In re Allin

• Decision Date: 16 May 1916
• Citation: 224 Mass. 9,112 N.E. 494
• Parties: In re ALLIN.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

224 Mass. 9

112 N.E. 494

In re ALLIN.

Supreme Judicial Court of Massachusetts, Suffolk.

May 16, 1916.

Exceptions from Superior Court, Suffolk County; Wm. Cushing Wait, Judge.

Disbarment proceedings by the Bar Association of Boston against Horatio N. Allin, an attorney at law. Order for disbarment, and respondent excepts. Exceptions overruled.

Geo. D. Burrage, of Boston, for prosecutor.

Horatio N. Allin, of Boston, pro se.

RUGG, C. J.

This is a proceeding for the disbarment of an attorney at law.

[1][2] 1. The motion to dismiss was denied and overruled rightly. It was based on the ground that the process employed in bringing the matter to the attention of the court was not in accordance with the Constitution and statutes of this commonwealth and with the clauses of the Constitution of the United States guaranteeing due process of law and equal protection of the laws, in that the notice issued to him was not under the seal of the court and did not bear the teste of the first justice of the court. Chapter 6, article 5, of the Constitution; R. L. c. 166, § 1; Id. c. 167, §§ 15, 19, 20, 21. A petition was filed in the superior court setting forth certain causes for disbarment, upon which issued an order of notice to appear in the usual form signed by the clerk. The return of service shows that a copy of the petition with the order of the court thereon was delivered in hand to Mr. Allin. This was in accordance with a general practice.

A proceeding for the removal of an attorney at law from his office is not instituted, prosecuted or forwarded by a writ. It is not ‘founded on legal process according to the signification of the words ‘per legem terrae’ as used in Magna Charta,' and in the Constitution and statutes. ‘At common law an attorney was always liable to be dealt with in a summary way. * * * No complaint, indictment or information ever was necessary as the foundation of such proceedings. Usually they are commenced by rule to show cause, or by an attachment or summons to answer. * * * Sometimes they are founded on an affidavit of the facts * * *: in other cases, by an order to show cause why he should not be stricken from the roll; and when the court judicially know of the misconduct of an attorney, they will of their own motion order an inquiry to be made * * * without issuing any process whatever.’ In re Randall, Pet'r, 11 Allen, 473, 479. In the respect that no writ or process issues, this proceeding resembles a petition for a writ of mandamus, and for other extraordinary writs (Taylor v. Henry, 2 Pick. 397), or for preliminary injunction and numerous other orders or rules to show cause. See Kennard v. La., 92 U. S. 480, 23 L. Ed. 478. No constitutional right of Mr. Allin has been infringed and no statutory provision violated by this method of procedure. Boston Bar Ass'n v. Casey, 211 Mass. 187, 193, 97 N. E. 751, 39 L. R. A. (N. S.) 116, Ann. Cas. 1913A, 1226; Ex parte Wall, 107 U. S. 265, 266, 267, 271, 272, 2 Sup. Ct. 569, 27 L. Ed. 552;Randall v. Brigham, 7 Wall. 523, 539, 540, 19 L. Ed. 285;Thatcher v. U. S., 212 Fed. 801, 129 C. C. A. 255, 260.

[3] 2. A finding was made after a hearing on the merits, to this effect:

‘He has wittingly promoted and sued a groundless suit, he has done falsehood in court and he has not conducted himself in the office of an attorney within the courts with the due fidelity to his client. While the first two of these specifications have appeared from the evidence, they are not made the ground of accusation against him in the petition filed in this matter. The third specification is the basis of the proceeding against him and is abundantly established.’

It is not necessary to determine whether, under the principles of procedure already alluded to which are discussed at length in the cases heretofore cited, the court, after a trial in which the accused attorney had had ample opportunity to be heard on all matters, might not have proceeded on the first two specifications, or whether the petition might not have been amended under the circumstances to conform to the evidence (Boston Bar Ass'n v. Greenhood, 168 Mass. 169, 184, 46 N. E. 568), for the judge confined his action in making the order for disbarment to the ground specified. The statement of the other findings constituted no error. They all relate to the single matter of the conduct of the action brought for Mrs. Kelly by Mr. Allin. That whole transaction from its inception to its conclusion was a proper matter of investigation.

[4] 3. The finding to the effect that there had been want of fidelity to his client, Mrs. Kelly, in his conduct as attorney toward her, was warranted. It is not necessary to recite the evidence in detail. It was somewhat conflicting. A careful perusal of it convinces us that there was sufficient testimony to justify the conclusion reached. Boston Bar Ass'n v. Scott, 209 Mass. 200, 203, 95 N. E. 402. Summarily stated, there is evidence which, if believed, as it must have been by the trial judge, showed that an action was brought in the name of Mrs. Kelly against certain defendants. That action was settled by the entry of judgment for the defendants by agreement in writing, signed by Mr. Allin as her attorney, without the knowledge or special consent of the plaintiff, and without notice to her, as a part consideration for the procurement of an option to Mr. Allin...