State Board of Law Examiners v. Hart

104 Minn. 88 | Minn. | 1908

BROOKS,

Special Chief Justice.²

This is an original proceeding in this court to remove the accused, Francis B. Hart, from his office as an attorney at law, instituted upon the verified accusation of the secretary of the state board of law examiners. Such accusation being filed and an order made thereon requiring the accused to appear and answer, the justices of this court deemed themselves disqualified to hear and determine the case, whereupon the governor, at their request and pursuant to section 3 of article 6 of the constitution, assigned five judges of the district court to sit therein in their place. The accused appeared before the judges so appointed, and, his objection to the sufficiency of the accusation being first overruled, thereupon denied its truth. A referee was named to take and report the evidence to this court, and upon his report and the oral arguments and briefs the matter was submitted.

The accusation sets forth facts which are admitted, and are therefore found to be true, as follows: That the accused is, and for many years has been, an attorney of this court, and that on or about December 7, 1907, he composed two certain letters, one of which he addressed and sent to the chief justice, by his name and title, and the other to the governor of this state. The first referred to three specified actions tried in certain courts and appealed therefrom, and to decisions of this court therein, in each of which the accused was counsel for the party ultimately defeated; and the letter to the governor suggested the impeachment of the justices because of their participation in the decisions so rendered. Before this the accused proffered the letter to the chief justice to the editor of the Minneapolis Journal, who'was unwilling to publish it. About the same time he gave copies of both letters to the editor of the St. Paul Dispatch in which they were in large part published, and through whose manager they were furnished to the Associated Press, and thereupon published, in whole or in part, by various newspapers in this and other states. The cases and decisions referred to in the letter to the chief justice are the following: Minneapolis Trust Company v. Menage, reported (1) in 73 Minn. 441, 76 N. W. 195; (2) 81 Minn. 186, 83 N. W. 481; (3) 86 Minn. 1, 90 N. W. 3; Ahern v. Hindman, 101 Minn. 34, 111 N. W. 734; and Griswold v. McGee, 102 Minn. 114, 112 N. W. 1020, 113 N. W. 382. This letter in its entirety covers thirty one pages of the printed recprd; and to the proper understanding of those parts which will be quoted, it may be stated that the case last mentioned involved the rights, of a surviving widow in the estate of her deceased husband.

Addressing the chief justice, the accused wrote:

“Sir: The organic law creating the tribunal over which you now .preside renders its constituent membership immune from civil liability for any erroneous decision officially made, even though it be corrupt. The sole remedy is by impeachment. Preliminary to- moving articles, I submit three specifications. They are selected as fair samples of what the court has now and then done and is doing, and not because they stand alone, or are worse than others.”

Then follows what purports to be a detailed history of the three-causes and the disposition thereof in this court, interspersed with much offensive matter, the most conspicious of which is the following, concerning the opinion of this court in the Griswold case:

“You assigned it [the property involved] to one who has no better right to it than the burglar to his plunder. It seems like robbing a widow to reward a fraud, with the court acting as a fence, or umpire, watchful and vigilant that the widow get no undue advantage. * * * The point is this: Is a proper motive for the decision discoverable short of assigning to the court emasculated intelligence, or. a constipation of morals and faithlessness to duty? If the state bar association, or a committee chosen from its ranks, or the faculty of the University law school, aided by the researches of its hundreds of bright, active students, or if any member of the court, or any other person, can formulate a statement of a correct motive for the decision, which shall not require fumigation before it is stated, and quarantine after it is made, it will gratify every right-minded citizen of the state to read it.”

The letter to the governor contains the following:

“If [the decisions mentioned are] not right, is it possible in the making of them for the court to have been honestly wrong? * * * It goes to the integrity and stability of the state if the members of the court cannot be ‘men learned in the law,’ as required by the constitution, or honest, as required by good -morals; and, if there exist good prima facie reasons for challenging them in either regard, the matter should receive prompt attention. * * * If no proper motive for the decisions can be gathered from the decisions themselves, it seems to me that impeachment would be proper, leaving the Senate free to make inquiry as to motive outside of the decisions, and I am constrained to think that not a little evidence can be adduced relevant thereto.”

In justification for the acts of the accused, above detailed, nothing is proven, except only the decisions in question and the records of this court with respect thereto. And nowhere in either letter is there any suggestion that their author had been counsel for the defeated party in any of the actions mentioned — no indication that he was suffering from the sting of disappointment, and for that reason necessarily and inevitably biased, and, it might be, revengeful, because of his defeat. The statement, in one letter, that the decisions had been “selected as fair samples,” was calculated, and was perhaps intended, to mislead the public in this regard; and we are satisfied, and find, that these letters were not composed or published with the expectation that any official action should be based thereon, and that the letter first mentioned was so sent to the chief justice for the purpose of insulting him and the other justices of this court.

The first opinion in the Menage case, of which the accused complains, and the one determinative of the controversy, was that reported in 81 Minn. 186, 83 N. W. 481. That opinion announced the law of the case, followed in the lower court upon the last trial and in the final appeal. It was rendered August 8, 1900, upwards of seven years before the publication of these letters. The chief justice whose impeachment is now proposed dissented. Two of the concurring justices have retired from the bench. The remaining two have since been re-elected. Hour legislatures convened and adjourned before it occurred to the accused to suggest that any of the justices had been guilty of any impeachable offense.

In the Ahern case the court held that no cause of action had been either alleged or proven in the court below; and, as this court had done in scores of previous cases (but as the accused asserts it should not have done), it thereupon proceeded to refute the reasons assigned for a contrary conclusion in the trial court’s memorandum, not made a part of the order appealed from. It did not hold that a right decision was vitiated on account of an erroneous reason for it, but held that a wrong decision could not be sustained because of an insufficient reason therefor so stated.

In the Griswold case the court announced the well-established doctrine that the right of a widow in her deceased husband’s estate is governed by the law as it exists at the time of his death, and that a wife during her husband’s lifetime has no vested right to any of his property of which she cannot be deprived by legislative enactment. At the time of Griswold’s death the statute provided that, if his title to any property had been previously divested by execution sale, the widow could claim no interest therein; and it was accordingly held that her asserted claim to the land in question was without validity.

Inasmuch as the accused himself has said that “the sharp, focal point of the letter” is the decision in the Griswold case, we take occasion to say that, so far as we are advised, its correctness in point of law has never been elsewhere questioned. Certain it is that no unbiased mind can find in these records or decisions any pretense of an excuse for the many insulting insinuations and statements with which these letters abound. Each letter was a gross libel upon the justices referred to, but each was composed and published long after the final determination of the causes in which the decisions complained of were written; and the case against the accused is, as we conclude, divisible into two distinct elements, governed by wholly different principles: (1) The publication of the letter thus addressed to the governor, and of the matter contained in the body of the other; (2) the addressing and sending of such other letter to the chief justice.

1. Our Revised Raws of 1905 provide (section 2679, subd. 9) that an attorney, when admitted to practice, shall take an oath that he will conduct himself “as an attorney and counselor at law in an upright and courteous manner,” to the best of his learning and ability, “with all good fidelity as well to the court as to the, client”; (section 2281) that every attorney shall “observe and carry out the terms of his oath,” and “maintain the respect due to courts of justice and judicial officers”; and (section 2290) that “an attorney at law may be removed or suspended by the supreme court for any * * * wilful misconduct in his profession” or “for a wilful violation of his oath, or of any duty imposed upon an attorney by law.” These quoted words contain all of the statutes cited or relied upon by counsel for the prosecution. And no doubt they are declaratory of the common law and in harmony with the statutes of our sister states.

The courts are not agreed as to whether an attorney can be removed from office on other than statutory grounds. But, inasmuch as good moral character is a prerequisite to admission, it is generally, and perhaps everywhere, held that an attorney may forfeit his office by such misconduct, professional or nonprofessional, as dearly shows that he is unfit to be an attorney or to associate with honest men. It has been held in some cases that such unfitness may be established by proof of one specific act of misconduct; and it may be (although we do not so decide) that a libelous publication by an attorney, directed against a judicial officer, could be so vile and base and of such a nature as to justify the disbarment of its author. This was the rule applied in State v. McClaugherty, 33 W. Va. 250, 10 S. E. 407, a case greatly relied upon by the prosecution. That cause came before the court upon appeal, and involved only the right of an attorney to practice in the inferior court from which the appeal was taken. It was held that the libel published by the accused and referring to the judge evidenced such a “degree of turpitude and depravity” on the part of the attorney that the court might remove him, and, having .in its discretion done so, the appellate court “ought not to reverse its action.” It was expressly and in so many words held (page 255 of 33 W. Va., and page 408 of 10 S. E.) that “the misbehavior was not that of an officer of the court in his official capacity, but of an individual in his private character.”

We are not prepared to say that the acts charged against the accused bring him within the rule so applied. The letters in question, though very reprehensible, in their reference to the court express upon their face merely the personal opinion of the accused. They charge nothing against it, other than an asserted disregard of legal principles, with unwarranted deductions therefrom as to its motives. Furthermore, the disbarment of the accused is sought for professional delinquency alone. The ground stated is a violation by him of his duty to “observe and carry out the terms of his oath” and to “maintain the respect due to courts of justice and judicial officers”; and the question presented is how far the accused in what he did acted in a professional or in a private capacity.

It must be conceded that the letters constituted no part of the proceedings in any cause. The accused in what he did represented no client, and this case in this respect is distinguishable from those in which insulting or scandalous words concerning a judge were spoken or written by the attorney in a strictly professional capacity in an action in court, upon a trial, or in some paper pertaining thereto. Such cases have arisen, some of which are cited by the prosecution, in which the libelous or scandalous matter concerning one or more judges, constituting the basis of the charge, was made a part of a brief, as in U. S. v. Green (C. C.) 85 Fed. 857, and In re Philbrook, 105 Cal. 471, 38 Pac. 511, 884, 45 Am. St. 59; a pleading, as in People v. Brown, 17 Colo. 431, 30 Pac. 338, and In re Snow, 27 Utah, 265, 75 Pac. 741; a petition for a rehearing, as In re Woolley, 11 Bush, 95, and In re Robinson (Wash.) 92 Pac. 929; or an affidavit in a cause, as In re Murray, 58 Hun, 604, 11 N. Y. Supp. 336. Of like nature, also, is In re Breen (Nev.) 93 Pac. 997, in which a judge of the district court was disbarred for having stated in his court that a certain opinion of the supreme court was an “abnormally strange document,” which was “reprehensible” only in the event “the court knew what it was doing,” and otherwise “pitiful,” and In re Maestretti (Nev.) 93 Pac. 1004, in which the prosecuting attorney before the district court made contemptuous remarks concerning the same opinion.

The appeals referred to by the accused having been fully disposed of when the letters were written, this case is also unlike those in which the libel or slander tended and was designed to influence the judge in some matter still pending. Such a case was Ex parte Cole, 1 McCrary, 405, Fed. Cas. No. 2,973, in which the attorney was charged with inciting newspaper publications disparaging the court, with intent to intimidate the judge in a pending suit. Such also was the case of In re Collins, 147 Cal. 8, 81 Pac. 220, in which the attorney undertook, as in this case, to prefer charges with the governor, but, unlike the accused here, caused to be published false charges against the judge “to influence his action or discredit his proceedings” in a matter still undetermined. Such publications, by whomsoever made, having reference to a particular case pending, and tending to prejudice the decision' therein, are punishable summarily; and in the application of this principle an action is pending upon an appeal so long as a motion for a rehearing is" permissible therein. State v. Tugwell, 19 Wash. 238, 52 Pac. 1056, 43 L. R. A. 717; People v. News-Times Pub. Co., 35 Colo. 253, 84 Pac. 912; In re Chadwick, 109 Mich. 588, 67 N. W. 1071; State v. Shepherd, 177 Mo. 205, 76 S. W. 79, 99 Am. St. 624. In this respect the matter before us differs from cases cited in the brief of the prosecution. In State v. McClaugherty, supra, the libel for which the attorney was disbarred had reference to the conduct of the court as to indictments not yet disposed of. In In re Brown, 3 Wyo. 121, 4 Pac. 1085, the words were uttered on the very day the opinion which called them forth was handed down, evidently before entry of judgment, and while a petition for a rehearing was allowable. We have, indeed, found no case, federal or state, in which an attorney was disbarred or suspended for any utterance written or spoken concerning a decision or ruling of a judge in a cause after its final determination and not addressed to the judge in person. Previous nonexercise of such power might well indicate its nonexistence.

.The great weight of authority, moreover, upholds the doctrine that every citizen has the unrestricted right to comment upon and criticise such rulings of the court (after the litigation is concluded), subject only to liability therefor in a criminal or civil action triable by a jury. A few courts adhere to the ancient common-law doctrine that criticism of a judicial officer, even though made after the determination of the cause, may constitute contempt of court. Such was the holding in State v. Morrill, 16 Ark. 384, and Burdett’s Case, 103 Va. 838, 48 S. E. 878, 68 L. R. A. 251, 106 Am. St. 916. The law is so stated also in In re Chadwick, supra, and in State v. Shepherd, supra, though in each of these the statements were obiter, inasmuch as the publications complained of therein had reference to rulings in actions not finally determined on appeal. But these rulings are exceptional. In England, summary punishments for what Lord Hardwicke called “scandalizing the court itself” have become obsolete. There, as elsewhere, “courts are satisfied to leave to public opinion attacks or comments derogatory or scandalous to them.” McLeod v. St. Aubyn, 68 Law J. P. C. 137, 143; 1899 App. Cas. 549, 561. This, also, “may be considered the American doctrine.” Ex parte Green, 46 Tex. Crim. 576, 81 S. W. 723, 725, 66 L. R. A. 727. In the terse, but comprehensive, language of Mr. Justice Holmes: “When a case is finished, courts are subject to the same criticism as other people.” Patterson v. Colorado, 205 U. S. 454, 463, 27 Sup. Ct. 556, 51 L. Ed. 879.

In this connection the rule and the reasons for it, as stated by other courts, are worthy of repetition. It was said by Wright, C. J. in State v. Dunham, 6 Iowa, 245, 256, 257: “When a case is disposed of, and the decision announced, such decision becomes public property, * * * subject to public scrutiny and investigation. In such cases, it' is perfectly competent and lawful for any one to comment upon the decision, and expose its errors and inconsistencies. * * * And should those thus commenting, leave the subject, and impute dishonesty and base motives to the judge, he may be punished by indictment for a libel — he may be answerable in damages in a civil action — or he may be liable to both prosecutions.” In State v. Tugwell, 19 Wash. 256, 52 Pac. 1062, 43 L. R. A. 717, the court, holding that a libel prejudicial to pending litigation constitutes a contempt of court, was careful, also, to add: “It is not intended to intimate or suggest that any citizen of the state has not a legal right to comment upon, criticise and freely and without restriction from any lawful authority discuss any cause determined by any of the courts of this state after the final disposition of such case.” In State v. Kaiser, 20 Ore. 50, 57, 23 Pac. 964, 8 L. R. A. 584, the court held that it had no inherent authority tO' ‘“punish any one for criticising the court on account of its procedure in matters which have fully terminated, however much its dignity and standing may be affected thereby, however unjust, rude or boorish may be the criticism, or whatever may be its effect in bringing the administration of the law into disrepute.” And in State v. Bee Pub. Co., 60 Neb. 282, 296, 83 N. W. 204, 50 L. R. A. 195, 83 Am. St. 531, the court, referring to its rulings in causes concluded, says: “Our decisions and all our official actions are public property, and the press and the people have the undoubted right to comment on them and criticise and censure them as they see fit. Judicial officers, like other public servants, must answer for their official actions before the chancery of public opinion.”

In State v. Circuit Court, 97 Wis. 1, 72 N. W. 193, 38 L. R. A. 554, 65 Am. St. 90, the circuit judge was forbidden by writ of prohibition from punishing summarily the petitioners (one of whom was an attorney) for a publication charging him with being influenced by corrupt motives, which had reference to “proceedings in cases already heard and decided, and not to matters then pending or on trial.” In its opinion granting the writ, the court said (page 12 of 97 Wis., page 196 of 72 N. W. [38 L. R. A. 554, 65 Am. St. 90]): “Important as it is that courts should perform their grave public duties unimpeded and unprejudiced by illegitimate influences, there are other rights guaranteed to all citizens by our constitution and form of government, either expressly or impliedly, which are fully as important, and which must be guarded with an equally jealous care. These rights are the right of free speech and of free publication of the citizen’s sentiments ‘on all subjects.’”

In all the federal courts the law is, as above stated, made so by act of congress, in its original form passed March 2, 1831 [4 Stat. 487, c. •99]. The legislation was induced by the acquittal of United States District Judge Peck, of Missouri, when impeached for having imprisoned an attorney for criticising one of his decisions after the cause was ended. The act was drawn by James Buchanan, who was one of the managers of the impeachment. Such is the history of the legislation as detailed in a learned opinion by Judge Thomas G. Jones of Alabama, in Ex parte McLeod (D. C.) 120 Fed. 130, in which it is said page 136): “Such criticism is the right of the citizen, and essential not only to the proper administration of justice, but to the public tranquility and contentment. Withdrawing power from courts to summarily interfere with such exercise of the right of the press and freedom of speech deprives them of no useful power.” The following decisions are also cited as enunciating the same principle: Rex v. Charlier (1903) Rap. Jud. Quebec, 12 B. R. 385; State v. Sweetland, 3 S. D. 503, 54 N. W. 415; State v. Anderson, 40 Iowa, 207; Field v. Thornell, 106 Iowa, 15, 75 N. W. 685, 68 Am. St. 281; Cheadle v. State, 110 Ind. 301, 11 N. E. 426, 59 Am. 199; People v. Wilson, 64 Ill. 195, 16 Am. 528; Storey v. People, 79 Ill. 45, 22 Am. 158; Post v. State, 14 Ohio C. C. 111; Percival v. State, 45 Neb. 741, 64 N. W. 221, 50 Am. St. 568; Rosewater v. State, 47 Neb. 630, 66 N. W. 640; In re Dalton, 46 Kan. 253, 26 Pac. 673; In re Robinson, 117 N. C. 533, 23 S. E. 453, 53 Am. St. 596; In re Cooke, 116 La. 723, 41 South. 49; Ex parte Steinman and Hensel, 95 Pa. 220, 40 Am. 637; Sturoc’s Case, 48 N. H. 428, 432, 97 Am. Dec. 626.

Every newspaper proprietor within the state, and every other citizen-therein, in his capacity as such, might therefore, as we hold, have written and published the letter of the accused to the governor, and the matter contained in the body of the letter to the chief justice, and not be answerable for so doing, otherwise than in an action triable by a jury of his peers; and though one became an attorney, he still retains his rights ás a citizen and a freeman. “Fidelity to the court,” as was said in the Pennsylvania case above cited, “involves many particulars,, but they all evidently concern his official relations.” The attorney is', bound to render to the court the respect which is its “due” under the law. This is the full extent of his obligation. Notwithstanding his oath, he may exercise his constitutional rights. No statute could have any validity which would undertake to impair or abridge them. He may sue a judge in his own behalf or for another, alleging every fact pertinent to the case, and not thereby fail in his professional duty. Nor is he “professionally answerable for a scutiny into the official conduct of the judges, which would not expose him to legal animadversion as a citizen.” Austin’s Case, 5 Rawle, 206, 28 Am. Dec. 657. Above all others, the members of the bar have the best opportunity to become conversant with the character and efficiency of our judges. No class is less likely to abuse the privilege, as no other class has as great an interest in the preservation of an able and upright bench. The rule contended for by the prosecution, if adopted in its entirety, would close the mouths of all those best able to give advice, who might deem it their duty to speak disparagingly. “Under such a rule,” so far as the bar is concerned, “the merits of a sitting judge may be rehearsed, but as to his demerits there must be profound silence.” State v. Circuit Court, supra.

Chief Justice Sharswood was not only a most eminent jurist, but was also in his day the very highest authority in all matters pertaining to professional ethics. “No class of the community,” said he, in the Steinman-Hensel case, supra, “ought to be allowed freer scope in the expression or publication of opinions as to the capacity, impartiality, or integrity of judges than members of the bar. They have the best opportunities of observing and forming a correct judgment. They are in constant attendance on the courts. Hundreds of those who are called on to vote never enter a courthouse, or, if they do, it is only at intervals as jurors, witnesses, or parties. To say that an attorney can only act or speak on this subject under liability to be called to account, and to be deprived of his profession and livelihood, by the very judges whom he may consider it his duty to attack and expose, is a position too monstrous to be entertained for a moment under our present system.” This language was not written because of any peculiar provision of the Pennsylvania constitution. It is applicable everywhere. And we adopt as our conclusion here these words of Justice Brewer: “After a case is disposed of, a court or judge has no power to compel the public, or any individual thereof, attorney or otherwise, to consider his rulings correct, his conduct proper, or even his integrity free from stain.” In re Pryor, 18 Kan. 72, 76, 26 Am. 747.

In what we have said it is not our purpose to extenuate in the least the misbehavior of the accused. New acts could be more disgraceful than the deliberate publication by an attorney capable of correct reasoning of such baseless insinuations. The case is of that sort which, considered of itself, might easily make' bad law. But the question presented is vitally important to the entire bench and bar of the state, and even more so to its people, whose servants we are. It concerns not merely the power of the court to protect itself from undeserved censure, but involves in its determination that independence of the bar, upon the preservation of which civil liberty itself in large degree depends; and suspicion and distrust of the courts will not result from this ruling or its future application, as counsel for the prosecution predict. The people can be relied upon to discriminate, in the long run, between truth and falsehood; and the profession, from which our judges are chosen, taken as a whole, are always both eager and able to protect and defend the court when unjustly assailed. This very proceeding was instituted upon the suggestion of the state’ bar association, and one of its representatives assisted in its prosecution. Such misconduct, moreover, brings its own appropriate punishment. A lawyer, however eminent, ordinarily commits professional suicide when he undertakes to thus malign the highest court of the state. By so doing he almost inevitably lessens his influence and standing among his associates, and his clients quickly seek other counsel. We have not heard that the judiciary was discredited or dishonored in Pennsylvania because it was held there to be both “the right and the duty of a lawyer to bring to the notice of the people who elect the judges every instance of what he believes to be corruption,” or in Wisconsin by the denial to its judiciary of that immunity from criticism asserted in State v. Circuit Court. And we have yet to learn that the federal courts or judges have failed to maintain their dignity or to retain the respect and confidence of the people because powerless since the act of March 2, 1831, to punish summarily those guilty of such utterances, not addressed to the judge in person. “Respect to courts cannot be compelled; it is the voluntary tribute of the public to worth, virtue, and intelligence, and, whilst they are found upon the judgment seat, so long, and no longer, will they retain the public confidence.” Stuart v. People, 3 Scam. 395, 405.

2. The question remains whether the accused was guilty of professional misconduct in sending to the chief justice the letter addressed to him. This was done, as we have found, for the very purpose of insulting him and the other justices of this court; and the insult was so directed to the chief justice personally because of acts done by him and his associates in their official capacity. Such a communication,' so made, could never subserve any good purpose. Its only efféct in any case would be to gratify the spite of an angry attorney and humiliate the officers so assailed. It would not and could not ever enlighten the public in regard to their judicial capacity or integrity. Nor was it an exercise by the accused of any constitutional right, or of any privilege which any reputable attorney, uninfluenced by passion, could ever have’ any occasion or desire to assert. No judicial officer, with due regard to his position,' can resent such an insult otherwise than by methods sanctioned by law; and for any words, oral or written, however abusive, vile, or indecent, addressed secretly to the judge alone, he can have no redress in any action triable by a jury. “The sending of a libelous communication or libelous matter to the person defamed does not constitute an actionable publication.” 18 Am. & Eng. Enc. (2d Ed.) 1017. In these respects the sending by the accused of this letter to the chief justice Was wholly different from his other acts charged in the accusation, and, as we have said, wholly different principles are, applicable thereto.

The conduct of the accused was in every way discreditable; but, so far as he exercised the rights of a citizen, guaranteed by the constitution and sanctioned by considerations of public policy, to which reference has been made, he was immune, as we hold, from the penalty here sought to be enforced. To that extent his rights as a citizen were paramount to the obligation which he had assumed as an officer of this court. When, however, he proceeded to thus assail the chief justice personally, he exercised no right which the court can recognize, but, on the contrary, wilfully violated his obligation to maintain the respect due to courts and judicial officers. “This obligation is not discharged by merely observing the rules of courteous demeanor in open court, but it includes abstaining out of court from all insulting language and offensive conduct toward the judges personally for their official acts.” Bradley v. Fisher, 13 Wall. 335, 20 L. Ed. 646. And there appears to be no distinction, as regards the principle involved, between the indignity of an assault by an attorney upon a judge, induced by his official act, and a personal insult for like cause by written or spoken words addressed to the judge in his^ chambers or at his home or elsewhere. Either act constitutes misconduct wholly different from criticism of judicial acts addressed or spoken to others. The distinction made is, we think, entirely logical and well sustained by authority. It was recognized in Ex parte McLeod, supra. While the court in that case, as has been shown, fully sustained the right of a citizen to criticise rulings of the court in actions which are ended, it held that one .might be summarily punished for assaulting a judicial officer, in that case a commissioner of the court, for his rulings in a cause wholly concluded. “Is it in the power of any person,” said the court, “by insulting or assaulting the judge because of official acts, if only the assailant restrains his passion until the judge leaves the court building, to compel the judge to forfeit either his own self-respect and the regard of the people by tame submission to the indignity, or else set in his own person the evil example of punishing the insult by taking the law into his own hands ? * * * No high-minded, manly man would hold judicial office under such conditions.”

That a communication such as this, addressed to the judge personally, constitutes professional delinquency for which a professional punishment may be imposed, has been directly decided. “An attorney who, after being defeated in a cause, writes a personal letter to the trial justice complaining 'of his conduct and reflecting upon his integrity as a justice, is guilty of misconduct and will be disciplined by the court.” Matter of Manheim, 113 App. Div. 136, 99 N. Y. Supp. 87. The same is held in In re Griffin, 1 N. Y. Supp. 7, and in In re Wilkes, 3 N. Y. Supp. 753. In the latter case it appeared that the accused attorney had addressed a sealed letter to a justice of the city court of New York, in which it was stated, in reference - to his decision: “It is not law; neither is it common sense. The result is, I have been robbed of $80.” And it was decided that, while such misconduct was not a contempt under the statute, the matter should be “called to the attention of the supreme court which has power to discipline the attorney.” “If,” says the court, “counsel, learned in the law, are permitted, by writings leveled at the heads of judges, to charge them with ignorance, with unjust rulings, and with robbery, either as principals or accessories, it will not be long before the general public may feel that they may redress their fancied grievances in like manner, and thus the lot of a judge will be anything but a happy one, and the administration of justice will fall into bad repute.”

The recent case of Johnson v. State (Ala.) 44 South. 671, was in this respect much the same as the case at bar. The accused, an attorney at law, wrote and mailed a letter to the circuit judge, which the latter received by due course of mail, at his home, while not holding court, and which referred in insulting terms to the conduct of the judge in a cause wherein the accused had been one of the attorneys. For this it was held that the attorney was rightly disbarred in having “wilfully failed to maintain the respect due to him [the judge] as a judicial officer, and thereby breached his oath as an attorney.” As recognizing the same principle, and in support of its application to the facts of this case, we cite the following: Ex parte Bradley, 7 Wall. 364, 19 L. Ed. 214; Beene v. State, 22 Ark. 149; Com. v. Dandridge, 2 Va. Cas. 408; People v. Green, 7 Colo. 237, 244, 3 Pac. 65, 374, 49 Am. 351; Smith’s Appeal, 179 Pa. St. 14, 36 Atl. 134; Scouten’s Appeal, 186 Pa. St. 270, 40 Atl. 481.

Our conclusion is that the charges against the accused have been so far sustained as to make it our duty to impose such a penalty as may be a sufficient lesson to him and a suitable warning to others. In this we put aside the letter to the governor and the publication in the newspapers, and consider only the misconduct of the accused, wherein, as we hold, he was guilty of professional delinquency. He is a practitioner well advanced in life, of an .age when it is hardly possible to adapt one’s self to a new calling. Perpetual disbarment would be to him a punishment of the severest character. It might take from him his only source of income. So far as we are advised, he has not on any previous occasion shown like disrespect to the courts; and we are not unmindful of the rule that such disbarment should not be inflicted arbitrarily or “unless,” as was said in Ex parte Wall, 107 U. S. 265, 2 Sup. Ct. 569, 27 L. Ed. 552, “absolutely necessary to protect the •court and the public from one shown * * * to be unfit to be a member of an honorable profession.”

It is the judgment of the court that the accused be suspended from practicing as an attorney and counselor at law in any of the courts of .this state for the period of six months.

Let judgment be entered accordingly.

2 For the purpose of hearing and determining this matter the governor assigned the following judges of the district court, viz.: Hon. Frank O. Brooks, of the Fourth district, to sit in place of the chief justice; Hon. Ha seal R. Brill of the Second district; Hon. Myron D. Taylor of the Seventh district; 1-Ion. W. S. McOlenahan of the Fifteenth district; and Hon. Nathan Kingsley, of the Tenth district.