101 Colo. 101 | Colo. | 1937
Lead Opinion
delivered the opinion of the court.
An original proceeding in disbarment.
May 17, 1937, the court made the following order: “Whereas, by petition in disbarment filed April 8, 1937, the petitioner [attorney general] charged, inter
“"Whereas, considering only the admitted facts, the court wishes to be advised whether respondent has subjected himself to disciplinary orders.
“Therefore, it is ordered, that Monday, June 21, 1937, at two o’clock, it will hear the parties and interested counsel orally for one and one-half hours, and if other members of the bar shall notify the clerk that they wish to appear as friends of the court and speak to the question, they may be heard. ’ ’
At the appointed time, the attorney general and deputy attorney general, appearing for petitioner, and respondent in his own behalf, presented their views.
As the issue was limited by the quoted order and in argument, so we have limited the scope of our consideration. "We are disposed to the view that planned and studied espionage of the people’s executive, as here, and regardless of the identity or calling of those engaging therein, is shocking to all fine sensibilities, violative of the American conception of the decencies, and potentially inimical to free government. For the people’s court to regard it otherwise would be unthinkable. That the eavesdropping of which complaint is made was by a member of the bar, in manner and by means admitted by respondent, emphasizes the evil involved. By his confessed acts—and we consider nothing else—respondent has gravely offended, and for the tribunal charged with disciplinary responsibility to give it countenance would be gross dereliction.
Because, however, it is also charged that respondent is guilty of crime, a matter cognizable by authorities elsewhere, and out of which, should they proceed, questions may arise requiring review at our hands, we think it conformable to the demands of justice not to enter a final disciplinary order now, but reasonably await developments, if any, and from whatever proper source,
Mr. Justice Bouck, Mr. Justice Bakke and Me. Justice Knous concur.
• The views of Mr. Justice Young and Mr. Justice Holland appear from their accompanying opinions.
Me. Chiee Justice Bueke dissents.
Me. Justice Young. I concur in the determination of the majority of the court that the admissions of the respondent in his pleadings disclose a proper case for disciplinary action by the court; but I am of the opinion that in view of the wide discretion vested in the court as to the penalty in such matters, that if either the attorney general or respondent shall desire to submit testimony in aggravation or mitigation of the offense, such opportunity should be given before any penalty is imposed.
Mr. Justice Holland. I am of the opinion that upon the admitted facts, the conduct of respondent appears inexcusable. However, pending the orderly determination of charges, relative thereto, and now under investigation by those primarily charged with that duty, further action by this court should be postponed, and final action should not be taken or any judgment imposed until aggravation or mitigation is made evident as in all similar matters.
Dissenting Opinion
Since the judgment of this date appears to me probably final, or at least one which respondent can entertain little hope of reducing to less than indefinite suspension, with the present prospect of a more drastic penalty be
The power and duty of this court to admit, disbar, reinstate, and govern by suspension and reprimand, members of the bar, its officers, is settled, unquestioned, and save in isolated cases and for a few fundamental rules, entirely discretionary. People ex rel. v. Weeber, 26 Colo. 229, 57 Pac. 1079. Discretion extends even to pardon for admitted offenders, and, when the facts justify, punishment and pardon may be included in the same judgment. People ex rel. v. Essington, 32 Colo. 168, 171, 75 Pac. 394. In exercising its power to discipline a court should be “considerate and careful,” and act “with great moderation and judgment.” People ex rel. v. MacCabe, 18 Colo. 186, 191, 32 Pac. 280. Adverse judgment should only be pronounced upon “clear and convincing proof,” especially where the charge involves the commission of a crime. People ex rel. v. Pendleton, 17 Colo. 544, 30 Pac. 1041. Previous reputation and standing of the accused “is a matter entitled to much consideration.” People ex rel. v. Benson, 24 Colo. 358, 370, 51 Pac. 481. The burden is upon the accuser to prove his charges and the court will “not be quick to take the naked charge as a proof of guilt.” People ex rel. v. Johnson, 40 Colo. 460, 464, 90 Pac. 1038. Although when charges are filed and served the accused makes no answer, still “the charges must be proven.” In re Walkey, 26 Colo. 161, 56 Pac. 576.
This respondent is known to us and admitted in argument to be one of the recognized leaders of the bar in Colorado. He has practiced his profession in Denver for twenty-five years. That he has been above reproach we have testified by judicial action, having appointed him a member of the “Bar Committee” of this court in
The Attorney General further says respondent was serving a client, using improper means to influence legislation, and stirring up litigation, all of which is denied and must be dismissed.
But this is not enough. Bespondent demands proof, and the Attorney General himself suggests that we interrogate respondent concerning some of these charges.
He does the latter, in effect, by his reply, which is limited to one printed page. Therein he says it is admitted “That respondent secretly placed microphones and attendant apparatus in the office of the governor of the state for the purpose of overhearing all conversations therein taking place. This is the sole issue before the court. The usual rules of ordinary legal procedure apply.” I must assume this means a motion for judgment on the pleadings was in order. If so, why all the charges of motive? Certainly the Attorney General would not intentionally scandalize a lawyer of standing, admit his charges are immaterial, and fail to withdraw them or support them with evidence. Moreover, it is well settled that the usual rules of ordinary legal procedure do not apply in disbarment cases.
Let us remember there is nothing legally confidential in conversations with the governor. No liability attaches, by common law or statute, to their disclosure. They are not in the class with Grand Jury or Executive Legislative sessions. This of course does not justify a lawyer in surreptitiously securing or scandalously disclosing them. He may still be disciplined therefor. I share the common detestation of “snooping.” Generally “snoopers” deserve contempt, but not always. Nations have been saved by them. We then call them spies and consider their conduct the highest patriotism. Their exploits became historic romances and their memories hallowed. It all depends upon motive and intent.
Assuming that respondent’s admitted conduct must be punished, what shall the sentence be? A mild private reprimand or professional death? The answer depends upon motive and intent. If respondent did what he ad
I think the cause should be sent to a referee to take evidence and report, and that since charge and answer, accused and accuser, are known, and since the facts upon which motive and intent were founded are either immaterial or of public concern, that the hearing should be public.