Hiss, In re

• Decision Date: 05 August 1975
• Parties: In the Matter of Alger HISS.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 429

333 N.E.2d 429

368 Mass. 447

In the Matter of Alger HISS.

Supreme Judicial Court of Massachusetts, Suffolk.

Argued May 9, 1975.

Decided Aug. 5, 1975.

John F. Groden, Boston (John M. Reed and Harold Rosenwald, Boston, with him) for petitioner.

Robert J. DeGiacomo, Boston (Daniel Klubock, Boston, and Barry Brown, Cambridge, with him) for the Board of Bar Overseers.

Frederic G. Corneel and Edward J. Barshak, Boston, for the Boston Bar Assn., amicus curiae, submitted a brief.

Before TAURO, C.J., and REARDON, QUIRICO, BRAUCHER, HENNESSEY, KAPLAN and WILKINS, JJ.

TAURO, Chief Justice.

Alger Hiss was struck from the roll of Massachusetts lawyers on August 1, 1952, and now seeks reinstatement. The facts as disclosed by the record before us are as follows. On January 25, 1950, Alger Hiss was convicted of two counts of perjury in his testimony before a Federal grand jury. A previous trial had resulted in a jury disagreement, and a mistrial had been declared. In particular Hiss was found to have testified falsely (1) that he had never, nor had his wife in his presence, turned over documents or copies of documents of the United States Department of State or of any other organization of the Federal government to one Whittaker Chambers or to any other unauthorized person and (2) that he thought he could say definitely that he had not seen Chambers after January 1, 1937. Chambers was the principal witness against Hiss and had been his principal accuser during hearings held prior to the grand jury investigation by the Committee on Un-American Activities of the House of Representatives. ¹ After Hiss had exhausted his rights of appeal (United States v. Hiss, 185 F.2d 822 (2d Cir. 1950), cert. den. 340 U.S. 948, 71 S.Ct. 532, 95 L.Ed. 683 (1951); see also United States v. Hiss, 107 F.Supp. 128 (S.D.N.Y.1952), affd. per curiam, 201 F.2d 372 (2d Cir. 1953), cert. den. 345 U.S. 942, 73 S.Ct. 830, 97 L.Ed. 1368 (1953) (motion for a new trial)), he was committed to the United States penitentiary at Lewisburg, Pennslyvania, where he served some three and one-half years.

Following affirmance of the conviction, the Boston Bar Association filed an information with this court, setting forth the circumstances and a prayer for 'such action as the Court may deem fit.' The matter was duly set down for hearing before a single justice of this court, but, though given due notice of the hearing, Hiss, on the advice of counsel, failed to enter an appearance. On November 2, 1951, the single justice ordered Hiss defaulted and found the bar association's allegations to be true. On August 1, 1952, after arguments by counsel, judgment was entered by the single justice removing Hiss 'from the office of Attorney-at-Law in the Courts of this Commonwealth.'

On November 4, 1974, for the first time, Hiss, then age sixty-nine, filed a petition for reinstatement as an attorney and an accompanying affidavit which detailed his activities since his releas from prison. The matter was referred to the Board of Bar Overseers (the board) pursuant to S.J.C. Rule 4:01, § 18(4), --- Mass. --- (1974). The board members ² heard evidence and filed a report, consisting of findings and recommendations for disposition. The matter is before us now on reservation and report without decision of the single justice. Three fundamental questions are presented for our determination: (1) Were the crimes of which Hiss was convicted and for which he was disbarred so serious in nature that he is forever precluded from seeking reinstatement? (2) Are statements of repentance and recognition of guilt necessary prerequisites to reinstatement? (3) Has Hiss demonstrated his fitness to practice law in the Commonwealth?

1. At the outset, we stress that we are not here concerned with a review of the criminal case in which Hiss was tried, convicted and sentenced. ³ In his trial, he received the full measure of due process rights and apportunities to contest allegations of guilt: a trial before a jury of his peers supplemented by ample avenues of appeal. Basic respect for the integrity and finality of a prior unreversed criminal judgment demands that it be conclusive on the issue of guilt and that an attorney not be permitted to retry the result at a much later date in his reinstatement proceedings. Cf. In the Matter of Braverman, 271 Md. 196, 316 A.2d 246 (1974). Hiss does not content otherwise. While, in some civil proceedings, we permit retrial of factual issues adjudicated previously in criminal cases (see, e.g., Silva v. Silva, 297 Mass. 217, 218, 7 N.E.2d 601 (1937)), '(s)omething different is involved . . . (here) . . .. A member of the bar whose name remains on the roll is in a sense held out by the Commonwealth, through the judicial department, as still entitled to confidence. A conviction of crime, especially of serious crime, undermines public confidence in him. The average citizen would find it incongruous for the . . . (Federal government) on the one hand to adjudiciate him guilty and deserving of punishment, and then, on the other hand, while his conviction and liability to punishment still stand (for the Commonwealth) to adjudicate him innocent and entitled to retain his membership in the bar.' Matter of Welansky, 319 Mass. 205, 208--209, 65 N.E.2d 202, 204 (1946). ⁴ Accord, American Bar Association Special Committee on Evaluation of Disciplinary Enforcement, Problems and Recommendations in Disciplinary Enforcement, 131 (Final Draft 1970). ⁵ Thus, Hiss comes before us now as a convicted perjurer, whose crime, a direct and reprehensible attack on the foundations of our judicial system, is further tainted by the breach of confidence and trust which underlay his conviction. His conviction and subsequent disbarment are 'conclusive evidence of his lack of moral character at the time of his removal from office' (emphasis supplied). Matter of Keenan, 313 Mass. 186, 219, 47 N.E.2d 12, 32 (1943).

2. Nevertheless, the serious nature of the crime and the conclusive evidence of past unfitness to serve as an attorney do not necessarily disqualify Hiss at the present time. We cannot subscribe to the arguments advanced by the chief Bar Counsel (Bar Counsel) ⁶ that, because the offenses committed by Hiss are so serious, they forever bar reinstatement ⁷ irrespective of good conduct or reform. ⁸ Though in provious cases we intimated by way of dicta that there may be 'offenses so serious that the attorney committing them can never again satisfy the court that he has become trustworthy' (Matter of Keenan, 314 Mass. 544, 548--549, 50 N.E.2d 785, 788 (1943); see, e.g., Matter of Keenan, 313 Mass. 186, 219, 47 N.E.2d 12 (1943); Centracchio, petitioner, 345 Mass. 342, 346--347, 187 N.E.2d 383 (1963)), we cannot now say that any offense is so grave that a disbarred attorney is automatically precluded from attempting to demonstrate through ample and adequate proofs, drawn from conduct and social interactions, that he has achieved a 'present fitness' (In re Kone, 90 Conn. 440, 442, 97 A. 307 (1916)) to serve as an attorney and has led a sufficiently exemplary life to inspire public confidence once again, in spite of his previous actions. ⁹

Disbarment is not a permanent punishment imposed on delinquent attorneys as a supplement to the sanctions of the criminal law--'though it may have that practical effect. Its purpose is to exclude from the office of an attorney in the courts, for the preservation of the purity of the courts and the protection of the public, one who has demonstrated that he is not a proper person to hold such office.' Keenan, petitioner, 310 Mass. 166, 169, 37 N.E.2d 516, 519 (1941). Accord, ¹⁰ Bar Assn. of the City of Boston v. Greenhood, 168 Mass. 169, 183, 46 N.E. 568, 575 (1897) ('protection of the public from attorneys who disregard their oath of office'); Bar Assn. of the City of Boston v. Casey, 211 Mass. 187, 192, 97 N.E. 751 (1912); Matter of Keenan, 314 Mass. 544, 546--547, 50 N.E.2d 785 (1943). The position of the Bar Counsel presupposes that certain disbarred attorneys, guilty of particularly heinous offenses against the judicial system, are incapable of meaningful reform which would qualify them to be attorneys and, further, that the public will never be willing to revise an earlier opinion that the offender was not a proper person to function as an attorney. If adopted the rule would provide that 'no matter what a disbarred attorney's subsequent conduct may be; no matter how hard and successfuly he has tried to live down his past and stone for his offense; no matter how complete his reformation--the door to restoration is forever sealed against him.' In re Stump, 272 Ky. 593, 597--598, 114 S.W.2d 1094, 1097 (1938). Such a harsh, unforgiving positions is foreign to our system of reasonable, merciful justice. It denies any potentiality for reform of character. A fundamental precept of our system (particularly our correctional system ¹¹) is that men can be rehabilitated. 'Rehabilitation . . . is a 'state of mind' and the law looks with favor upon rewarding with the opportunity to serve, one who has achieved 'reformation and regeneration.' March v. Committee of Bar Examrs., 67 Cal.2d 718, 732, 63 Cal.Rptr. 399, 408, 433 P.2d 191, 200 (1967). Time and experience may mend flaws of character which allowed the immature man to err. The chastening effect of a severe sanction such as disbarment may redirect the energies and reform the values of even the mature miscreant. There is always the potentiality for reform, and fundamental fairness demands that the disbarred attorney have opportunity to adduce proofs.

The public welfare, 'the true test' in all proceedings for reinstatement (Motter of Keenan, 314 Mass. 544, 547, 50 N.E.2d 785 (1943)), calls for no different result. There can be no harm in permitting any disbarred attorney to adduce proofs of his changed character. Certainly, the proceeding itself poses no threat the public interest. ¹² It does...