83 F. 944 | U.S. Circuit Court for the District of Northern California | 1897
This is an application for the disbarment of John L. Boone, a duly and regularly admitted and practicing attorney and counselor of this court. The petition for disbarment is made by Alphonzo B. Bowers, and is as follows:
“That your petitioner is, and has been, the plaintiff or complainant in certain actions at law and suits in equity now and of late ponding in this court, as follows: (1) A. B. Bowers v. A. W. Von Schmidt; (2) A. B. Bowers v. Williams & Bixler and Golden State & Miners’ Iron Works; (3) A. B. Bowers v. San Francisco Bridge Co. (at law); (4) Same v. Same (in equity); (5) Same v. McNee Bros.; (6) Same v. Pacific Improvement Co.; (7) Same v. City of Oakland; (8) Same v. Oakland Iron Works; (9) Same v. John Hackett et al. That your petitioner is and now, and for a long timo has been, the plaintiff or complainant in certain actions at law and suits in equity in the circuit courts of the United States for the circuits and districts hereinafter named: (10) A. B. Bowers v. Linden W. Bates (circuit court, Northern district of Illinois); (11) A. B. Bowers v. Heldmaier & Neu (same court); (12) A. B. Bowers v. American Hydraulic Dredging Co. (same court); (13) A. B. Bowers v. Northwestern National Bank (same court); (14) A. B. Bowers v. Chicago Drainage Commission (same court); (15) A. B. Bowers v. San Francisco Bridge Co. and New York Dredging Co. (circuit court, district of Washington); (16) A. B. Bowers v. The New York Dredging Co. (circuit court, Southern district of New York); (17) A. B. Bowers v. American Dredging Co. (circuit court, Eastern district of Pennsylvania); (18) A. B. Bowers v. Bucyrus Co. (circuit court, district of Wisconsin). That your petitioner is the patentee of the United States under twelve several patents granted to Mm directly, and is the assignee of eighteen other patents, all connected with tlie inventions pertaining to the art of dredging, and all and singular the above mentioned and described actions at law and suits in equity were brought to recover damages for and to restrain the infringement of the said patents. That in the action of A. B. Bowers v. A. W. Von Schmidt, lately pending in this court, such proceedings were had that a final decree was duly given and made in favor of your petitioner, and against the defendant therein, enjoining and restraining the defendant from further using said patents, and awarding damages io your petitioner. That in said cause such proceedings were further had that a.n appeal was taken by defendant to tlie United States court of appeals Cor the Ninth circuit, in which, after full argument and due consideration, said decree was in all things affirmed, and an opinion rendered and filed in said causes. That the decisions are of great value to your petitioner, as an explanation and construe*946 tion of the law and the facts in said cause, and the legal validity and construction of the patents therein involved, and are entitled to have, and do have, great weight in other courts of the United States when cited in causes now pending as authority, on account of the thorough and exhaustive examination of the law and the facts in and by the said opinions. That for nearly nine years last past one John L. Boone has been, and now is, an attorney, counselor, and solicitor of this court, and was during said period the attorney, counselor, and solicitor of your petitioner, as plaintiif, in the actions and suits hereinabove mentioned as pending in this court. That as such attorney, coun•selor, and solicitor said Boone possessed the special and peculiar confidence of your petitioner, and obtained full and complete knowledge of and from your petitioner of all the facts and evidence in said causes. That in the progress of said causes your petitioner paid to said Boone for his services the sum of •about four thousand dollars in full of all his just claims and demands against your petitioner, and said Boone in the month of April, 1897, withdrew, by mutual consent, from the employment of your petitioner and the further prosecution of said causes. That thereafter the said Boone, with the full intent .and purpose to betray the confidence of your petitioner, and to violate his trust and duty as the attorney, counselor, and solicitor of your petitioner, did •offer and seek to be employed and retained by the defendant in the action of A. B. Bowers v. Linden W. Bates, and the other cases hereinbefore mentioned, now pending in the circuit court of the United States in and for the Northern district of Illinois, and, in consideration of such employment and retainer, did assert and suggest to Thomas A. Banning. Esq., of Chicago, 111., at the said •city of Chicago, who was then and there the attorney, solicitor, and counselor of Linden W. Bates, the defendant in said cause, that the decree in the cause of A. B. Bowers against A. W. Von Schmidt, hereinabove mentioned, was procured by fraudulent means, and that he (said Boone) could not remain in the case under the circumstances; thereby meaning and intending to convoy to said Banning the idea that he, said Boone, knew that the said decree was procured by false and perjureS evidence and testimony, and should not have been rendered or made. That your petitioner is ignorant of the particular or specific evidence to which said Boone intended to refer, and is unable to say more than that the said charge is wholly and entirely false and untrue. That all the evidence and testimony in said cause are and weré true and genuine, and no other than just, lawful, and honest means were employed or resorted to by your petitioner in said cause. That said oilier and statement by said Boone were made with the full intent and purpose to obtain employment by and from ■said Linden W. Bates and the other cases, under the pretense that he could and would betray the confidence of your petitioner, and disregard his professional obligations, and thereby assist the said Bates and others to defeat your petitioner’s actions against him and them, and to thwart, embarrass, and retard your petitioner’s suits and actions now pending. That the said offer and statement were made and intended to defraud the said Bates and others out of any money they might pay to said Boone as the price of his treachery or his testimony or his legal services, under the false pretense that he (said Boone) could or would bring forward any proof of his statement or suggestion made to said Banning. That the said statement and suggestion was a gross breach of duty and lack of respect by the said Boone to this honorable court, and a breach of his professional obligation to maintain the respect due to judicial •officers and courts of justice. That many months ensued between the conclusion of taking testimony in said suit and the argument thereof. That many months ensued between the argument and the rendition of the decree. Thai over a year elapsed between the rendition of the decree and the argument on the appeal. That over eighteen months elapsed between the argument and the affirmance of said decree. That said Boone was present at almost all times at the taking of evidence, and must have known what false and fraudulent evidence was given, and when and by whom it was given, and what alleged fraudulent means were used by petitioner to gain a favorable decree in said cause. And your petitioner further shows that on May 11, 1897, at his office in the city and county of San Francisco, at No. 314 Pine street, the said Boone did say to one Samuel H. Saleno, the agent and attorney in fact of your petitioner, that unless your petitioner would carry out some supposed promise alleged to have been made by your petitioner to said Boone some five*947 years back, in regard to the payment ot money, he (said Boone) would accept the retainer that was awaiting him (meaning the alleged retainer sought by said Boone from Linden W. Bates), and the acceptance would be very disagreeable to Bowers. He, said Boone, further said that statements had been made to him in years gone by that would be proof positive of perjury, and which, if made public by the other side, would result in the complete loss of Bowers’ patents, and might involve his liberty, — all of which was said by said Boone with a malicious intent and purpose to intimidate your petitioner, and extort money from him without any just claim or demand therefor.”
The respondent filed an answer, to which a demurrer was interposed. The demurrer was sustained, and the respondent thereupon filed an amended answer, in which he denies the charges of unprofessional conduct as charged. Testimony was thereupon taken on both sides, and the question to be determined, broadly stated, is whether or not the charges preferred have been sustained.
There seems to be some discrepancy between the views of counsel as to the number of charges preferred in the petition, counsel for petitioner contending that the allegations of the petition sustain four charges of disbarment, while counsel for respondent claim that they make but two. The respondent, undoubtedly, is entitled to notice-of the charges preferred against him, and that these should be set out clearly and unambiguously, so that he may know exactly what he is called upon to meet, and may have ample opportunity of explanation and defense. As was said in Ex parte Robinson, 19 Wall. 505, 512:
“This is a rule of natural justice, and should be equally followed when proceedings are taken to deprive him of his right to practice his profession as when they are taken to roach his real or personal property. And such has been the general, if not the uniform, practice of the courts of this country and of England. There may be eases undoubtedly of such gross and outrageous conduct, in open court on the part of the attorney as to justify very summary proceedings for his suspension or removal from office, but even then he should he hoard before he is condemned. Citing Ex parte Heyfron, 7 How. (Miss.) 127; People v. Turner, 1 Cal. 148; Fletcher v. Daingerfield, 20 Cal. 430; Beene v. State, 22 Ark. 157; Ex parte Bradley, 7 Wall. 364; Bradley v. Fisher, 13 Wall. 354. The principle that there must he citation before hearing, and hearing or opportunity of being heard before judgment, is essential to the security of all private rights. Without its observance no-one would be safe from 'oppression wherever power may be lodged.”
See, also, Ex parte Garland, 4 Wall. 378; Randall v. Brigham, 7 Wall. 523, 540; Ex parte Wall, 107 U. S. 265, 2 Sup. Ct. 569; Ex parte Cole, 1 McCrary, 410, 411, Fed. Cas. No. 2,973; In re Orton, 54 Wis. 382, 384, 385, 11 N. W. 584; Thomas v. State, 58 Ala. 368, 369; State v. Finley, 30 Fla. 325, 11 South. 674.
In my opinion, the petition, stripped of its recitals and legal verbiage, contains, in effect, two general charges of unprofessional conduct, to wit: (1) Seeking to be employed and retained by the defendant in the suit of A. B. Bowers against Linden W. Bates, and in other cases wherein A. B. Bowers, his former client, was plaintiff, which cases were pending in the circuit court of the United States for the Northern district of Illinois, with intent to- betray the confidence reposed in him by the petitioner as his client, and to violate his trust and duty as the attorney, counselor, and solicitor of (he petitioner. (2) Seeking to intimidate, and extort money from, the
The evidence introduced shows that there were but two transactions out of which these charges arose, viz.: (1) That in which the respondent sought to be employed, which is the basis of the first charge; and (2) that in which it is claimed the respondent attempted to extort money from the petitioner, which is the basis of the second charge. The accusation that the respondent, in seeking to be employed as above stated, made false representations to the effect that the decree in the Yon Schmidt Case had been fraudulently obtained, is properly part of the first charge, and the respondent's conduct in that connection will be considered with respect to it, and not as a separate and distinct charge.
In the United States courts the power to disbar is to be distinguished, as the law now stands, from the power to punish for con-tempts. The power of the federal courts to punish for contempts is limited by section 725 of the Revised Statutes. See, in this connection, section 20 of the act of September 24, 1789, and the act of March 2,1831; the former to be found in 1 Stat. p. 83, and the latter in 4 Stat. 487, 488. In the first place, this section limits the power of the court over contempts by providing that it shall not extend to any cases except (1) the misbehavior of any person in the presence of the court, or so' near thereto as to obstruct the administration of justice; (2) the misbehavior of any of the officers of the court in their official transactions; (3) the disobedience or resistance by any such officer, or. by any party, juror, witness, or other person, to any lawful writ, process, order, rule, decree, or command of the court. In the second place, the power to punish for the contempts specified above is restricted to a fine or imprisonment, to the exclusion of any other mode of punishment, including, of course, disbarment. Ex parte Robinson, 19 Wall. 505, 512. But the power to disbar an attorney is inherent in all courts which have the power to admit attorneys, and is necessary to the due and orderly administration of justice, and the protection of the profession itself, and, in so far as the power is exercised for general unprofessional conduct or for particular acts of misconduct not coming within any of the three general classes of contempts specified in section 725, Rev. St., it remains unabridged. - The power is exercised, generally, where the attorney proceeded against is shown to have been guilty of such conduct as stamps him to be unfit to remain a member of the profession. Ex parte Robinson, supra. It is not necessary that the acts or conduct complained of should be such as would subject the attorney to an indictment or to any civil liability. . Any conduct on the part of an attorney showing his unfitness for the confidence and trust which attend the relation of attorney and client and practice of law before the courts, or indicating such a lack of personal honesty, or of good moral character (although it is not every moral delinquency that will, justify disbarment), as to render him unworthy of public confidence, constitutes a ground for his disbarment. 3 Am. & Eng. Enc. Law (2d Ed.) p. 302, and cases there cited; Weeks, Attys. §§ 80, 81, and cases there collated. In brief, the court has the power to disbar an at
“On one hand, the profession of an attorney is of great importance to an individual, and the prosperity of his whole life may depend on Ms exercise. The right to exercise it ought not to he lightly or capriciously taken from him. On the other, it is extremely desirable that the respectability of the bar should be maintained, and that its harmony with the bench should be preserved. For these objects, some controlling power, some discretion, ought to reside in the court. This discretion ought to be exercised with great moderation and judgment, but it must be exercised.”
And in the case of Bradley v. Fisher, 13 Wall. 354, the following apt language was used:
“The power of removal from the bar is possessed by all courts which have authority to admit attorneys to practice. 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 of the court for itself, or a proper regard for the integrity of the profession. * * * Admission as an attorney is not obtained without years of labor and study. The office which the party thus acquires is one of value, and often becomes the source of great honor and emolument to its possessor. To most persons who enter the profession it is the means of support to themselves and their families. To deprive one of an office of this character would often be to decree poverty to himself and destitution to his family. A removal from the bar should, therefore, never be decreed where any punishment less ■ severe-such as reprimand, temporary suspension, or fine — would accomplish the end desired. * * * The obligation which attorneys impliedly assume, if they do not by express declaration take upon themselves, when they are admitted to the bar, is not merely to be obedient to the constitution and laws, but to maintain at all times the respect due to courts of justice and judicial officers.”
See, also, Ex parte Secombe, 19 How. 9.
Having stated the main considerations which govern the action oí the United States courts in the disbarment of an attorney, I will now proceed to state the facts of this application as briefly as possible.
The petitioner, Alphonzo B. Bowers, is the inventor of certain machines for and improvements in the art of hydraulic dredging. He is the patentee of 12 several patents granted to him directly, and is the assignee of 18 other patents, all relating to inventions pertaining to the art of dredging. His rights as inventor and owner of the patents referred to have been established after long, continuous, and arduous litigation. In this court alone he has been complainant in no less than nine suits, both at law and in equity, involving the validity of his patents. An equally large number of suits has been brought by him in other circuit courts, both on the Pacific coast and in the East. A number of these suits are, and at
Having made this preliminary statement of such general and uncontested facts as are necessary to a proper understanding of the matter, I now proceed to consider the evidence presented with respect to the first charge, viz.: That the respondent sought the employment of the defendant in the case of Bowers against Bates with
The evidence shows conclusively that the respondent, on June 11, 1897, wrote the following letter to Thomas A. Banning, the attorney for Mr. Bates in the action of Bowers against Bates:
“Telephone, Main 5,410.
“John L. Boone, Attorney and Counselor at Law.
“Practices In State and Federal Courts. Patent Law a Specialty. Booms 43,
44, 45, 214 Pine Street.
“San Francisco, June 11th, 1897.
“Mr. Thomas Banning — Dear Sir: Yours of June 4th received. Without in any way reflecting' upon your good faith and integrity, it would hardly be advisable for me to put in physical evidence the information I referred to, without knowing what use would he made of it, or what my position in regard thereto would he. Suffice it to say that my relation to this ease qualifies mo to state that the fact I refer to is not simply a,n important one, but it is a vital one. In my opinion it will reverse the decree already rendered, and will take the sting out of Bowers’ patents. Mind you, Mr. Bowers and I have never quarreled; we never had a word of misunderstanding. Since the incident I refer to occurred I have refrained from taking any active part in his case. My withdrawal from his case was voluntary on my part after he had obtained his final decree in the Yon Schmidt Case. I drew the contract of mutual release myself, without any previous conversation with him, and after signing it I sent it to him for his signature. He did not even know that I contemplated withdrawing from his case. He never refused to pay mo any ritoney, — in fact, I have never asked him for a cent. My withdrawal was because I knew the decree was fraudulently obtained, and I could not remain in the case under such circumstances. In my release Bowers releases me from all obligations, rightq, and privileges, and consents that I may take employment contra, so that 1 am perfectly free to take employment from Mr. Bates or from any one else without in any way violating my professional honor. If I had remained in the case with Bowers, and he had been finally successful, there is no doubt but what X would have been largely paid, but I sacrificed all that to my sense of right and duty. I hardly know what to suggest under the circumstances, hut you can readily see that it would not he wise for me to give my knowledge on paper a.t this time. If Mr. Bates wants to retain me, then it is another matter, as I am free to accept his employment.
“Very truly yours, Jno. L. Boone.”
The respondent himself admitted that he had written and sent the letter, so that there is no question of fact about this matter. The most cursory reading of the letter tends to show that the respondent was offering his services to Mr. Bates, Mr. Banning’s client, and, as an inducement for such employment, declared that he possessed im portant knowledge, which his relation to the case qualified him to state was vital, and would reverse the decree already rendered establishing the validity of Bowers’ patents, and that this knowledge consisted in his knowing that the decree in the Yon Schmidt Case had been fraudulently obtained. In what respect the decree had been fraudulently obtained does not appear from the letter sent to Mr. Banning. There is simply the bare assertion that the respondent was possessed of knowledge that it had been so obtained. What he meant in this regard was subsequently developed from his own testimony, and will be referred to later on. The letter, from its terms, indicates that it was in reply to a letter the respondent had received
“I wrote Mr. Bates a letter about tbe 1st of June. It was a letter, 1 tbink, of about five or six lines only, wherein I stated to him that I had withdrawn from the employment of Mr. Bowers, and had his written consent to take employment on the other side. I further said that I was in possession of knowledge that would be important in the litigation, and ended the letter by simply saying, ‘What have you got to say about it?’ That is all that was said in that letter.”
Any doubt about the purpose of these letters is set at rest by the admission of the respondent, in his testimony, that they were written with the end in view of being employed by Mr. Bates. He denied, however, that he ever intended to disclose any of the secrets or knowledge he had obtained during the course of his professional relations with Mr. Bowers, but that he simply intended, if employed, to use such information and knowledge in the cross-examination of witnesses and in his conduct generally of the case. It will be observed that the respondent had withdrawn from the petitioner’s employ on May 1, 1897, on which day the mutual contract of release was executed, and that the offer of his services to Mr. Bates took place some time in the month of June following.
It is the general and well-settled rule that an attorney who has acted as such -for one side cannot render services professionally in the same case to the other side, nor, in any event, whether it be in the same case or not, can he assume a position hostile to his client, and one inimical to the very interests he was engaged to protect; and it makes no difference, in this respect, whether the relation itself has been terminated, for the obligation of fidelity and loyalty still continues. Parker v. Parker, 99 Ala. 239, 13 South. 520; Spinks v. Davis, 32 Miss. 154; Cantrell v. Chism, 5 Sneed (Tenn.) 116; Clarke Co. v. Commissioners of Clarke Co., 1 Wash. T. 250; Valentine v. Stewart, 15 Cal. 387; Burridge v. Pearson, 55 Cal. 472; In re Stephens, 77 Cal. 357, 19 Pac. 646; Id., 84 Cal. 77, 24 Pac. 46; In re Cowdery, 69 Cal. 32, 10 Pac. 47; Gibson v. Jeyes, 6 Ves. 278; Earl Cholmondeley v. Lord Clinton, 19 Ves. 260; Herrick v. Catley, 1 Daly, 512; Sherwood v. Railroad Co., 15 Barb. 650; Hatch v. Fogerty, 40 How. Prac. 492; U. S. v. Costen, 38 Fed. 24; Weeks, Atiys. § 120; 3 Am. & Eng. Enc. Law. (2d Ed.) pp. 295-300. Of course, it is conceded that an attorney may represent his client’s adversary with perfect propriety whenever their interests are not hostile to each other. The test of inconsistency is not whether the attorney has ever appeared for the party against whom he now proposes to appear, but it is whether his accepting the new retainer will require him, in forwarding the interests of his new client, to do anything which will injuriously affect his former client in. any matter in which he formerly represented him, and also whether- he will be
But tbe respondent contends tbat Ms offer of services to Mr. Bates as against the petitioner, his former client, is to he distinguished from the case of U. S. v. Costen, and other cases of a like tenor, on
“This is a contract of mutual release by and between A. B. Bowers and John D. Boone, whereby the said Bowers releases said Boone from all claims, obligations, and services as his attorney in the various suits and actions relating to dredging machines now pending, wherein said Bowers is plaintiff and said Boone is attorney or solicitor. Said Bowers releases said Boone from all rights, burdens, obligations, and privileges which appertain to his said employment, and' consents' that said Boone may engage his services pro or con, as he may see fit. In consideration of said release the said John L. Boone hereby releases the said A. B. Bowers from all claims, demands, and obligations for services now or heretofore existing. And it is understood that this mutual release shall apply to all cases now pending, and that the filing of a copy of this agreement in the court where said suits are pending shall be a sufficient evidence of said withdrawal and release.”
Upon tbis contract of release two questions arise: (1) Its construction, and (2) its validity. The circumstances under which the contract was drawn up and executed, are significant. They may best be stated in the language of the respondent himself, as the same appears in his testimony:
“Q. (On cross-examination). Mr. Boone, you drew this contract of release, a copy of which is set forth in your answer, dated May 1, 1897? ■ A. I did. Q. Did you have any previous consultation with Mr. Bowers prior to drawing that release? A. Kegarding the release? Q. Yes. A. None whatever. Q. Did you advise him of its legal results or consequences? A. I did not. Q. Did you inform Mr. Bowers specifically that, if he executed that release, it was your intent and purpose to seek employment in the action of Bowers v. Bates and Bowers v. Heldmaier and Neu and the other cases then pending in the circuit court for the district of Illinois? A. I had no talk with Mr. Bowers outside of presenting him with 'the contract. He read it before he signed it. • He knew what he was signing. Q. Did you prepare it in your own office and send,it by messenger to him? A. I prepared it in my office, and sent it by messenger to Mr. Bowers. Q. He signed it, and returned one copy of it? A. Yes, sir. The Court: Q. By messenger? A. Yes, sir. Q. He did not come to your office? A. No, sir. Q. You had no conversation with him about it? A. Not a word. Mr. Thornton: Q. Did Mr. Bowers know, immediately before you sent him and he received a copy of the contract, that you contemplated withdrawing from his case? A. Not that I know of. The reason that I sent for him afterwards was because Mr. Delmas and I, talking the matter over, thought it would be well to find out his opinion upon that matter. The Court: Q. How did you happen to send that document to him at that particular time? A. I had made up my mind that as soon as the Yon Schmidt Case was finished, — that was the one we were engaged in fighting— I -would wait until the case was entirely finished, and he got his final decree, and there was no question as to my properly getting out of the case at that time. Q. You knew you could get out of the ease at any time? A. I did not care to desert a man while he was under fire. I wanted him to get out clear first. I did not propose to desert him while his patent was in danger. I made up my mind to wait until after the litigation was through with. Q.- You had no talk with him about that? A. No talk with him whatever.’?
From this testimony one thing is plain, and that is that the respondent was grossly remiss in his duty as an attorney in not advising the petitioner as to the exact terms of the contract of release,
“Said Bowers releases said Boone from all rights, burdens, obligations, and privileges which appertain to his said employment, and consents that said Boone may engage his services pro and con, as he may see fit.”
There is certainly nothing in this stipulation, nor in the release, taken as a whole, which states explicitly that Mr. Bowers consented that Mr. Boone should take employment in the suit of Bowers against Bates, nor, in fact, in any case in which Mr. Bowers liad appeared as plaintiff, which involved the validity of the patents for which Mr. Boone, in other cases, while acting as his attorney, had litigated; nor is there anything in the entire release which says, in so many words, that Mr. Bowers consented that Mr. Boone should use the knowledge he had confidentially acquired from Mr. Bowers, while acting as Ms attorney, in the cross-examination of witnesses, or against him in any way. On the contrary, the stipulation is not Wholly inconsistent with the interpretation that Sir. Bowers considered that he was merely releasing Mr. Boone from the relation of attorney and client that had theretofore existed between them, and that this termination of their relation, as such, was simply couched in apt legal verbiage. And that part of the stipulation winch “consents that said Boone may engage his services pro or con, as he may see fit,” is not inconsistent, in the absence of any more definite stipulation, with the idea that it was intended to apply to employments entirely outside of and foreign to Bowers’ patents with reference to which Boone had rendered professional services to Bowers. In a case like this, every presumption is in favor of the petitioner and against the respondent, and every doubt must be resolved in favor
Assuming, therefore, for the purposes of the decision, that the petitioner did fully understand the nature, scope, effect, and probable consequences of the contract of release, does it follow that this court will give effect to and recognize such contract as valid, and as affording a justification to the respondent for the acts of unprofessional conduct complained of? The contract of release purports to contain a complete absolution by Bowers, as client, to Boone, as attorney, from, all the rights, burdens, obligations, and privileges incident to his employment by Bowers, and an unqualified consent by Bowers that Boone might take employment against Bowers. In other words, the petitioner consented that the respondent, his former attorney, might be employed against him in the very litigation which affected the validity of Ms patents; that the respondent, being released from all the duties, burdens, obligations, and privileges that appertained to his employment as attorney, was free to divulge knowledge acquired during his professional relation with the petitioner, or to use it against him, if he saw fit. In brief, it would seem as if the petitioner had consented that the respondent, as attorney, might violate with impunity any of the obligations which the law imposes upon the relation of attorney and client. This interpretation may seem as exaggerated as it is startling, but neverthe
“The statutes which allow a debtor, being a householder and having a family for which he provides, to retain, as against the legal remedies of his creditors, certain articles of prime necessity, to a limited amount, are based upon*959 views of policy and humanity which would he frustrated if an agreement like that contained in these notes, entered into in connection with the principal contract, could be sustained. * * * The law was designed to protect him against his own improvidence in giving such consent. The statutes contain many examples of legislation based upon the same motives. The laws against usury, those which forbid imprisonment for debt, and those which allow a redemption after the sale of land on execution, are of this class. So of the principle originally introduced in courts of equity, and which has been long established in all courts, to the effect that, if one convey land as security for a debt, and agree that his deed shall become absolute if payment is not made by the day, he shall still be entitled to redeem on paying the debt and interest; and so, also, with executory contracts without consideration to make gifts, and the like. In these cases the law seeks to mitigate the consequence of men’s thoughtlessness and improvidence, and it does not, I think, allow its policy to be evaded by any language which may be inserted in the contract It is not. always equally careful to shield persons from those acts which, instead of being promissory in their character and prospective in their operation, take effect immediately. One may turn out his last cow on execution, or may release an equity of redemption, and Re will be bound by the act. In thus discriminating, the law takes notice of the readiness with which sanguine and incautious men will make improvident contracts which look to the future for their consummation, when, if the results were to be presently realized, they would not enter into them at all. If, with the consequences immediately before them, they will do the act, they will not generally he, allowed to retract; it being supposed, in such cases, that valid reasons for the transaction may have existed, and that, at all events, the party was not under the influence of the illusion which distance of time creates. Ordinarily, men are held to their executory as well»as their executed contracts; but in a few exceptional cases, where the temptation is great or the consequences peculiarly inconvenient, parties are not allowed to make valid prospective agreements.”
This language is peculiarly applicable to the contention that the release was valid as a waiver oí the privilege of confidence and secrecy on the part of the respondent. The respondent himself appears to have regarded the contract of release inoperative as a legal waiver, for, during his testimony, he sought to purge himself of any unprofessional conduct, by disclaiming that, had he been employed by Mr. Bates, he intended to- disclose any knowledge be had acquired from the petitioner during the course of their professional relation, but that he simply proposed to use this knowledge in the cross-examination of witnesses. But it seems very doubtful whethc the respondent could have carried out this plan, and yet expect to be employed. It is difficult to understand how he hoped to obtain employment unless he disclosed to Mr. Bates, or to his attorney, Mr. Banning, the nature and particulars of the information which he claimed would show that the decree in the Von Schmidt Case had been fraudulently obtained. It is very doubtful whether either Mr. Bates or Mr. Banning would have accepted the respondent’s mere pretense that he possessed important information of the character indicated, and would have rested content with the general statement that he had the information, without obtaining further particulars, so that they might judge of the value, to them, of the alleged information. But, as the respondent has purged himself on this point, his explanation perhaps concludes the court with respect to that feature of this matter. In so far, however, as he proposed to use the knowledge or information which he had gained
It is contended, finally, that the information or knowledge which the respondent referred to in his letter to Mr. Banning, and which he proposed to use in the examination of witnesses as against Bowers, if employed in the case of Bowers against Bates, was not protected as privileged matter, because it related to a fraud perpetrated upon this court in obtaining the decree in the Von Schmidt Case. Undoubtedly it is the rule that the disclosures made by a client to his attorney involving crimes malum in se, or, as in the matter at hand, the prostitution of justice itself, are not protected by the privilege. Bank v. Mersereau, 3 Barb. Ch. 528; 19 Am. & Eng. Enc. Law, p. 140, and cases there cited. It, therefore, becomes necessary to inquire into this alleged fraudulent transaction. In his testimony before the court the respondent explained what he meant by the statement contained in his letter, as follows:
“In either the year 1891 or 1892 — 1 cannot fix the exact date — Mr. Bowers and myself were one day in the office of the master in chancery of this court, in the small room which I now believe is occupied by Judge Morrow as a part of his office. The models in the Bowers Case were all there. We had been examining the models. At the particular time to which I refer I was*961 seated at the table In the room, and Mr. Bowers was two or throe feet to my loft, away from mo, sitfing with this model in his hand. Q. Please to identify it. A. The exhibit is torn off. Air. Mcl’ike: Q. Let me interpose. Do yon say this model, or a i'ae simile? A. No; I do not think it was iliis model, because it had a leather suction-pipe connection. Hero it is. I cannot say whether it is the identical model. It was either the identical model or a similar one. Tt represented the same model. He was handling the model. I was paying no attention to what was going on. I heard something fall on the floor. 1 looked around, and I saw a piece of tin of which this is a sample (producing) lying on the floor, fallen in front. As I looked around, Mr. Bowers looked at me, reached over, and picked it up. He said, ‘That is all right; we will say nothing about it:’ and put it in his pocket. It. was not done hurriedly, but very deliberately, as Mr. Bowers always is. We then together took tills model. I Took it, turned it over, looked at it, and— Now, I say this is the first time since that incident occurred that I have had this model in my hand, and the first time 1 have put my eyes on it, to my knowledge.' I have never gone (o the court room to look at this model In any way, shape, or manner. 1 looked in the cutter. I looked to see if T could find how the piece which liad fallen out hacl been attached, because I saw at once it was the inner cylinder of that excavator. 1 thought I perceived a line of rotten solder which had attached that to the head of the cutter. Q. Of the suction pipe, you moan? A. The head of ilie cutter. It formed an extension of the suction pipe extending into the excavator. Q. Is that the part which is referred to in the brief? Air. Thornton: Whose brief? Air. Mel.’ike: Q. The brief prepared by Mr. Miller, at page 12. The words in italics at the top of page 12: ‘As this inner cylinder does not rotate, it is no part of the rotary excavator.’ A. That is the part. The Court: Q. Is it that cylinder there (pointing)? A. It was inside. How it came out, I do not know. I did not see it come out. 1 know it fell on the floor. Air. M cl’ike: Q. Take that part, and see if you can adjust it. Air. Thornton: Can you take this apart, Air. Bowers? The Court: Let me see about this (addressing the witness). Was iliis the condition in which the exhibit was? A. So far as I can now judge. Q. Is this piece of metal now absent from that? A. It is now absent. Q. It once was in there? A. Undoubtedly.”
The model referred to is known as “Model N,” and was offered in evidence in the case of Bowers against Von Schmidt, on behalf of Bowers, the plaintiff, on October 28, 1890. This wits prior to the alleged act of mutilation. While the respondent cannot fix exactly the date of the occurrence in the master in chancery’s room, his testimony shows that it was after January 7, 1891, and prior to October, •:,Si)2, because in the month of October, 1892, he took the stand in the case of Bowers against the Ban Francisco Bridge Company, and testified as a witness in behalf of «ids client, Bowers, with reference to the condition of this same model. The petitioner denies absolutely that any tiling of the kind attributed to tiirn by the respondent ever took place. Mr. John IT. Miller, his present attorney, took the stand, •and testified that he liad had occasion to examine this same model very many times; that he was thoroughly familiar with it; that it never had, nor was it ever intended to have, an inner cylinder; that it was in the same condition, with the exception that the rubber suction pipe had been broken off from constant handling, it was in when he first saw it, some time in 1889, when lie came into the case. There is therefore an irreconcilable conflict between these parties on this point. It is a fact of significance that the respondent testified as a witness on behalf of the petitioner in the case of Bowers against the Ban Francisco Bridge Company that the exhibit, which he now says was mutilated by Bowers, was in the same condition as it had always
“Q. Are the various models which you say you saw — these Various models— in exactly the same condition now that they were at the time they were shown to you? A. Substantially, I think. I don’t recognize any change, particu-’ larly.”
Under this state of facts, I am led to the inevitable conclusion that the respondent is guilty of one of two things, — either he testified falsely, and misled the court, in his testimony given to the court and jury in the case of Bowers against the San Francisco Bridge Company, or else the statement in his letter to Mr. Banning that the decree in the Von Schmidt Case had been fraudulently obtained was a falsehood and a pure fabrication of his mind, made with the evident purpose of throwing discredit on his former client’s decree, to impair its value as a precedent and authority, and also to insure his employment by Mr. Bates. He now explains his testimony, given in the case referred to, by stating that he testified that the model was “substantially” in the same condition; that he did not say it was exactly in the same condition. But the court can hardly accept this technical differentiation in his testimony to shield him from the full purport and meaning of his sworn statements. The impression gained from the use of the word “substantially,” to the ordinary mind, is that there is no material change; whereas the respondent, in his letter and from his present testimony, would have the court believe that the change in the condition of the model was so substantial that it was important and material enough to reverse the decree rendered in the Von Schmidt Case. He claims, further, that he felt under no obligation to amplify or enlarge or explain his testimony because he was then the attorney for the petitioner, and that he considered that he had no right to divulge voluntarily his client’s alleged perfidy and misfeasance. The obligation of an attorney to remain faithful to his client, and to keep inviolate his client’s professional communications or knowledge, gained therefrom, while, undoubtedly, going very far in justifying him from making disclosures, still was never understood or intended to justify an attorney in misleading the court itself. While a lawyer may remain passive as to many things which his client reveals to him professionally, still he cannot actively participate and assist his client in perpetrating a fraud on the court. The profession of an .attorney, and the obligations he assumes, are intended for the furtherance of justice, not its perversion. But, aside from the moral persuasion that the respondent was under to testify, not only to the truth, but to the whole truth, and nothing but the truth, he was in duty bound, as a matter of law, to state the whole truth. Where an attorney is offered as a witness by his client, he cannot claim his privilege on cross-examination. Crittenden v. Strother, 2 Cranch, C. C. 464, Fed. Cas. No. 3,394; Vaillant v. Dodemead, 2 Atk. 524. While an attorney may be justified in declining to testify on the ground that he would be disclosing professional secrets, still when he does testify he is not justified in perverting the truth to protect his client. If he testifies at all, he must testify fully
In extenuation of the conduct of the respondent, it is claimed that he was acting in good faith, and really believed that the terms of the release were sufficient to justify him in offering his services to Mr. Bates, and, if employed, to use the knowledge he had acquired confidentially from the petitioner, while acting as his attorney, against him in cross-examining witnesses and the conduct of the case generally, and that he was re-enlbrced in this view by eminent professional advice, as to which he testified. This advice appears, from his own testimony, to have been sought for and obtained after the release had been drawn up and executed.- — a fact which does not commend itself to the claim of good faith so earnestly pressed by his counsel. The mere fact that he supposed that, from a legal standpoint, he was protected in the course he proposed to pursue, does not supply nor justify the entire absence of good faith and fidelity which his conduct towards the petitioner makes so conspicuous. The claim
With reference to the second charge, that the respondent attempted to extort money from the petitioner through his representative, one EL S. Saleno, the testimony between the respondent and the latter is irreconcilably conflicting, and, in the view I take of the first charge, it is unnecessary to consider it.
I have considered this matter very carefully, and have given it a great deal of reflection. It is an unpleasant duty to perform, particularly of an attorney who has been an experienced and successful member of the bar and of this court; hut in the view I take of the testimony, coupled with the respondent’s own admissions while on the stand, I can come to no other conclusion hut that the respondent has been clearly proven guilty of such unprofessional conduct as calls for disbarment. In concluding this already lengthy opinion, I can do no better than quote the felicitous language of Mr. Justice Brewer, then circuit judge, in U. S. v. Costen, supra, as follows:
“It is the glory of our profession that its fidelity to its client can be depended on; that a man may safely go to a lawyer and converse with him upon his rights, or supposed rights, in any litigation, with the absolute assurance that that lawyer’s tongue is tied from ever disclosing it; and any lawyer who proves false to such an obligation, and betrays, or seeks to betray, any information or any facts that lie has attained while employed on the one side, is guilty of the grossest breach of trust. I can' tolerate a great many things that a lawyer may do, — things that, in and of themselves, may perhaps be criticised or condemned, — when done in obedience to the interest or supposed interest of his own client, and when he is seeking simply to protect and uphold those interests. If he goes beyond, perhaps, the limits of propriety. I can tolerate and pass that by; but I cannot tolerate for a moment, neither can the profession, neither can the community, any disloyally on the part of a lawyer to his client. In all things he must be true to that trust, or, failing it, be must leave the profession.”
The application for disbarment upon the first charge made will he granted, and the respondent will stand disbarred, and his name will* he stricken from the roll of attorneys and counselors of this eourt; and it is so ordered.
