318 Mass. 489 | Mass. | 1945
This is an inquiry into certain alleged misconduct of Joseph Santosuosso, Esquire, a member of the bar. The proceeding came before a single justice of this court upon an information filed by the Bar Association of the City of Boston. The case comes before us upon a report of the single justice as follows: “This matter came on to be heard before me on the merits. At the beginning of the hearing the petitioner offered in evidence the following: (1) The entire printed record now in the files of the clerk of the Supreme Judicial Court for the Commonwealth of Massachusetts of a civil case in equity which was commenced in the Superior Court for Suffolk County and entitled City of Boston vs. Joseph Santosuosso, et al., Superior Court Docket No. 47350 Equity, being the entire record of said case on appeal before the full court, Docket Equity No. 3856, opinion dated "November 22, 1940, reported 307 Mass. 302. (2) The Findings and Order in that case made in the Superior Court by Fosdick, J. and filed on February 16, 1938, which findings are included in the printed record above referred to, at pages 643 to 649 thereof. A copy of said entire printed record is annexed hereto and made a part hereof and marked A. The respondent objected to the admission in evidence of all and of any part thereof. The counsel designated by the court to conduct the proceedings in this case stated that he had no other evidence to offer in support of the petition. At the hearing each counsel stated he was unable to produce Frederick H. Graves. It therefore appeared that the questions of law whether the offered evidence was competent for any purpose, and if competent at all, what effect should be given to it, would probably be decisive of this present case. Being in doubt as to both questions, I reserved my ruling thereon, and now I report the questions of law as to the competency and the effect of the evidence to the full court for determination. If none of the offered evidence is competent for any purpose, the present petition is to be dismissed. If the evidence or any part of it is competent for
Counsel for Mr. Santosuosso argues that the proffered evidence is not admissible under the doctrine of res judicata, and also that, apart from the doctrine of res judicata, the statements made by the judge of the Superior Court in his findings and decree are inadmissible as evidence. These contentions call for a consideration of the nature of the present proceeding. It is settled that it is an inquiry and not an adversary proceeding. Boston Bar Association v. Casey, 211 Mass. 187, 191-192. Matter of Keenan, 287 Mass. 577, 583. It is commenced not by a petition for disbarment but rather by an information wherein the matters there set forth are brought to the attention of the court with a prayer, not for disbarment or other specific disciplinary action, but rather for such action as the court may deem fit. It is in essence a submission to the court of the alleged facts for investigation by the court and such disposition as the court deems proper. The counsel designated by the court to conduct the proceeding is but an officer nominated by the court to assist in the inquiry to be made by the court itself. The proceeding is not an action at law in the strict sense nor a suit in equity. As was said in Boston Bar Association v. Casey, 211 Mass. 187, 191, it “is not a proceeding between two parties where the court is asked to adjudicate conflicting claims as to some right, corporeal or incorporeal, and where a decision favorable to one party is necessarily to that extent unfavorable to the other.” The respondent is entitled to a fair trial in the light of the character of the proceeding, and to that end an opportunity to know all that he must meet and the right to present such evidence as he may be able to produce to rebut the representations of alleged misconduct.
A citation of the numerous cases decided in this jurisdiction and elsewhere, in which the required character of members of the bar and the powers and the duties of, the court with respect to admission to and removal from the bar are considered, would serve no useful purpose. They
The foregoing view finds support in such cases as In re Lacy, 234 Mo. App. 71, In re Pate, 232 Mo. App. 478, State v. Gudmundsen, 145 Neb. 324, Werner v. State Bar, 24 Cal. (2d) 611, and Fairfield County Bar v. Taylor, 60 Conn. 11. See also Matter of Becker, 229 App. Div. (N. Y.) 62, 65-66; S. C. 255 N. Y. 223; Wigmore on Evidence (3d ed.) §4 (7). In the Gudmundsen case the court, after stating that there had been some doubt as to the admission of evidence such as that offered in the present proceeding, said:
We are of opinion, however, that the findings of material facts made by the judge in the suit in question in the Superior Court, which are included in the record sought to be introduced in evidence in the present inquiry, are not admissible for the reason that they are not evidence but merely constitute the substance of the conclusions made by the judge from the evidence and are the foundation upon which the decree rests. Smith v. Smith, 222 Mass. 102. Sidlow v. Gosselin, 310 Mass. 395, 396-397. When a judge makes a report of facts under the statute, "he does not make a report of the evidence but recites certain facts which he considered as material and which in his opinion formed the basis of his decision. It is ... a statement of facts in the mind of the judge when his decision was made, which, when included in the record, puts the case in proper form for hearing on the appeal.” Plumer v. Houghton & Dutton Co. 277 Mass. 209, 214. It not only should not contain a report of the evidence, but it is not evidence. Sidlow v. Gosselin, 310 Mass. 395, 396-397. The suit in equity in question was finally determined on the merits in Boston v. Santosuosso, 307 Mass. 302. The present proceeding is not a suit in equity. It is an independent proceeding, and owing to its nature we think that the record in question is admissible only to the extent of the evidence therein contained, and that the findings of fact of the judge included in the record are not admissible. See In re O’Brien, 95 Vt. 167, 178.
The information is remanded to the county court for further proceedings not inconsistent with this opinion.
So ordered.