Ex parte Steinman & Hensel , 1880 Pa. LEXIS 306 ( 1880 )

Chief Justice Sharswood

delivered the opinion of the court,

The record before us has been brought up by a writ of error under the Act of Assembly approved May 19th 1879, Pamph. L. 66, entitled “An act regulating-proceedings against attorneys-at-law in this Commonwealth.” It provides “that in all cases of any proceedings in any court of this Commonwealth against any attorney of said court for unprofessional conduct as an officer of such court, said attorney shall be entitled to a writ of error from the Supreme Court of this Commonwealth, as in civil cases to said court, from any judgment, order or decree of. said court against him as such officer, which writ of error shall remove the record and all the proceedings therein to the Supreme Court of this Common-wealth; and it shall be the duty of said court to review the same de novo, and the complainant shall have the right to offer new testimony by deposition or otherwise, as said Supreme Court may direct, and upon hearing said court may modify, reverse or affirm said judgment, order or decree of the court below, as the justice of the case shall require.” Other provisions are added as to the hearing of the cause in any district, and giving it a preference over all other than homicide cases, and as'to the costs, all which, to say the least, are unusual. The remedy by writ of error, which properly requires two parties, is certainly not the best which could have been devised, and what is meant by reviewing the case de novo is not very intelligible unless it be from what follows that the court is to hear any new testimony which may be offered by the complainant, but not by the court below or any other parties, if there can be any others. On the whole it is a curious piece of legislative patchwork^ How far the provision that this court shall hear new testimony and decide the case as if it was a new one consists with that article of the Constitution which prohibits the Supreme Court from the exercise of any original jurisdiction, except in a few specified cases, is a question which does not arise, as the controversy here is presented fully on the record, and we áre not asked to look out of it.

The complainants were members of the bar of Lancaster county, and were also the editors of a newspaper published there. They printed in their paper an article very severely reflecting upon the conduct of the court in a certain prosecution in the Quarter Sessions, in which the defendant had been acquitted on an indictment for violating the liquor law. It charged that the acquittal “was secured by a prostitution of the machinery of justice to serve the exigencies of the Republican party,” and added that as the judges belonged to that party it was “ unanimous — for once — that it need take no cognisance of the imposition practised upon it and the disgrace attaching to it.” We may safely assume that it meant to charge and did charge that the judge had decided the case wrongfully from motives of political partisanship. We have no hesitation in pronouncing such a publication to be a gross libel on its face. Nothing can bé mofe disgraceful — not even perhaps that of direct bribery — than such an imputation on the motives of judges in the administration of justice.

The court thereupon sent for the complainants, and on their appearance and taking upon themselves the responsibility of the publication in question, entered rules upon-them to show cause why they should not be disbarred and their names stricken from the list of attorneys for misbehavior in their offices as attorneys. To this rule they appeared and put in answers respectively, and the rules were afterwards made absolute.

Many objections have been raised’ to the proceeding, which we will not stop to consider. We entertain no doubt that a court has jurisdiction without any formal complaint or petition upon its own motion to strike the name of an attorney from the roll in a proper case, provided be has had reasonable' notice and been afforded an opportunity to be heard in his own defence.

No question can be made of the power of a court to strike a member of the bar from the roll for official misconduct in or out of court. By the seventy-third section of the Act of April 14th 1834, Pamph. L. 354, it is expressly enacted that “if any attorney-at-law shall misbehave himself in his office of attorney he shall bo liable to suspension, removal from office or to such other penalties as have heretofore been allowed in such cases by the laws of this Commonwealth.” We do not mean to say — for the case does not call for such an opinion — that there may not be eases of misconduct not strictly professional which would clearly show a person not to be fit to be an attorney nor fit to associate with honest men. Thus if he was proved to be a thief, a forger, a perjurer or guilty of other offences of the crimen falsi. But no one, we suppose, will contend that for such an offence he can be summarily convicted and disbarred by the court without a formal indictment, trial and conviction by a jury, or upon confession in open court. Whether a libel is an offence of such a character may be a question, but certain it is that if the libel in this case had been upon a private individual, upon a public officer, such even as the district-attorney, the court could not have summarily convicted the defendants and disbarred them. The office of an attorney is his property, and he cannot be deprived of it unless by the judgment of his peers or the law of the land, this last phrase meaning, as we have been taught by Lord Coke, “ due process of law.” By the seventh section of the first article of the Constitution of 1874 — the Bill of Rights — it is declared that “ no conviction shall be had in any prosecution for the publication of papers relating to the official conduct of officers or men in public capacity, or to any other matter proper for public investigation or information where the fact that such publication was not maliciously or negligently made, shall be established to the satisfaction of the jury.” This is a new and very important provision introduced into the Bill of Rights by the Constitution of 1873. It-would be a clear infraction of the spirit if not the letter of this article to hold that an attorney can be summarily disbarred for the publication of a libel on a man in a public capacity or where the matter was proper for public investigation or information ; for as he certainly does not forfeit his constitutional rights as a freeman by becoming an attorney, it guarantees to him immunity from all liability to punishment in the case of “ the publication of 'papers relating to the official conduct of officers or men in public capacity where the fact that such publication was not maliciously or negligently made shall be established to the satisfaction of the jury-”

But the gravamen of the offence of the complainants was that the publication was a libel on the court of which they were attorneys, and this, it is earnestly contended, was “ misbehavior in their office,” which gave the court power to exercise summary jurisdiction by removing them.

The duty of an attorney is briefly comprehended in the terms of his oath “ to behave himself in the office of attorney according to the best of his learning and ability, and with all good fidelity as well to the court as to the client.” Was the publication in question a breach of this oath? Fidelity to the court’includes many particulars, but they all evidently concern his official relations. “ The sum of the matter,” says Chief Justice Gibson, in Austin’s Case, 5 Rawle 205, “is that an attorney-at-law holds his office during good behavior, and that he is not professionally answerable for a scrutiny into the official conduct of the judges which would not expose him to legal animadversion as a citizen.”

Some of the remarks in the opinion in that case have been much relied on by the learned counsel who argued as amici curien in support of the action of the court below. But there are two considerations bearing upon the question which now exist, but did not at the time that decision was rendered. The first is, the new provision on the subject of the liberty of the press which has been introduced into the Bill of Rights of the Constitution of 1874, and the second is that at that time the judiciary was not elective. Judges, in 1835, were appointed by the governor, and their tenure of office was during good behavior. There might then be some reason for holding that an appeal to the tribunal of popular opinion was in all cases of judicial misconduct a mistaken course and unjustifiable’ in an attorney. The proceedings by impeachment or address were the course and the only course which could be resorted to effectually to remedy the supposed evil. To petition the legislature was then the proper step. To appeal to the people was to diminish confidence in the court and bring them into contempt without any good result. We need not say that the case is altered and that it is now the right and the duty of a lawyer to bring to the notice of the people who elect the judges every instance of what he believes to be corruption or partisanship. No class of the community ought to be allowed freer scope in the expression or publication of opinions as to the capacity, impartiality or integrity of judges than members of the bar. They have the best opportunities of observing and forming a correct judgment. They are in constant attendance on the courts. Hundreds of those who are called on to vote never enter a court-house, or if they do, it is only at intervals as jurors, witnesses or parties. To say that an attorney can only act or speak on this subject under liability to be called to account and to be deprived of his profession and livelihood by the very judge or judges whom he may consider it his duty to attack and expose, is a position too monstrous to be entertained for a moment under our present system.

In admitting, as he seems to do, that a libel on the court may be a breach of professional' duty in an attorney, Chief Justice HIB-SON adds a most material qualification. “ The motiea should be clearly shown to have been the acquirement of an influence over the judge in the exercise of his 'judicial functions by the instrumentality of popular prejudice.” No such motive has been or can be imputed to these complainants. The learned judge who delivered the opinion of the court below imputes no such motive to them. He says : “ Their motive, though not openly or at all avowed in the publication, is too obvious to admit of doubt. The least reprehensible motive by which their'professional misconduct can be supposed to have been animated is a desire for prominence or notoriety in the editorial corps. The real or true motive could be no other than partisan malice or a wilful headlong zeal to promote partisan interests in the face of their official fidelity to this court and regardless of all consequences.” Suppose the motives here assigned to be the true motives which actuated the complainants — a desire for notoriety, partisan malice, and a wilful headlong zeal to promote partisan interests — what had they to do with- professional conduct or fitness to practice law ? The complainants, in their sworn answers to the rule, aver that in making the publication in question, they were “ acting in good faith, without malice, and for the public good.”

Of course, we mean to express no opinion upon the merits of the controversy between the court below and the complainants. We concede to the court all that has been claimed on their behalf, that the publication in fact was a false and malicious libel, and that in making the rule absolute they were actuated by'a simple desire to uphold the authority and dignity of the court. If this were a mere question of discretion, we are of opinion their order was a mistake. The Act of 1879 gives this court jurisdiction to review the discretion of the court below, and we think it was not in this case wisely exercised.

The order which mafle absolute the rules to show cause why the names of the complainants should not be stricken from the list of attorneys is hereby vacated and the rules discharged, and it is ordered that the complainants be restored to the bar, the costs of this proceeding and writ of error be paid by the county of Lancaster.^