Opinion
Opinion filed June 8, 1934.
Attorney and Client — Admission to Bar — Nature of Office of Attorney and Supervision of Court — Privilege To Practice Law Not Constitutional or Vested Right — Proceedings for Disbarment as Not Affected by Due Process Clause or Provisions for Trial by Jury, of Federal Constitution — Inherent Power of Court To Discipline Attorneys — Nature of Court's Power To Discipline Attorneys — Requirements To Justify Disbarment — Right of Accused Attorney to Hearing on Charges — Resignation of Attorney — Refusal To Accept Resignation of Attorney, and Disbarment on Facts Shown.
1. Admission to bar in Vermont is regulated by rules made, adopted, and published by Supreme Court, under statutory authority.
2. Attorney at law is officer of Court, exercising a privilege or franchise to enjoyment of which he has been admitted, not as matter of right, but upon proof of fitness.
3. For manner in which attorney at law exercises his privilege or franchise, he is continually accountable to Court, and such privilege or franchise may be declared forfeited at any time for such conduct, whether professional or nonprofessional, as shows him to be an unfit or unsafe person to manage business of others in capacity of attorney.
4. Power to declare forfeiture of attorney's privilege to practice is summary one inherent in courts, and exists, not to mete out punishment to offender, but that administration of justice may be safeguarded and courts and public protected from misconduct or unfitness of those who are licensed to perform important functions of legal profession.
5. Action of Court in exercising power to disbar attorney at law is judicial in character, inquiry being in nature of investigation by Court into conduct of one of its own officers, not trial of action or suit; and order entered is but exercise of disciplinary jurisdiction which it has over such officers, real question for determination being whether or not attorney is fit person to be longer allowed privilege of being attorney.
6. Privilege of practicing law is not vested or constitutional right, but is burdened with condition that possessor of it remains fit and safe person to exercise it.
7. Proceedings for disbarment of attorneys do not come within due process clause, or provisions for trial by jury, of federal Constitution.
8. Court's inherent power of discipline of attorneys is not derived from Constitution, or, necessarily, from statutes of State, but has existed from time immemorial.
9. Court's power of discipline of attorneys is not arbitrary, and in administering it a sound judicial discretion should be exercised with moderation and caution, and legal rules and principles should be followed in determining guilt of person charged.
10. In order to justify disbarment of attorney, case must be clear and free from doubt.
11. In disbarment proceedings, as matter of natural justice accused attorney should receive notice of charges and have opportunity to be heard in explanation or defense.
12. Attorney at law may, with consent of Court, resign his office and relinquish its rights and privileges, but such consent will not be given where charges have been preferred and are pending against him.
13. Where attorney against whom disbarment proceedings were pending, after impartial and painstaking investigation by commission appointed by Supreme Court to hear evidence, and after fair trial at which he had ample opportunity to present his explanation and defense, of which he availed himself, filed his resignation from office of attorney with Supreme Court before commission had been concluded and several days before filing of its report, upon report being filed showing conduct justifying disbarment Court rejected resignation and withdrew rights and privilege conferred on him by admission to bar.
PROCEEDINGS FOR DISBARMENT OF ATTORNEY. After filing of presentment and the respondent's answer, a commission was appointed to hear evidence and find facts. After hearing at which respondent was present, represented by counsel, and produced evidence on his own behalf, the commission filed its report showing unprofessional conduct justifying disbarment. After hearing before commission and two days before filing of its report, respondent filed his resignation with Supreme Court. The opinion states other facts in case. Heard at the May Term, 1934, of Supreme Court, Washington County. Resignation rejected, and respondent disbarred.
Lawrence C. Jones, Attorney General, for the State.
Lindley Squires for the respondent.
Present: POWERS, C.J., SLACK, MOULTON, THOMPSON, and SHERBURNE, JJ.
This is a proceeding for the disbarment of the respondent, an attorney of this Court. After the filing of the presentment and the respondent's answer thereto a commission was appointed to hear the evidence and find the facts. The commission met, due notice having been given, and listened to the testimony. The respondent was represented by counsel and produced evidence in his own behalf. The commission thereafter filed a report, by which it appears that the respondent is guilty of several breaches of professional conduct, the details of which it is not necessary to state, but which consisted in the exaction of excessive and unconscionable fees and fraud upon his clients. No exceptions have been taken to the report, and the respondent has not appeared further to contest the case. After the hearing before the commission had been concluded, and two days before the filing of the report, the respondent filed a paper in which he states that he desires to, and by leave of court does, resign as an attorney and counsellor at law and solicitor in chancery, and requests that his resignation be accepted and that his name be erased from the roll of the attorneys of this Court.
Admission to the bar is regulated by rules made, adopted, and published by this Court, under statutory authority, P.L. 1351; Supreme Court rules, 22-26 inclusive. The nature of the office of an attorney at law, and the supervisory jurisdiction of the Court over it is thus stated in In re Durant, 80 Conn. 140, 67 A. 497, 500, 501, 10 Ann. Cas. 539: "An attorney at law is an officer of court, exercising a privilege or franchise to the enjoyment of which he has been admitted, not as a matter of right, but upon proof of fitness * * * For the manner in which this privilege or franchise is exercised he is continually accountable to the court, and it may at any time be declared forfeited for such conduct, whether professional or nonprofessional, as shows him to be an unfit or unsafe person to manage the business of others in the capacity of an attorney * * * The power to declare this forfeiture is a summary one inherent in the courts, and exists, not to mete out punishment to an offender, but that the administration of justice may be safeguarded and the courts and the public protected from the misconduct or unfitness of those who are licensed to perform the important functions of the legal profession * * * The action of the court in the exercise of this power is judicial in its character, but the inquiry made is `in the nature of an investigation by the court into the conduct of one of its own officers, not the trial of an action or suit,' and the order entered is but an exercise of the disciplinary jurisdiction which it has over such officers * * * The real question for determination in such proceedings is whether or not the attorney `is a fit person to be longer allowed the privileges of being an attorney.'" See, also, State v. Cannon, 206 Wis. 374, 240 N.W. 441; Ex parte Robinson, 19 Wall. (86 U.S.) 505, 22 L. ed. 205, 208.
The privilege of practicing law is not a vested or a constitutional right. In re Cloud (Iowa), 250 N.W. 160, 163. It is a privilege burdened with the condition that the possessor of it remains a fit and safe person to exercise it. State v. Peck, 88 Conn. 447, 91 A. 274, 275, L.R.A. 1915A, 663 Ann. Cas. 1917B, 227; People ex rel. Karlin v. Culkin, 248 N.Y. 465, 162 N.E. 487, 60 A.L.R. 851, 855. Proceedings for disbarment do not come within the due process clause, or the provisions for a trial by jury of the federal Constitution, Ex parte Wall, 107 U.S. 265, 288, 289, 27 L. ed. 552, 561, 562, 2 Sup. Ct. 569; In re Cloud, supra.
The Court's inherent power of discipline is not derived from the Constitution, or, necessarily, from the statutes of the State. State v. Cannon, 196 Wis. 534, 221 N.W. 603, 604; Wernimont v. State ex rel. Little Rock Bar Ass'n, 101 Ark. 210, 218, 142 S.W. 194 Ann. Cas. 1913D, 1156; Bar Ass'n of City of Boston v. Greenwood, 168 Mass. 169, 182, 183, 46 N.E. 568; In re Edwards, 45 Idaho, 676, 266 P. 665, 670. It has existed from time immemorial. State v. Woodville, 161 La. 125, 108 So. 309, 311. The power is not arbitrary, of course. In administering it a sound judicial discretion should be exercised with moderation and caution, and legal rules and principles followed in determining the guilt of the person charged. People v. McCallum, 341 Ill. 578, 173 N.E. 827, 832; State v. Ledbetter, 127 Okla. 85, 260 P. 454, 462; In re Burr, 9 Wheat, 529, 530, 6 L. ed. 152. "It is a power which should only be exercised for the most weighty reasons, such as would render the continuance of the attorney in practice incompatible with a proper respect for the court itself, or a proper regard for the integrity of the profession." Bradley v. Fisher, 13 Wall. (80 U.S.) 335, 354, 20 L. ed. 646, 651. In order to justify disbarment, the case must be clear and free from doubt. People v. Gorindar, 350 Ill. 256, 182 N.E. 732, 733; In re Young, 77 Mont. 332, 250 P. 957, 962. As a matter of natural justice, the accused attorney should receive notice of the charges and an opportunity to be heard in explanation or defense. Ex parte Robinson, 19 Wall. (86 U.S.) 505, 22 L. ed. 205, 208; Bradley v. Fisher, supra, 13 Wall. 335, 20 L. ed. page 652.
An attorney may, with the consent of the Court, resign his office and relinquish its rights and privileges, but such consent will not be given where charges have been preferred and are pending against him. Ex parte Thompson, 32 Or. 499, 52 P. 570, 40 L.R.A. 194. "If a man be once an attorney, he cannot get rid of the summary jurisdiction of this Court with respect to what he has done while an attorney by ceasing to be an officer of the Court. The rule is, once an attorney, always an attorney for that purpose." Simes v. Gibbs, 6 Dowl. (Q.B. Prac. Ct.), 310. See, also, In re Dellenbaugh, 9 Ohio Cir. Ct. 325, 327.
In the instant case the respondent has been accorded a fair trial, and his conduct has been made the subject of an impartial and painstaking investigation. He has been afforded an ample opportunity to present his explanation and defense, and he has fully availed himself of it. He finds no fault with the report of the commission, nor does he question the fact that the conduct proved against him justifies his disbarment. It is our duty to withdraw the rights and privileges which were conferred by admitting him to the bar of the courts of this State. In re Enright, 67 Vt. 351, 355, 31 A. 786.
Judgment that the attempted resignation of Elias F. Haddad is rejected, and that he is removed from the office of attorney and counsellor at law and solicitor in chancery.