54 Ga. App. 29 | Ga. Ct. App. | 1936
On June 13, 1935, there came on for hearing before three judges of the superior court of Fulton County, sitting in banc, the case of Norman DeKrasner v. John A. Boykin, being a proceeding in which the movant prayed the disbarment of the respondent. It appears from the bill of exceptions in this court that both sides announced ready for trial. After some preliminary _ colloquy between counsel and the court, the movant presented a
The court thereupon passed the following order: “On this the 13th day of June, 1935, there came on to be heard before the undersigned three judges of this court the case instituted by the above named Norman DeKrasner, purporting to be a proceeding in behalf of the State on his relation against John A. Boykin, being case No. 107134, seeking to obtain the disbarment of the said John A. Boykin. When the case was called for hearing, the said DeKrasner announced ready, and thereupon moved the court tQ enter a judgment of disbarment against the said John A. Boykin by default and without permitting a hearing to the said John A. Boykin on the merits of the charges, which motion the court overruled; an answer having been filed by said John A. Boykin. Thereupon the said DeKrasner moved a continuance of the case on grounds which in the opinion of the undersigned judges were not only unfounded but wholly frivolous. Thereupon the court overruled the said motion to continue, and directed the said De-Krasner to proceed at once to submit to the court the evidence on which he had undertaken to bring in the name of the State the grave charges against the member of the bar who was made the respondent in the petition filed by him. When the said DeKrasner lefused to proceed to submit to the court such information, the court warned the said DeKrasner that he was under conviction ■ of grave charges himself, according to the records of this court; that he had assumed to file a petition in the name of the State, making grave charges against a member of the bar of the State; and that the court positively directed him, he being still a mem
In the bill of exceptions before this court DeKrasner assigns error upon the order of suspension, on the ground that it was void as being in conflict with, repugnant to, and violative of par. 23 of sec. 1 of art. 1, of the constitution of this State (Code, § 2-123), which provides that “The legislative, judicial, and executive powers shall forever remain separate and distinct, and no person discharging the duties of one shall at the same time exercise the functions of either of the others, except as herein provided,” in that there is no legislative authority for a judge to suspend a member of the bar pending disbarment proceedings. He further assigns error upon the order of suspension, on the ground that a judge has no authority to suspend an attorney for an alleged contempt, and “says that he was not guilty of contempt of court, and his failure and refusal to proceed with the trial of said case did not . . constitute a contempt of court.” The bill of exceptions contains a further assignment of error upon the refusal of the judges to certify the bill of exceptions tendered by DeKrasner until he had specified, as material to a complete understanding of the errors here complained of, certain exhibits constituting an indictment against DeKrasner, with verdict of guilty found by the jury; order appointing a solicitor-general pro tern, to investigate charges brought against John A. Boykin by DeKrasner, and entry of “no-bill” thereon, with a special presentment finding the prosecution to be malicious; the suit for disbarment of DeKrasner brought by John A. Boykin, solicitor-general; and the answer of John A. Boykin in the proceeding by DeKrasner to disbar him. These exhibits are alleged to be material to a complete understanding of the errors complained of, “by the direction of the court.” To this bill of exceptions the court has attached its certificate.
The last exceptions set out are plainly without merit. If the plaintiff in error thought the exhibits unimportant and irrelevant to this appeal, he should have refused so to certify, and asked for a mandamus to compel the judge to certify to the same. Having complied with the order of the court to set them out as exhibits attached to the bill of exceptions, he cannot now except
The Code, § 9-501 et seq., provides for proceedings to disbar practicing attorneys, and states the grounds therefor. It is true that there is no statutory provision for the suspension, by a judge of the superior court, sua sponte or upon motion, for any length of time, of a practicing attorney. However, we may ask, does this fact render the courts powerless to control the conduct of attorneys and deal therewith, except in the manner provided by statute ? Is legislative grant requisite to the exercise of supervisory control of courts over the conduct of attorneys licensed to practice before them? Does the fact that the legislature has seen fit to legislate to aid courts in disbarment of attorneys preclude the courts from the exercise of'the additional power of suspension? Too much importance can not be attached, to the determination of the above questions. There is a continual cry, on the part of the general public, of the law’s delays, of the administration of the criminal law, and the part that members of the bar take therein; and in too many instances this criticism can not be held unjust. Courts, to carry out their undoubted right to function as an independent department of government, as ordained by the various constitutions, have many times declared unto themselves certain inherent powers independent of legislative grant. These claimed inherent powers have been applied by them to a variety of situations, not connected with and independant of supervisory power over the legal profession. The right to declare a mistrial was said by this court in Chapman v. Conwell, 1 Ga. App. 212 (58 S. E. 137), to be an inherent right of the judge of any court where jury trials obtain. In Pope v. State, 124 Ga. 801 (53 S. E. 384, 110 Am. St. R. 197, 4 Ann. Cas. 551), the Supreme Court held that one accused of crime has a constitutional right to be tried in the county where the offense was committed, and can not be deprived of this right by the creation of a new county while the charge is pending against him. “Such a person has a right to demand a trial in the county which embraces the territory where the offense was committed; and although the act creating the
Expressed in general terms, “ every court has inherent power to do all things that are reasonably necessary for the administration of justice within the. scope of its jurisdiction.” State v. Townley, 67 Ohio St. 21 (65 N. E. 149, 93 Am. St. R. 636). In this respect there is a difference to be noted between the jurisdiction of courts and their inherent powers. “In constitutional governments, their jurisdiction is conferred by the provisions of the constitutions and of statutes enacted in the exercise of legislative authority. That, however, is not true with respect to such powers as are necessary to the orderly and efficient exercise of jurisdiction. Such powers, from both their nature and their ancient exercise, must be regarded as inherent. They do not depend upon express constitutional grant, nor in any sense upon the legislative will.” 7 R. C. L. 1034. Research reveals, that, under this theory of inherent or necessary incidental powers, courts have unanimously assumed powers of wide and far-reaching extent over the conduct of members of the legal profession, which include the power to admit, suspend, discipline, or disbar an attorney. Our own court has recently ruled: “ Courts have the inherent power to admit attorneys to the bar, with the right to disbar them for sufficient cause, and the statutes do not limit the general powers of the courts over attorneys, and such attorneys may be removed for other than statutory grounds.” Wood v. State, 45 Ga. App. 783 (165 S. E. 908). This inherent power over the legal profession is independent of legislative grant. While all courts recognize the right of the
This visitorial power over the members of the bar is, without question, a necessary incident to a court’s proper administration of justice of causes coming within its jurisdiction. To purge itself of being surrounded by unworthy and dishonest members of the bar, in the administration of justice, is a duty the court owes not only to its own preservation, but to members of the general public, who are all potential litigants therein, and to those members of the profession who are willing to co-operate and are in sympathy with the proper administration of the law. The court in the present case suspended the movant, sua- sponte, for a definite period, that is until disbarment proceedings brought against him are disposed of, because of its knowledge that he had been convicted of a crime involving moral turpitude; and here we might state, by way of parenthesis, that- this fact alone, under the Code,
We have already pointed out that the disbarment proceedings as prescribed in Code, § 9-501, are not exclusive of the methods to be adopted by the court in governing the conduct and actions of attorneys practicing at the bar. Knowing the situation and that a remedy is needed, the trial judges are in the best position to select one. They need not sit passively and await action by some one else; but they may select their own agency for action. The right to practice law, after once admitted, is to be considered a property right, of which one is not to be deprived without notice and a right to be heard; and there can be no doubt that a court is without authority to disbar or suspend an attorney sua sponte, without notice and hearing, except for matters occuring in open court and in the judge’s presence, or where it may come within the actual knowledge of the court that an attorney has been convicted of a crime involving moral turpitude, in which
Judgment affirmed.