In re MacNeil, 5491 Original.

• Decision Date: 22 April 1959
• Docket Number: No. 5491 Original.,5491 Original.
• Citation: 266 F.2d 167
• Parties: In the Matter of Angus M. MacNEIL. Petition of Anthony JULIAN, United States Attorney.
• Court: U.S. Court of Appeals — First Circuit

266 F.2d 167 (1959)

In the Matter of Angus M. MacNEIL. Petition of Anthony JULIAN, United States Attorney.

No. 5491 Original.

United States Court of Appeals First Circuit.

April 22, 1959.

Angus M. MacNeil, Somerville, Mass., pro se.

Andrew A. Caffrey, Asst. U. S. Atty., Boston, Mass., for petitioner.

Before MAGRUDER, Chief Judge, and WOODBURY and HARTIGAN, Circuit Judges.

MAGRUDER, Chief Judge.

The United States Attorney for the District of Massachusetts has initiated this proceeding by filing a petition asking us to issue to Angus M. MacNeil, Esq., an order requiring him "to show cause, if any there be, why he should not be removed from the office of attorney and counsellor of this Honorable Court and why his name should not be stricken from its rolls, or why he should not be suspended from the office of attorney and counsellor of this Honorable Court." The petition recites that the said MacNeil had been admitted to the Massachusetts bar on April 27, 1932, and the bar of this court on October 4, 1945; that on March 10, 1959, Mr. Justice Harold P. Williams of the Supreme Judicial Court of Massachusetts had entered judgment, pursuant to findings of fact and order already on file, "that Angus M. MacNeil be, and he is hereby, removed from the office of attorney at law"; and that "by reason of these premises the said Angus M. MacNeil is now unfitted to continue as an attorney or counsellor of this Court under its Rule 7 28 U.S.C." We entered our show-cause order pursuant thereto on March 20, 1959.

In this court we have had repeated experience with the litigious qualities of Angus M. MacNeil, almost exclusively in his own behalf or as attorney for various corporations which he controls.¹ We have had numerous opportunities to initiate disbarment proceedings against MacNeil on account of actions in proceedings before this court, but we have overlooked such misconduct, without condoning it or waiving any appropriate action, perhaps due to a soft-hearted and misguided sympathy with an individual who sometimes seemed to be wholly irresponsible. The latest of these episodes occurred in No. 5453, MacNeil Bros. Company v. Cohen, 1 Cir., 264 F.2d 186, decided by us March 3, 1959 in which, in a preposterous motion asking us to transfer an appeal pending here to the Court of Appeals for the Second Circuit, MacNeil made a particularly unjustified attack upon the impartiality and integrity of the members of this court.

But when we learned of the judgment of disbarment rendered in the state court, we felt we had to take some action pursuant to Rule 7 of the rules of this court. Accordingly, we requested the United States Attorney to investigate the circumstances of the state disbarment, and then to file the petition upon which our show-cause order was based. We did not undertake to suspend MacNeil "forthwith" as seems to be required by our Rule 7, as it is by the corresponding provision of Rule 8 of the Rules of the Supreme Court of the United States, 28 U.S.C. (346 U.S. 954), since such action seemed unnecessary at that time.

Although our show-cause order of March 20, 1959, fixed the date of Thursday, April 9, 1959, for an oral hearing on the petition for disbarment "if said Angus M. MacNeil shall indicate in his said answer his desire to do so, then and there to make any statement or presentation concerning any relevant matter expressly set forth in his said answer", the answer filed by MacNeil to the petition for disbarment contained no such request for an oral hearing.² However, pursuant to a subsequent motion filed by MacNeil on April 6, 1959, we entered an order granting leave to respondent "to appear before this Court at 11 o'clock A.M. on Thursday, April 9, 1959, to make any statement or presentation concerning any relevant matter `expressly set forth in his said answer' and clearly within the definition of good cause appearing in Selling v. Radford, 243 U.S. 46, 37 S.Ct. 377, 61 L.Ed. 585". At the same time the order of this court concluded with the following:

"As to that portion of said motion for a hearing which seeks `issuance of process to witnesses\', summonses duces tecum to clerks of Massachusetts state courts, without specifying records, documents or cases, but presumably meaning the unidentified `filed papers in certain cases\', other than No. 1439 the disbarment proceeding, as claimed by respondent in his motion for enlargement to have been sequestered by certain members of the judiciary, and there being no showing that such unidentified documents are intrinsic records properly relevant herein, It is ordered that the request for issuance of such summonses be, and the same hereby is, denied."

MacNeil did appear before us on April 9, and was accorded a full hearing. At that time sworn testimony was given by MacNeil and by an assistant to the attorney who represented the Boston Bar Association at the disbarment proceeding. Also, numerous exhibits were received in evidence, most of which were introduced by MacNeil.

We realize full well that disbarment from practice before a federal court does not necessarily follow automatically from a state court judgment of disbarment. See Selling v. Radford, 1917, 243 U.S. 46, 37 S.Ct. 377, 61 L.Ed. 585; Theard v. United States, 1957, 354 U.S. 278, 77 S.Ct. 1274, 1 L.Ed.2d 1342. But as emphasized by the Supreme Court in the above-cited cases, we do not sit to review the judgment of the state court. In Selling v. Radford, supra 243 U.S. 46, 37 S.Ct. 378, the Court pointed out that, though the state court's order of disbarment is not binding upon a federal court "as the thing adjudged in a technical sense", nevertheless, the necessary effect of the judgment of disbarment by the state court "as long as it stands unreversed, unless for some reason it is found that it ought not to be accepted or given effect to, has been to absolutely destroy the condition of fair private and professional character, without the possession of which there could be no possible right to continue to be a member of this Bar." (243 U.S. at page 50, 37 S.Ct. at page 378) Continuing, the Court said 243 U.S. at page 51, 37 S.Ct. at page 379:

"that we should recognize the condition created by the judgment of the state court unless, from an intrinsic consideration of the state record, one or all of the following conditions should appear: 1. That the state procedure, from want of notice or opportunity to be heard was wanting in due process; 2, that there was such an infirmity of proof as to facts found to have established the want of fair private and professional character as to give rise to a clear conviction on our part that we could not, consistently with our duty accept as final the conclusion on that subject; or 3, that some other grave reason existed which should convince us that to allow the natural consequences of the judgment to have their effect would conflict with the duty which rests upon us not to disbar except upon the conviction that, under the principles of right and justice, we were constrained so to do."

At the oral hearing before us, MacNeil contended that we should regard the state court judgment as a nullity because, at the hearing upon which it was based, MacNeil had been denied due process of law. In this connection there is not the slightest doubt that MacNeil received notice of the state court proceeding; indeed he appeared before Justice Williams and engaged in presenting the testimony of at least one witness in his own behalf and in cross-examining witnesses presented on behalf of the moving Boston Bar Association. Furthermore, he filed so many motions and repetitious "demands" (numbering about twenty-five) that finally, in self-defense, Justice Williams on January 14, 1958, entered an order "that no further papers be filed in this proceeding, except with the prior approval of the Court". In fact, some twenty-nine papers seem to have been filed by MacNeil even after this order.

MacNeil also claimed that the state proceeding did not afford him due process, because Justice Williams was a defendant in an action brought by MacNeil. Again, MacNeil has failed to prove the pertinent facts, but we understand that all the justices of the various courts of the Commonwealth, described as a class, had been sued by MacNeil. Compare MacNeil Bros. Co. v. Justices of the Superior Court, 1 Cir., 1957, 242 F.2d 273, certiorari denied 1957, 355 U.S. 805, 78 S.Ct. 48, 2 L.Ed.2d 49; Handy Cafe, Inc. v. Justices of the Superior Court, 1 Cir., 1957, 248 F.2d 485, certiorari denied 1958, 356 U.S. 902, 78 S.Ct. 561, 2 L.Ed. 2d 580. In the circumstances, it is abundantly clear that Justice Williams was not so interested as to be disqualified from sitting in the disbarment proceeding under the Federal Constitution. Indeed, it would be a strange rule that would allow a person to obtain immunity from the courts by the simple stratagem of filing frivolous complaints joining the whole judiciary by describing all the judges as a class.

In support of his contention that Justice Williams had denied him due process of law, MacNeil alleged that the state court had "refused to order specifications sought by the said MacNeil and specifically denied to said MacNeil the right to plead or prove his defenses to the matters charged." With reference to the lack of specifications, it appears from an inspection of the entries on the docket of the state court proceeding, a copy of which was received as an exhibit in this case, that respondent MacNeil made a motion on December 3, 1957, for the filing of specifications, and that on January 21, 1958, specifications by the Boston Bar Association were duly filed; and though in the above-mentioned order of January 14, 1958, Justice Williams had given advance approval to the filing of a motion by respondent to strike said specifications, no such motion to strike was ever filed.

With reference to the claim that respondent had been deprived of the right to summon...