19 N.E.2d 330 | Ill. | 1939
Lead Opinion
A report filed by the board of managers and the committee on grievances of the Chicago Bar Association, as commissioners of this court under rule 59, concerning a complaint by the association's committee on administration of criminal justice charging William G. Anderson with unprofessional conduct as an attorney and counsellor at law, recommends his disbarment. Respondent has filed exceptions to the report and the cause is submitted upon the record and proofs.
William G. Anderson, the respondent, was licensed to practice law in this State on March 28, 1896. On April 20, 1916, he was suspended for a period of two years and until restored by order of this court. (People v. Anderson,
The gist of the complaint against respondent is that the statement of fact in the habeas corpus petition relative to the separation of the jury was not known to him to be true, *519 was in fact untrue, and, further, that he could have ascertained the facts with respect to the orders entered by the court by examination of Journal D45, kept in the office of the clerk of the criminal court; that in making the quoted statement, under oath, without making full inquiry into the state of the record, he, respondent, was guilty of a serious dereliction of his duty to the court, and in consequence thereof, and of the admission of such allegation by the representatives of the warden, the trial judge was misled into entering the order for the discharge of the prisoner, Ciollaro.
From respondent's testimony it appears that although the docket recited the jury was allowed to separate "by agreement" he placed reliance upon the absence of a notation to the effect that Ciollaro had personally assented in open court to the separation by agreement with counsel for the People. He testified that interested persons retained him to sue out a writ of habeascorpus in behalf of Ciollaro; that he visited the prisoner in the penitentiary where the latter informed him that during the trial, in 1915, he told his attorney, Lewis A. Hauschild, (since deceased,) he did not want the jury separated as "it might be tampered with;" that upon his return to Chicago, he, respondent, investigated the docket which he assumed contained a correct entry of all orders in the Ciollaro case, and that he based his petition upon its wording, together with what Ciollaro had told him personally about the separation of the jury. Respondent testified further that the docket was exhibited before Judge Williams and that the latter, and, also, the warden's counsel saw it. He asserted that he honestly and conscientiously believed the docket entry did not include the personal assent of Ciollaro. On cross-examination, respondent stated that after examining the docket and before executing the petition he asked the clerk whether he had any other record on the point; that the clerk replied he could not find the particular journal bearing on the trial, informing *520 him further that the books had been misplaced. Respondent made no further effort to inspect the records. He declared that he had examined dockets in clerk's offices for many years and had never discovered a single docket which was wrong. Upon interrogation as to whether he had ever seen any docket which contained the full and complete order of the court respondent answered in the negative, saying: "The order in the docket should contain a proper recital of the gist of the order, and I knew the gist of the order would be that the defendant personally assented independent of any agreement between counsel for the People and counsel for the defendant." From his experience in examining original orders in other cases in the journals respondent admitted he had long known that if he desired to find the wording of an order he would go to the docket to ascertain whether an order had been entered and then would resort to the journal to find the order. Further testimony discloses his familiarity with the mechanics of preparing the journal and docket, respondent stating that the orders are written up in extenso in the journal; that the docket is prepared from the journal, and that when a certified copy of an order is sought it is the order in the journal which is used for this purpose.
Respondent's motion to dismiss on the ground that the complaint against him is not sufficiently specific to confer jurisdiction will be denied. The complaint narrates the history of the matters pertaining to the habeas corpus proceed-ceeding, and is fully documented. It meets the requirement of rule 59 that a complaint against an attorney at law must be sufficiently clear and specific in its charges as reasonably to inform him of the acts of misconduct he is claimed to have committed. Respondent's answer, his supplemental answer and his testimony demonstrate that he was adequately apprised of the charges against him.
The contention that lapse of time may be urged against disbarment proceedings is not well taken. We will not *521
refuse to hear charges against an attorney because of the expiration of some period of time unless it would be unjust or unfair to compel him to answer such charges. (People v. Sherwin,
The sufficiency of the evidence is assailed. Respondent was not a novice in the practice of habeas corpus cases nor in the criminal court. By verification of the false affirmative allegation in the petition for the writ of habeas corpus that the jury had separated at the criminal trial not only without the consent of Ciollaro but also without an order permitting such separation, and in urging this point upon the court, respondent was instrumental in assisting in a miscarriage of justice whereby a convicted murderer was released from incarceration in the penitentiary many years before he would have been eligible to parole. The docket entry to the effect that the jury was allowed to separate "by agreement" was sufficient to place respondent and all others participating in the proceeding upon notice. It did not show that the agreement was not entered into by Ciollaro, personally, even though it did not disclose by whom the agreement was made. Due investigation would have soon disclosed that Ciollaro and his counsel did agree to the separation of the jury. Proof is wanting, however, that respondent made any real attempt to search for the alleged lost journal between December 22, 1926, the day he swore to the petition, and January 6, 1927, when Ciollaro won his release. Had respondent ordered a certified copy of the order of September 16, 1915, he would have received, as he well knew, a copy of the order in the journal. The mere fact that the docket set forth the separation of the jury was by agreement but failed to state affirmatively that it was *522 by the personal agreement of Ciollaro did not justify respondent in making reckless allegations, under oath, that it was not by agreement of Ciollaro personally, particularly when he testified he had never seen a docket which contained a full and complete copy of an order. The professed reliance upon the docket cannot exculpate respondent.
A disciplinary proceeding is not a criminal case with its formalities of pleading and burden of proof, as respondent insists, but is an investigation of an attorney's conduct to determine whether he should be disbarred or otherwise disciplined. (In re Malmin,
Respondent will therefore be suspended from practice as an attorney and counselor at law within this State for the period of three years from the filing of this opinion.
Respondent suspended.
Concurrence Opinion
We agree with the views expressed in the opinion but believe, on the record in this case, that the respondent should be disbarred.
