9 Colo. 506 | Colo. | 1886
The relators in each of these proceedings seek to have the names of respondents stricken from the roll of attorneys admitted to practice before the courts of this state. The cases, although submitted together and upon the same evidence, will, so far as practicable, be separately discussed in this opinion.
1. The petition and answer in People v. Rogers present the following issues, viz.: Did Marsh proffer, and did Judge Rogers accept, a bribe in the Newton Case? Was the decision of Judge Rogers in said cause the result of a corrupt partiality on his part? Did Marsh and Judge Rogers, or either of them, induce Topping, by bribe or otherwise, to commit the crime of perjury before the grand jury? . Did Marsh, or- Rogers, or either of . them, tender a bribe to Rhodes,? or otherwise corruptly endeavor to influence him in the discharge of his official duties with reference -to the indictments in question? Did Rhodes accept this bribe, or a bribe from any person, to enter a nolle prosequi in connection with said indictments, or was he in any other manner corruptly influenced so to do?
It is not necessary for us to say that, if either of the respondents is guilty of the foregoing acts, he has disgraced the legal profession, and his license to practice should be promptly revoked. Such conduct, if tolerated, would soon bring the bench and the bar of the state into
The offenses charged against Judge Rogers and Mr. Rhodes are acts committed in their official capacities as judge of the superior court of Denver and as district attorney of the second judicial district, respectively. Therefore they are grounds of impeachment under the constitution and statutes of this state. But both of these gentlemen have seen fit to waive legal objections, if any there be; against the present proceeding. They have appeared in response to the rule and filed an answer, putting in issue before us the truthfulness of the charges specified. They have, moreover, demanded a thorough and complete investigation by this court of their official conduct in the premises. We are not here called upon to review the decision of Judge Rogers in the case of Newton v. Joslin. Whether error supervened for which that judgment, upon a proper presentation, would be set aside, is a matter that is not and cannot be involved in the proceeding before us. This is not one of the methods provided for correcting the errors of inferior courts. Nor is the question whether or not the judgment in the Newton Case was obtained by the fraud or perjury of Joslin, his agents or witnesses, to be settled in this investigation. Neither can we now inquire whether the witness Topping committed the crime of pei-jury before the grand juiy. It might be conceded, for the purposes of this case, that the judgment of Judge Rogers should be reversed for error, or that it should be treated in equity as wholly void because procured by fraud upon the court or by perjury; and it might also be assumed that Topping should be convicted of the latter crime. Yet these circumstances would not necessarily, in and of themselves, have any bearing upon the case now under consideration.
Impressed with the supreme importance of the questions presented, we devoted nearly a week to hearing the evidence and arguments of counsel in the two cases at bar.
The rule in this case must be discharged.
2. It remains for us to consider the pleadings and evidence .in the case against Messrs. Green and Johnson.
A bill filed in the circuit court of the United States by the respondents, as attorneys for Mrs. Newton, is made the basis of the petition for their disbarment. By reference to the pleadings set forth in the statement of facts preceding this opinion, it will be seen that the bill complained of charges, in substance, that Marsh gave, and Judge Rogers received, a bribe in the case of Newton v. Joslin, already referred to; .also that Marsh told one Topping that he could bribe the judge of the superior court of the city of Denver, and had done so in said case. It
As we have seen, the respondents interpose two defenses: First, that the charges made in the bill complained of are true; second, that the pleading is privileged.
We have already considered these charges in connection with the petition of the respondents for the disbarment of Rogers and Marsh. No satisfactory evidence
In actions for libel and slander, the English rule appears to be that judges, counsel, parties and witnesses are absolutely exempted from liability to an action for defamatory words published in the course of judicial proceedings. The American courts, we think, as a rule, accept this doctrine, with the qualification, as to parties, counsel and witnesses, that their statements made in the course of -an action must be pertinent and material to the ease. This modification of the English rule is adopted in this country in order that the protection given to individuals in the interest of an efficient administration of justice may not be abused as a cloak from beneath which to gratify private malice. McLaughlin v. Cowley, 127 Mass. 319. Subject to this restriction, it is thought, on the whole, for the public interests, and best calculated to subserve the purposes of justice, to allow counsel full freedom of speech in conducting causes, and advocating and sustaining the rights of their constituents. Hoar v. Wood, 3 Metc. 198. The foregoing is the rule in actions of libel and slander. This is a disbarment proceeding, and we. apprehend that the question presented is different, and must be determined upon different considerations.
“An attorney is liable to be removed from office by the court for sufficient reason and on proper showing. This reason and this showing are not necessarily limited to criminal offenses, or to an act which Would create a civil liability. In the case of an attorney of the court, he may be removed from his office of attorney absolutely or for a limited period of time, or, in the common phrase, may be suspended or disbarred, for any matter or thing proved against him which shows that he is unfit to be permitted to practice in the court as one of its officers.” “ This unfitness may be shown by his guilt of a crime,
The powers, duties and privileges of an attorney are conceded. No question is made concerning them. The point made is that he is unfit to exercise and enjoy them. In an action for libel or slander for defamatory words, published or spoken, in the course of a judicial proceeding, it may be conceded that he may plead his privilege, and his plea must be allowed if the matter be pertinent and material to the issue. He enjoys this privilege by virtue of his license as an attorney. The gist of the complaint in this proceeding is that the respondents have abused this privilege, and that they are unfit persons to hold the license of this court, and to exercise and enjoy the rights and privileges which it confers. The petitioners in this case do not claim that respondents can be made to respond in damages in an action for libel or slander, but they come to this court, and allege most flagrant misconduct, and ask us to protect them and the public by withdrawing from the respondents, as unfit persons, our license authoi-izing them to practice as attorneys. We think there is an undoubted inherent right and power in this court to inquire into the abuse men- ' tioned, and, if it be proven that the charges alleged in the bill referred to were made with malice and without probable cause, to disbar the respondents therefor. Our former opinion assumed and proceeded upon this theory, although we did not then discuss our right to enter upon such an inquiry. To say that a court which licenses an attorney cannot inquire into an abuse of its license is to
With the foregoing propositions in view, we proceed to' an examination of the facts in this cause, and the claim of respondents that they acted in good faith and upon probable cause.
We are cited by respondents to the character of the decision rendered by Judge Rogers in the superior court in the case of Newton v. Joslin as a sufficient ground to justify both the belief and charge of bribery. It may be conceded, for the purposes of this case, that Judge Rogers erred in his decision in that case, and that Mrs. Newton thereby suffered injustice. These facts alone would not constitute ground for charging the judge with having acted corruptly in the premises. It would be indefensible to say that, because a judge commits error of law or of fact, he is therefore corrupt, and that attorneys
In addition to this alleged wrong and unjust judgment, the respondents aver and attempt to prove circumstances which tó them strongly corroborated their theory of bribery. They allege that, during the trial of the cause, the said judge and the said Marsh were frequently “secretly closeted together” at the judge’s chambers, and at the office of the said Marsh. Upon this point the evidence shows that Marsh, during a noon intermission of the court, while the trial of the case was in progress, was upon one occasion seen sitting in the judge’s chambers talking with the judge. No evidence was offered to show what the conversation was between the parties, or that it was not perfectly proper. On the other hand the testimony of Marsh and Rogers is that, if they were together at said time and place, the meeting resulted from a casual call of the former upon the latter, while waiting for the incoming of the court, and that, if any conversation occurred, it had no relation whatever to the
The respondents also proved that, upon one occasion during the progress of the trial, Judge Rogers was found coming out of Marsh’s office. But the evidence shows that, prior to leaving the court-room, the judge had told the deputy sheriff that he (Judge Rogers) would call on his way to dinner at the office of Marsh and at the office of respondent Green, and notify theln, as the attorneys in the case, to be present at the incoming of the court to receive the jury. The testimony further shows that, in pursuance of this declared intention, the judge did call at the said Marsh’s office and so notified him; that he did not remain in the office; that he did not even take a seat; that he merely stepped within the door, and, having notified Marsh, turned to leave the office, when he met the bailiff sent for him by the deputy sheriff. While it must be remembered that the respondents, at the time they filed their bill, had no knowledge of these explanatory facts, the naked facts themselves, as they saw them, by no means justified the offensive, and, in the connection in which it was used, crime-imputing, allegation that the judge and Marsh were frequently found, during the pendency of said suit, “ secretly closeted together.” Such intercourse is common between judges and attorneys, and is no evidence, to a fair and candid mind, of bribe-giving and bribe-taking. Delicacy and prudence may suggest, upon a given occasion, to both attorney and judge, a limitation, if not a suspension, for the time being, of social intercourse; but the subject must be left to these guides. The proposition that attorneys and judges shall cease to call and converse because of pending litigation cannot be admitted. That no reputable
The respondent Johnson, in his testimony, tells us that ■upon the next day, or soon after the trial of the case of Newton v. Joslin, he met Marsh, and that, in the course of a conversation about the trial, the latter said to him: “It is better for attorneys to submit when they are beaten,” or words to that effect. We confess to some surprise that we are cited to this as a circumstance worthy of consideration in connection with the charge that Marsh had bribed the judge, and do not deem it necessary to notice it further.
We come now to consider the alleged declarations of Marsh that he could bribe the judge of the superior court, and that he had bribed.him in the case of Newton v. Joslin. These declarations, respondent Green testifies, were communicated to him by Topping. It may be questioned, if the declarations of Marsh were proven as alleged, they would be admissible as evidence against Rogers. Marsh denies under oath that he ever made any such declarations to Topping. Topping' testifies to the same effect, and further denies, in toto, that he ever informed respondent Green that Marsh had made any such declarations. The respondent Johnson, upon this point, derived his information from Green, and does not claim that he ever had any conversation with Topping upon the subject. Let it be conceded that Topping made these statements to Green and also to the witness Robinson, and that Green, and not Topping, speaks the truth in this particular. The respondents do not appear to have taken any steps, or to have made any inquiry, to verify
When our attention, at the last term, was first called, to the charges made by respondents against Marsh and Rogers, we directed that the whole matter be laid before the grand jury as a proper subject for their investigation. Such an investigation was had; and, while the grand jury found an indictment against Lamb and Joslin, they failed to find any bill against Marsh or Rogers. On the other hand, it appears in evidence that, while they thought that Judge Rogers erred in his judgment, they made a report to the district court entirely exonerating him from the charges of bribery and corruption. Thereafter the respondents came into this court, and by their sworn answer in this case, and Green by the petition for disbarment against Rogers, Marsh and Rhodes, advise and inform us of this investigation, and do not hesitate to charge subornation of perjury by Marsh and Rogers, perjury upon the part of the witness Topping, corruption upon the part of the prosecuting attorney by bribe-taking or otherwise, conspiracy between Marsh, Rogers and the prosecuting attorney to defeat the investigation, and a purpose to “whitewash” upon the part of the sworn members of the grand jury. Of these wholesale charges of bribery and corruption, of subornation of perjury, and conspiracy before the grand jury, we invited proof. The respondents have offered us substantially nothing. It is true that Rhodes entered a nolle prosequi as to the indictments against Joslin and Lamb, but this appears to have
The foregoing is a brief statement of the evidence upon which respondents claim to have acted. Whether the averment in respect to the declarations of Marsh and Topping that he (Marsh) could bribe Judge Rogers, and did bribe him in the Newton Case-, was material, we do not consider. We determine the issues as though ’this allegation were not questioned as immaterial.
We appreciate all that can be properly said touching the independence of the bar. We recognize fully the importance of such independence to all good government, and its value as a means of securing the fair, impartial and pure
As to whether respondent Johnson acted with malice in connection with the bill filed in the federal court, the evidence is not so satisfactory. Differences appear in the grounds upon which the conduct of the two respondents is predicated. Green was the senior counsel, and Johnson was called in by him as assistant. Johnson had nothing to do with planning or preparing the bill referred to. When he was called into the case, this bill had been drawn by Green and had been signed and verified by Mrs. Newton. Topping had been favorably introduced to Johnson by a gentleman in whojn the latter had confidence. Johnson relied upon the reports given by Green and Robinson of Topping’s assertions relating to the bribery of Judge Rogers in the Newton Case. Topping had never employed Johnson; he was a client of Green. Johnson depended upon Green’s statements as coming from a brother attorney. The evidence clearly shows that previous tó and during the trial of the Newton Case the strongest ill-will existed between Green and Marsh. On the other hand, the relations of Johnson and Marsh and of Johnson and Rogers were perfectly friendly. Johnson would therefore be less likely to act with malice to- ' wards one of these defendants in filing said bill. The 'petition for disbarment in People v. Rogers, submitted and tried with this case, was prepared by Green. Johnson had no knowledge of its contents until the same had been filed. Upon learning that this independent proceeding had been instituted and his name connected therewith as attorney, he withdrew entirely from that case and declined to have anything to do with the prosecution thereof. It is a fact of which, in determining the degree of punishment, this court may properly take judicial
The opinion heretofore filed is withdrawn, and the foregoing will be substituted in lieu thereof as the opinion of the court.