Sanborn v. Kimball

Dickerson, J.

This is a complaint for the removal of the respondent from his office as attorney and counsellor at law. The complaint which is in the form of a motion signed by A. Sanborn, Esq., of and for the Penobscot bar, prays for a rule upon the respondent to show cause why he should not be removed from the office of attorney and counsellor at law of this court upon and for the following charges, to wit: “that he does not possess a good moral character, in that at the February term of said court, A. D. 1860, he was convicted of the crime of forgery, and at the next August term of said court lie was sentenced to confinement to hard labor in the state prison for the term of three years; and in this that he has been guilty of repeated dishonest if not criminal acts; and in one instance if not more, of obtaining money by false pretences; and of unprofessional practice in this, that he has wittingly promoted and sued false and groundless suits, and otherwise violated his oath, and the duties of liis said office.”

An attorney at law is an officer of the court as appears from the terms of his oath of office, to wit: “you will conduct yourself in the office of an attorney within the courts according to the best of your knowledge and discretion, and with all good fidelity, as well to the courts as your clients.” The order of his admission to the bar is the judgment of the court that he possesses the requisite legal qualifications and good moral character to entitle him to practice the profession of an attorney at law. From the moment of his entrance upon the duties of his office, he becomes responsible to the court for his official misconduct. The tenure of his office is during good behavior, and he can only be deprived of it for misconduct ascertained and determined by the court after opportunity to be heard has been afforded. In the absence of specific provision to the contrary the power of removal is commensurate with the power of appointment. Ex parte Garland, 4 Wall., 378; case of Austin et als., 5 Rawle, 203.

When we consider the duties and powers devolved upon an attorney at law in virtue of his office and the temptations to abuse his professional franchise, the importance and necessity of the power of the court to remove him from the bar can scarcely be over-stated. An attorney at law in general may waive objections to evidence, make admissions in pleading or by parol, enter non-suits and defaults, and make any admission of facts and any disposition of suits that his clients could make. Upon his advice and conduct in the management of causes the protection of the property, reputation and even the life of his client in a great degree is not unfrequently made to depend. In order to fit him for this trust the possession of a character fortified by high moral principle is indispensable. The statute makes “a good moral character” a condition precedent to his admission to the bar. By his admission the court hold him out to the public as worthy of public confidence and patronage. Upon this indorsement by the court the public have a right to rely, and to presume that his moral character continues to stand approved by the court. If “a good moral character” is indispensable to entitle one to admission to the bar, it is obvious that the necessity for its continuance becomes enhanced by the conflicts, excitements and temptations to which the practitioner is daily liable. For his official misconduct there is no power of removal but in the court. This power therefore is at once necessary to protect the court, preserve the purity of the administration of justice, and maintain the integrity of the bar. “The power of removal,” says Bigelow, G. J., in Randall’s case, cited post, “was given not as a mode of inflicting a punishment for an offence, but in order to enable the courts to prevent the scandal and reproach which would be occasioned to the administration of the law by the continuance in office of those who had violated their oaths or abused their trust, and to take away from such persons the power and opportunity of injuring others by further acts of misconduct and malpractice.”

The power of removal however is a judicial power, to be exercised by a sound judicial discretion, and in accordance with well-established principles of law where the evidence is of a conclusive character. But while its use calls for judicial discretion, it also invokes judicial firmness.

The proceedings for the removal of an attorney at law do not partake of the nature of a criminal procedure in which a party has a right to insist upon a full, formal and technical description of the matter with which he is charged. They are usually commenced by motion to the court, setting forth the misconduct of the attorney in terms that may bo readily comprehended by him, and praying for a rule on him to show cause why he should not be removed from the bar for the causes assigned. This course was pursued in the case at bar. The motion contains the general charge that “the respondent does not possess a good moral character,” and then states in general terms the acts by which he has forfeited his claim to such character. We think the motion is sufficiently specific to advise the respondent of the charges he is required to meet, and if sustained by the evidence affords sufficient ground for his removal from his office as attorney at law. Randall, petr. for mandamus, 11 Allen, 170.

The causes for which an attorney at law may be removed from the bar from the nature of the case are diverse and numerous.. He may be removed for violating Ms official oath ; for conviction of perjury or other felony ; for attempting to get an opposing attorney drunk in order to obtain advantage of him in the trial of a cause; for obtaining money of his client by false pretences for advocating the admission in evidence of a forged copy of a letter, knowing it to be forged when offered by his associate counsel ; for ceasing to possess “a good moral character;” and for any ill practice attended with fraud and corruption, and committed against the principles of justice and common honesty. Ex parte Bramhall, Coop., 829; Austin’s case, cited ante; Dickens’ case, 67 Penn. St. R., 169; People v. Ford, 54 Ill., 520; Rice v. Commonwealth, B. Monroe, 484; Mills’ case, 1 Mann, 393; In re Percy, 36 N. Y., 651; Bryant’s case, 24 N. H., 155; Burr’s case, 1 Wheeler’s Crim. L., 503; Leigh’s case, 1 Munf. ,481.

It is a mistaken view of this subject as the foregoing authorities show, to conclude that an attorney at law can only be disbarred for acts done “in his office as attorney,” or “within the courts,” in the terms of his oath of office. On the contrary an attorney may be guilty of disreputable practices and gross immoralities in his private capacity and without the pale of the court, which render him unfit to associate with gentlemen, disqualify him for the faithful disci) arge of his professional duties in or out of court, and render him unworthy to minister in the forum of justice. When such a case arises from whatever acts or causes, the cardinal condition of the attorney’s admission to the bar, the possession of “a good moral character,” is forfeited, and it will become the solemn duty of the court upon a due presentment of the case to revoke the authority it gave the offending member as a symbol of legal fitness and moral uprightness, lest it should be exercised for evil or tarnished with shame.

In Leigh’s case, cited ante, Judge Boane says: “None are permitted to act as attorneys at law but those who are allowed by the judges to be skilled in law, and certified by the court to be persons of honesty, probity and goo 1 demeanor. Having obtained the sanction of the court touching these two particulars, an attorney is licensed or allowed to practice, and the court have also a continuing control over him, with power to revoke his license for unworthy practices or behavior.”

In Percy’s case, cited ante, the court say: “It is insisted by the appellant that the misconduct justifying the removal is some deceit, malpractice, or misdemeanor practiced or committed in the exercise of the profession only and that general bad character or misconduct will not sustain the proceedings. We cannot concur in this position. It has been seen that the right of admission to practice is made by the statute to depend upon the possession of a good moral character joined with the requisite learning and ability. It is equally important that this character be preserved after admission while in the practice' of the profession, as that it should exist at the time. It would be .an anomaly in the law' to make good moral character a prerequisite to admission to an office of a life tenure, while no provision is made in case such character is wholly lost.”

In Mills' case, cited ante, the court held that a bad moral character is good cause for disbarring an attorney. In that case Whipple, C. J., remarks as follows : “Should this court after being officially advised that one of its officers has forfeited the good name he possessed when permitted to assume the duties of his office, still hold him out to the world as worthy of confidence, they would in my opinion fail in the performance of a duty cast upon them by the law. It is a duty they owe to themselves, to the bar and the public, to see that a power which may be wielded for good or for evil is not entrusted to incompetent or dishonest hands. The extreme judgment of expulsion is not intended as a punishment inflicted upon the individual, but as a measure necessary to the protection of the public, who have a rightto demand of us that no person shall be permitted to aid in the administration of justice whose character is tainted with corruption.”

Upon passing from the law to the facts in the case before us, we find that the first specification relied on to establish the general charge that “the respondent does not possess a good moral character” is proved. He was “sentenced to confinement and hard labor in the state prison for the term of two years,” as charged in the motion. The crime for which he was convicted and sentenced was the forgery of a deposition and caption thereto annexed, which were offered in evidence by him, and admitted by the court on the trial of a libel for divorce brought by him against his wife, Marilla Kimball.

But we further find j;hat he has been pardoned by the executive for that offence. *j The effect of that pardon is not only to release the respondent from the punishment prescribed for that of-fence and to prevent the penalties and disabilities consequent upon his conviction thereof, but also to blot out the guilt thus incurred, so that in the eye of the law he is as innocent of that of-fence as if he had never committed it. The pardon as it' were makes him a new man in respect to that particular offence, and gives him a new credit and capacity. To exclude him from the office he held when he committed the offence is to enforce a punishment for it notwithstanding the pardon. Ex parte Garland, 4 Wallace, 380.

But the respondent in his capacity as attorney offered the deposition and caption forged by him as evidence in court, and they were admitted. This act was a palpable violation of his official oath which bound him “to do no falsehood nor consent to the doing of any in court.” It was also an indignity offered to and a fraud upon the court and the law. By that act the respondent not only struck a fearful blow at the administration of justice but he betrayed confidence, practiced deceit, degraded himself and turned recreant to virtue. It is obvious that an attorney at law who is guilty of such an "act does not possess that “good moral character” which the statute makes a prerequisite for admission to the bar and which is indispensable in the practice of the profession. Rice v. Commonwealth, 18 B. Monroe, Ky., 475.

The executive pardon affords the respondent no protection from the consequences which the law attaches to this offence. Pardon for one crime does not release a party from the penalties and disabilities consequent upon the commission of another. A pardon for forgery does not prevent a party from suffering the consequences attached to a conviction for adultery or larceny, nor blot out the guilt inseparable from such crimes and give their perpetrator a new character for chastity and honesty. The indictment-upon which the respondent was convicted contains no count for a violation of his official oath or for a fraud upon the court. The respondent’s pardon, for forgery can no more obliterate the stain of guilt for those offences than the judgment in that case would be a bar to an indictment for their commission.

Nor has that act been condoned by lapse of time. Though the respondent’s conviction and sentence took place in 1860, the delay has not been very considerable if we take into account the term of his imprisonment and his absence from the state. The offended husband or wife not unfrequeutly consents to continue or resume the relations of wedlock in the hope of an improved state of things without intending to condone previous causes of grievance, should such hope prove delusive. For the same reason also the court sometimes suspends sentence or even forbears to pronounce it. The forbearance in this case was doubtless prompted by the hope of an improvement. However this may be, the respondent has no legal or moral ground to complain that he has been suddenly or summarily dealt with or that he has been allowed an opportunity for repentance and reformation. How he has improved the interval granted him the sequel shows.

We also find the respondent guilty of dishonesty and bad faith toward his client, Thomas Frost. The evidence shows that Frost gave the respondent a retainer of $10 to defend him from an indictment for an assault with an intent to commit murder, and $20 more when the court was in session ; that the respondent examined Frost’s witnesses and told him to discharge them, and “to leave the case with him to fix up that “he had seen the parties and if Frost would let him have the money he would fix it up right away.”

The respondent wanted $200 for that purpose which Frost let him have, and then went home. Upon being advised by his bondsman to return to court and look after his bond, Frost returned, found that nothing had been done, but was again assured by the respondent “that something would be done in a day or two.” Nothing however was done and Frost demanded the $200 of the respondent but recovered only $55, the balance being claimed by him for his services in the case.

The crime charged was one that the law does not allow to be compromised by the parties. The respondent was poor and Frost was in good credit. Neither the injured party nor the county attorney was introduced to show what efforts if any the respondent made to adjust the matter. Nor did the respondent offer his own testimony to remove the cloud that rests upon his professional conduct in this transaction. The evidence forces upon us the conviction that the respondent dealt falsely and dishonestly with his client and in a manner utterly inconsistent with that “good moral character” which he should have possessed. The pretence that the respondent had a right to retain the money for his services is too transparent to mislead any discerning mind. The evidence shows that the money retained by him was not and could not have been obtained for that purpose and that not^a tithe of it was earned by him in the cause.

The specification of dishonest practices in obtaining money is established in several instances. The evidence shows that he went to Etna and obtained thirty dollars of Samuel R. Dennett, a farmer of that town whose acquaintance he had made the February previous while Dennett was attending court as a juror, upon the false statement that John C. Friend of Etna owed him sixty dollars. The respondent has never refunded the money though he promised to do so on the next day. He also obtained fifteen dollars of Seth Emery of Bangor, at an early hour in the morning upon the representation that he had a check on which he expected to get the money and would pay the money as soon as the bank was opened. He never paid the money and in the absence of any explanatory or exculpatory evidence to the contrary which it was in the power of the respondent to offer if any such existed, the inference is irresistible that he had no such check as he pretended to have. In another' instance he obtained twelve dollars from a gentleman in Waterville upon representing that he had lost his pocket-book, was doing an extensive business in Philadelphia and had no money to pay for his team and hotel bills, and upon his promise to remit the amount the next day from Bangor. As he neither sent the money nor would answer the gentleman’s letters, the latter caused him to be arrested at the hotel in Watervilleaud thus collected his debt. His largest operation in the same direction that has been disclosed in this proceeding is in the case of William P. Tenney, who let him have some fourteen hundred dollars at different times, solely upon his express representation that it was intended to be used, and his agreement that it should be used, to purchase soldier’s scrip or bounty, and that Tenney should have one half of the profits. Alter the earnest efforts of Tenney to obtain satisfaction, the result was his recovery of $400, the confession of Kimball that he had invested the balance in real estate in Sidney, and the tender of his worthless note for that amount. Other instances there are of successes and failures in obtaining money by means scarcely less disreputable though not so palpably dishonest.

As instances of unprofessional conduct and a disregard of the amenities of the profession maybe mentioned his calling E. C. Brett, Esq., a member of the Penobscot bar and clerk of this court, a liar ; in causing the name of Henry L. Mitchell, Esq., also a member of that bar to be erased under an action without authority and in having his own name inserted instead, and in putting his own name under an action defended by James W. Donigan, Esq., another member of said bar without authority and threatening “to flog him in the street if it was stricken off.”

The specification of wittingly promoting and suing groundless suits is not sustained. In the one instance adduced the verdict of the jury was in favor of the respondent, then plaintiff, for nominal damages, and in the other the declaration seems to set forth good cause of action, whatever the proof may turn out to be, and as a jury may be called upon to try it, the court will not presume be forehand to pronounce it false and groundless.

Our conclusion is that independently of the act of the respondent in offering the forged deposition and caption as evidence in court, the allegation in the motion that “the respondent does not possess a good moral character” is clearly established. With the evidence of that fact the case does not admit of a scintilla of doubt. The evidence discloses not merely a single instance of moral delinquency, disreputable practice and professional misconduct, but a series of them, showing the.respondent to be unfit and unsafe to be intrusted with the powers, duties and responsibilities of the legal profession. No court would for a moment consider the claims of an applicant for admission to the bar who should be shown to possess such a moral character. If the violation of his oath of office, fraud upon the court, bad faith toward clients, dishonesty in_ his dealings as an individual and disregard of the courtesies and proprieties due to the other members of the profession should operate a forfeiture of the office of an attorney, the respondent has no longer any claim or right to enjoy that office.

Unpleasant as is the duty, grave as is the responsibility devolved upon us, and serious as must be the consequences to the respondent, we cannot forbear to pronounce the extreme judgment of removal without failing to discharge the high trust which the law reposes in us and which is indispensable to the maintenance of the dignity of the bench, the integrity of the bar and the purity of the administration of justice. Indeed to refuse to do so in this case would be virtually to abdicate this trust and render the law creating it a nullity. The guaranty which the law in this behalf provides for the security of the public must be maintained inviolate.

We have carefully examined all the respondent’s objections to the proceedings before the court at nisi prius including his motions to dismiss, strike out and quash, and also to reject and amend the report of the commissioner, but we find nothing in them for which he has any legal ground of complaint. The objection that the commissioner to take the testimony was not sworn is not well taken. Assessors, auditors and referees appointed by the court are not required to be sworn nor is a commissioner to take evidence. So also was it competent for the judge to receive the complaint and grant the rule to show cause at chambers returnable to the court in session. As we have before seen the same strictness, formality and technicality are not required in this proceeding as are requisite in other cases.

The judgment must be The respondent to be removed from his office as attorney at law in all the courts of this state.

Appleton, C. J., Daneorth, Yirgin and Peters, id., concurred. Libbey, J., having been consulted did not sit.