Cobb v. United States

• Decision Date: 13 September 1909
• Docket Number: 1,702.
• Citation: 172 F. 641
• Parties: COBB v. UNITED STATES.
• Court: U.S. Court of Appeals — Ninth Circuit

172 F. 641

COBB v. UNITED STATES.

No. 1,702.

United States Court of Appeals, Ninth Circuit.

September 13, 1909

The district attorney of Alaska, Division No. 1, filed an information against the plaintiff in error, alleging that while the latter was an attorney at law and a member of the bar of the District Court for the District of Alaska, and engaged in the active practice of his profession therein, he did on September 3d willfully, wrongfully, and maliciously publish and cause to be published at Juneau, in a newspaper of general circulation there published, the following article: 'Communicated. Editor of the Despatch: I am informed that the Record on yesterday, among other things charged the firm of which I am a member, with having written or dictated a notice of the decision in the disbarment case. This is not true and I wish you to so state. I do not care to discuss the case at all at this time since the whole matter will in the near future be made the subject of a thorough investigation in other disbarment proceedings. Of course, I realize that if there had been the slightest grounds shown for my disbarment, I would certainly have been disbarred. As no such grounds were shown the best the Court could do for the gang whose sinister influence has paralyzed the Judge for the past two years, was to seek an excuse to save their faces and the costs. If he had kept the 'square deal' promise he made to the public in 1905, there would have been some disbarments in Juneau before this, but mine would not have been one of them. Under the shameful conditions from which Southeastern Alaska is suffering so much, I suppose I should be thankful, and continue to wait. ' The information alleged that the said article was willfully and maliciously false and untrue, and was published with the intent to scandalize and bring into contempt and disgrace the said court by the plaintiff in error, 'contrary to and in violation of his duty and obligation as an attorney and officer of said court'; that the publication was willful misconduct upon the part of the plaintiff in error in his profession of attorney at law, and as a member of the bar of the court, and the same constituted contempt of the court. The prayer was that the plaintiff in error be cited to appear before the bar of the court, and show cause why he should not be punished according to law for said misconduct. Upon the filing of the information an order to show cause was issued and served upon the plaintiff in error directing him to appear and answer the allegations of the information, and show cause why he should not be punished for said misconduct as provided by law. He appeared in person, and filed an answer to the order to show cause, in which he challenged the jurisdiction of the court, and raised the objection that the facts alleged in the information did not constitute as a matter of law contempt of court or any violation of personal or professional duty. The objections were overruled. The plaintiff in error then appeared by his attorneys, and filed an answer to the information, and filed also a motion that the cause be referred to three disinterested attorneys of the Alaskan bar for hearing and determination under the provisions of the statutes of Alaska. The motion was denied. Thereupon the plaintiff in error by his attorneys filed a written motion to dismiss the proceedings on the ground that the information did not state facts sufficient to invoke the jurisdiction of the court. That motion was also denied. The plaintiff in error then declining to proceed further with his defense, the district attorney moved the court for judgment on the pleadings. The motion was taken under advisement, and on December 19, 1908, was allowed. Judgment was rendered suspending the plaintiff in error as an attorney of said court for the period of eighteen months, but postponing the entry of the decree until February 1, 1909, in order that the plaintiff in error might make proper arrangements, as he might be advised, in respect to litigation pending in the court.

Winn &amp Burton and W. C. Sharpstein, for the plaintiff in error.

John J Boyce, U.S. Atty., and Alfred P. Black, Asst. U.S. Atty.

Before GILBERT and ROSS, Circuit Judges, and HUNT, District Judge.

GILBERT Circuit Judge (after stating the facts as above).

It is assigned as error that a judgment of suspension was rendered upon a proceeding which was instituted for contempt. It is true that the information which was filed against the plaintiff in error contains the allegation that his conduct was contempt of court, but it contains a full statement of the facts of the case, and asks for a judgment appropriate thereto. The court below, properly we think, regarded the proceeding, not as one for contempt, but as one for suspension or disbarment for misconduct, which is made a ground therefor by Pol. Code Alaska, Sec. 743, which provides that an attorney may be removed or suspended, among other causes, 'for being guilty of any willful deceit or misconduct in his profession. ' Although the information did not in express terms demand a judgment of suspension or disbarment, the plaintiff in error was present when the court ruled that such was the nature and purpose of the proceeding, and thereafter he had ample opportunity to make his defense. He assented to the ruling that it was a proceeding for disbarment or suspension by moving that the cause be referred under section 750. Said the court in Randall v. Brigham, 7 Wall. 523-540, 19 L.Ed. 285:

'It is not necessary that proceedings against attorneys for malpractice or any unprofessional conduct should be founded upon formal allegations against them. * * * All that is requisite to their validity is that, when not taken for matters occurring in open court in the presence of the judges, notice should be given to the attorney of the charges made, and opportunity afforded him for explanation and defense. The manner in which the

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