66 A.2d 675 | Pa. | 1949
Lead Opinion
The Attorney General of the Commonwealth filed a petition praying that Lemuel B. Schofield, a member of the bar of this Court, be required to show cause why he should not be disciplined for professional misconduct while representing the defendant in the Quarter Sessions of Philadelphia, in the trial of indictments Nos. 517 and 589 October Sessions, 1948, charging violation of the Magistrates' Court Act of June 15, 1937, P. L. 1743, 42 PS Cum. Supp. 1101 et seq. A rule was granted. The *204 respondent appeared and answered on the merits. As there was no dispute of material fact, the case was heard on petition and answer. We have considered all the points presented in the briefs and in oral argument but shall refer only to those deemed essential to the proper disposition of the rule.
1. Jurisdiction. There is no doubt of the power1 of this Court to disbar, suspend or otherwise appropriately discipline members of its bar; they are officers of the court admitted to office on taking the statutory oath,2 inter alia, to behave "with all good fidelity" to the court as well as to the client. When, as in this case, the pleadings disclose no dispute of material fact, it is unnecessary to refer the record to the Board of Governance to aid the Court by finding facts and making recommendations. In any case the final disposition is by this Court: see our Rule 17 (g), (h) and (i). In Klensin v.Board of Governance of the Pennsylvania Bar,
2. Violation of Oath of Office. In considering the Attorney General's charge that respondent violated his oath of office, it is necessary to refer briefly to the trial in the Quarter Sessions in which the challenged conduct occurred. The indictments charged violation by the indicted magistrate of the Magistrates' Court Act of June 15, 1937, P. L. 1743, 42 PS 1101, et seq.: (1) by granting continuances without stating in his docket a reason therefor as required by section 14 of the Act and (2) by reviewing, altering, modifying or remitting any sentence of fine or imprisonment or by altering any official decision in any case heard by him except in the presence of and with the written approval of the prosecutor as required by Section 43 (a) of the Act. It was the second trial, the jury having disagreed on the first. The presiding judge and counsel for both sides were therefore familiar with the elements of the case and the probable course to be taken at the trial.
During the trial, the courtroom being crowded, respondent requested that seats be made available for character witnesses he proposed to call. The prosecution objected, at sidebar, to the relevance of character evidence and the entry into the courtroom of "a whole crowd" of witnesses if such evidence would be excluded. The judge sustained the objection stating "[I] direct that counsel shall not call these witnesses." Respondent objected to the ruling and asked "leave to call the witnesses in the presence of the jury" and make an offer to prove good reputation in their presence. The judge again ruled, "The request of counsel for the defendant is denied, and he is directed not to call the names of these witnesses, or to call them to the stand." In spite *206 of that admonition, the following then occurred in the presence of the jury: "MR. SCHOFIELD: [addressing the crowded courtroom said] The character witnesses who were asked to be here by the defendant are excused. Thank you all very much for coming. Thank you, Judge Bonnelly; thank you, Judge McDevitt; thank you, Judge —
"MR. ELDREDGE: If your Honor please, I think your Honor made a direction to Mr. Schofield.
"MR. SCHOFIELD: Well, if your Honor please, we have here in this courtroom three jurists, and if I can't say thank you for a Judge who has left the bench to come here for the support of a defendant, then I don't know the duties of a lawyer, sir, and I simply express my gratitude to all these prominent citizens and jurists of Philadelphia who have come in here to lend their aid to this defendant.
"THE COURT: Major, I regard your remarks as an affront to the Court.3
"MR. SCHOFIELD: I am sorry if your Honor regards it as an affront. It wasn't intended as an affront. Thank you, gentlemen, very much. Shall we resume, sir?
"THE COURT: Yes."
This "affront to the court," as it was characterized by the judge, was an act of insubordination; it was a violation of the respondent's duty to behave "with good fidelity" to the court; it was an unworthy effort to get before the jury a fact or facts which the learned trial judge had ruled should not be received. Respondent's persistence to get before the jury as character witnesses the names of persons holding high office after the court ordered him not to do so was disrespectful and inexcusable. *207 He had no right to say, after the court had ruled, ". . . We have here in this courtroom three jurists and if I can't say thank you for a judge who has left the bench to come here for the support of a defendant, then I don't know the duties of a lawyer, sir, and I simply express my gratitude to all these prominent citizens and jurists of Philadelphia who have come in here to lend their aid to this defendant." The effect was not cured by his statement "I am sorry if your Honor regards it as an affront. It wasn't intended as an affront." But he again repeated the offense by his next statement, addressed to the same witnesses, "Thank you, gentlemen, very much." There is no ambiguity about his statements. He understood the court's ruling, the manifest scope of which was that he should not bring to the attention of the jury the names of the witnesses. It is difficult to avoid the conclusion that respondent intentionally violated the express ruling of the court in its most essential implication. In such circumstances, disavowal has been considered of little avail where but one interpretation is possible.4 Nor can the possible effect of the offense be excused by respondent's submission, in his Answer to the Attorney General's petition, in this court, that the trial judge's exclusion of character witnesses was erroneous, a point not for decision in this proceeding.
For fifty years the legal profession has had the benefit of Justice MITCHELL'S well known statement in Scouten's Appeal,
3. Our Rules of Civil Procedure. Respondent's duty also required him to observe and comply with the Rules of Civil Procedure adopted by this Court pursuant to the Act of June 21, 1937, P. L. 1982, section 1, 17 PS 61. These rules have the force of statute and we must assume respondent's familiarity with them. Rule 205 provides, "The canons6 of ethics of the American Bar Association as from time to time existing, shall be and become standards of conduct for attorneys of the court. . . ." While those canons are declaratory of standards theretofore prevailing in this Commonwealth, their formal incorporation into our rules of civil procedure shows their importance. They provide, among other rules: "A lawyer should not offer evidence, which he knows the Court should reject, in order to get the same before the jury by argument for its admissibility, nor should he address to the Judge arguments upon any point not properly calling for determination by him. Neither should he introduce into an argument, addressed to the court, remarks or statements intended to influence the jury or bystanders.
"These and all kindred practices are unprofessional and unworthy of an officer of the law charged, as is the *210 lawyer, with the duty of aiding in the administration of justice."7
Illustrations of punishment for professional misconduct of the same general character are common. In Baur v. Betz, 1 How. Pr. N. S. (N.Y.) 344 (1885), an order of court directed an attorney to disclose the whereabouts of his client to opposing counsel to enable service of a copy of an injunction. The responsive disclosure of his client's whereabouts was misleading. At page 347 the court said, "As an officer of the court he was bound to deal with it in all respects without reserve, and to obey its orders implicitly unless appealed from and reversed on appeal." The court held that costs and expenses were properly imposed on the attorney and his client.
In State of Minnesota v. Leftwich,
In Territory v. Clancy et al.,
In re Gluck,
In Russell v. French,
In Rubin v. State,
In Re Mindes,
We must therefore conclude that respondent was guilty of professional misconduct in proceeding in defiance of the decision of the learned trial judge in the circumstances stated.
4. Not a Contempt Proceeding. We may refer briefly to respondent's submission that for misconduct during the trial he was subject to punishment for contempt and that the trial judge did not proceed against him, and that, for some reason which has not been made clear to us, respondent should not now be punished for misbehavior in office. We are considering respondent's violation of his oath of office — to "behave [himself] in the *214
office of attorney, within this court, according to the best of [his] ability, and with all good fidelity, as well to the court as to the client; . . ." We are not considering whether the trial judge in the Quarter Sessions might have tried him for contempt. The present disciplinary proceeding is for a different offense, as courts have recognized: "The power of the court to punish summarily for contempt, by fine and imprisonment, is one thing, and its power to strike an attorney from the roll is another and distinct thing, though the misconduct for which an attorney may be disbarred, may in some instances, involve a contempt of court." Beene v. State,
The fact that professional misconduct may also be a contempt does not bring disciplinary proceedings within the rule that one court will not punish for contempt of another tribunal.9 The respondent is not now charged with contempt of court but with misbehavior in his office of attorney. The non-action of the trial judge does not require this Court to dismiss the Attorney General's *215
complaint. A contempt proceeding for misbehavior in court is designed to vindicate the authority of the court; on the other hand the object of a disciplinary proceeding is to deal with the fitness of the court's officer to continue in that office, to preserve and protect the court and the public from the official ministration of persons unfit or unworthy to hold such office. Chernoff's Case,
5. Duty of the Jury in Criminal Trials. We come now to the other serious charge made against the respondent, which, briefly stated, is that, in his speeches to the jury, he said that the members of the jury were judges of the law as well as the facts and, accordingly, had the right to disregard the trial judge's instructions on the law, and made numerous statements challenging the law as stated and interpreted by the presiding judge. In this court, counsel for the parties differed as to the meaning of respondent's opening and closing speeches to the jury and also, if we understand them correctly, as to the law defining the duty of the jury in criminal cases and particularly in this case as urged by respondent. In finding respondent guilty of breach of his obligation to the court and misbehavior in office, we have not taken into account this charge based on his speeches to the jury. We do this because it is apparent from respondent's answer that he was under some misapprehension of the present authority of Kane v.Commonwealth,
"In the early days of jury trials, issues that went to the country were usually simple, and were probably submitted to the jury without much separation of law and fact by the judge, and in that sense juries decided the law. But the distinction between questions of law and fact, and the tribunals for their decision respectively, lies at the foundation of our juridical system, and there was no time when it did not exist. The rule, ad questionem *218
facti non respondent judices, ad questionem juris non respondent juratores, was an ancient maxim in the days of Coke: Coke Litt., 155a; 8 Rep. 155a; 9 Rep. 13a; . . ." After referring at some length to the debates in the convention in which our constitution of 1790 was adopted, he continued: "It is impossible to read these various steps in the formulation of our fundamental law, without seeing that there was never at any time the intention to make or to consider juries as in any sense judges of the law. No such possible construction seems to have been apprehended until suggested by McKean, [in the convention] and the practically unanimous vote on his motion to add 'under the direction of the court as in other cases,' shows the feeling of the convention on this subject. McKean was at that time one of the foremost personages of the commonwealth, perhaps its best trained lawyer. He had studied in the Temple, and was familiar with the details of the legal controversy between Buller and Mansfield, on the one side, and Erskine, on the other, before Fox took it up as a matter of politics; and he knew, as Lewis and Wilson and Ross and Sitgreaves and Addison and Findley and other leaders of the convention knew, that the contest was not for any control by the jury as judges of the law, — even Junius hardly ventured to put his denunciations of Mansfield in that form, — but for the right of applying the law to the facts and pronouncing the result by a general verdict. And such was the understanding of the convention, as it was of parliament two years later, and such the natural meaning of the language on which they finally settled to express their purpose. It puts beyond question the right to return a general verdict, nothing more. To cut the sentence in two, and say the jury are 'to determine the law,' is not only to pervert the meaning, but to nullify the other command that they are to determine 'under the direction of the court.' What they are to determine is, 'the law and the facts as in other cases,' *219
that is, the law as given to them by the court, and the facts as shown by the evidence. They are bound to take the law from the court; but, so taking it, they have the right to apply it to the facts as they may find them to be proved, and to announce the result of the whole, by a general verdict of guilty or not guilty. Any other construction would be totally at variance with the fundamental principles of our system of jurisprudence and with our settled and uncontested practice. It has never been claimed that the jury are to determine what evidence is admissible, or what witnesses competent; yet, if they are judges of the law, they should decide these often most important law points in a case." At page 93 he said, "Whether the distinction between power and right be shadowy and unsubstantial in practice, or not, it is clear and vital, and I must repudiate such a confusion of logical as well as moral ideas. A jury may disregard the evidence, but no judge has ever said it had the legal right to do so; and if the disregard is of the weight of the evidence favorable to the prisoner, the court sets aside the verdict without hesitation; and even this court, though it does not pass upon the weight of evidence, does examine its sufficiency and may on that ground reverse without a new venire. [citing cases] * * * * * And in Commonwealth v. Sherry, an indictment for murder growing out of the riots of 1844, removed by certiorari from the Quarter Sessions of Philadelphia and tried in the Nisi Prius in April, 1845, Justice ROGERS charged the jury as follows: 'You are, it is true, judges in a criminal case in one sense of both law and fact; for your verdict as in civil cases, must pass on law and fact together. If you acquit, you interpose a final bar to a second prosecution. . . . The popular impression is that this power . . . arises from a right on the jury's part to decide the law as well as the facts, according to their own sense of right. But it arises from no such thing. It rests upon a fundamental principle of the common law that no man can *220
twice be put in jeopardy for the same offence. . . . It is important for you to keep this distinction in mind, remembering that, while you have the physical power by an acquittal to discharge a defendant from further prosecution, you have no moral power to do so against the law laid down by the court. The sanctity of your conclusions, in case of an acquittal, arises, not from any inherent dominion on your part over the law, but from the principle that no man shall be twice put in jeopardy for the same offence, a principle that attaches equal sanctity to an acquittal produced by a blunder of the clerk, or an error of the attorney general. . . . You will see, from these considerations, the great importance of the preservation, in criminal as well as in civil cases, of the maxim that the law belongs to the court, and the facts to the jury. My duty is therefore to charge you, that while you will in this case form your own judgment of the facts, you will receive the law as it is given to you by the court:' Wharton on Homicide, App., 721. To the same effect, though less explicitly developed, are the rulings by SERGEANT, J., of this court in Commonwealth v. Van Sickle, Brightly, 73; and by GIBSON, C. J., in Commonwealth v. Harman,
6. Conduct During Trial. The 17th Canon of Professional Ethics provides, inter alia, that "all personalities between counsel should be scrupulously avoided . . ." Counsel on both sides during the trial in the Quarter Sessions violated the rule. In the circumstances of this case we shall not attempt to say who was the aggressor or otherwise to fix the blame. The learned trial judge's admonition addressed to both should have been sufficient warning: "Mr. Eldredge and Mr. Schofield you are both officers of the court." We impose no penalty on this charge against respondent.
7. We are unanimous in our conclusion that respondent's insubordination, described above, constituted violation of his oath of office requiring punishment. The rule must therefore be made absolute. It is therefore ordered that respondent, Lemuel B. Schofield, appear for public reprimand and censure at the bar of this Court at the opening of its session on June 24, 1949.
Addendum
The charge was a grave one and it merited and received the unanimous condemnation of this Court for *222 your conduct set a pernicious example. We decided and declared that your "insubordination constituted a violation of your oath of office and required punishment". We ordered that you be publicly reprimanded and condemned at the bar of this Court.
We trust this case will be the last of its kind which this Court will ever have to act upon. Pennsylvania lawyers possess a well-earned reputation not only for ability but also for that decorum which is the hallmark of character. The members of this Court are pleased to bear witness that nearly all of the members of our bar contribute substantially to that priceless reputation. Any lawyer deficient in fidelity to the court is equally deficient in fidelity to the bar, for the bar is jealous of its good repute and vigilant in preserving it.
It is ordered that this reprimand be published in the official records of this Court in the state reports as supplementary to the adjudication filed by this Court in this case on May 23, 1949.
