In re Welansky

• Decision Date: 16 February 1946
• Citation: 319 Mass. 205,65 N.E.2d 202
• Parties: In re WELANSKY.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

319 Mass. 205

65 N.E.2d 202

In re WELANSKY.

Supreme Judicial Court of Massachusetts, Suffolk.

Feb. 16, 1946.

Exceptions from Superior Court, Suffolk County; J. L. Hurley, Judge.

Proceeding in the matter of the disbarment of Barnett Welansky. An order of disbarment was entered against respondent, and he brings exceptions.

Exceptions overruled.

Before FIELD, C. J., and LUMMUS, RONAN, WILKINS, and SPALDING, JJ.

A. Hurwitz, of Boston, appointed by the court to conduct the proceedings.

T. N. Creed, of Boston, for respondent.

WILKINS, Justice.

The respondent, a member of the bar, was found guilty by a jury of the crime of manslaughter,on ten counts of one indictment and on nine counts of another, in connection with certain deaths at a night club operated by New Cocoanut Grove, Inc., and the judgments were affirmed in this court. Commonwealth v. Welansky, 316 Mass. 383, 55 N.E.2d 902. The respondent was sentenced to State prison for a term of not more than fifteen years nor less than twelve years. The judge who presided at the trial caused to be served upon the respondent an order to appear and show cause why he should not by disbarred from the practice of the law by reason of his conviction. The respondent filed an answer, denying ‘that he is guilty of any deceit, malpractice or other gross misconduct as an attorney * * * and more particularly * * * that he is guilty of any of the crimes set out in the order of notice.’ Thereafter the respondent appeared with counsel before the judge, and contended that the allegations in the order of notice should be proved. The judge stated that he would take judicial notice of the fact that the respondent was found guilty under the two indictments; of the fact that the respondent had taken an appeal to this court; and of the opinion of this court, which was reported in 316 Mass. 383, 55 N.E.2d 902. The respondent's counsel conceded that the records of the court would show that the respondent had been found guilty on nineteen counts of manslaughter, and that the judge must take judicial notice thereof, but argued that such judicial notice did not include the fact that the respondent had committed the crime. Subject to the respondent's exception, the judge ruled that the respondent should go forward to show cause why he should not be disbarred. The following colloquy then occurred: ‘Counsel For The Respondent: I take it first to put Barnett Welansky on the stand and in substance have him deny that he committed any crime would simply be taking up the time of the court. Your Honor will take the position that the record of conviction is absolute evidence that he did commit the crime? The Judge: Yes. I do not deny your right to put him on the stand for any other proper purpose but I don't think it would be necessary to put him on the stand for that purpose. * * * I take it your client does not wish to be heard? Counsel For The Respondent: No, sir.’ The judge later entered an order of disbarment against the respondent, who filed a claim of exception.

The principles underlying this type of case have been fully and frequently stated. It is an inquiry and not an adversary proceeding. It is neither an action at law in the strict sense nor a suit in equity. Bar Association of City of Boston v. Casey, 211 Mass. 187, 191, 192, 97 N.E. 751, 39 L.R.A.,N.S., 116, Ann.Cas.1913A, 1226; Matter of Keenan, 287 Mass. 577, 583, 192 N.E. 65, 96 A.L.R. 679. The strict rules of evidence may not invariably apply. See Matter of Santosuosso, 318 Mass. 489, 62 N.E.2d 105. ‘It is in essence a submission to the court of the alleged facts for investigation by the court and such disposition as the court deems proper.’ Matter of Santosuoso, supra, 318 Mass. 491, 62 N.E.2d 106. The ‘true test must always be the public welfare. Where any clash of interest occurs, whatever is good for the individual must give way to whatever tends to the security and advancement of public justice.’ Matter of Keenan, 314 Mass. 544, 547, 50 N.E.2d 785, 787.

The precise question whether a conviction of a felony following a not guilty plea is uncontradictable evidence of guilt in an inquiry of this nature has not been adjudicated in this Commonwealth. In Matter of Stern, 299 Mass. 107, 12 N.E.2d 100, a member of the bar, who had pleaded guilty to indictments for larceny, at the instance of the judge who had heard the pleas was ordered to appear before that judge and show cause why he should not be disbarred. The original record shows that the respondent offered no evidence, but gave an explanation of the reasons underlying his pleas. After a hearing at which it was admitted that the respondent had pleaded guilty ‘as stated,’ an order of disbarment was entered, which was upheld in this court. In Matter of Ulmer, 268 Mass. 373, 167 N.E. 749, in an inquiry into the conduct of a member of the bar weight was given to an order for disbarment in the Federal court. See Matter of Lyon, 301 Mass. 30, 35, 16 N.E.2d 74. Compare Selling v. Radford, 243 U.S. 46, 37 S.Ct. 377, 61 L.Ed. 585, Ann.Cas.1917D, 569. In Matter of Santosuosso, 318 Mass. 489, 62 N.E.2d 105, we held that the evidence in a suit in equity in the Superior Court, but not the findings of material facts by the judge, was admissible in an inquiry relative to the conduct of a member of the bar who had been a defendant in that suit.

It is the ‘traditional rule’ and the law of this jurisdiction that ‘a defendant convicted of crime is entitled to re-try the question whether he actually committed the crime, when that issue arises in a civil proceeding to which the Commonwealth is not a party.’ Minasian v. AEtna Life Ins. Co., 295 Mass. 1, 3, 3 N.E.2d 17, 18;Silva v. Silva, 297 Mass. 217, 218, 7 N.E.2d 601. In the case last cited it was held that in a hearing upon objections to the entry of a decree absolute of divorce the conviction of the libellant of nonsupport was inadmissible. In Blackman v. Coffin, 300 Mass. 432, 436, 437, 15 N.E.2d 469, evidence of the defendant's conviction, not based on a plea of guilty, upon the charge of operating an automobile while under the influence of intoxicating liquor, and unaccompanied by any evidence of sentence, was held inadmissible to show gross negligence in an action of tort for personal injuries arising out of the same episode. Compare Morrissey v. Powell, 304 Mass. 268, 23 N.E.2d 411, 124 A.L.R. 1522.

We think that the doctrine of Silva v. Silva, 297 Mass. 217, 7 N.E.2d 601, ought not to enable a respondent attorney, after a conviction of crime that remains unpardoned, to retry in disbarment proceedings the question whether he was in truth guilty. Something different is involved than the logical consequences of guilt upon property rights or the like. A member of the bar whose name remains on the roll is in a sense held out by the Commonwealth, through the judicial department, as still entitled to confidence. A conviction of crime, especially of serious crime, undermines public confidence in him. The average citizen would find it incongruous for the Commonwealth on the one hand to adjudicate him guilty and deserving of punishment, and then, on the other hand, while his conviction and liability to punishment still stand, to adjudicate him innocent and entitled to retain his membership in the bar.

In many States there are statutes making the record of conviction of certain offences conclusive of guilt in disbarment proceedings.¹ In other jurisdictions a similar result is reached without any statute.² In one state where there is no statute the question of guilt or innocence is open in disbarment proceedings against one already convicted of crime, but the conviction creates prima...