State Bar Commission Ex Rel. Williams v. Sullivan.

I regret that I am unable to concur in the judgment pronounced by the majority of the court. In my judgment the defendant Sullivan is not a fit or proper person to engage in the practice of law in the state of Oklahoma, but I cannot come to the conclusion that under the laws in force in this state there is authority for disbarment.

The charges against defendant, when reduced to their ultimate conclusion, charge him with being mentally and morally unfit to engage in the practice of law. This charge is based upon the publication of two certain pamphlets reflecting in the most bitter and malicious way upon the various courts of this state. Sufficient substance of these pamphlets is set out in the majority opinion of the court. Assuming with the court that the publication of these pamphlets within the period of limitation and their falsity have been properly established, I yet cannot conclude that they constitute proper grounds for disbarment. Section 266 of Snyder's Statutes (Comp. Laws 1909), provides in part:

"The following are sufficient causes for suspension or revocation: First, when he has been convicted of a felony under the laws of Oklahoma, or a misdemeanor involving moral turpitude, in either of which cases the record of conviction is conclusive evidence. Second, when he is guilty of a willful disobedience or violation of any order of the court requiring him to do or forbear any act connected with or in the line of his profession. Third, for the willful violation of any of the duties of an attorney or counselor: Provided, that whenever any act is done by the attorney for an honest purpose or with the intent to discover the truth in some matter heretofore being litigated and pending in any tribunal at the time the acts were done, or to prevent litigation, then they shall not be grounds for revocation or suspension of the attorney's license. The filing of any pleading or exhibit in court shall not be cause for suspension or revocation of the attorney's license, but may be punished as a contempt and according to the laws governing proceedings in contempt cases. An attorney's license shall notbe revoked or suspended for any cause or in any manner exceptas provided in this chapter of the statutes of this state asamended by this act."

It is not charged that the defendant has been convicted of a felony or a misdemeanor involving moral turpitude. It is not charged that he has been guilty of any willful disobedience or violation of any order of court. The charges, therefore, cannot be brought under the first or second subdivision of the statute. Has he been guilty under the third subdivision, to wit, of any willful violation of the duties of an attorney or counselor? These duties are specifically set out in section 257 of Snyder's Statutes (Comp. Laws 1909), as follows:

"(1) It is the duty of an attorney and counselor while in thepresence of the courts of justice or in the presence of judicial officers engaged in the discharge of judicial duties, to maintain the respect due to the said courts and judicial officers, and at all times to obey all lawful orders and writs of the court. (2) To counsel and maintain no actions, proceedings or defenses, except those which appear to him legal and just, except the defense of a person charged with a public offense. (3) To employ for the purpose of maintaining the causes confided to him such means only as are consistent with truth and never to seek to mislead the judges by any artifice or false statements of facts or law. (4) To maintain inviolate the confidence, and, at any peril to himself, to preserve the secrets of his client. (5) To abstain from all offensive personalities, and to advance no fact prejudicial to the honor or reputation of a party or witness unless required by the justice of the cause with which he is charged. (6) Not to encourage either the commencement or continuance of an action or proceeding from any motive of passion or interest. (7) Never to reject for any consideration personal to himself the cause of the defenseless or the oppressed."

I cannot conceive that the publication of a pamphlet outside of court which makes unwarranted reflections upon the courts and the officers thereof can be construed to come under any of the seven subdivisions of the duties of an attorney as specified in the statute. The defendant has perhaps failed to maintain the respect due to courts and judicial officers, but this failure was not charged or proven to be in the presence of any court, and the statute specifically limits the application of such language to conduct in the presence of judicial officers. The majority of the court seem to place the alleged misconduct of the defendant under the subdivision "not to encourage either the commencement or continuance of an action or proceeding upon any motive of passion or interest." I cannot agree that the publication and circulation of this pamphlet encouraged the commencement or continuance of any action or proceeding. It is charged that such pamphlet was filed in the district court of Oklahoma county, attached as an exhibit to a pleading. Section 266 expressly provides that the filing of a pleading or exhibit shall not be cause for suspension or revocation of an attorney's license, and I cannot conclude that the publication and circulation of this pamphlet outside of court would in any way have affected the commencement or continuance of any action or proceeding whatsoever.

I am forced to the conclusion, therefore, that the defendant's conduct does not constitute a violation of any of the duties of an attorney as prescribed by our statutes, and that, therefore, neither of the three statutory causes of disbarment has been proven against him. Nor can I agree with the court that the inherent power exists in the Supreme Court to disbar an attorney for other than the grounds laid down in the statute. Undoubtedly, at common law, inherent power existed in courts of record to suspend or disbar the attorneys practicing before such court when the power of admission was vested in the court exercising the power of disbarment. Undoubtedly, at common law, the publication of a false and malicious pamphlet reflecting upon the courts, as does the one in the case at bar, would constitute proper grounds for disbarment. Perhaps the weight of authority is to the effect that, where statutes have been passed merely declaring what shall be grounds for disbarment without any prohibition therein contained, the courts may continue to exercise the inherent power of disbarment for causes other than those named in the statute, upon the principle and assumption that the grounds named by the statute are not intended to be exclusive. But our statute specifically provides that:

"An attorney's license shall not be revoked or suspended for any cause or in any manner except as provided in this chapter of the statutes of this state as amended by this act."

I have been unable to find a single adjudicated case that goes so far as to hold that such a statute may be swept aside and declared invalid and the court proceed to exercise the power of disbarment which formerly inhered in it. A few cases touching upon this subject will be noted.

In the case of In re Lambuth, 18 Wn. 478, 51 P. 1071, cited in the case of In re Robinson, 48 Wn. 153, 92 P. 929, 15 L. R. A. (N. S.) 525, 15 Ann. Cas. 415, the court, speaking of the power of disbarment, says:

"But power to strike from the rolls is inherent in the court itself. No statute or rule is necessary to authorize the punishment in proper cases. Statutes and rules may regulate thepower, but they do not create it."

If the statute may regulate the power of this court, then it is apparent that the Legislature has, in as strong language as could be used, limited the power to disbar to the causes named in the statute.

In Re Peyton, 12 Kan. 404, Judge Valentine says that the power to disbar "is a necessary incident to the proper administration of justice; that it may be exercised without any special statutory authority, and in all proper cases, unlesspositively prohibited by statute." Here the judge, even while asserting the inherent power of the court, recognizes the power of the Legislature to prohibit the exercise of it.

In Re Smith, 73 Kan. 743, 85 P. 584, the Supreme Court of Kansas, in declaring that a court may punish for causes other than those enumerated in the statute, shows the reason of the rule:

"As will be observed, the statute does not provide that theonly causes for which the license of an attorney may be revoked or suspended are those specified in the statute, nor does it undertake to limit the common-law power of the courts to protect itself and the public by excluding those who are unfit to assist in the administration of the law. It merely provides that certain causes shall be deemed sufficient for the revocation or suspension of an attorney's license."

In this state the Legislature has prescribed the only causes for which a license may be revoked or suspended.

In Re Mills, 1 Mich. 392, where it is held that the statutory grounds are not exclusive, the court in discussing the statute, says:

"That the Legislature never intended to withhold from our courts the exercise of a power so necessary to preserve the administration of justice from pollution, and the public from imposition."

In this state, on the contrary, the Legislature has expressly said that it intended to withhold this power.

In Delano's Case, 58 N.H. 5, 42 Am. Rep. 555, the court says that the act of the Legislature was not intended to be exclusive.

In State v. McClaugherty, 33 W. Va. 250, 10 S.E. 407, the court holds that the statute there in force is applicable only to a proceeding for disbarment, whereas the proceeding being considered was one for suspension.

In Bar Association v. Greenhood, 168 Mass. 169, 46 N.E. 568, the court holds that, there being no prohibition in the statute, the grounds therein set up will not be held to be exclusive.

Similar adjudications may be found in Sanborn v. Kimball,64 Me. 140; Serfass' Case, 116 Pa. 455, 9 A. 674; State v.Gebhardt, 87 Mo. App. 542, and others.

In no case which I have been able to examine has the court held, in the face of a prohibition such as is contained in our statute, that the inherent power of the court to disbar continued. On the other hand, in Ex parte Yale, 24 Cal. 243, 85 Am. Dec. 62, the court, speaking of attorneys and their duties, said:

"The manner, terms, and conditions of their admission to practice, and of their continuing in practice, as well as their powers, duties, and privileges, are proper subjects of legislative control to the same extent and subject to the same limitations as in the case of any other profession or business that is created or regulated by statute."

In Re Collins, 147 Cal. 13, 81 P. 222, the court said:

"Whatever the rule may be in the absence of statutory regulations as to the power of courts to deprive attorneys of their license for causes which, in the judgment of the court, may warrant that action, we are satisfied that, when the Legislature has specified the acts for which an attorney may be disbarred or suspended, the court is not authorized to act for other causes, or warranted in invoking an asserted implied power to amove for causes not specified in the statute; that the Legislature has the power to regulate the causes for which a disbarment or suspension of an attorney may be had; and that the courts are bound by this regulation and the limitation it imposes."

In Re Eaton, 4 N.D. 514, 62 N.W. 597, the court said:

"Where the statute enumerates grounds for disbarment of an attorney, no other ground can be considered by the court."

To the same effect is Ex parte Schenck, 65 N.C. 353; State v.Byrkett, 4 Ohio Dec. 89; Ex parte Smith, 28 Ind. 47; Kane v.Haywood, 66 N.C. 1; Ex parte Trippe, 66 Ind. 531.

Both under principle and authority I am unwilling to concede the power of this court to sweep aside the specific language of the Legislature acting upon a matter which I believe to be within its power. It is to be regretted that such a law is upon our statute books; but, finding it there, in my judgment the courts must leave the remedy to the people and the Legislature rather than to their own power. Even under the statute as it exists, the facts alleged in the petition for disbarment constitute a crime of which the defendant might regularly have been indicted and convicted, and such conviction would have operated as a conclusive ground for disbarment in this court.

I am therefore forced to dissent from the judgment of the court that the defendant be disbarred.

ON APPLICATION FOR REHEARING.