107 Cal. 78 | Cal. | 1895
By the judgment of this court, made December 3, 1886, the petitioner was suspended from the right to practice law for the period of two years, and until the payment of a certain judgment against him in favor of J. M. Hogan. (In re Tyler, 71 Cal. 353.) A motion made by him in 1889 for a modification of this judgment was denied. (In re Tyler, 78 Cal 307; 12 Am. St. Rep. 55.) In October, 1894, the petitioner appeared in the superior court of Alameda county, Hon. John Ellsworth presiding, for the purpose of making a motion in a cause pending in said court, and was informed by the judge that he would not be permitted to make said motion or practice law in said court as an attorney until he should exhibit satisfactory proof that he had paid, or caused to be paid, the aforesaid judgment in favor ©f Hogan. The petitioner, however, insisted that he had a right to practice law and appear as an attorney in said court without making such proof, and thereupon, without leave of the court and in contempt of its authority, made a motion in said cause for which he was adjudged by the said court guilty of contempt, and was sentenced to pay a fine, and in default thereof to be imprisoned until the same was paid or was satisfied at the rate of one dollar per day. Petitioner, having been taken in custody by the sheriff under a warrant of commitment issued upon this order, has sued out the present writ of habeas corpus.
It is, however, contended by the petitioner in support of his application that this court never had any jurisdiction .to entertain the proceedings for his disbarment, and that the judgment therein for his suspension from practice is for that reason not entitled to any consideration. If the petitioner is correct in this proposition, his further contention that the order of the superior court committing him for contempt for his disregard of that judgment is also correct. Having been once admitted to practice law in all the courts of this state a court could not adjudge him guilty of contempt for the mere act of practicing law in its presence. The grounds urged by the petitioner in support of this contention are that the transactions which were alleged in support of the charges against him constituted felonies, viz., embezzlement and subornation of perjury; that he could not be convicted of these offenses, except by the verdict of a jury; that this court could not entertain amotion for his disbarment on account of these transactions until after such conviction had been had; that at the time the proceedings for his disbarment were instituted his conviction for the offenses had been barred by the statute of limitations; and that, as no conviction could he had therefor, this court had no jurisdiction to hear the charges.
It has been held in many cases, and the rule is perhaps sustained by the weight of authority, that when an attorney has violated the laws of the state in a matter
If, however, an attorney is charged with a violation of his professional obligations, either to his client or to the court, or with professional delinquency in matters pertaining peculiarly to the relations between him and his client, it is no defense to a proceeding for his suspension or disbarment that the same transactions may render him liable to a criminal prosecution. The court is authorized to strike him from its roll of attorneys, notwithstanding the same cause may form a basis for an indictment. Its power in this respect is not suspended until after his conviction, although the court may in its discretion withhold the exercise of this power, as the facts of any particular case may suggest would be appropriate. Upon this proposition it was said in
The provisions in the Code of Civil Procedure for the disbarment of an attorney are based upon these principles. Subdivision 1 of section 287 renders his conviction of a felony or misdemeanor involving moral turpitude a ground for his disbarment, whether such offense was committed in his private capacity or by virtue of his professional relation. The provisions of the two succeeding sections, that the clerk of the court in which such conviction is had shall transmit a copy of the record to the supreme court, and that upon the receipt thereof proceedings must be taken for his removal, leave this court no alternative under section 299 to striking his name from the roll of attorneys. Subdivision 2 of section 287 authorizes the court to take action for the removal or suspension of an attorney whenever he is shown to have been guilty of “ any vio
An examination of the proceedings under which the petitioner was suspended, and also of the opinion of the court rendered therein, shows that the charges against him were brought under subdivision 2 of section 287. There was no accusation that he had been convicted of any offense, nor was it sought to convict him of any offense. The charges against him were of the violation of his duties as attorney and counselor, and of unprofessional conduct. Whether the evidence offered in support of these charges would have sustained an indictment or not was immaterial, nor was this question considered by the court. The court found that the evidence was sufficient to sustain the charges, and under subdivision 2 of section 287 its jurisdiction to entertain the charges and to render the judgment it pronounced must be regarded as unquestioned.
The same principles which authorize the court to entertain charges against an attorney of violating his professional duties, irrespective of any civil or criminal proceedings against him, render the bar of the statute of limitations against a civil or criminal proceeding an immaterial element. The statute of limitations never deprives a court of jurisdiction, even in cases where it is a defense to the action or proceeding.
The writ is discharged and the petitioner remanded to the custody of the sheriff.