101 F.2d 341 | 7th Cir. | 1938
This is an appeal from an order of the United States District Court, Northern District of Illinois, Eastern 'Division, striking the name of appellant, Paysoff Tinkoff, from the roll of attorneys Of said court and forever disbarring him from further and future practice as an attorney, counselor, advocate, and proctor of the Court.
The proceeding for disbarment was initiated by a petition which recited as grounds for the proposed disbarment that Paysoff Tinkoff had been convicted in the District Court for the Northern District of Illinois of the felony of willfully attempting to defeat and evade the payment of taxes lawfully due to the United States of America from another person and two companies for whom he was acting as counselor. The petition further recited that the judgment of conviction of the District Court was affirmed by the Circuit Court of Appeals
Respondent’s answer, or response, consisted of allegations of fact, which if true,' established that his conviction in the criminal case had been obtained as a result of perjury committed with the knowledge and consent of the prosecuting officials, the contention of respondent being that the fraud thus practiced upon the trial court made the judgment of conviction a nullity. Upon motion of petitioner the District Court struck the respondent’s answer for the reason, as stated by respondent in his appeal brief, that the judgment of conviction in the criminal case was final and conclusive in the present disbarment proceeding and that a hearing on the issues attempted to be raised by the response would amount to a retrying of the criminal cause.
Respondent’s cause on appeal presents the single question of whether he was entitled to present evidence in the disbarment proceeding for the purpose of “showing that the said conviction is of no legal force and effect and is absolutely null and void”; the ultimate purpose being to destroy the effect of the judgment in the criminal case in so far as it adjudicates a fact which necessarily constitutes cause for disbarment.
In an original proceeding in this Court entitled In re Tinkoff
The opinion of this Court in the original proceeding called attention to a court rule
What this Court said in respect to its. duty applies with equal force to the District Court in the instant proceeding. The District Court properly refused to retry the original criminal case for ,the purpose of showing that the judgment of that case was. wrong. In the original criminal cause it' was adjudicated that the respondent was guilty of the commission of the charged, felony. The judgment of the trial court
In the instant case respondent was convicted of a felony in the commission of which he used his knowledge and skill as an attorney to aid his clients to violate the law of the United States. The District Court was bound to accept as a fact that he was guilty of the crime. In view of the nature of the crime and the trial court’s judicial knowledge of the -facts relating to the attorney’s participation therein there would have been no justification for the trial court’s considering evidence in extenuation of respondent’s misconduct on the assumption that the court, in its discretion, might impose a penalty less than disbarment.
Respondent places special emphasis upon the discussion and decision of the United States Supreme Court in the case of Selling v. Radford.
The foregoing, by necessary implication, supports the conclusion that a state court’s order of disbarment predicated upon wrongful personal and professional conduct is not binding upon a federal court “as the thing adjudged in a technical sense.”
The order of disbarment by a state court necessarily determines that the misconduct of the attorney constitutes cause for disbarment from practice in the state court. To that extent it is binding upon federal courts. But the order of disbarment does not create a legal status of professional unworthincss which must be accepted by federal courts as an adjudicated fact for purposes of a disbarment proceeding in a federal court. A state court is without power to adjudicate what constitutes cause for disbarment in a federal court.
If in the instant case the District Court had been asked to enter an order of disbarment solely upon a showing that respondent had been disbarred by the Supreme Court of Illinois because of personal and professional misconduct, the discussion and holding in Selling v. Radford would have been applicable. But respond
We hold that the District Court did not err in striking respondent’s answer and in entering the order of disbarment.
The order of the District Court is affirmed.
Tinkoff v. United States, 7 Cir., 86 F.2d 868.
301 U.S. 689, 57 S.Ct. 795, 81 L.Ed. 1346.
7 Cir., 95 F.2d 651, petition for writ of certiorari denied 58 S.Ct. 1049, 82 L.Ed. 1538, May 23, 1938.
Rule 6, Paragraph 2 of the U. S. Circuit Court of Appeals for the Seventh Circuit.
243 U.S. 46, 37 S.Ct. 377, 378, 61 L. Ed. 585, Ann.Cas.l917D. 569.