54 Wis. 379 | Wis. | 1882
This is an appeal from an order of the circuit court of Milwaukee county, which directs that the appellant be forever disbarred from the right to practice law in the courts of this state, and also directs that his name be stricken from
But another question of practice is raised by the counsel for the appellant, which, is of much practical importance. He claims and insists that the whole course of procedure adopted and pursued in this case was irregular and absurd to the last degree, and that the order should be reversed on that ground. The proceeding was instituted in this manner: In August last, when the circuit court of Milwaukee county was in session, the attention of the circuit judge was called to the pleadings in a case pending in that court, in which one Russell Wheeler was plaintiff and the appellant was defendant. The pleadings .on file consisted of a complaint and a verified answer. At the same time, it is admitted, there was read what purported to be .a copy of a copy of an amended answer in the same case, which had been served by Mr. Orton on Wheeler’s attorneys, and which they had returned to him, with their reasons for not accepting service thereof. This copy of a copy of the amended answer was filed. Thereupon the court, on its own motion, made an order requiring the appellant to show cause on a day named, at the opening of court on said day, why his .license as an attorney should not be revoked and annulled, and his name stricken from the roll of attorneys, and he be dis.barred from longer practicing the profession of law. The clerk' was directed to serve a true and certified copy of the order on Mr. Orton within three days from its date. The order specifies no charges whatever, nor any misconduct on the part of Mr. Orton, to which he was called upon to answer. On the hearing of the rule Mr. Orton moved to vacate the order, because it had been improvidently granted — there being no
It is very correctly remarked by appellant’s counsel, that the practice in proceedings of this kind is not prescribed by statute nor regulated by rules of court. But still that certain general rules and principles apply to it cannot be doubted. One of these principles, which is axiomatic in the law, would seem to be this: An attorney who is proceeded against for misbehavior in his profession, is certainly entitled to know the nature and’ ground of the accusation made against him. If charges of professional misconduct are made, common justice requires that he should know just what they are, and have a full ’ opportunity to meet them. Therefore, specific, distinct, special charges should be clearly made, in some form and in some manner, before he is called upon to make his defense. “ This ' 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; and except where matters occurring in open court, in the presence of the judges, constitute the grounds of its action, the power of the court should never be exercised without notice to the offending party of the grounds of the complaint against him, and affording him ample opportunity of explanation and defense. This is a rule of natural justice, and is as applicable to * a case where a proceeding is taken to reach the right of an attorney to practice his profession, as it is when the proceeding is taken to reach his real or personal property.” Bradley v. Fisher, 13 Wall., 335, 354.
The order to show cause, as we„have said, stated no charges or grounds of complaint. It did not even specify what things in the verified or amended answer Mr. Orton was called upon
In Ex parte Cole, 1 McCrary, 406, and People v. Pearson, 55 Cal., 472, the proceedings were by information, wherein the accusations or charges were fully and clearly stated. In In re Wool, 36 Mich., 299, the order to show cause was based upon a decree in equity, which decree rested on a fraud charged to have been practiced by the attorney. The charges of fraud were set forth in the bill filled against the attorney, and constituted the only basis of the action. It does not appear that any objection was taken that the charges were not made in a sufficiently formal and specific manner. In Strout v. Proctor, 71 Me., 288, charges and specifications of misconduct were
The fact that the circuit court, on its own motion, granted the order to show cause, requires no comment. It was the duty of the circuit judge, on his attention being called to the pleadings in the case of Wheeler v. Orton, pending before
We feel it to be our duty to make some further observations on two points before taking leave of the case. And first as to the merits. On showing cause 'Mr. Orton read and filed his affidavit in explanation of certain matters stated in his original and amended answers. If the answers, with the affidavits explaining the same, are read and considered together — as, of course, they must be, on this inquiry,— we think diey fail to sustain the conclusion of the learned circuit judge, that Mr. Orton had been guilty of the gross misconduct of advising Mr. Wheeler how to kill a man and be justified in the law, or that he had been guilty of the unprofessional misconduct of subornation of perjury, or anything of the kind. It is needless to observe that such grave charges, which, if true, wrould not only justify the expulsion of Mr. Orton from the bar, but would-render him liable to severe punishment under the penal law, should be established by clear and satisfactory evidence, and cannot rest in doubtful and uncertain inferences. We do not propose to go into any analysis of the answers, ■ either with or without the aid of the explanatory affidavit. Suffice it to say that they entirely fail to sustain the conclusions ■ or inferences which the learned circuit judge drew from them.
The able and intelligent counsel who argued this case for the .appellant, did not attempt to defend or justify the character of
By the Court.— The order of the circuit court is reversed.