37 F.2d 289 (9th Cir. 1930), 5269, United States v. Hicks

Docket Nº:5269.
Citation:37 F.2d 289
Party Name:UNITED STATES v. HICKS. In re Ewell.
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit

Page 289

37 F.2d 289 (9th Cir. 1930)

UNITED STATES

v.

HICKS.

In re Ewell.

No. 5269.

United States Court of Appeals, Ninth Circuit.

1930

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 effort 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.

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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...

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