In re Rouss

Decision Date05 June 1917
PartiesIn re ROUSS.
CourtNew York Court of Appeals Court of Appeals

OPINION TEXT STARTS HERE

Appeal from Supreme Court, Appellate Division, First Department.

Application for disbarment of Jacob Rouss, an attorney. Respondent appeals from the order of disbarment (169 App. Div. 629,155 N. Y. Supp. 557). Order affirmed.Charles E. Le Barbier and Walter H. Pollak, both of New York City, for appellant.

George W. Wickersham and Einar Chrystie, both of New York City, for respondent.

CARDOZO, J.

In 1912 the appellant, Jacob Rouss, was the attorney for one Eugene Fox. Fox, a member of the police force in the city of New York, had been brought before a magistrate on the charge of collecting bribes from the keeper of a disorderly house. The keeper of the house, one George A. Sipp, had been served with a subpoena, or at least there had been to his knowledge an attempt to serve him. Rouss and Sipp's attorney entered into an arrangement that Sipp for a money consideration would keep without the state. The money was paid; Sipp fulfilled his bargain; and Fox was discharged. Indictments were later found against five inspectors of police for conspiracy to obstruct justice through the suppression of Sipp's testimony. On the trial of those indictments, Rouss was a witness for the people. His testimony as there given is in substance a confession fo guilt. Charges of professional misconduct were afterward preferred against him. To these charges he makes answer that he is immune from discipline by force of section 584 of the Penal Law, which says that:

‘No person shall be excused from attending and testifying, or producing any books, papers or other documents before any court, magistrate or referee, upon any investigation, proceeding or trial, for a violation of any of the provisions of this article [article 54, defining and punishing conspiracy], upon the ground or for the reason that the testimony or evidence, documentary or otherwise, required of him may tend to convict him of a crime or to subject him to a penalty or forfeiture; but no person shall be prosecuted or subjected to any penalty or forfeiture for or on account of any transaction, matter or thing concerning which he may so testify or produce evidence, documentary or otherwise, and no testimony so given or produced shall be received against him, upon any criminal investigation, proceeding or trial.’

The question is whether disbarment is a penalty or forfeiture within the meaning of that statute.

[1][2] Membership in the bar is a privilege burdened with conditions. A fair private and professional character is one of them. Compliance with that condition is essential at the moment of admission; but it is equally essential afterwards. Selling v. Radford, 243 U. S. 46, 37 Sup. Ct. 377, 61 L. Ed. 585;Matter of Durant, 80 Conn. 140, 147, 67 Atl. 497,10 Ann. Cas. 539. Whenever the condition is broken the privilege is lost. To refuse admission to an unworthy applicant is not to punish him for past offenses. The examination into character, like the examination into learning, is merely a test of fitness. To strike the unworthy lawyer from the roll is not to add to the pains and penalties of crime. The examination into character is renewed; and the test of fitness is no longer satisfied. For these reasons courts have repeatedly said that disbarment is not punishment. Ex parte Wall, 107 U. S. 265, 2 Sup. Ct. 569, 27 L. Ed. 552;Matter of Randall, 11 Allen (Mass.) 473, 480;Matter of Randel, 158 N. Y. 216, 52 N. E. 1106;Boston Bar Ass'n v. Casey, 211 Mass. 187, 192, 97 N. E. 751, 39 L. R. A. (N. S.) 116, Ann. Cas. 1913A, 1226; Matter of Durant, supra.

‘The question is,’ said Lord Mansfield, ‘whether, after the conduct of this man, it is proper that he should continue a member of a profession which should stand free from all suspicion.’ Ex parte Brounshall, Cowp. 829.

‘It is not,’ he continued, ‘by way of punishment; but the court, on such cases, exercise their discretion whether a man whom they have formerly admitted is a proper person to be continued on the roll or not.’

This ruling was announced after consultation with all the judges, ‘as it is for the dignity of the profession that a solemn opinion should be given.’ On that high plane the jurisdiction was thus early placed, and in that high spirit it has been exercised. Even pardon will not elude it. Pardon blots out the offense and all its penalties, forfeitures, and sentences; but the power to disbar remains. Matter of an Attorney, 86 N. Y. 563. We do not need to inquire now whether the power is so essential and inherent that the Legislature may not take it away. State ex rel. Wood v. Raynolds (N. M.) 158 Pac. 413, and cases there cited. At least we will not hold it to have been taken away by words of doubtful meaning. We will not declare, unless driven to it by sheer necessity, that a confessed criminal has been intrenched by the very confession of his guilt beyond the power of removal.

The problem before us, let it be recalled, is one solely of statutory construction. There is no question of constitutional right. The Constitution says that no person ‘shall be compelled in any criminal case to be a witness against himself.’ Const. art. 1, § 6. A proceeding looking to disbarment is not a criminal case. Matter of Randel, supra. We do not suggest that the witness is protected by the Constitution only when testifying in the criminal courts. The law is settled to the contrary. But to bring him within the protection of the Constitution, the disclosure asked of him must expose him to punishment for crime. There may be a broader privilege by statute or at common law. If that is so, the Constitution does not assure its preservation. Perrine v. Striker, 7 Paige, 598, 602;People ex rel. Hackley v. Kelly, 24 N. Y. 74, 82, 83;Counselman v. Hitchcock, 142 U. S. 547, 562, 12 Sup. Ct. 195, 35 L. Ed. 1110.

[4] Where speech will expose to penalties unrelated to crime, the Legislature may withdraw the privilege of silence. It has done so in the past. Perrine v. Striker, supra; Robinson v. Smith, 3 Paige, 222, 231, 24 Am. Dec. 212. It may do so again.

[5] We think that section 584 of the Penal Law was designed to give an immunity as broad as the constitutional privilege, and no broader. State v. Jack, 69 Kan. 387, 76 Pac. 911,1 L. R. A. (N. S.) 167,2 Ann. Cas. 171. Its origin is not doubtful. The rule has always been that disclosure of crimes may be compelled if there is adequate immunity. The difficulty has been to know when the immunity is adequate. People ex rel. Hackley v. Kelly, 24 N. Y. 74 (decided in 1861), held it to be a compliance with the Constitution that the testimony of the witness could not be used, though he was still subject to prosecution through the testimony of others. People ex rel. Lewisohn v. O'Brien, 176 N. Y. 253, 268,68 N. E. 353 (decided in 1903) overruled People ex rel. Hackley v. Kelly, followed Counselman v. Hitchcock, 142 U. S. 547, 12 Sup. Ct. 195, 35 L. Ed. 1110, and closed with the suggestion that:

‘If the interests of the people are deemed to require it, it is, of course, quite competent, and proper for the legislative body to provided for an exemption of the witness from liability to prosecution as broad in its effect as is the constitutional privilege.’

Following that suggestion, section 584 of the Penal Law and like statutes (see, e. g., Penal Law, §§ 380 and 381) were enacted. Their purpose was to make the Constitution and the statute coextensive and consistent. Penalties and forfeitures, as the words are used in this exemption, are penalties and forfeitures imposed upon an offender as part of the punishment of his crime. United States v. Reisinger, 128 U. S. 398, 9 Sup. Ct. 99, 32 L. Ed. 480;Boyd v. United States, 116 U. S. 616, 6 Sup. Ct. 524, 29 L. Ed. 746;Lees v. United States, 150 U. S. 476, 14 Sup. Ct. 163, 37 L. Ed. 1150;United States v. Regan, 232 U. S. 37, 34 Sup. Ct. 213, 58 L. Ed. 494;La Bourgoyne (D. C.) 104 Fed. 823. The statute is a grant of amnesty. The witness is to have the same protection as if he had received a pardon. Brown v. Walker, 161 U. S. 591, 599, 16 Sup. Ct. 644, 40 L. Ed. 819;Burdick v. United States, 236 U. S. 79, 35 Sup. Ct. 267, 59 L. Ed. 476. It is inconceivable that the intention was to give him even more. But a pardon, as we have seen, though it blots out penalties and forfeitures, does not render the courts impotent to protect their honor by disbarment. Matter of an Attorney, supra. The Legislature cannot have believed that in the interpretation of a grant of amnesty exemption from penalties and forfeitures would receive a broader meaning. Disbarment therefore is not within the range of the exemption. That was the ruling in Matter of Biggers, 24 Okl. 842, 104 Pac. 1083,25 L. R. A. (N. S.) 622, in circumstances not to be distinguished from those before us. It is a ruling well sustained by precedent and reason.

There are two other lines of argument which by different methods of approach lead to the same goal. One argument is purely verbal. It points to the concluding words of the statute:

‘No testimony so given or produced shall be received against him upon any criminal investigation, proceeding or trial.’ Penal Law, § 584.

The use of the word ‘criminal’ helps to explain and characterize the kinds of penalties and forfeitures within the range of the exemption. But there is another argument more significant than any verbal one. The argument is that, unless the immunity is limited to criminal penalties and criminal forfeitures, the state has promised more than it can perform, and the whole statute becomes illusory. There was an ancient rule in chancery that discovery would never be granted in aid of an action for a forfeiture. Earl of Mexborough v. Whitwood Urban District Council, [1897] 2 Q. B. 111, 118; Jones v. Jones, 22 Q. B. D. 425; Martin v. Treacher, 16 Q. B. D. 507; Lansing v. Pine, 4 Paige, 639;Perrine v. Striker, 7 Paige, 598, 601; Abernathy v. Society of...

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