In Re Schofield.

Decision Date24 June 1949
PartiesIn re SCHOFIELD.
CourtPennsylvania Supreme Court

362 Pa. 201
66 A.2d 675

In re SCHOFIELD.

Supreme Court of Pennsylvania.

May 23, 1949.
On Reprimand June 24, 1949.


No. 221, Miscellaneous Docket No. 9.

The Attorney General of the Commonwealth filed a petition praying that Lemuel B. Schofield, respondent, be required to show cause why he should not be disciplined for alleged professional misconduct while representing a defendant in a criminal prosecution.

Respondent ordered to appear for public reprimand and censure.

66 A.2d 676

Before MAXEY, C. J., and DREW, LINN, STERN, PATTERSON, STEARNE and JONES, Jj.

T. McKeen Chidsey, Attorney General, John G. Buchanan, Special Counsel, Pittsburgh,

66 A.2d 677

Emory R. Ryle, Pittsburgh, for petitioner.

George G. Chandler, C. Brewster Rhoads, Robert T. McCracken, Philadelphia, Marvin Comisky, W. Bradley Ward, Philadelphia, Thomas D. McBride, Philadelphia, for respondent.

LINN, Justice.

The Attorney General of the Commonwealth filed a petition praying that Lemuel B. Schofield, a member of the bar of this court, be required to show cause why he should not be disciplined for professional misconduct while representing the defendant in the Quarter Sessions of Philadelphia, in the trial of indictments Nos. 517 and 589 October Sessions, 1948, charging violation of the Magistrates' Court Act of June 15, 1937, P.L. 1743, 42 P.S. § 1101 et seq. A rule was granted. The respondent appeared and answered on the merits. As there was no dispute of material fact, the case was heard on petition and answer. We have considered all the points presented in the briefs and in oral argument but shall refer only to those deemed essential to the proper disposition of the rule.

1. Jurisdiction. There is no doubt of the power 1 of this court to disbar, suspend or otherwise appropriately discipline members of its bar; they are officers of the court admitted to office on taking the statutory oath, 2 inter alia, to behave ‘with all good fidelity’ to the court as well as to the client. When, as in this case, the pleadings disclose no dispute of material fact, it is unnecessary to refer the record to the Board of Governance to aid the court by finding facts and making recommendations. In any case the final disposition is by this court: see our Rule 17(g), (h) and (i). In Klenisn v. Board of Governance of Pennsylvania Bar, 1933, 312 Pa. 564, 575, 168 A. 474, 478, we said, ‘[The Board's] function is to determine, assuming the findings of the hearing masters to be correct, whether the recommendation of the masters to us are warranted. The judicial review is at our hands, not by the board.’ See also In re Disbarment Proceedings, 1936, 321 Pa. 81, 101, 184 A. 59, 68. We therefore reject respondent's submission that the petition and answer be referred to our Board of Governance.

2. Violation of Oath of Office. In considering the Attorney General's charge that respondent violated his oath of office, it is necessary to refer briefly to the trial in the Quarter Sessions in which the challenged conduct occurred. The indictments charged violation by the indicted magistrate of the Magistrates' Court Act of June 15, 1937, P.L. 1743, 42 P.S. § 1101 et seq.: (1) by granting continuances without stating in his docket a reason therefor as required by section 14 of the Act and (2) by reviewing, altering, modifying or remitting any sentence of fine or imprisonment or by altering any official decision in any case heard by him except in the presence of and with the written approval of the prosecutor as required by Section 43(a) of the Act. It was the second trial, the jury having disagreed on the first. The presiding judge and counsel for both sides were therefore familiar with the elements of the case and the probable course to be taken at the trial.

During the trial, the courtroom being crowded, respondent requested that seats

66 A.2d 678

be made available for character witnesses he proposed to call. The prosecution objected, at sidebar, to the relevance of character evidence and the entry into the courtroom of ‘a whole crowd’ of witnesses if such evidence would be excluded. The judge sustained the objection stating ‘[1] direct that counsel shall not call these witnesses.’ Respondent objected to the ruling and asked ‘leave to call the witnesses in the presence of the jury’ and make an offer to prove good reputation in their presence. The judge again ruled, ‘The request of counsel for the defendant is denied, and he is directed not to call the names of these witnesses, or to call them to the stand.’ In spite of that admonition, the following then occurred in the presence of the jury:

‘Mr. Schofield: [addressing the crowded courtroom said] The character witnesses who were asked to be here by the defendant are excused. Thank you all very much for coming. Thank you, Judge Bonnelly; thank you, Judge McDevitt; thank you, Judge--

‘Mr. Eldredge: If your Honor please, I think your Honor made a direction to Mr. Schofield.

‘Mr. Schofield: Well, if your Honor please, we have here in this courtroom three jurists, and if I can't say thank you for a Judge who has left the bench to come here for the support of a defendant, then I don't know the duties of a lawyer, sir, and I simply express my gratitude to all these prominent citizens and jurists of Philadelphia who have come in here to lend their aid to this defendant.

‘The Court: Major, I regard your remarks as an affront to the Court. 3

‘Mr. Schofield: I am sorry if your Honor regards it as an affront. It wasn't intended as an affront. Thank you, gentlemen, very much. Shall we resume, sir?

‘The Court: Yes.’

This ‘affront to the court,’ as it was characterized by the judge, was an act of insubordination; it was a violation of the respondent's duty to behave ‘with good fidelity’ to the court; it was an unworthy effort to get before the jury a fact or facts which the learned trial judge had ruled should not be received. Respondent's persistence to get before the jury as character witnesses the names of persons holding high office after the court ordered him not to do so was disrespectful and inexcusable. He had no right to say, after the court had ruled, ‘* * * We have here in this courtroom three jurists and if I can't say thank you for a judge who has left the bench to come here for the support of a defendant, then I don't know the duties of a lawyer, sir, and I simply express my gratitude to all these prominent citizens and jurists of Philadelphia who have come in here to lend their aid to this defendant.’ The effect was not cured by his statement ‘I am sorry if your Honor regards it as an affront. It wasn't intended as an affront.’ But he again repeated the offence by his next statement, addressed to the same witnesses, ‘Thank you, gentlemen, very much.’ There is no ambiguity about his statements. He understood the court's ruling, the manifest scope of which was that he should not bring to the attention of the jury the names of the witnesses. It is difficult to avoid the conclusion that respondent intentionally violated the express ruling of the court in its most essential implication. In such circumstances, disavowal has been considered of little avail where but one interpretation is possible. 4 Nor can the possible effect of the offense be excused by respondent's submission, in his Answer to the Attorney General's petition, in this court, that the trial judge's exclusion of character witnesses was erroneous, a point not for decision in this proceeding.

66 A.2d 679

For fifty years the legal profession has had the benefit of Justice Mitchell's well known statement in Scouten's Appeal, 1898, 186 Pa. 270, 279, 40 A. 481, ‘The bar have great liberty and high privileges in the assertion of their client's rights as they view them, but, on the other hand, they have equal obligations as officers in the administration of justice; and no duty is more fundamental, more unremitting or more imperative than that of respectful subordination to the court. The foundation of liberty under our system of government is respect for the law as officially pronounced. The counsel in any case may or may not be an abler or more learned lawyer than the judge, and it may tax his patience and his temper to submit to rulings which he regards as incorrect, but discipline and self-restraint are as necessary to the orderly administration of justice as they are to the effectiveness of an army. The decisions of the judge must be obeyed, because he is the tribunal appointed to decide, and the bar should at all times be the foremost in rendering respectful submission.’ See remarks of Justice Black in Williamson's Case, 1855, 26 Pa. 9, 21, 67 Am.Dec. 374; Fisher v. Pace, 336 U.S. 155, 69 S.Ct. 425; United States v. United Mine Workers, 1947, 330 U.S. 258, 291 et seq., 67 S.Ct. 677, 91 L.Ed. 884; Gompers v. Buck's Stove & Range Co., 1911, 221 U.S. 418, 450, 31 S.Ct. 492, 55 L.Ed. 797, 34 L.R.A.,N.S., 874; Howat et al. v. State of Kansas, 1922, 258 U.S. 181, 189-190, 42 S.Ct. 277, 66 L.Ed. 550. It is immaterial, in disposing of the case now before us, whether respondent thought the learned trial judge erred in excluding 5 the character witnesses. The court not only had the power to rule on the objection interposed by the Commonwealth but it was the court's duty to decide. The case is therefore not like cases that have been referred to in argument, in which attachment for contempt was denied for disregard of orders which the court had no power to make; see for example, Commonwealth v. Sage, 1894, 160 Pa. 399, 28 A. 863; Commonwealth v. Perkins, 1889, 124 Pa. 36, 48, 16 A. 525, 2 L.R.A. 223; In re Rose Child Dependency Case, 1947, 161 Pa.Super. 204, 54 A. 2d 297; Matter of Rossiter's Adjudication, 1924, 84 Pa.Super. 193. The judge alone has the duty of ruling on the admission of evidence; counsel's fidelity to the court requires respectful submission to the ruling; evasion is misconduct. Proper judicial procedure would be impossible if counsel and not the judge were permitted to...

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