In re Egan

Citation24 S.D. 301,123 N.W. 478
PartiesIN THE MATTER OF GEORGE W. EGAN.
Decision Date01 December 1909
CourtSupreme Court of South Dakota

Original Proceedings

Application to be admitted to the Bar denied

Geo. W. Egan, in pro. per.

Park Davis, A. B. Kittredge, Henry Robertson

Attorneys for remonstrants.

Opinion filed Dec. 1, 1909

WHITING, J.

This is an original proceeding brought in this court by the applicant, Geo. W. Egan, a regularly admitted practitioner in the courts of the state of Iowa, who, having once been disbarred by the decision of this court as reported In re Egan, 22 S.D. 355, 117 N.W. 874, again seeks admission to the bar of this state. His original application for admission, made in October, 1907, was resisted by the Bar Association of Minnehaha county; the applicant being then, as now, a resident of the city of Sioux Falls, in said county. The grounds for such opposition are fully stated in the opinion in the above case. The records herein show that the applicant was conditionally admitted, and that, upon the happening of the event stated in such condition, the Bar Association renewed its opposition to this applicant, and the order of disbarment followed. We refer to the opinion in the above case for a statement of the facts then before the court.

This order of disbarment has since remained in full force and effect. On June 22, 1909, the application in this pending proceeding was filed, and September 1st was set as the date for hearing same, at which time the applicant appeared in his own behalf and presented a written argument, which is now among the files in this cause, and has also reduced his closing argument to writing and filed same. The application herein is resisted by the above-mentioned Bar Association, acting through the same committee as in the disbarment proceeding.

The evidence now before us raises a question, not so much as to the intellectual, as to the moral, fitness of the applicant to become a member of our bar. It is with much hesitancy that any court takes up a matter of this nature, involving, as it does, the rights, upon the one hand, of a person already a member of our profession, and, on the other hand, the duties of the court toward the public. Whether we sit upon the bench or plead our client's cause before the bench, we are but lawyers. Our duties may be different, and those of one class graver than those of the other. We realize what it must mean to one who has made the study and practice of law his lifework to have the fruits of all his years of toil denied him by the closing of perhaps the only door that opens to material success, and to those pleasures without money value that come to the true lawyer in assisting in the just administration of law. As was well said by the Supreme Court of the United States in Bradley v. Fisher, 13 Wall. 335, 20 L. Ed. 646:

"Admission as an attorney is not obtained without years of labor and study. The office which the party thus acquires is one of value, and often becomes a source of great honor and emolument to its possessor. To most persons who enter this profession, it is the means of support of themselves and families. To deprive one of an office of this character would often be to decree poverty to himself and destitution to his family."

We certainly cannot but be impressed with the great and even solemn duty we owe to our fellow lawyer on the one hand, and to the public on the other--the duty to act fearlessly and with absolute impartiality. The Supreme Court of the United States in Ex parte Secombe, 19 How. 9, 15 L.Ed. 565, speaking of the power to admit and disbar, said:

"The power, however, is not an arbitrary and despotic one, to be exercised at the pleasure of the court, or from passion, prejudice, or personal hostility; but it is the duty of the court to exercise and regulate it by a sound and just judicial discretion, whereby the rights and independence of the bar may be as scrupulously guarded and maintained by the court as the rights and dignity of the court itself. Disbarment is not for the punishment of the party disbarred neither should denial of admission be resorted to as a punishment for wrong done. The law provides other remedies. In Re Shepard, 109 Mich. 631, 67 N.W. 971, Justice Hooker said in relation to a disbarment proceeding: "This is not a proceeding by way of punishment, though the deprivation of the privileges of an attorney may be a matter of serious importance to a practitioner. It is in a measure necessary to the protection of the public, who have a right ,to expect that courts will be vigilant in withholding, and, if already given, withdrawing, their certificates of qualification and character upon which the public rely."

We concur fully with the sentiment expressed by the applicant himself in his written argument: "This court, representing the judicial majesty of this great state, can have no purpose or object, except to deal fairly between me on the one hand and the people on the other." The applicant in his written argument says:

"It is not my purpose or intention to ask this court to retry the disbarment case, which was heard by this then honorable court on the 1st of October, 1908; but it is my purpose and intention to ask this court to carefully examine the testimony, but with the view of saying, as it must say, knowing all the facts and circumstances, both before my disbarment and since, whether or not I am entitled to license to practice law within the confines of this state."

Inasmuch as three members of this court, being a majority thereof, have come to this bench since the opinion in Re Egan, and were not, therefore, advised regarding what appears upon the record therein, we have thought it right and proper to comply with the above request, and have examined very carefully the voluminous record therein, including not only the evidence submitted before the commissioner of this court, but all the files therein. We have done this to see whether the wrong committed by the applicant was of such a nature that, for the protection of the public, we should still deny applicant's prayer. We have examined such record for the further purpose that we might give proper weight to the new evidence that has been submitted to us in this proceeding, which evidence, the applicant's opponents contend, shows the applicant to be unfitted to become a member of this bar, regardless of the conduct shown in the former proceedings.

Before considering the merits of this cause, this court is constrained, from feelings of self-respect, to refer briefly to the nature of the written argument presented to this court by the applicant. We regret to say that, to our minds, it seems to lack that dignity that one might expect from the pen of a person possessed of the marked ability of this applicant; he being a person who, no matter what his faults and weaknesses, has been wonderfully endowed by nature and study with command of language. We appreciate that the applicant may, and undoubtedly does, feel that he has been wronged by those whom he claims are persecuting him, and that, as a result of such feeling, he may have used language which upon more mature reflection he would regret. He may, indeed, belong to that class referred to by the court in Re Thatcher (Ohio) 89 N.E. 39, in these words:

"Unfortunately, perhaps, there are in our profession a few who chafe under an adverse decision, and indulge in utterances which they are only too happy to retract in cooler moments, and this class are unfortunate, it may be, in having adopted a profession which has its successes and failures."

We submit in all kindness that, no matter what the applicant's feelings may be toward his so-called persecutors, no matter how much he may think he has been wronged by the former action of this court, yet it is not showing proper respect to that court, which the applicant says is "representing the judicial majesty of this great state," even if the applicant feels no degree of respect toward a single member of this bench we say it does not show proper respect--for him in such argument to use the following language, even if the facts stated were material to the issues:

"What have I done in this state? I have obeyed the ordinances of the city and the laws of the land. I have paid my debts and met my obligations as a citizen to the best of my ability. What else have I done? I have refused to be bought, bribed, or intimidated. I have convicted a murderess, in the name of her victim, about whose guilt no honest man ever had doubt or question. I have become in a degree a political iconoclast, and helped topple over the graven image of the political boss, and exposed from the platform and the press a bunch of crooks and political shysters so rotten and corrupt that maidens, wandering with their lovers on the banks of the Sioux, have observed the man in the moon holding his nose as he passes over Sioux Falls."

In fact, this written argument is replete with statements, not only absolutely immaterial to the issues herein, but as undignified as the above, and we cannot but feel that it was intended, not so much for the assistance and enlightenment of this court; as that it might be hereafter made public and sent broadcast among the people of the state.

The following from such argument seems to us insulting to those members of the court who sat in the disbarment cause:

"I am in a position to prove to any reasonable minded man that the accomplishment of my disbarment, based on the said charge (fraudulent conduct in O'Grady case), was the most wicked and damnable conspiracy that has been executed since Michael Cervetus was burned at the stake and Beelzebub conspired against the laws of God."

Applicant has offered no proof of such a conspiracy. If he has such proof, he should have offered it, or else keep silent. If he considered that proof had already been submitted, then he charges those who were members of this court on October 10, 1908, with being not "reasonable...

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