Lead Opinion
— Chapter 158 (page 265) of the Acts of the Regular Session of the Fourth Legislature (1919) provides for the disbarment of attorneys, and for the procedure which may be followed for that purpose, amending paragraphs 271 to 277, both inclusive, of the Revised Statutes of Arizona 1913 (Civil Code). It is made the duty of the court to appoint a committee to investigate any improper conduct on the part of any attorney of which the court has notice: The report of such committee, with the recommendation that complaint be filed, makes it mandatory upon the court to direct the county attorney to file charges against the attorney accused, who' thereupon, without further order or proceeding, becomes suspended from the practice of his profession pending the trial and ultimate judgment upon such charges.
This is a petition for a writ of mandamus, filed originally in this court, for the purpose of reviewing proceedings had by the superior court of Yavapai county, under the provisions of that statute. The petitioner, Robert McMurchie, alleges that, upon filing of complaint against him in that court, affecting his conduct as an attorney, the judge of that court, the Honorable JOHN J. SWEENEY, giving effect to the express directions of the statute, declined thereafter to recognize McMurchie, who was then county attorney as an attorney of that court, and declined to permit him to proceed in the prosecution of criminal actions. That portion of the act in question bearing directly upon this matter is as follows:
“274. Such action or proceedings shall be commenced by a complaint in writing and which said*55 complaint shall also state that the proceedings are instituted under order of the superior court. Said complaint need not he sworn to but shall be brought in the name of the state of Arizona and shall be filed with the clerk of the court and summons shall be issued by the clerk directed to such accused attorney ordering him to show cause at a day' and hour named in said summons, and which said day shall not be less than ten nor more than thirty days from the issuance and service of said summons, requiring the said attorney to show cause why his license to practice law should not be suspended or revoked. Provided, that the summons shall be served upon the defendant at least five days before the trial day and provided further that from and after the date of the filing of complaint by the county attorney as hereinbefore provided, the right of such accused attorney to practice in any of the courts in the state of Arizona shall be suspended until hearing and trial thereon and final determination and judgment taken thereon.” '
It will be observed that the consequence of suspension from practice visited upon the accused attorney is not based upon any judicial finding or sanction. The report of the preliminary investigation, has, it is true, been submitted to the court; but the action taken by the court in directing a complaint to be filed is not based upon the judgment of the court, but the mandate of the statute, which requires such complaint to be filed whenever the investigating committee recommends that it be done. In effect, the legislature has said that whenever an investigating committee recommends the filing of a complaint, and that complaint is filed, then and thereupon the accused attorney stands suspended. His suspension is not based upon any judgment or finding of the court, and is without trial or notice-vto the accused. It is a legislative decree, by which the mere filing of accusations against an attorney operates automatically to suspend him from practice without hearing or judg
The license which an attorney holds to practice his profession is not a mere indulgence, revocable at the pleasure of the court, but it is a right with which he has been invested, to hold during good behavior, and cannot be lightly or capriciously taken from him. It is acquired by order and judgment of a court, after examination into his moral and intellectual qualifications. He can only be divested of that right by a like judgment of court, entered after due notice and inquiry and opportunity to be heard, and based upon some conduct on his part which makes him unworthy further to engage in the practice of law.
In Ex parte Garland, 4 Wall. 333, 18 L. Ed. 366 (see, also, Hose’s U. S. Notes), the Supreme Court of the United States had under consideration an act of Congress which made certain conduct of attorneys operate to deprive them of the right to practice their profession unless they should first purge themselves of such disability by an oath. It was held by that court that an attorney at law could not be deprived of his right' to follow his profession by means of such legislation alone, and among other things had this to say:
“They hold their office during good behavior and can only be deprived of it for misconduct ascertained and declared by the judgment of the court after opportunity to be heard has been afforded. Their admission or their exclusion is not the exercise of a mere ministerial power. It is the exercise of judicial power.”
Upon this point the precedents are very numerous and uniform. Tomsky v. Superior Court of City and
The statute makes it the duty of the county attor'ney to file a complaint against the accused attorney when directed so to do by the court. In this instance 'the court, deeming it useless to direct the county attorney McMurchie to file complaint against himself, directed the complaint to be filed by two members of the committee who had investigated the charges. This failure to follow the strict letter of the statute is made the basis of an objection to the jurisdiction of the court, assuming that the. right of the court to act depended solely upon the authority expressed in this statute, and that the direction of the statute must be specifically and literally carried out. The learned judge of the superior court was undoubtedly right in not asking or expecting the county attorney to file charges against himself. The statute seems to have provided for just such contingency. In paragraph 275 will be found this provision:
“The cause shall be conducted in the name of the state of Arizona against the defendant and the state shall be represented by the county attorney provided that the committee so theretofore appointed, or any member thereof, shall be entitled to assist and take part in the preparation and trial of the case, and the court may appoint additional counsel from among the members of the bar of said county to assist the county attorney in such prosecutions.”
The statute itself seems to contain ample authority, expressed with a reasonable certainty, for the course pursued.
The statutes are to be construed in accordance with the intent of the legislature, so far as such intent is manifested by the express terms in which the statute is couched, and which does not do violence to the terms in which the legislature has phrased its intent.
The assumption that the court’s jurisdiction is limited to the express provisions of this statute is based upon totally false premises. All courts exercising general and common-law jurisdiction possess the inherent right to require lawyers practicing at their bar to so conduct themselves that they shall neither bring reproach upon their profession nor in any way impede the due administration of justice. This is a right not derived from statute, nor held at the will of the legislature. It is essential to the orderly administration of justice.
The procedure authorized by this statute is not in terms nor by implication exclusive. It provides, and assumes only to provide for an orderly procedure for carrying into effect powers and the exercise of a jurisdiction already possessed by the courts. Nor does it assume that the prescribed method of procedure shall
In Ex parte Bradley, 7 Wall. 364, 19 L. Ed. 214 (see, also, Rose’s U. S. Notes), the opinion is the more directly in point because it considered a question as to whether or not a court having no power of admitting attorneys to practice, might nevertheless exercise the power of disbarment from practice in that court. A like question was also decided in the case of State v. Kirke, above cited.
The courts are a co-ordinate branch of the government. Attorneys are officers of the court, and they are at all times accountable to the court for the manner in which they exercise the right and privilege of practicing their profession, and it may at any time declare such right forfeited for misconduct, whether professional or nonprofessional, which indicates an unfitness of the attorney to manage the business of others in the capacity of an attorney. In re Durant, 80 Conn. 140, 10 Ann. Cas. 539, 67 Atl. 497. And courts have not hesitated to exercise this jurisdiction, even when contrary to the express terms of the statute. State Bar Commission ex rel. Williams v. Sullivan, 35 Okl. 745, L. R. A. 1915D, 1218, 131 Pac. 703; Re Day, 181 Ill. 73, 50 L. R. A. 519, 54 N. E. 646; In re Garland, 4 Wall. 333, 18 L. Ed. 366.
“The right to remove attorneys for misconduct, being necessarily incident to all common-law courts of general jurisdiction, is not derived from the legislature. Where there is a statute on the subject, courts may disbar for causes not specified in the statute, which is not to be construed as an enabling act, nor as restricting the general power of the court over its officers. In re Mills, 1 Mich. 392; Beene v. The State,
It is also urged as a fatal infirmity in these proceedings that, unless the complaint is made by the county attorney in his official capacity, it is insufficient, because unverified, to form the basis of any inquiry or valid judgment, and this contention would be well founded if the complaint were the voluntary act of an aggrieved person or some interloper, whose acts might be open to suspicion of malice or selfish interest. These proceedings are designed in the spirit of the utmost caution and fairness, requiring that a committee of counsel who have been appointed by the court, and who have taken an oath of office to perform their duties fairly and impartially, shall first have fully investigated the charge. Whatever complaint is presented to the court, whether by the county attorney or by counsel appointed by the court for that purpose, is based upon the report of such committee. The substantial rights of the accused seem no less safeguarded by a complaint made by counsel appointed for that purpose than by complaint filed by the county attorney.
It seems to have been the practice in the state of Colorado, at one time, though not authorized by statute, for the bar association, an incorporated body, through a grievance committee, to examine into charges which might be preferred against attorneys. If the results of such examination seem to justify it in the opinion of the association, report was made to the Supreme Court. If that court was of the opinion that a judicial investigation should be had, the matter was referred to the Attorney General, with instrue
A somewhat similar situation was presented to the court in Re Evans, 94 S. C. 414, 78 S. E. 227, where an unverified petition was presented to the court by the Attorney General, apparently not at the instance of any committee or bar association. Concerning the rule that a complaint in such an instance should be verified, the court says:
“The rule may, with entire propriety, be departed from, when it appears that the charges are made by a bar association or by the Attorney General in his official capacity, and that the charges are grave and require investigation in the public interest or in vindication of the accused.”
The Supreme Court of the United States in Ex parte Wall, 107 U. S. 265, 27 L. Ed. 552, 2 Sup. Ct. Rep. 569 (see, also, Rose’s U. S. Notes), declined to interfere by mandamus with a judgment of disbarment by the district court, based upon an unverified complaint, citing Ex parte Steinman and Hensel, 95 Pa. 220, 40 Am. Rep. 637, in which Chief Justice SHARSWOOD said:
“We entertain no doubt that a court has jurisdiction without any formal complaint or petition upon*62 its own motion to strike the name of an attorney from the roll in a proper case, provided he has had reasonable notice and been afforded an opportunity to be heard in his own defense,”
■ — and citing also a still earlier case of that court, Randall v. Brigham, 7 Wall. 523, 19 L. Ed. 285.
It cannot be said that the proceedings complained of here do not afford sufficient safeguard against a malicious and unfounded attack.
For the reasons stated in this opinion, it is ordered that a peremptory writ of mandamus issue for the purpose only of requiring the superior court of Yavapai county and its judge pending a final determination of said disbarment proceedings, to recognize the petitioner as an attorney of that court, both in his private and official capacity; but for all other purposes the writ is denied, without costs to either party.
Concurrence Opinion
— I concur entirely with my learned colleague in the holding that the legislative suspension of Attorney McMurchie’s license to practice and to perform the duties of county attorney is violative of one of the fundamental principles of our laws and therefore ineffective. I think the alternative writ to the defendants in this proceeding should be made peremptory as to that matter.
I do not, however, think it necessary or proper at this time to pass upon the sufficiency of the accusatory complaint of disbarment, for the reason that at the time the alternative writ was issued the questions of the sufficiency of the complaint and the jurisdiction of the court had not been raised or passed upon by the superior court or the judge thereof, defendants in this proceeding. The question of the court’s jurisdiction to proceed in the disbarment proceeding upon a complaint filed by persons other than the one named in the statute had never been formally presented, and of course could not have been passed
It is also well settled that mandamus is not a proper remedy, where the question raised may be reviewed by appeal or other proper proceeding. If when the matter comes on to be heard in the superior court the sufficiency of the complaint in the disbarment proceeding is raised by motion, plea, demurrer or answer, and either party is dissatisfied with the court’s ruling thereon, we have no doubt there exist under our statute other methods of securing a review of the court’s rulings. Until the lower court has had an opportunity and has acted upon these questions, and the aggrieved party has presented the matter to this court in a proper way, I am of the opinion that
For this reason I express no opinion as to the propriety or legality of the court’s action in accepting a complaint brought by other persons than the official mentioned in the statute, or the power of the court to adopt a procedure, different from that authorized by the statute.
Concurrence Opinion
— I concur in the order directing the issuance of a peremptory writ of mandamus, requiring the superior court of Yavapai county to recognize the petitioner in his capacity as county attorney and as a private practitioner, for the reasons stated by Justice LYMAN, namely, that chapter 158 of the Session Laws of 1919, upon which the court acted in refusing to recognize him as county attorney, is ineffective in so far as it provides that the right of an attorney to practice after the filing of a disbarment complaint against him shall be suspended until the matter is determined finally. An attorney cannot be deprived of such right except by judgment of the court duly entered after a full hearing, but to hold this part of that chapter valid takes these rights from him by legislative decree, without any order of the court and before a hearing of any kind in which he was permitted to appear, and the fact that the deprivation of this right may be only temporary does not render this phase of the law valid.
I likewise concur in the order denying the writ in so far as its issuance is sought for the purpose of directing a dismissal of the proceeding in the superior court, but do so for the reason assigned by Justice ROSS in his concurring opinion. When this court ordered the issuance of the alternative writ, no motion, demurrer, plea or answer of any character had been filed by the defendant McMurchie in the disbarment proceeding, and the superior court had never
It occurs to me, therefore, that a discussion of the sufficiency of the complaint, in so far as the persons filing it or the absence of verification is concerned, or in so far as the contention that the court has power to disbar aside from the provisions of the statute affects it, is unnecessary and improper in this proceeding, and for this reason I withhold the expression of an opinion on these questions.