delivered-the opinion of the court.
This is а proceeding brought .by the plaintiff' in. error., plaintiff below, to disbar or to discipline one of its members, the defendant in error and. •• defendant- below, for professional conduct charged to have been corrupt.. The petition hears date April 19, 1932, and is addressed, to. the Honorable Allan R. Hanсkel, judge of the. Circuit Court of the city of Norfolk. That court on; that-.day-: entered an order requiring the defendant to appear before ;it on May 20, 1932. ' Process, was served and these facts were certified to this court, whose Chief Justice, under-.authority of Code, section 3424, as amended by. Acts of 1928,-ch. 457, р. 1162, designated the Honorable C. Yernori. Spratley, judge of the Eleventh Judicial Circuit, the Honorable Frank Armistead, judge of the Fourteenth Judicial-. Circuit, and the Honorable Allan R. Flanckel, judge:^of the Circuit Court of the city of- Norfolk, as. a. tribunal to.hear and -to pass upon the petition.
■ On May 28, 1932,-defendant appeared by counsel , and moved that the complaint he dismissed, assigning- as grounds therefor reasons numbered alphabetically-and running from a to p. On August 17, 1932, the.motion to dismiss was overruled and the case set down for hearing. It came on to be heard on November 10, 1932, when the motion to dismiss was renewed. It -was then sustained and from that judgment this appeal was taken. . ..
For manifest reasons .we shall not undertake .to .discuss the character of these charges. Their, sufficiency is not in issue, nor does any evidence appear in the record to sustain them. The order of November 10, 1932, did. not.rest upon any want of proof, hut upon jurisdictional grounds alone.
In the petition the right to relief is placed upon two grounds. It is said that necessary power is conferred by
In their examination certain general principles arc to be remembered. While attorneys at law are not officers in the sense that a judge is an officer (Bland and Giles County Judge Case, 33 Gratt. [74 Va.] 443), they are court officers and may be disciplined. (Ex parte Fisher, 6 Leigh [33 Va.] 619.)
This is an inherent power. Opinion of the Justices (1932),
'This power, since the judiciary is an independent branch of government, is not controlled by statute. In re Wоlfe’s Disbarment, supra; In re Burton, supra; In re Branch, 70 N. J. Law 548,
In this last named case it was said: “The inherent jurisdiction of the judicial department of government over attorneys at law is illustrated in several of our decisions to the effect that power to remove an attorney for misconduct, malpractice, or deficiency in character, although recognized by statute (G. L., ch. 221, section 40, as amended by St. 1924, ch. 134), is nevertheless inherent and exists without a statute. In re Randall, petitioner, 11 Allen [Mass.] 472; Matter of Carver,
“Numerous statutes have been passed making provision in aid of the judicial department in reaching a proper
In Ex parte Secombe,
The power to discipline is judicial in its nature. Opinion of the Justices, supra; Garrigus Case,
When a delinquent is disciplined the purpose of the proceeding is not to punish him, but tо protect the public. People v. Meyeroviiz, supra; People ex rel. Karlin v. Culkin, supra; Ex parte Wall,
Since the purpose is not to punish, the proceeding is not a criminal prosecution.
“The proceeding is, in its nature, civil, and collateral to any criminal prosecution by indictment. The proceeding is not for the purpose of punishment, but for the purpose of preserving the courts of justice from the official ministration of persons unfit to practice in them.” Ex parte Wall, supra; State v. Peck (1914),
It is an informal proceeding and it is only necessary that the defendant be: informed of the nature of- the charge and he given ah opportunity to answer.. In re- Information to Discipline■ Certain. Attorneys of Sanitary Dist. of Chicago,
’ It is not necessary that the offense charged be committed in court or even in the discharge of any professional duty. People v. Meyerovitz, supra; In re Information to Discipline Certain Attorneys of Sanitary Dist. of Chicago, supra; In re Burton, supra; Gottesfeld’s Case,
In Ex parte Fisher; supra; it was said that all courts of record in Virginia have inherent power in proper eases to suspend or anniil the license of an attorney' practicing in the particular court which pronounces the sentence- of disbarment, but that legislative power was necessary to make its sentence effective in other courts of the Commonwealth. " '
Legal Club v. Light,
Tire bar of Virginia appears 40 have been of opinion that section 3196 of the Code of 1887 did not cover misconduct out of court. This subject came up for discussion at a meeting of the Virginia State Bar Association in 1899. The matter was referred to a committee of which Professor Lile was chairman. His report, in part, appehfs in the Light. Case. Its recommendations were adopted and by act of. date March 7,1900 (Acts 1899-1900, ch. 954, p. 1060), it was provided: “If the Supreme Court of Appeals, or any court of record of this State, observe any malpractice or any corrupt unprofessional conduct therein by any attorney, or if complaint, verified by affidavit, be made to any such court of malpractice or of corrupt unprofessional conduct by an attorney therein, or if complaint, verified by affidavit, be made to any court of record (other than the Supreme Court of Appeals) of any malpractice or any corrupt unprofessional conduct by an attorney practicing therein, such court shall issue a rule agiunst such attorney to show cause why his license to practice law shall not be revoked or suspended.”
This act was amended at the extra session of the legislature for the years 1902-3-4, ch. 354, p. 571, but no change was made in the foregoing provision and it continued to be the law unchanged until the Code of 1919 was adopted.
The law as thus written covered the entire subject. It deаlt with cases which occurred in court and were observed by it, Avith cases which occurred there and Avere observed by others, and Avith case's Avhich occurred out of court.
In that Code this statute (section 3424) appears in this form:
“If the Supreme Court of Appeals, or any court of record of this State, observe any malpractice or any corrupt or unprofessional conduct therein, by any attorney, or if complaint, verified by affidavit, be made to any such court, of malpractice, or of corrupt or unprofessional conduct
Formerly the statute, as we have seen, provided that complaint might be made of unprofessional conduct “by an attorney practicing therein.” As phrased by the re-visors it applies to any “attorney therein,” and it is contended that misconduct out of court is no longer covered; that “This proceeding is instituted under section 3424 of the Code of the Laws of Virginia, and the said section confines complaints against an attorney of this State to malpraсtice or unprofessional conduct upon the part of any attorney committed in the Supreme Court of Appeals, or any court of record in this State by observation of the court or duly verified affidavit by any person, and not otherwise.”
On the other hand, the petitioner claims that there hаs been no substantive change made and that “attorney therein” should be construed to mean “attorney thereof” or “attorney qualified therein.”
Undoubtedly the defendant’s claim has nxei’it. This construction might be sustained but for the maxxner in which changes in the old law had been brought about. It would restore abuses which had long been a xxxatter of public commexxt, and which, at the instance of the bar, had been removed by the legislature. No misconduct ixx courts not of record, however gross, could be disciplined nor could misconduct out of court be reached, and it is out of coxirl that conspiracies to defeat the administration of justice are usually devised. The profession itself has constantly sought to raise its own standards, and to its requests the legislature has always made a sympathetic response.
Statutes should be construed with referexxce to their spirit and reasoxx. Buzzard v. Commonwealth,
“Immediatеly after the text, there will be placed the re-visors’ notes where material changes have been made, calling attention to the change and the reasons therefor.*’ This is the change which they thought had been made in the old statute of sufficient importance to be noted in their comments.
“Revisor’s Noté.—Formerly this section allowed a jury in the Supreme Court of Appeals. This provision has been stricken out.”
Change in phraseology is not important. Code re-visors often make such changes and shorten statutes with no intention to change their substance and no change in substance will be construеd as intended unless it plainly appears. Lile, Notes on Statutes, p. 335. In the Light Case the court said that Code, sections 3423 and 3424, covered the entire field. Certainly they do not cover it if they cannot reach misconduct out of court.
On March 26, 1928 (Acts 1928, ch. 457, p. 1162), this act was again amended. It did not change the substance of matters which we have considered, but made provision for the special court from whose judgment this appeal has been taken. That court is not a court of general jurisdiction, but was constituted for one special purpose with statutory powers only and without those which usually inhere in сourts of general jurisdiction.
It may be conceded that the matter was not plain, and so on March 10,1932 (Acts 1932, ch. 129, p. 138), there was another amendment, and the law now reads:
“If the Supreme Court of Appeals, or any court of record of this State, observe, or if complaint, verified by affidavit, be made by any person to such court of any malpractice or of any unlawful or dishonest or unworthy or corrupt or unprofessional conduct on the part of afiy at-. torney, or that any person practicing law is not duly
Let us for the moment concede, to use the language of counsel for the defendant, that the revisors “may not havе appreciated the effect of the language used”—a . concession somewhat strained in view of the insistent demands of the bar itself for relief—the omission in their drafted statute was most unfortunate and should have been corrected as soon as ascertained.
Proceedings to disciрline lawyers are not set on foot to punish them, but to protect the public. It is want of character which is important and not the place where that is made manifest. The public is not interested in the situs of their misdeeds and we know of no statute of limitations which can be invoked.
If the act of March 10, 1932, is in fоrce, that ends this case. The petition was filed after it was enacted, but before it took effect.. Judgment on the motion to dismiss was entered on November TO, 1932, at which time that statute was in operation. As we have seen, this is not a Criminal proceeding and in no constitutional sense is the statute ex post facto in its operation.
In Ex parte Wall,
Since this statute is remedial, it applies to pending cases: . •
“Statutes which are remedial will be given a retro
The power to investigate alleged past misdeeds should be sustained whenever it is possible to do so. To this extent liberality of construction is the rule, but reasonable'strictness of proof is necessary before guilt should be held to have been established—not. proof beyond a reasonable doubt, but clear proof: • -
For reasons stated, we are' of opinion (hat the motion .to dismiss, should have been overruled .and that this case should have been heard upon its merits. It is so ordered. ' . '
•Reversed and remanded.
Notes
By reason of circumstances over which the court had no .control it became necessary to reassign the task of preparing this opinion. This accounts for the delay in deciding- the case.