In re Keenan

• Citation: 192 N.E. 65,287 Mass. 577
• Parties: In re KEENAN.
• Decision Date: 13 September 1934
• Court: United States State Supreme Judicial Court of Massachusetts

287 Mass. 577

192 N.E. 65

In re KEENAN.

Supreme Judicial Court of Massachusetts, Suffolk.

Sept. 13, 1934.

Exceptions from Supreme Judicial Court, Suffolk County.

Proceeding for the disbarment of Wilfred B. Keenan, an attorney at law. A hearing was had before a single justice in the Supreme Judicial Court, who filed written findings, rulings, and an order for disbarment. On exceptions saved by respondent.

Exceptions overruled.H. S. Davis, of Boston, and F. A. Crafts, of East Cambridge, for petitioner.

G. Alpert, A. L. Brown, and S. E. Brown, all of Boston, for respondent.

RUGG, Chief Justice.

This is a proceeding for the disbarment of an attorney at law. An original petition was filed on December 1, 1931, on behalf of a committee of citizens of the commonwealth. There were in it allegations that abuses and unprofessional conduct on the part of members of the bar existed in connection with actions of tort for personal injuries and property damages, and that public confidence in the administration of justice was being seriously shaken by the widespread belief that unprofessional conduct was common among members of the bar concerning such cases and that the public welfare was being affected by clogging the dockets of the courts and delaying the disposition of proper litigation. It was not directed against any particular person or group. No lawyer or other person was named as having offended. It contained a prayer that an inquiry be ordered and an offer to defray the expenses of such inquiry outside the usual fees of a commissioner appointed by the court to hold necessary hearings. An order was entered directing the inquiry. Two special commissioners were appointed. The general inquiry went forward. Hearings were had before one of these commissioners respecting alleged conduct of the respondent, who also appeared before him and testified. Many of these hearings were held prior to February 1, 1933. The commissioner filed a report concerning the respondent, which was described as his thirteenth report. Manifestly this commissioner earlier had made many investigations and filed twelve reports before the one here in issue. That report recommended that proceedings be taken for the disbarment of the respondent. It was filed on March 31, 1933. On that date order of notice returnable on April 18, 1933, issued to the respondent to show cause why the recommendation should not be followed. There was a trial before a single justice. It was agreed at the trial that the commissioner's report was not to be considered as evidence against the respondent but that the trial should be had upon the issues raised in that report. Testimony was introduced tending to show that the respondent corruptly influenced or corruptly attempted to influence a juryman or jurymen in five different cases tried in Suffolk county. As to one of those cases this testimony was found to be adequately corroborated, and the respondent was found to have corruptly influenced three jurymen in that case and was thereby guilty of gross misconduct. The corroborating evidence consisted of statements made by one of those jurymen who died on April 19, 1933. The single justice found that the statements were made by him in good faith, upon his personal knowledge and before the charges against the respondent were filed in court. The respondent duly excepted to the admission of these statements. The evidence tended to show that the statements were made by the deceased juryman (after a promise by the Attorney General of immunity from prosecution for anything he might have done to be disclosed in the hearing) under oath before the commissioner, that they were taken by a stenographer and transcribed, and a properly identified copy was presented. The statements were made on February 9, 1933.

After the trial the single justice filed written findings, rulings and an order for disbarment. The respondent thereupon filed in writing a claim of exceptions to the ‘findings, rulings and order.’ The only ruling of law affecting the respondent was that relating to the admission of the statements of the deceased juryman. Whether that ruling was correct is the only question presented. In re Keohane, Petitioner, 179 Mass. 69, 60 N. E. 406;Parker v. Levin, 285 Mass. 125, 129, 188 N. E. 502, 90 A. L. R. 1446.

1. It is contended that the statements of the deceased juryman were not admissible. It may be conceded that in the circumstances here disclosed as to the course of the trial the statements were received not under the common law rules of evidence but by virtue of G. L. (Ter. Ed.) c. 233, § 65. That section is in these words: ‘A declaration of a deceased person shall not be inadmissible in evidence as hearsay if the court finds that it was made in good faith before the commencement of the action and upon the personal knowledge of the declarant.’ The single question on this branch of the case is whether the statements were admissible under this statute. This statute made a considerable change in the law of evidence. It requires declarations or statements to be received which under the common law were excluded because obnoxious to the rule against hearsay evidence. It was designed to remedy a defect in the law of evidence as theretofore administered. It ought to be and has been consistently construed liberally to extend rather than to restrict the intended relief and to effectuate its corrective purpose. Hall v. Reinherz, 192 Mass. 52, 53, 77 N. E. 880;Randall v. Peerless Motor Car Co., 212 Mass. 352, 384, 385, 99 N. E. 221;Tenney v. Foss, 268 Mass. 69, 71, 167 N. E. 280. It has not been confined to actions at law or to actions in any constricted sense. It has been held to apply to suits in equity (Smedley v. Johnson, 196 Mass. 316, 318, 82 N. E. 21), to petitions and proceedings in the land court (Murphy v. Hanright, 238 Mass. 200, 206, 130 N. E. 204), and to proceedings of various kinds in the probate court (Phillips v. Chase, 201 Mass. 444, 447, 87 N. E. 755,131 Am. St. Rep. 406;Stitt v. Tribe, 270 Mass. 204, 206, 170 N. E. 48). A chief contention of the respondent is that the statute is confined in operation to evidence offered in an ‘action’ and that a disbarment proceeding is not an ‘action.’ The word ‘action’ in the governing statute occurs in connection with the words ‘before the commencement of the action.’ The main purpose of this clause is to fix a limit of time as to when the declaration must be made in order to be admissible. It does not appear to be designed to be a restrictive classification of the particular civil proceedings in which the declaration may be admissible.

The word ‘action’ is used in the statute in a comprehensive and generic sense as meaning the pursuit of a right or the invocation of a remedy in a court of justice without regard to the form of legal proceedings. Boston v. Turner, 201 Mass. 190, 196, 87 N. E. 634;Ginzberg v. Wyman, 272 Mass. 499, 501, 172 N. E. 614. It is manifest that the word ‘action’ is not used in any narrow sense. As originally enacted in St. 1898, c. 535, the word ‘suit’ was used instead of ‘action.’ The latter word was substituted in R. L. c. 175, § 66. This is indication that it was intended to embrace civil proceedings in general without special regard to the form. Commonwealth v. Gallo, 275 Mass. 320, 335, 175 N. E. 718, 79 A. L. R. 1380. A disbarmentproceeding falls within this comprehensive description. The primary purpose of such a proceeding is the preservation of the purity of the courts and the protection of the public from attorneys who disregard their oath of office and have been proved unworthy of trust. An attorney is not merely practicing a profession for personal gain; he is an officer of the court. By virtue of its inherent power to control the conduct of its affairs, to maintain its dignity and to enable itself to do justice the court has a summary jurisdiction to inquire into the conduct of its officers and to deal with an attorney found to have committed any evil practice contrary to justice and honesty. A petition for disbarment is frequently filed with allegations of misdoings. A rule to show cause or a summons to answer may be a sufficient commencement of the proceeding. No formal or technical description of his alleged offense is necessary but in some way the charge must be set forth and brought to the knowledge of the respondent. A fair hearing must be held. In re Randall, Petitioner, 11 Allen, 473;Bar Association of Boston v. Greenhood, 168 Mass. 169, 46 N. E. 568;Bar Association of Boston v. Casey, 211 Mass. 187, 97 N. E. 751, 39 L. R. A. (N. S.) 116, Ann. Cas. 1913A, 1226; Matter of Sleeper, 251 Mass. 6, 146 N. E. 269;Matter of Ulmer, 268 Mass. 373, 167 N. E. 749;Randall v. Brigham, 7 Wall. 523, 540, 19 L. Ed. 285;Bradley v. Fisher, 13 Wall. 335, 20 L. Ed. 646; Ex parte Wall, 107 U. S. 265, 2 S. Ct. 569, 27 L. Ed. 552. If an order of disbarment is made, it is a final judgment and statutes and rules touching that subject are applicable. In Bar Association of Boston v. Casey, 227 Mass. 46, at page 51, 116 N. E. 541, 544, which was a disbarment proceeding, it was said: ‘The final disposition of the case took place automatically under R. L. c. 177, § 1, as amended by St. 1912, c. 190, and superior court common law rule 23, 1906, on the first Monday of the month first succeeding the entry’ of a rescript. Although the enabling statute there referred to authorized such judgments in ‘civil actions and proceedings' the rule of court referred only to ‘actions.’ See Gardner v. Butler, 193 Mass. 96, 78 N. E. 885. That decision thus recognized a disbarment proceeding as comprehended within the classification ‘actions.’ Disbarment is not an adversary proceeding in the strict sense. There is no party plaintiff with a private interest. Bar Association of Boston v. Casey, 211 Mass. 187, 97 N. E. 751, 39 I. R. A. (N. S.) 116, Ann. Cas. 1913A, 1226. A disbarment proceeding is an inquest or an inquiry...