In re Shepard

• Decision Date: 30 June 1896
• Court: Michigan Supreme Court
• Parties: IN RE SHEPARD.

67 N.W. 971

109 Mich. 631

IN RE SHEPARD.

Supreme Court of Michigan

June 30, 1896

Certiorari to circuit court, Hillsdale county; Victor H. Lane, Judge.

Certiorari by Charles A. Shepard to reverse a judgment of disbarment. Affirmed.

HOOKER J.

The defendant was a practicing lawyer in Hillsdale county, and was disbarred by a judgment of the Hillsdale circuit court upon charges filed by the prosecuting attorney. The legal questions presented are: (1) Had the court jurisdiction? (2) Were the charges sufficient? (3) Was the defendant denied sufficient time in which to prepare for trial? (4) Was he entitled to a jury trial? (5) Was there evidence warranting the judgment? (6) Were the proceedings rendered void by the failure of the clerk to enter judgment at once, and had the court power to cause the entry made nunc pro tunc, in a blank space left for the entry in the proceedings of the day upon which the decision was announced, when the omission was brought to his attention?

The charges filed in the case were quite explicit, being signed and verified upon information and belief by the prosecuting attorney. The defendant contends that charges against an attorney must be verified, and that it is not sufficient if they be stated or appear to be upon information and belief. In criminal proceedings and proceedings by capias ad respondendum, it is generally considered necessary that the circumstances upon which the magistrate issues his warrant should be shown by the testimony of those conversant with them. In such cases the defendant may be deprived of his liberty, but in other proceedings, where neither the person nor property is subject to interference or seizure verification is not usual. Even in garnishment and attachment it is sufficient to state certain material facts upon information and belief. It is a proper, and perhaps the most natural practice, that charges be presented by petition which, under the ordinary course of practice would be verified, or by motion supported by affidavit. Upon these an order to show cause issues, which brings the defendant before the court, and gives him the opportunity to answer. Weeks on Attorneys at Law (page 180) says that "the proper practice in applications to strike an attorney's name from the rolls is to apply to the court and support the application by affidavits, setting forth definitely, positively, and specifically, the misconduct complained of." In Ex parte Burr, 9 Wheat. 529, Chief Justice Marshall expressed the opinion (not necessary to a decision of the case, however, and not controverted, but admitted in that case) that charges in a regular complaint against an attorney ought not to be received and acted upon unless made on oath; but this falls short of the proposition that they can be made and verified only by those having personal knowledge of the facts. That is more than is required in bills of complaint and ordinary petitions, the rules of court prescribing a form which recognizes verification upon information and belief. We are cited to a number of cases in support of the contention, but they appear to be criminal cases, capias, or fraudulent debtor proceedings, or cases where statutory requirements are involved. While a court may properly hesitate to issue an order to show cause upon the bare statement of charges, and require verified charges, we are not aware of any prohibition. It is a matter of judicial discretion, and may be exercised upon any information that moves such discretion. Weeks asserts that "it is the duty of the court to cause charges to be preferred against an attorney whenever it is satisfied *** by any satisfactory proof that a case exists where the public good and the ends of justice require it." Weeks, Attys. at Law, 179. Such course has been followed repeatedly. In Ex parte Wall, 107 U.S. 265, 2 S.Ct. 569, the order was issued upon information to the judge by an eyewitness of the act charged, and a motion to dismiss was denied. In Randall v. Brigham, 7 Wall. 523, the order was issued upon a letter addressed to the grand jury. An unanimous court, speaking through Mr. Justice Field, said: "It is not necessary that proceedings against attorneys for malpractice or any unprofessional conduct should be founded upon formal allegations against them. Such proceedings are often instituted upon information developed in the progress of the cause, or from what the court learns of the conduct of the attorney from his own observations. Sometimes they are moved by third parties upon affidavit, and sometimes they are taken by the court upon its own motion. All that is requisite to their validity is that when not taken for matters occurring in open court, in the presence of the judges, notice should be...