Burrage v. County of Bristol
| Decision Date | 29 November 1911 |
| Parties | BURRAGE v. BRISTOL COUNTY. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
Frederick S. Hall, for appellant.
James A. Lowell, for appellee.
The question presented is whether in proceedings for disbarment of an attorney at law, under R. L. c. 165, § 44, the court is empowered to award compensation to the attorney who conducts the proceedings for the removal. The material words of the section are: 'An attorney may be removed by the Supreme Judicial Court or the superior court for deceit, malpractice or other gross misconduct; * * * and the expenses and costs of the inquiry and proceedings in either court for the removal of an attorney shall be paid as in criminal prosecutions in the superior court.' The word 'costs,' as applied to proceedings in court ordinarily means only legal or taxable costs, and does not include attorney's fees. Brown v. Corey, 134 Mass. 249. The word 'expenses,' although broad enough to include counsel fees, is of varying significance dependent upon the connection in which it is used. Under some circumstances it would not include them. See, for instance, Marshall Fishing Co. v. Hadley Falls Co., 5 Cush. 602. The provision in a mortgage that 'costs and expenses' be retained in case of foreclosure out of the proceeds of the sale has been held to include a reasonable counsel fee. Virnum v. Meserve, 8 Allen, 158; Bangs v. Fallon, 179 Mass. 77, 60 N.E. 403. In proceedings under the highway act 'expenses' includes land damages. Damon v. Reading, 2 Gray, 274; Brigham v. Worcester, 147 Mass. 446, 18 N.E. 220. In Willard v. Lavender, 147 Mass. 15, 16 N.E. 582, the words 'costs and expenses,' as used in St. 1884, c. 131 (R. L. c. 162, § 44), were construed to authorize a reasonable allowance for professional fees as between solicitor and client. Although there are decisions in other jurisdictions to the effect that in different connections the word does not include counsel fees, no case has been found in substance like the present. The meaning of the word must be determined in the light of the end to be attained by the statute in which it occurs.
The subject is one of vital public interest. The removal of attorneys, who have become unfaithful to their trust and are unfit longer to exercise their office and to be held out as trustworthy, faithful and competent, is of concern to all the people. Although it is the duty of members of the bar, as public officers, to see that their body is purged of unworthy members, and the court has a right in the exercise of its inherent power to require any of its officers to institute and prosecute proceedings looking toward disbarment all without compensation (Fairfield County Bar v Taylor, 60 Conn. 11, 14, 22 A. 441, 13 L. R. A. 767; State v. Harber, 129 Mo. 271, 294, 31 S.W. 889; Byington v. Moore, 70 Iowa, 206, 30 N.W. 485), and such proceedings may be instituted by the court itself (Ex parte Wall, 107 U.S. 265, 2 S.Ct. 569, 27 L.Ed. 552; see Randall v. Brigham, 7 Wall. 523, 19 L.Ed. 285; In re Randall, Pet'r, 11 Allen, 473), yet the matter is of such importance that the Legislature might well be moved to make additional provision to assure the disbarment of unfit attorneys. The expenses incident to an investigation of this sort outside the time spent by the attorney prosecuting the charges, in most cases, would be small. There are considerable items in the account annexed to the present declaration for cash disbursements. But most of them would be included under a proper...
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