In re Santosuosso

• Decision Date: 06 July 1945
• Citation: 318 Mass. 489,62 N.E.2d 105
• Parties: MATTER OF JOSEPH SANTOSUOSSO.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

318 Mass. 489

62 N.E.2d 105

MATTER OF JOSEPH SANTOSUOSSO.

Supreme Judicial Court of Massachusetts, Suffolk.

July 6, 1945

April 4, 1945.

Present: FIELD, C.

J., DOLAN, RONAN WILKINS, & SPALDING, JJ.

Attorney at Law. Practice, Civil, Membership in bar. Evidence, Competency, In disbarment proceeding, Evidence in another proceeding Findings in another proceeding.

Statement by DOLAN J., as to the nature of an inquiry, upon an information filed with the court, into alleged misconduct of an attorney at law.

The evidence adduced at the hearing of a suit in equity against an attorney at law at which he was present and represented by counsel, is admissible in a subsequent inquiry into alleged misconduct on his part upon an information filed with the court, and is entitled to such weight as the court may deem proper; but findings of material facts made by the trial judge in such suit in equity are not admissible in the inquiry.

INFORMATION, filed in the Supreme Judicial Court for the county of Suffolk on December 21, 1943.

A report to the full court was made by Qua, J.

N. Leonard, designated to conduct the proceedings.

F.

L. Simpson, for Santosuosso.

DOLAN, J. This is an inquiry into certain alleged misconduct of Joseph Santosuosso, Esquire, a member of the bar. The proceeding came before a single justice of this court upon an information filed by the Bar Association of the City of Boston. The case comes before us upon a report of the single justice as follows: "This matter came on to be heard before me on the merits. At the beginning of the hearing the petitioner offered in evidence the following: (1) The entire printed record now in the files of the clerk of the Supreme Judicial Court for the Commonwealth of Massachusetts of a civil case in equity which was commenced in the Superior Court for Suffolk County and entitled City of Boston vs Joseph Santosuosso, et al., Superior Court Docket No. 47350 Equity, being the entire record of said case on appeal before the full court, Docket Equity No. 3856, opinion dated November 22, 1940, reported 307 Mass. 302 . (2) The Findings and Order in that case made in the Superior Court by Fosdick, J. and filed on February 16, 1938, which findings are included in the printed record above referred to, at pages 643 to 649 thereof. A copy of said entire printed record is annexed hereto and made a part hereof and marked A. The respondent objected to the admission in evidence of all and of any part thereof. The counsel designated by the court to conduct the proceedings in this case stated that he had no other evidence to offer in support of the petition. At the hearing each counsel stated he was unable to produce Frederick H. Graves. It therefore appeared that the questions of law whether the offered evidence was competent for any purpose, and if competent at all, what effect should be given to it, would probably be decisive of this present case. Being in doubt as to both questions, I reserved my ruling thereon, and now I report the questions of law as to the competency and the effect of the evidence to the full court for determination. If none of the offered evidence is competent for any purpose, the present petition is to be dismissed. If the evidence or any part of it is competent for any purpose, the petition is to stand for further hearing in accordance with such decision as the full court may make upon the effect to be given to the evidence."

Counsel for Mr. Santosuosso argues that the proffered evidence is not admissible under the doctrine of res judicata, and also that, apart from the doctrine of res judicata, the statements made by the judge of the Superior Court in his findings and decree are inadmissible as evidence. These contentions call for a consideration of the nature of the present proceeding. It is settled that it is an inquiry and not an adversary proceeding. Boston Bar Association v. Casey, 211 Mass. 187 , 191-192. Matter of Keenan, 287 Mass. 577 , 583. It is commenced not by a petition for disbarment but rather by an information wherein the matters there set forth are brought to the attention of the court with a prayer, not for disbarment or other specific disciplinary action, but rather for such action as the court may deem fit. It is in essence a submission to the court of the alleged facts for investigation by the court and such disposition as the court deems proper. The counsel designated by the court to conduct the proceeding is but an officer nominated by the court to assist in the inquiry to be made by the court itself. The proceeding is not an action at law in the strict sense nor a suit in equity. As was said in Boston Bar Association v. Casey, 211 Mass. 187 , 191, it "is not a proceeding between two parties where the court is asked to adjudicate conflicting claims as to some right, corporeal or incorporeal, and where a decision favorable to one party is necessarily to that extent unfavorable to the other." The respondent is entitled to a fair trial in the light of the character of the proceeding, and to that end an opportunity to know all that he must meet and the right to present such evidence as he may be able to produce to rebut the representations of alleged misconduct.

A citation of the numerous cases decided in this jurisdiction and elsewhere, in which the required character of members of the bar and the powers and the duties of the court with respect to admission to and removal from the bar are considered, would serve no useful purpose. They are crystallized in Matter of Keenan, 314 Mass. 544 , where the court said: "The right to practise law is not one of the inherent rights of every citizen, as is the right to carry on an ordinary trade or business. It is a peculiar privilege granted and continued only to those who demonstrate special fitness in intellectual attainment and in moral character. All may aspire to it on an absolutely equal basis, but not all will attain it. Elaborate machinery has been set up to test applicants by standards fair to all and to separate the fit from the unfit. Only those who pass the test are allowed to enter the profession, and only those who maintain the standards are allowed to remain in it. To those who acquire and who retain the necessary qualifications is granted a monopoly of the honors and emoluments of a profession which more than any other is public in its nature and intimately connected with the highest functions of the State. Such a monopoly in a quasi public occupation is in no sense promoted and fostered for the personal advantage of individuals. It can be justified only on the ground that long experience has shown it to be absolutely essential to the public welfare. All this is familiar enough. It is adverted to here only for the purpose of emphasizing at the outset that in deciding a case of this kind considerations of public welfare are wholly dominant. The question is not whether the respondent has been `punished' enough. To make that the test would be to give undue weight to his private interests, whereas the true test must always be the public welfare. Where any clash of interest occurs, whatever is good for the individual must give way to whatever tends to the security and advancement of...