a witness. It is subjective in meaning and restricted to those who commit the gravest offenses, — felonies, infamous crimes, those that are malum in se. They disclose the inherent character, that he is of depraved mind, and because thereof he is not worthy of belief even under oath. Crimes of a heinous nature have always been considered by laymen and lawyers alike as involving moral turpitude, regardless of legislative action on the subject. A thief is a debased man, he has no moral character. The fact that a statute may classify his acts as grand and petit larceny, and not punish the latter with imprisonment and declare it to be only a misdemeanor, does not destroy the fact that theft, whether it be grand or petit larceny involves moral turpitude. It is malum in se, and so the consensus of opinion — statute or no statute — deduces from the commission of crimes malum in se the conclusion that the perpetrator is depraved in mind and is without moral character, because, forsooth, his very act involves moral turpitude. Ex parte Wilson) 114 U. S. 417, 5 S. Ct. 935, 29 L. Ed. 89; In re Kirby (D. C.) 84 F. 606; Glover v. United States (C. C. A.) 147 F. 426, 429, 430, 8 Ann. Cas. 1184; Neal v. United States (C. C. A.) 1 F.(2d) 637; Haussener v. United States (C. C. A.) 4 F.(2d) 884, 887; Williams v. United States (C. C. A.) 3 F.(2d) 129. In State v. Taylor, 98 Mo. 240, 244,11 S. W. 570, 571, it is said:

“The general moral character of one who has been convicted of an infamous crime may well be considered so degraded as that but little credit ought to be given to his testimony, but it is not necessarily so of one who has been convicted of a mere misdemeanor, or the violation of a city ordinance. * •* * Conviction of an infamous crime tends to show a depraved and corrupt nature, a bad general moral character. Conviction. of a penal offense not infamous may be consistent with a character generally good or bad.”

In that case it was held error to admit in evidence records of convictions for violations of a city ordinance prohibiting ■ frequenting of bawdy houses, for the purpose of impeaching a witness.

In Redway v. Gray, 31 Vt. 292, the slanderous words accused the plaintiff of stealing property of less value than $7.00, and it was contended they were not actionable per se. The court said:

“They impute an infamous crime, involving moral turpitude, * * * the true reason why assaults, and breaches of the peace, and violations of the liquor law are not such offenses as make words charging them actionable, is because they do not necessarily and in a legal sense imply moral turpitude. The offense of larceny does necessarily imply it, and there is no distinction between grand and petit larceny in this respect.”

See, also, In re Henry, 15 Idaho, 755, 99 P. 1054, 21 L. R. A. (N. S.) 207. That court again said in McGovern v. Smith, 75 Vt. 104, 53 A. 326:

“The offense of selling intoxicating liquor does not, in a legal sense, involve moral turpitude.”

In Spring Co. v. Knowlton, 103 U. S. 49, 26 L. Ed. 347, it was contended that a contract was against public policy, illegal and void. The court, at page 57, said: .

“It is to be observed that tbe making of the illegal contract was malum prohibitum and not malum in se. There is no moral turpitude in such a contract.”

The same principle is restated in Parkers-burg v. Brown, 106 U. S. 487, 503, 1 S. Ct. 442, 27 L. Ed 238. In Fort v. City of Brinkley, 87 Ark. 400, 112 S. W. 1084, a physician was convicted of unlawfully selling intoxicating liquors. An Arkansas statute provided that whenever a physician is convicted of an offense involving moral turpitude his license to practice medicine and surgery shall be revoked as an additional peiialty. The court entered the order of revocation and Fort appealed. The Supreme court quoted from Black on Intoxicating Liquors, as follows:

“Offenses against the liquor laws, such as illegal sales of intoxicants, keeping liquor in possession with the intent to dispose of it unlawfully, illegally transporting liquor from place to place, and the like, are statutory crimes, not being punishable at common law. They are also of the description mala pro-hibita, as there is no inherent immorality in such acts, and their illegality lies only in the fact of their being positively prohibited.”

And then, after quoting the definition of the phrase: “Moral turpitude is defined to be an act of baseness, vileness, or depravity in the private and social duties which a man owes to his fellowmen or to society in general,” the court said:

“Moral turpitude implies something immoral in itself, regardless of the fact whether it is punishable by law. The doing of the act itself, and not its prohibition by statute, fixes the moral turpitude.”

The 'trial court in its opinion cites a number of eases, not noted above, in which it was held that violations of prohibitory liquor laws do not involve moral turpitude, hence convictions therefor could not be shown for the purpose of impeaching a witness. But it seemed to give much weight to a line of cases, sporadic and unsound we think, which say that the phrase moral turpitude has no definite meaning, that it shifts and fluctuates in keeping with changes in the moral standards of a people or country. This is doubtless so when viewed solely as a question of morals and long periods of time are taken into consideration. But when private rights are being adjudicated they are determined by rules of the civil law, not the moral; and so the civil law fixes a definite meaning to the phrase. It says the commission of crimes malum in se, infamous offenses and those classed as felonies involve moral turpitude, — none others. The phrase is centuries old, it has a definite meaning. The court in Fort’s Case, supra, said:

“It seems clearly dedueible from the above-cited authorities that the words ‘moral turpitude’ had a positive and fixed meaning at common law, and that the illegal sale of intoxicating liquors, not being an' offense punishable at common law, does not come within the definition Of a crime involving moral turpitude.”

The same principle of the civil law, which must guide us, was expressed by Justice Robb in his dissent in Rudolph v. United States, 55 App. D. C. 362, 6 F.(2d) 487, 40 A. L. R. 1042. In that case Rudolph, a retired police officer, had been convicted of a violation of the National Prohibition Act (Comp. St. § 10138% et seq.). The majority opinion, in reaching the conclusion that Rudolph's act involved moral turpitude, was forced to east aside a fundamental differentiation. It contains this:

“We are not much concerned with the distinction sought to be made between crimes malum in se and those which are merely mal-um prohibitum.”

To this Justice Robb convincingly made reply:

“The offense charged against the appellee being merely malum prohibitum, and Congress having specifically declared it to be nothing more than a mere misdemeanor, and fixed a penalty as for a misdemeanor, I do. not think it is for this Court to give to the offense a classification inconsistent with -that evidently intended by Congress. Had Congress intended a violation of the Volstead Act to be within the class of crimes involving moral turpitude, it would have affixed a penalty commensurate with such intent; but it adopted exactly the opposite course.”

When this rule of the civil law as distinguished from the moral, is ignored, the court, perhaps unconsciously, sets itself up to enforce what it conceives to be the rule of the moral law, as to which it is without power, and as to which there must at all times be different notions by different judges what that law is. The Master made wine in no small quantity for the marriage feast and it was good.

The District Judge cited in support of his conclusions Underwood v. Commonwealth (Ky.) 105 S. W. 151; State v. Johnson, 174 N. C. 345, 93 S. E. 847; In re Cafficotte, 57 Mont. 297, 187 P. 1019; State v. Edmunson, 103 Or. 243, 204 P. 619; to which may be added State v. Bieber, 121 Kan. 536, 247 P. 875, in which attorneys charged with violations of liquor laws were disbarred, and in which the courts said the offenses involved moral turpitude. In addition to what we have already said in criticism of and disagreement with those conclusions, it may be added that those cases were vastly different in facts from the facts in this ease. The parties charged were engaged in the traffic, they had made repeated sales and were repeatedly convicted, they were characterized as bootleggers, some of them, and some as maintaining a “blind tiger,” one or more was a prosecuting officer whose official duty it was to prosecute such violations, one was a fugitive and had published a criminal libel, and all but one (Bieber) seem to have had that condition of irresponsibility that no client’s cause ought to have been entrusted to them. In Bieber’s Case there was an able dissent from the majority on the. holding that there was moral turpitude, which was the gist of the issue as applied to the charge of possession only.

Speaking on the subject of admission to the bar the court in Ex parte Garland, 4 Wall. 333, 378, 379 (18 L. Ed. 366), said:

“Their admission or their exclusion is not the exercise of a mere ministerial power. It is the exercise of judicial power. * * * It is a right of which he can only be deprived by the judgment of the court, for moral or professional delinquency.”

There is no claim of professional delinquency. It is admitted that Bartos had conducted himself as an honorable member of the Bar for twenty-six years, that the act for which he was disbarred was the first accusation ever brought against him; and for the reasons stated we think that was not a moral delinquency in the eyes of the civil or common law. A reasonable, fair and just rule on this subject is found in In re Jones (Utah) 249 P. 803, 805:

“The rule as stated in 6 C. J. 600, is that an attorney will not be disbarred for misconduct not in his professional capacity unless such conduct is infamous or very gross.”

As to the second ground — of course, all men should support and defend the Constitution, National and State, and the laws made pursuant thereto. But we do not conceive that the oath Of an attorney imposes any additional obligation on him in that respect when he is acting in his private capacity. His profession necessarily gives him a better understanding of the organic law than others may have, but his oath is an official oath and it binds him only in his official action. When not so engaged he stands on the same plane as other citizens, no higher, no lower, no different in legal rights and obligations. Many persons holding office under Federal or State constitutions are required to take an oath to support the Constitution of the United States (article 6). It seems plain that this oath, like the oath of an attorney, is obligatory only as to official conduct; that it could not have been and was not intended to have any application to or efficacy over nonofficial conduct and acts of a purely private nature. To contend that the oath required by article 6 of the Constitution is at all obligatory on a member of a State Legislature while acting in his individual capacity in his social, business and private life, seems wholly irrational. We are thus unable to give any weight to the contention that Bartos, in doing the act charged against him broke the obligation of his official oath as an attorney to support the Constitution of the United States.

But there is a broad contention, that an attorney owes it to the court, the public and the Bar to be circumspect in his habits and practices in both his professional and private life, so as to not directly or indirectly reflect discredit or criticism on the administration of justice; and that the conduct of Bartos had- or conceivably might have this pernicious tendency, therefore, the court acted within its power and did not abuse its discretion in making the order. When it comes to malpractice, or unprofessional conduct, the power of the court over the offending member is conceded. Its purpose is to protect the public, the court and other members of the Bar. But, as we have already pointed out, this is not á case of that kind. The act was in private social life, and not of professional character. The distinction is important; and if the act does not disclose moral turpitude in the perpetrator rendering him unfit to be entrusted with the confidences and duties of the profession, it cannot appropriately be made the basis of disbarment. The inquiry in that kind»of a case would be outside the rules of law and in the uncertain field of purely moral obligation, duty, right and character. Ex parte Wall, 107 U. S. 265, 2 S. Ct. 569, 27 L. Ed. 552, presents an extreme and aggravated case on the facts. He was an attorney. The charge against him for disbarment was that he was a member of a mob which took a prisoner from jail and hung him at the court house door. The court found that he participated in a most atrocious murder; and yet, in the majority opinion, which sustained his disbarment, it is said:

“The proceeding is not for the purpose of punishment, but for the purpose of preserving the courts of justice from the official ministration of persons unfit to practice in them. Undoubtedly, the power is one that ought always to be exercised with great caution; and ought never to be exercised except in clear cases of misconduct, which affect the standing and character of the party as an attorney.”

Notwithstanding the facts in that case, Mr. Justice Field in his dissent, after pointing out the distinction between professional and private acts of an attorney, said:

“To disbar an attorney is to inflict upon him a punishment of the severest character. He is admitted to the bar only after years of study. The profession may be to him the source of great emolument. If possessed of fair learning and ability, he may reasonably expect to receive from his practice an income of several thousand dollars a year, — equal to that derived from a capital of one or more hundred thousand dollars. To disbar him having such a practice is equivalent to depriving him of this capital. It would often entail poverty upon himself and destitution upon his family. Surely the tremendous power of inflicting such a punishment should never be permitted to be exercised unless absolutely necessary to protect the court and the public from one shown by the clearest legal proof to be unfit to be a member of an honorable profession.”

We revert to what we said supra, that the court has no regulatory power over the private life of members of the Bar, and cannot exclude them from practice for acts in that capacity unless they be such as to clearly ■ demonstrate their unfitness to longer enjoy the privileges of the profession. In our judgment the act on which the disbarment order was made is wholly insufficient for that purpose. The action of the court will be reversed with direction to vacate the order of disbarment and restore plaintiff in error as a member of the Bar.