Dorsey v. Kingsland, 9572.

• Decision Date: 26 January 1949
• Docket Number: No. 9572.,9572.
• Citation: 173 F.2d 405
• Parties: DORSEY v. KINGSLAND, Commissioner of Patents.
• Court: U.S. Court of Appeals — District of Columbia Circuit

173 F.2d 405 (1949)

DORSEY v. KINGSLAND, Commissioner of Patents.

No. 9572.

United States Court of Appeals District of Columbia Circuit.

Argued January 22, 1948.

Decided January 26, 1949.

Writ of Certiorari Granted May 31, 1949.

Mr. William E. Leahy, of Washington, D. C., with whom Mr. James F. Reilly, of Washington, D. C., was on the brief, for appellant.

Mr. Jo. Baily Brown, Special Assistant to the Secretary of Commerce, of Pittsburgh, Pa., with whom Mr. E. L. Reynolds, of Washington, D. C., was on the brief, for appellee.

Before EDGERTON, CLARK, and WILBUR K. MILLER, Circuit Judges.

Writ of Certiorari Granted May 31, 1949. See 69 S.Ct. 1160.

CLARK, Circuit Judge.

This is an appeal from a denial by the District Court of the petition of Vernon M. Dorsey to annul an order of the Patent Office which disbarred appellant from practice before the Patent Office on grounds of gross misconduct. Such facts as are material to the decision in this case are set forth below and are, therefore, not rehearsed at this point.

To the majority of this court the whole record of this case bears indelible evidence that the conduct of the Patent Office in the whole proceeding carried out nearly two decades after the alleged commission of the offense amounts to a classic exemplification of a citizen being deprived of a valuable right (as well as honor and a means of livelihood) without due process of law or indeed without process of law of any kind except bureaucratic "lynch law."

The appellant, Vernon M. Dorsey, now nearly eighty years old has been an honored and respected member of the Bar of the Patent Office since 1890, and of this court since its inception. It is conceded on all hands that his whole record during all of this time, both before and since 1926 (the date of the alleged commission of the offense for which he was convicted) has been exemplary and without a blemish. Both the lapse of time between the alleged commission of the offense and the trial and also the exemplary conduct of the appellant both before and since the alleged offense become extremely important under the doctrine of this court expressed in In re Adriaans,¹ where both considerations were given major weight.

This case is so nearly a "bay-horse" case² that it deserves to be specially considered at this stage of the proceedings. The following quotations from the opinion of this court in that case show clearly the nature of that case and make perfectly apparent at a glance its direct application to the instant case. The case has never been overruled or modified.

In that case in speaking for the court, Justice McComas said in part: "The disbarment of Adriaans for misconduct which happened about twelve years before is most unusual. The majority of the justices of the supreme court now the District Court who concurred in the order of disbarment appear to appreciate this, for they say that under ordinary circumstances the lapse of time would cause the court to seriously consider the long delay in filing the charges. The record discloses no extraordinary circumstance which persuaded the court to ignore this long delay. The court do say that, if Adriaans were guilty of the specific offense charged to have been committed twelve years before, he has not offered proof of any amendment of his conduct since. We are more impressed by the absence from the record of charges of misconduct since. Here this charge stands alone."³

Here this court clearly held that the burden was on the proponents of disbarment to show subsequent misconduct and that failing that, in the absence of extraordinary circumstances, the lapse of twelve years would go far to cure the specific offense alleged. The similarity of the two cases is striking except that in the Adriaans case the lapse was twelve years, in the instant case more than eighteen.

And (28 App.D.C.) at page 522, this court said: "The disbarment of an attorney is a serious punishment. The right to exercise his profession should not be lightly taken from an attorney. When the court determines to disbar an unworthy member of an honorable profession it ought to require the clearest legal proof."

And again (28 App.D.C.) at page 523, the court said: "After twelve years we must be careful not to assume what the evidence failed to prove."

The very point which has been the fatal defect in the theory of appellee from the beginning and continued throughout this argument is here pointed out in this old case with unerring finger by this very court.

And the court concluded: "The charge of misconduct upon the specification of misconduct whereon the court passed the order appealed from is not supported by the proof. We naturally hesitate to review the finding of the court below, but we are convinced that the evidence here is not legally sufficient to justify the disbarment of this respondent. Though we are disinclined to interfere with the order of the supreme court of this District in a case of this character, we are unable to resist the conclusion that these equity proceedings, after twelve years' delay to make this charge, as a ground for disbarment of this attorney, are not such clear and definite proof of the misconduct alleged as to justify us in affirming this order. * * * The power to disbar ought always to be exercised with great caution and only in clear cases. No criminal proceedings on this account were commenced against this respondent, and after this long delay we cannot agree with the court below that the matters disclosed by this record suffice to sustain this order. This is not a criminal proceeding, but such a charge should be supported by a preponderance of satisfactory evidence. The case should be clear and free from doubt. The career of an unworthy member of the bar is apt to reveal misconduct more recent than in this case, where the proof is legally insufficient to disbar this respondent on account of an offense alleged to have been committed about twelve years ago."⁴

The order of disbarment was therefore reversed outright.

(The italics throughout the quotations from this opinion are supplied).

In this proceeding instituted nearly twenty years after the transaction complained of, the Patent Office makes the pitiful admission of incapacity that a great and responsible agency of the Government could be unduly influenced and controlled in the adjudication of valuable rights confided to its jurisdiction by the mere introduction of an article in a trade journal. It is no reflection on the integrity of trade papers which serve a useful and valuable purpose in our commercial life to say that they are certainly not authoritative scientific treatises or to state the fact known of all men, that insertion of articles in their columns may sometimes be influenced by the wishes of good and lucrative advertisers. It was the duty of the Patent Office under the law to investigate these matters for itself, to arrive at a determination on the facts and evidence presented and not to shift the burden of its own responsibilities to a blind reliance on some article presented from some trade journal, which with ordinary intelligence it might have known to be self-serving for the party offering it.

Contrary to this salutary rule, the Patent Office in a desperate effort to alibi its confessed failure to perform its duty waited more than eighteen years until the evidence had largely disappeared to bring stale charges against appellant, and then proceeded to try and convict him before a "kangaroo court." We use the term "kangaroo court" advisedly because this so-called tribunal tried appellant on charges most of which were not even included in the notice to show cause and on which there is not a shred of evidence to connect him, convicted him on several of these charges and deprived a venerable man and respected lawyer of his means of livelihood. For a lawyer to be disbarred is the equivalent of a soldier receiving a dishonorable discharge on the field of battle. He is deprived of not only a valuable right but of honor as well and an irremovable aspersion is cast upon his character as long as the judgment stands.

The only justification assigned for disbarring appellant on a proceeding which included trial on many charges of which he had not been apprised and had not been afforded an opportunity to prepare his defense and as to which the evidence did not even remotely connect him, was that as a witness in his own behalf he did not assume the burden of proof and affirmatively disprove the allegations against him (of many of which he had not been notified) and that on some questions his memory was faulty in that he sometimes responded that he could not remember. Mirabile dictu!

We have known many lawyers in our time. We cannot recall any who have been in active practice, many of whom are many years younger than appellant, who would be prepared when called upon, under the pain of being arbitrarily deprived of his livelihood and his honor, to testify as to all the incidents of a case which had been tried eighteen to twenty years before or as to the considerations which had led him to tender evidence or to fail to tender evidence. To say that a man approaching eighty should be disbarred because he could not remember some incident of a trial which took place twenty years before seems to us to be absurb.

The majority of this court are of the opinion that the learned trial court takes altogether too narrow a view of its own jurisdiction. It proceeds upon the theory that the case is one for the strict and extreme application of the doctrine of "administrative finality,"⁵ which might better be known as "administrative infallibility." But whatever may be one's opinion of this doctrine, it has no possible application to this case. The action of the Commissioner here complained of in disbarring Dorsey was not an administrative act. It was a quasi-judicial act. The whole theory of administrative finality stems from the assumption that...