*1 Discipline Schofield Case.
Argued April Before C. 1949. J., Drew, Maxey, JJ. Stearne Linn, Patterson, Jones, Stern, *3 Special Emory J ohn G-. with him Buchanan, Counsel, Kyle Chidsey, Attorney R. T. and McKeen for General, petitioner. George
Robert T. with him McCraclcen, G. Chandler, Comislcy, Bradley C. Brewster Marvin Rhoads, W. Ward respondent. and D. Thomas McBride, Opinion Mr. Justice May Linn, 23, 1949: Attorney The of General the Commonwealth filed a petition praying B. Lemuel a member of Schofield, required why the bar of this Court, be to show cause disciplined professional should not be misconduct representing Quarter while the defendant in Sessions Philadelphia, in of trial of indictments Nos. 517 charging and 589 October Sessions, violation 1948, of Magistrates’ Court Act 15, June P. L. 1937, 1743, Supp. granted. 42 seq. PS Cum. 1101 rule was et A The 204 on As the merits.
respondent appeared answered there of material the case heard no,dispute fact, all answer. We have considered petition in the oral briefs but points presented argument to those only proper shall refer deemed essential of the rule. disposition
1.
doubt
the power1
There is no
Jurisdiction.
appropri
of this Court to
or otherwise
disbar, suspend
officers of
they
members of
are
ately
bar;
its
discipline
taking
statutory oath,2
the court admitted to office on
inter
to the court
“with all good fidelity”
behave
alia,
client.
in this
the plead
as to the
as
case,
well
When,
no
material
it is unneces
ings
dispute
fact,
disclose
Board of
sary
refer the record to the
Governance
aid the
facts and
recommenda
by finding
making
Court
Court:
is
disposition
tions.
case
final
Board
In Klensin v.
our
(h)
(i).
see
Rule
17(g),
Pa. 564,
312
Pennsylvania Bar,
Governance
478
said,
168 A.
we
474,
(1933),
Board’s]
“[The
the findings
function
assuming
determine,
the recommenda
to be
whether
hearing masters
correct,
The judicial
tion of
are warranted.
the masters
us
1
Eng
power
in the United
has been exercised
States
Eng. Rep.
Anonymous, Mod.
land from
times.
6
87
the earliest
Rep.
Cowper
Eng.
(1705)
Brounsall,
;
1385
2
942
Ex Parte
98
;
(N. V.)
(1805)
(1778)
against
;
People
Smith,
221
3 Caines
Leigh’s
;
Appeal,
Case,
(Va.)
(1810) Austin’s
5 Rawle
1 Munford
Turner,
(1850) ; People
(1835) ;
Mills,
Matter
2. of Oath of Office. considering Violation charge that violated his Attorney respondent General’s to refer to the trial briefly oath of necessary office, Quarter conduct challenged in the Sessions which The the in- charged by occurred. indictments violation of the Court Act of June magistrate Magistrates’ dicted by P. L. PS et seq.: (1) granting 15,1937, docket a his reason stating continuances without section 14 of the Act and therefor as required by (2) or modifying remitting any sentence reviewing, altering, official deci- by altering any of fine or or imprisonment him in the case heard except presence sion of the of and approval prosecutor with written of the It 43(a) Section Act. second required by on the The jury having disagreed presid- first. trial, for both sides therefore ing counsel were judge familiar of the and the the elements case probable to be taken at the trial. course the courtroom
During being the trial, crowded, be made available for requested seats character to call. proposed prosecution witnesses at to the of character relevance evi- objected, sidebar, dence and into the courtroom of “a entry whole be excluded. of witnesses such evidence would crowd” direct objection stating sustained “[I] that counsel not call these Respondent shall witnesses.” and asked “leave to call the objected ruling wit- offer to jury” nesses the presence and^make in their The judge prove good reputation presence. defendant “The of counsel request again ruled, directed not to call the names of and he is is denied, In spite to call them stand.” these or witnesses, *5 following in the then occurred admonition, of that [addressing jury: presence SCHOFIELD: of the “MR. The character said] courtroom witnesses the crowded by the defendant are excused. asked to be here were who coming. Judge you very you, Thank all much Thank Judge you, you, Donnelly; thank McDevitt; thank Judge— your please, Honor I think ELDREDGE: If
“MR. your a direction to Mr. Schofield. Honor made your please, if Honor
“MR. we Well, SCHOFIELD: jurists, if I can’t courtroom three here have say Judge you left the bench to for a has thank who support I then don’t defendant, for the of a come here simply express lawyer, and I of a sir, the duties know my gratitude jurists prominent all these citizens Philadelphia their aid come here to lend who defendant. to this your regard as Major, I remarks
“THE COURT: an affront to the Court.3 sorry your re- Honor I am
“MR. SCHOFIELD: gards an affront. intended as it an affront. It wasn’t as very gentlemen, you, sir? resume, much. Shall we Thank “THE COURT: Yes.” characterized as it “affront to the was court,”
This it a judge, was insubordination; act of an good respondent’s to behave “with violation fidelity” unworthy get effort it court; to the trial jury the learned a fact or facts which before Respondent’s judge should not be received. had ruled get character persistence witnesses before high holding the court persons officeafter the names disrespectful inex- not to do so was ordered him stenographer judge that he was presiding instructed transcript it be cor and directed misquoted in the first draft of grave regard your “Sir, a affront remarks as I to read rected purposes version present immaterial which For court.” accepted.
disable, 'He had no the court after had say, “. . . here in this courtroom three We have ruled, jurists if I say can’t thank who has left you the bench to come here for the support defendant, *6 I then don’t the duties of a I lawyer, sir, know to all these express my gratitude prominent simply citizens and of come in jurists who have Philadelphia to their defendant.” The here lend aid to this effect was not cured “I am your his statement Honor sorry an affront. It intended regards as wasn’t as affront.” But he offense next again the his repeated to “Thank addressed the same statement, witnesses, you, much.” no about his very ambiguity There is gentlemen, statements. He the mani- understood court’s ruling, fest of scope which was that he to the bring should attention of the the names of the It is witnesses. difficult to avoid conclusion that inten- tionally violated court in ruling express its most essential In such implication. dis- circumstances, avowal has been considered little avail but one where Nor can interpretation possible.4 is effect possible of the offense be in excused by respondent’s submission, his Answer in Attorney General’s this petition, the trial exclusion of character court, judge’s wit- nesses in not for point decision erroneous, proceeding.
For fifty years the
had the benefit
legal profession has
of Justice Mitchell’s
in
well known statement
Scouten’s
186 Pa.
A.
“The bar
Appeal,
270, 279,
(1898),
great
have
the assertion
liberty
high privileges
of their
as
but on
rights
they
clients’
view
them,
other hand
as officers
they
equal obligations
administration
no duty
is more funda-
justice,
Woolley,
(74 Ky.) 95,
(1875);
In re
11 Bush
109-10
In re
Chadwick,
588, 604,
(1896) ; People
109 Mich.
67 N. W.
Wilson,
Sturoc,
Rep.
(1872) ;
64 Ill.
re
16 Am.
In Matter of
48 N. H.
mental,
The foundation
subordination to
court.
of respectful
government
respect
under our
liberty
system
The counsel
officially pronounced.
the law as
learned lawyer
or
not be an abler or more
may may
case
his
and it
tax
may
patience
than the
his
judge,
incor-
regards
which
as
rulings
submit
temper
are as necessary
but
self-restraint
discipline
rect,
are
justice
they
administration
orderly
of an
The decisions
army.
the effectiveness
appointed
because he is the tribunal
obeyed
must be
should at all times be
foremost
and the bar
decide,
remarks of
See
respectful
rendering
submission.’^'
Williamson’s Case,
9, 21,
Justice
Black
Fisher v.
3. Our Rules of Civil Procedure. Respondent’s duty also required him to and comply observe Rules of Civil Procedure adopted by Court pursuant Act of June P. L. section PS 61. 21,1937, 1,17 These rules the force of statute we must assume them. respondent’s familiarity with Rule 205 provides, “The canons of ethics the American Bar Association as from time to time shall be and become stand- existing, ards of conduct for attorneys the court. . . While those canons are declaratory standards theretofore in this prevailing their formal Commonwealth, incorpo- ration into our procedure rules civil shows their im- other portance. They among rules: “A provide, lawyer not should offer which he evidence, knows the Court should order to get same before reject, the jury by argument its nor should he address admissibility, to the Judge arguments upon any point properly calling for determination him. Neither should he introduce into an addressed to the argument, re- court, *8 or marks intended to statements influence the or bystanders.
“These and all kindred practices are unprofessional and of an officer of the unworthy law as is charged,
6 Attention was called to these canons in Re Disbarment Pro 81, 95, ceedings, (1936), Goldberg’s Case, 321 Pa. 184 A. 65 and in 109, 110, (1936). Judge 184 75 A. Also see remarks of Ades, Supp. (D. Md.) Sopee, In re 6 Fed. C. of the administration aiding the duty with lawyer, justice.”7 of mis- professional of punishment
Illustrations In common. character are the same general conduct of an Y.) (1885), Pr. N. S. (N. Baur v. How. Betz, to disclose where- attorney directed an of court order to enable counsel service his client to opposing of abouts disclosure The responsive an injunction. a copy At misleading. page client’s of his whereabouts of the court “As an officer the court said, reserve, all without respects to deal with bound from unless appealed orders implicitly its and obey and held that costs The court and on appeal.” reversed attorney on the imposed properly were expenses his client. Minn. Minnesota Leftwich, State of court ruled 43 N. W. 599 (1889), Counsel persisted improper.
certain were questions to those made” similar substantially “making offers the court’s evading intent of the apparent with excluded, bona purpose than a “or some other rulings fide warning client.” After the cause of his to fairly present affirmed appeal. held which was contempt he was “A counsel said, Court Minnesota The Supreme rights cause of his client has, course, trying and as an officer of a suitor the representative can rights but those must be respected; court which the rulings or disobeying to disregarding never extend the trial If that permitted of the court. were orders If he thinks a mere farce. become might cause he can do his him is erroneous, ruling against by taking exception. client his rights save to avoid the way the only orderly proper That To ruling. permit counsel, effect of an erroneous American Bar Asso of Ethics of the of the Canons Canon ciation. *9 or a
after the court decided that a particular has question in renewing of examination to course is improper, persist that continuing or substantially same question, trial a becoming incur the of the danger would course, contest to endeavoring of endurance the court between deemed im prevent a course of that it examination and the to follow such a proper counsel endeavoring A of the court. coun course, notwithstanding ruling a attempt sel who would such mode intentionally a after warned conducting being trial, especially the court to and that it would consider per desist, undoubtedly sistence it a would contempt, guilty aof . . . contempt. having The relator, presented question right got his to follow a course, deemed ruling upon it, ought, ruling erroneous, taken his afterwards conformed exception, indicated had ruling. course He no it attempt evade it. As is immaterial whether the or ruling was was erroneous.”
In
v.
et
7 N. M.
In re Y. 243 N. S. Gluck, Div. 490 App. an (1930) disbarred inter attorney was delib- for, alia, erately order of the court. The court disobeying stay at “In his officer said, page capacity has himself of a proven incapable court, proper uphold his the mandate appreciation has on the demonstrated court, and, contrary, that he such mandate a proper subject considers treatment.” contemptuous 24 N. Russell Iowa W. French, after a between counsel as to whether a dispute
(1885)
had
answered
already
question propounded
witness
trial
ruled that
objection
objected to,
topes
sustained.
then
attorney
stated in
loud
not answered
ques-
“She has
insulting manner,
made the ruling
the court
“When
The court said,
tion.”
either
should
plaintiff
or
right wrong,
whether
did,
*10
and had
taken an exception,
thereto,
submitted
have
inor
respect-
corrected on appeal,
if it was one,
the error,
court and
the
asked
manner addressed
language
ful
court declined
but
the
reconsidered;
ruling
to have
therein.
have acquiesced
should
plaintiff
to hear him,
Counsel
the decision.
before
argument
time for
heard. When
being
insist
then have
has
the time for argument
been made,
has
decision
is asked and ob-
of the court
unless permission
passed,
made
...
If the
believed
statement
plaintiff
tained.
it material
and he deemed
court to be incorrect,
of his client
to have
corrected,
the interest
for
in respectful
language,
he should,
the decision changed,
deemed to be the mis-
attention to what he
called
did not do
but
this,
It
that he
take.
is quite apparent
in unequivocal
to his feet and,
at
sprang
that,
least,
the court
contradicted what
said.”
directly
language,
on pro-
for
was reversed
contempt
The punishment
grounds.
cedural
In Rubin v.
192 Wis.
State,
1,
court excluded a
between
colloquy
after the
question,
ex-
during
the court and counsel followed
which counsel
thereafter
Immediately
to the ruling.
counsel,
cepted
“under
of an
guise
the direction of the
looking
jury,
“I
undue inter-
said
take
exception”
exception
my
sustaining pun-
ference with
cross-examination.”
the court held that
remarks
ishment
contempt,
“when the court
unjustified
improper, saying,
were
before
it is the
of counsel
duty
rules upon questions
it,
in such
acquiesce
rulings.”
respectfully
In Re
88 N. J. L.
213
“it was the
appellant’s
accept
ruling
meat,
and if he
of the court as
desired
its
challenge
final,
to do
.
correctness
so
.
See also
legal
appeal
v.
105 Ind.
We must therefore conclude that de- guilty professional proceeding misconduct fiance of the of the learned trial decision circumstances stated.
4. a refer may briefly Not We Contempt Proceeding. to that for respondent’s during submission misconduct trial for the to subject punishment contempt the trial did not judge proceed against him, for some has not been made clear reason which that, to not for should now be mis- us, respondent punished behavior office. We are viola- considering respondent’s tion of his oath of office—to the “behave [himself] 8 connection, may In to a this it not interest to refer be without Eeverem, Philadelphia local incident In Re James E. the courts: Legal alia, upon Intelligencer (Phila.) (1875) counsel, 32 188 inter adjourn prepare reply the to court’s refusal to to enable him to a time, said, “Then, you give commonwealth’s counsel will not me Bkiggs Judge speak my legal rights I will not unless are sustained.” Quarter said, respondent for the court of Sessions “If the had con by aggrieved rulings court, ceived that his client was the in losing temper rulings, stead of his he should have submitted and, trial, upon after the them reviewed motion for a new trial or Supreme steadily kept Court. He should have before him that it every question was the of the court to decide raised side, according judgment learned counsel on either court’s best of the law. . . .”
214 office of within court, according attorney, all as well good best ability, fidelity, [his] , . not consider- client; court as to We are Quarter in the might whether the trial Sessions ing tried him for contempt. present disciplinary is for different courts have proceeding offense, of the court to recognized: “The summar- power punish for fine and is one ily contempt, imprisonment, thing, roll attorney to strike an from the its power another and the misconduct for though distinct thing, in- an attorney disbarred, may which some may Beene v. of court.” contempt State, involve stances, 17 22 Ark. re Cas. Adriaans, App. 151 149, (1860); In re 18 Nans. Am. (D. C.) (1900); Pryor, 72, In Ex Parte 7 Wall Rep. 747 (1877). Bradley, on a L. Ed. 214 held that rule show (1868) con- not be for cause why attorney punished should alleged respondent the court cannot tempt disbar they are attorney in his office misbehavior —that Ex offenses. Parte Robinson, distinct separate recognize cases Wall L. Ed. Our (1873). own 259 Pa. the distinction: Sherwood’s Investigation, A. 42 Case, Hurst’s (1918); A. 427 be a may also fact that misconduct professional proceedings does within disciplinary
contempt
bring
contempt
not punish
that one court will
rule
charged
is not now
another
tribunal.9 The
*12
in his
but
misbehavior
of court
with
contempt
trial
does
judge
The non-action of the
office of attorney.
Attorney General’s
not
Court to dismiss
this
require
9
charge
jurisdiction
original
may
appellate
An
court
take
court or before a
professional
in a trial
its officer
misconduct
People
Green,
(1885) ;
Whitehead,
judge:
Div. 614
re
28 Cb.
Brown,
;
Rep.
(1883)
237,
65,
Eco
1
Parte
49 Am.
351
3 Pac.
7 Colo.
492,
Thatcher,
;
(Miss.)
(1836)
89 N. E.
80 Ohio St.
In re
303
How.
602,
(1889).
O-,
(1909) ;
621
In re
73 Wise.
39
A
complaint.
contempt
misbehavior
proceeding
court is
to vindicate the
designed
authority
court;
object
disciplinary
on the other hand the
of a
proceeding
to
the court’s officer to continue
is
deal with the fitness of
in that
the court and the
office,
preserve
protect
to
official
unfit or
from the
ministration
public
persons
to hold
office.
344 Pa.
unworthy
such
Case,
Chernoff’s
5.
of
Criminal Trials. We come
Jury
the
Duty
made
the re-
charge
against
to the other
now
serious
is
his
briefly
speeches
which,
stated,
that,
spondent,
of the
were
jury
he said that
the members
to
jury,
law
the facts and, accordingly,
as well as
judges
the trial
instructions
judge’s
had the right
disregard
statements challenging
and made numerous
law,
presiding judge.
and interpreted
the law stated
as
as to
for the
differed
parties
In this
counsel
court,
speeches
meaning
respondent’s opening
closing
them correctly,
we understand
also,
jury
in criminal
of the
duty
defining
as
law
respond-
case
urged by
this
as
cases and particularly
of his obliga-
breach
finding
guilty
respondent
ent.
have not
misbehavior
we
office,
to the court and
tion
on his speeches
based
charge
into account
taken
from
it
re-
apparent
because
is
We do this
jury.
under some misappre-
that he was
answer
spondent’s
Kane v. Common-
authority
the present
hension
considered
however,
Pa. 522
We
wealth,
have,
of Justice
in the words
intend,
rule and now
general
in Commonwealth
concurring opinion
in his
Mitchell
“put
at
(1891),
page
“In the early
probably
were
usually simple,
were
country
of law
separation
much
jury
to the
without
submitted
decided
juries
in that
sense
fact
the judge,
of law
questions
between
But
the distinction
the law.
their decision respectively,
and the tribunals for
and fact,
and there
system,
of our juridical
at the foundation
lies
The
ad
rule,
ques-
did not exist.
was no time when it
10
Thorn,
Maryland’s Antique
Ü. Constitutional
92
See Dennis:
Treatise, Chap. 5, p.
Thayer: Preliminary
(1943) ;
P. Law Rev. 34
Law,
Judges
seq.;
52 Harv. Law
Criminal
et
Howe: Juries as
183
8.,
51,
273,
(1939) ; Sparf
Ed.
15
Ct.
39 L.
582
v. V.
156 ü. S.
S.
Rev.
Croteau,
(1849)
;
(1894)
in
Vt. 14
overruled
State
State v.
23
343
117,
;
Castellana,
(1892)
Burpee,
277 Pa.
Com. v.
Vt.
6. Conduct Trial. The 17th During Canon of Pro- fessional Ethics inter that “all provides, personali- alia, ties between counsel should be scrupulously avoided...” on Quarter Counsel both trial during the sides Sessions violated the rule. circumstances this case we shall not attempt who say aggressor or to fix otherwise the blame. The learned trial judge’s admonition addressed to both should have been sufficient “Mr. warning: Eldredge Mr. Schofield you are both officers of the court.” We no on impose this penalty charge against respondent.
7. We are in our unanimous conclusion that re- spondent’s described constituted insubordination, above, violation of his oath of office requiring punishment. rule must therefore be made absolute. It is therefore ordered that Lemuel B. respondent, appear Schofield, public reprimand and censure at the bar of this Court at opening its session June 1949.
Reprimand Supreme Administered Pennsylvania
Court Mr. Chief Justice June 24, 1949: Maxey, Lemuel B. Schofield: The Attorney General Penn- highest State’s sylvania, law officer, charged you Court the oath violating with you which took bar of this upon your admission Court “to behave yourself the office all attorney good fidelity to the court”. Your answer this charge we adjudged to be insufficient. one and it charge grave merited and re- condemnation of
ceived the unanimous this Court for decided We example. a pernicious conduct set your constituted “insubordination your and declared that *18 punishment”. of office and required oath your violation con- reprimanded that be publicly We ordered you Court. at the bar of this demned kind which of its be the last We trust this case will Pennsylvania upon. to act this Court will ever have only reputation well-earned lawyers possess hallmark for that decorum which is but also ability are pleased The members of this Court of character. of our bar all of the members nearly bear witness substantially priceless reputation. contribute court equally is fidelity deficient Any lawyer for the bar fidelity jealous deficient bar, it. vigilant preserving good repute of its published ordered that reprimand It is this in the state reports sup- official of this Court records filed this Court adjudication plementary 1949. case on May 23, Appellant. Commonwealth v. Smith, Before C. J., Linn, 1949. May 23, Argued Maxey, JJ. and Jones, Stearns Patterson, Stern,