Hertz v. United States

• Decision Date: 07 March 1927
• Docket Number: No. 7465.,7465.
• Citation: 18 F.2d 52
• Parties: HERTZ v. UNITED STATES.
• Court: U.S. Court of Appeals — Eighth Circuit

18 F.2d 52 (1927)

HERTZ v. UNITED STATES.

No. 7465.

Circuit Court of Appeals, Eighth Circuit.

March 7, 1927.

T. D. Sheehan, of St. Paul, Minn. (James Schoonmaker and P. J. Ryan, both of St. Paul, Minn., on the brief), for plaintiff in error.

Charles Bunn, of St. Paul, Minn., for the United States.

Before KENYON and BOOTH, Circuit Judges, and KENNAMER, District Judge.

KENYON, Circuit Judge.

The United States District Court for the District of Minnesota removed plaintiff in error from his office as attorney and counselor of that court, and ordered his name stricken from the record of those entitled to practice therein. He brings writ of error.

One Leon Gleckman and others were indicted in 1922 in the United States District Court for Minnesota and charged with the crime of conspiracy to violate the National Prohibition Act (Comp. St. § 10138¼ et seq.). At the conclusion of the government's case, tried before Hon. Page Morris, said Gleckman and two other of the defendants pleaded guilty to the charge of the indictment, and the case was dismissed as to the other five defendants. Plaintiff in error was one of the counsel for Gleckman in said case. Defendants were sentenced to terms of imprisonment in the federal penitentiary. Stays of execution of the sentence of Gleckman were granted, and during such time Gleckman employed other counsel, who prepared a motion and presented the same to the court to vacate Gleckman's plea of guilty and substitute a plea of not guilty. In support of said motion an affidavit of Gleckman was presented to the court in which he made charge of misconduct against the counsel who had represented him at the trial and at the entry of the plea of guilty, and claimed therein that he was frightened into making such plea; that he did not know or appreciate the character of the proceedings, and had been compelled to enter the plea against his will. This motion was denied by the court. Writ of error was taken to the United States Circuit Court of Appeals, where the government filed a confession of error, admitting the truth of certain portions of the Gleckman affidavit. By permission of the United States Circuit Court of Appeals, this confession of error was subsequently withdrawn. The case was heard by that court, and the judgment against Gleckman affirmed.

The misconduct charged against plaintiff in error is that at the time said motion was prepared he counseled with and assisted the attorneys for Gleckman in the preparation of the affidavit in support thereof, and assured counsel that the matters stated therein were true and correct. While plaintiff in error had been one of the counsel for Gleckman, presumably he had retired from that position after the plea of guilty and sentence thereon had been entered. In October, 1925, plaintiff in error, with other attorneys, was called before Judges Cant, Molyneaux, and Sanborn of the United States District Court for Minnesota, and was informed that the purpose of the inquiry was to ascertain the truth or falsity of the matter stated in the Gleckman affidavit. Plaintiff in error and others were sworn at said hearing, and these proceedings were subsequently filed by the court, and entitled "In the Matter of Summary Proceedings to Determine Whether or Not Contempt Proceedings Should be Instituted against Certain Attorneys and Counselors Practicing before This Court in Connection with Their Services in the Case of United States of America v. Leon Gleckman." February 2, 1926, plaintiff in error was served with copy of the complaint and charges signed by the three judges of the United States District Court for Minnesota, requiring him to appear and show cause why an order should not be entered striking his name from the roll of attorneys of that court and permanently disbarring him as an attorney thereof. A trial was had before said three United States District Judges. After hearing the evidence these judges made certain findings of fact with relation to the affidavit and the statements therein. The important parts thereof are as follows:

"That said charges of misconduct, and said statements as to the enfeebled and frightened condition of the said Gleckman, at the times referred to and the statement that he did not know or appreciate the character of the proceedings and the effect thereof, and that he was innocent of the charge against him, and had been compelled to enter the plea of guilty against his will, were wholly untrue, and that at all of the times herein referred to, this respondent knew of their falsity and knew that if they should be presented to and be believed by the court, the effect thereof would be to practice a gross fraud upon the court and to defeat justice. That, notwithstanding such knowledge on the part of respondent, he counseled with and assisted the attorneys for said Gleckman, on said motion and in reference thereto, aided in the preparation of said affidavit and gave said counsel assurance that the matters in said affidavit set forth were substantially true and correct. That in addition to the foregoing, in a certain summary hearing before the judges of this court, held at the Federal Building in the city of St. Paul, in said state and district, on the 9th day of October, 1925, at which the matters hereinbefore referred to were the subject of inquiry, the respondent herein, who was then and there duly sworn to tell the truth testified under oath that in connection with the motion of said Gleckman hereinbefore referred to, he did not counsel with the said attorneys for said Gleckman, that he gave no aid in the preparation of the said affidavit and that he had no knowledge thereof until long after the same was presented to the court. That said statements and each of them were and are untrue."

The following conclusion of law was also announced by them:

"That the acts of the respondent, as hereinbefore set forth, constitute dishonorable conduct in the practice of his profession as an attorney and counselor at law, and in consequence thereof it is considered and adjudged that said respondent, Abraham J. Hertz, be and he hereby is removed from his office as an attorney and counselor of this court, and that his name be stricken from the roll of those entitled to practice therein. Dated February 18, 1926."

The nature of disbarment proceedings has been stated by the Supreme Court of the United States in perhaps the leading case on that subject, Ex parte Wall, 107 U. S. 265, 288, 2 S. Ct. 569, 588 (27 L. Ed. 552): "The proceeding is not for the purpose of punishment, but for the purpose of preserving the courts of justice from the official ministration of persons unfit to practice in them. Undoubtedly, the power is one that ought always to be exercised with great caution, and ought never to be exercised except in clear cases of misconduct, which affect the standing and character of the party as an attorney. But, when such a case is shown to exist, the courts ought not to hesitate, from sympathy for the individual, to protect themselves from scandal and contempt, and the public from prejudice, by removing grossly improper persons from participation in the administration of the laws. The power to do this is a rightful one; and, when exercised in proper cases, is no violation of any constitutional provision."

We quote also from 2 R. C. L. p. 1089, § 181: "Generally speaking, an attorney may be suspended or disbarred for such misconduct as shows him to be an unfit or unsafe person to enjoy the privileges and to manage the business of others in the capacity of an attorney, and it is usually held that any fault which would have been sufficient to prevent the admission of one as an attorney will justify his removal. It is not necessary that the attorney's misconduct should be such as would render him liable to criminal prosecution. If it shows that he is unfit to discharge the duties of his office, or is unworthy of confidence, even though the conduct is outside of his professional dealings, it is sufficient. If an attorney is not honest, or is not moral, or is not of good demeanor, he may be disbarred, and should be. His office is a very badge of respectability, a patent of trustworthiness, derived from his position on the court's roll of counsel. He ought not to be suffered to pass for what he is not."

The inherent power exists in every court to disbar an attorney for improper professional conduct. Referring to this subject the Supreme Court of the United States said in Bradley v. Fisher, 80 U. S. (13 Wall.) 335, 354 (20 L. Ed. 646): "This power of removal from the bar is possessed by all courts which have authority to admit attorneys to practice. It is a power which should only be exercised for the most weighty reasons, such as would render the continuance of the attorney in practice incompatible with a proper respect of the court for itself, or a proper regard for the integrity of the profession." See, also, Selling v. Radford, 243 U. S. 46, 37 S. Ct. 270, 61 L. Ed. 726; Ex parte, In the Matter of David A. Secombe, 19 How. 9, 15 L. Ed. 565; Ex Parte Robinson, 86 U. S. (19 Wall.) 505, 22 L. Ed. 205; United States ex rel. Hallett v. Green (C. C.) 85 F. 857; In re Boone (C. C.) 83 F. 944; 6 C. J. p. 580, § 37; Weeks on Attorneys, § 80.

There is no dispute in this case concerning the law as to the general power of a court to protect itself by removing from the roll of attorneys admitted to practice therein one who has been guilty of such misconduct as to render him unfit longer to be intrusted with the duties and responsibilities belonging to the office of an attorney. If plaintiff in error knowingly assisted in preparing a false affidavit, to be used to influence the action of the...