United States v. Hicks

Decision Date31 December 1930
Docket NumberNo. 5269.,5269.
Citation37 F.2d 289
PartiesUNITED STATES v. HICKS. In re EWELL.
CourtU.S. Court of Appeals — Ninth Circuit

Raine Ewell, of San Francisco, Cal., in pro. per.

George J. Hatfield, U. S. Atty., and Geo. N. Crocker, Asst. U. S. Atty., both of San Francisco, Cal.

Before RUDKIN, DIETRICH, and WILBUR, Circuit Judges.

DIETRICH, Circuit Judge.

This is an appeal from a judgment or final order unconditionally disbarring appellant, an attorney at law. It comes to us under the title of "Raine Ewell vs. Hon. A. F. St. Sure, as U. S. District Judge," etc., but the only relief sought is a reversal of the judgment, and the only relation the appellee so named has to the controversy arises out of the fact that as such judge he presided at the trial and entered the judgment. The title we have used is found in some of the papers and is perhaps as appropriate as any for a proceeding which, as will be seen, is somewhat anomalous. Upon the brief filed in resistance to the appeal the United States District Judge and the United States District Court are named as appellees, and the brief is presented upon their behalf by the United States District Attorney, who, apparently, did not participate in the trial below, but, as we infer from statements made at the argument, came into the case after judgment, upon the request or under the direction of the presiding judge.

Of the treatment he received in his efforts to have a bill of exceptions settled, the appellant makes vigorous complaint. He represents that within the time allowed he prepared and served upon all parties who could be supposed to have any interest a proposed bill of exceptions, but instead of settling this bill either as proposed or with modifications, the presiding judge ignored it and caused an entirely new bill to be prepared which, without notice to appellant or giving him an opportunity to propose amendments, he settled and certified. And, subsequently, long after the time for proposing or settling a bill had expired, upon motion of the District Attorney, the judge authorized amendments to the bill thus prepared and certified by him. The substantial correctness of these representations is hardly questioned by the District Attorney and, indeed, is to be inferred from the recitals in the presiding judge's certificate. Logically, the questions arising out of the seeming irregularities should first be disposed of, but their bearing cannot well be understood without an explanation of certain conditions and occurrences touching which there is no substantial controversy; and inasmuch as we conclude there are other considerations which are controlling in the disposition of the appeal, whatever view be taken of these questions of procedure, it is not deemed necessary to decide them.

It seems that in April, 1926, one John L. Hicks was held in custody under an indictment charging him with violations of the White Slave Traffic Act; and his wife also was detained in jail as a witness against him. On or about the 20th of April, Thomas L. Riordan, an attorney at law, was employed to give them legal assistance, and, through Mrs. Hicks, he was at that time paid $600, with the agreement that an additional sum of $400 would be paid. Upon the general subject of the use to which the money was to be put and what Riordan was to do with or for it, there was conflicting testimony; Mrs. Hicks contending that he was to use part of it in procuring bail, and that for such portion thereof as was intended for his compensation he agreed to "beat the case" against her husband.

However that may be, bail was not procured, and against the urgent advice of Riordan, Hicks declined to plead guilty but insisted upon having a trial. Apparently Riordan was unwilling, or at least exhibited great reluctance, to defend him, and finally, on or about May 7th, so he testified, he informed Hicks that if the latter wanted another attorney he could get one and that he (Riordan) would let the other $400 go; but he was unwilling to pay back any part of the $600. Dissatisfied with Riordan's services, particularly because of his insistence upon a plea of guilty, Hicks sought the aid of other counsel and finally engaged appellant herein. After getting from Hicks and his wife their version of what had occurred, and particularly of the conditions and terms under which the $600 had been paid, appellant took the matter up with Judge St. Sure, with a view to having Riordan return at least a part of the money he had received. At Judge St. Sure's suggestion, so he testified, he communicated with Riordan, but the latter declined to pay back any of the money. A short time thereafter, on May 26, 1926, he appeared in open court and asked leave to file a notice entitled in the criminal case and signed by Hicks, advising the court officers and Riordan that he (Hicks) had discharged Riordan and appointed the appellant herein as his attorney. In the notice were these paragraphs:

"Said discharge is made on the ground that said Thomas J. Riordan wrongfully obtained $600.00 from the wife of this defendant through misrepresentation and fraud and in part payment of premium on bail and to defend the prosecution of this case.

"That thereafter said Thomas J. Riordan, after receipt of the $600.00, importuned this defendant to plead guilty when this defendant had, under said attorney, pleaded not guilty."

The inclusion of the first of these paragraphs, and particularly the words "wrongfully" and "through misrepresentation and fraud," constitutes the misconduct and the only misconduct upon which the court below rested the judgment of disbarment.

Riordan was in court at the time the application was made and objected to the filing of the notice upon the ground that it unjustly reflected upon his honor and integrity. What was said in the ensuing colloquy is left in doubt, but admittedly the court did not then permit the notice to be filed and set something down for hearing on June 1st. At that hearing, which consumed parts of three days, a considerable volume of evidence was introduced, at the close of which the court ordered entry of the judgment under consideration. It is the appellant's contention that up to a time shortly before the hearing closed, he assumed that the only matter involved was the question of Riordan's discharge and his obligation to pay back the $600, or a portion thereof; whereas, the District Attorney's position is that he had knowledge from the beginning that the proceeding was also for his disbarment. It is not pretended that any charge, formal or informal, was ever filed against appellant or that he was ever advised in terms or clearly that the purpose or one of the purposes of the hearing set for June 1st was to determine whether he should be disbarred. If we resort to the ex parte bill of exceptions, we find a recital only that, after the colloquy on May 26th, in respect of the application to file the notice, in the course of which Riordan charged appellant with misconduct and unethical practice, the court examined the notice and "advised said Raine Ewell that he would have opportunity to make a showing of the truth of the facts stated in the notice and in defense of said charge of misconduct and unethical practice." It is not contended that this precise language was used, for no reporter was present, and as appears from the certificate of the presiding judge made a month later, what occurred rested in his recollection, to some extent possibly aided by notes taken in the course of the trial. But accepting the recital as it stands, it conveys no clear intimation that appellant was to be put on trial looking to his disbarment. He was in court seeking relief for his client who was in jail charged with a criminal offense. That relief in part depended upon a substantiation of the charges in the document he had asked leave to file. He may well have understood, and we are inclined to think he did proceed upon the assumption, that the only purpose of the hearing was to determine whether his client was entitled to the relief sought, to procure all of which relief he would have to substantiate the grounds stated in the notice. It is suggested that Hicks was entitled to substitution of counsel without assigning reasons for the change, but with respect to the right of Riordan to retain the $600, it would be one thing to discharge him arbitrarily and quite another to displace him because of his inability or unwillingness to comply with his contract of employment. The Flush (C. C. A.) 277 F. 25, 28. And in that regard it is not without significance that he did not announce his withdrawal from Hicks' defense before or at the opening of the hearing but only after the evidence was all in.

Manifestly, the clerk did not understand that the order made at the close of the colloquy on May 26th was for a hearing looking to appellant's disbarment, for the only minute entry on that day was under the caption of the criminal case against Hicks and is as follows: "Now comes Raine Ewell, Esquire, and presents a notice of discharge of the attorney for the defendant. After hearing had, it was ordered that said application to discharge attorney be placed on the calendar for June 1, 1926, for hearing." And on June 1st, under the same caption, we find this entry: "The application of the defendant to discharge his attorney came on to be heard. Raine Ewell, Esquire, appeared in support of the application. Thomas J. Riordan, Esquire, appeared in opposition thereto." On...

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7 cases
  • Wilbur v. Howard, 277.
    • United States
    • U.S. District Court — Eastern District of Kentucky
    • 8 Abril 1947
    ...285; United States v. Parks, C.C. Colo., 1899, 93 F. 414; cf. Conley v. United States, supra, 59 F.2d at page 935; United States v. Hicks, 9 Cir., 1930, 37 F.2d 289, 292." However, regardless of how the information may have been brought to the court the rule having issued, the cause is that......
  • In re Noell
    • United States
    • U.S. District Court — Eastern District of Missouri
    • 27 Febrero 1937
    ...S. Board of Tax Appeals, 270 U. S. 117, 119, 46 S.Ct. 215, 216, 70 L.Ed. 494; Horton v. Clark, 316 Mo. 770, 293 S. W. 362; United States v. Hicks (C.C.A.) 37 F.2d 289. Courts may adopt their own form of procedure in cases of this nature, as long as they observe the fundamental requirement t......
  • In re Lavine
    • United States
    • U.S. District Court — Southern District of California
    • 30 Julio 1954
    ...335, 354-355, 80 U.S. 335, 354-355, 20 L.Ed. 646; Ex Parte Bradley, 1868, 7 Wall. 364, 74 U.S. 364, 19 L.Ed. 214; United States v. Hicks, 9 Cir., 1930, 37 F.2d 289, 292; cf. In re Patterson, 9 Cir., 1949, 176 F.2d 966; Barnes v. Lyons, 9 Cir., 1911, 187 F. The purpose of Rule 11, in my opin......
  • In re Claiborne
    • United States
    • United States Courts of Appeals. United States Court of Appeals (1st Circuit)
    • 28 Abril 1941
    ...19 L.Ed. 285; United States v. Parks, C.C.Col. 1899, 93 F. 414; cf. Conley v. United States, supra, 59 F.2d at 935; United States v. Hicks, 9 Cir., 1930, 37 F.2d 289, 292. In the instant case, the proceedings were instituted on information uncovered during the proceedings at Mayaguez, and t......
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