In re Sleeper

• Citation: 251 Mass. 6
• Parties: IN THE MATTER OF ALVAH G. SLEEPER.
• Decision Date: 28 January 1925
• Court: United States State Supreme Judicial Court of Massachusetts

251 Mass. 6

IN THE MATTER OF ALVAH G. SLEEPER.

Supreme Judicial Court of Massachusetts, Suffolk.

January 28, 1925

October 21, 22 1924.

Present: RUGG, C.

J., BRALEY, CROSBY PIERCE, & SANDERSON, JJ.

Attorney at Law Disbarment. Practice, Civil, Disbarment proceedings, Finding by trial judge, Exceptions, New trial.

If, in a proceeding for the disbarment of an attorney at law, questions are presented to this court respecting general or special findings of fact made by the trial court, such findings must stand when they are warranted by direct testimony or as inferences from all the evidence.

In a proceeding for the disbarment of an attorney at law, upon evidence warranting the findings, a single justice found that the respondent made to two members of the State police statements in substance and effect that a client of his had represented that he already had paid on three different occasions large sums of money by way of blackmail to certain lawyers, that an appointment had been made for the client to go to a designated room in a Boston hotel, where he feared that a further demand would be made on account of the same matter that the respondent advised his client to go pursuant to the appointment, that the respondent followed shortly after and found in the room three lawyers whom the respondent named and that after a brief conversation all left the room and no money was paid; that at a hearing before a subcommittee of a committee of a bar association on grievances, which was investigating the conduct of some of the lawyers named, the respondent denied having made such statements to the police officers; and at the hearing before the single justice he also denied having made such statements. Held, that

(1) There was no error in a refusal by the single justice to rule that upon all the evidence there was nothing to show deceit, malpractice or other gross misconduct on the part of the respondent;

(2) A conclusion by the single justice, that the respondent "was guilty of gross misconduct when, before the subcommittee of the grievance committee of the" bar association "he untruthfully denied that he had told" the police officers "the story hereinbefore referred to," disclosed no error of law, whether it be considered a finding of fact or a ruling of law;

(3) It was proper for the single justice to refuse to rule that there was no evidence to support any finding other than that the respondent had been faithful to all his duties to his client and as an attorney and counsellor of this court.

A proceeding for disbarment of an attorney at law because he made to police officers statements relating to affairs of a client involving unprofessional conduct of certain named attorneys at law with the client and later, on inquiry by representatives of a bar association, denied having made such statements, was not designed to elicit information as to the relations of the respondent with his client but to determine whether the respondent's professional conduct had been so reprehensible as to render it proper, with a due regard to the public welfare, for him longer to be a member of the bar; and therefore it was proper for a single justice hearing the case to refuse to rule that "the petition for disbarment was not a proper method to obtain the information sought; the respondent should have been informed by legal process of the information sought, and, in case of dispute as to the duty of disclosure, the court should have determined that issue, and the information, if proper, should have been imparted under the protection of the court."

At the trial of the proceedings for disbarment above described, a material issue was, whether the respondent had made to the police officers the statements which they testified he had made and which he testified he had not made, and there was no possibility of reconciling the completely repugnant and incompatible testimony of the respondent on the one hand and of the police officers on the other. The single justice found that the respondent in giving his testimony at the trial "knowingly failed to tell the truth, and was guilty of the crime of perjury." Held, that the finding was pertinent to a material issue and disclosed no error of law.

The single justice who presided at the hearing above described, while finding the respondent guilty of gross misconduct as alleged, ruled, "No order of disbarment is made on this finding," but ordered, "An order is to be entered disbarring the respondent solely on the ground of perjury committed in the trial before me." Held, that

(1) The two quoted sentences must be read together; (2) The two sentences did not mean that the respondent would not have been disbarred or disciplined at all because of the falsehood told out of court;

(3) The two sentences taken together signified that, whatever discipline might have been inflicted for the gross misconduct committed out of court, the order for disbarment was made because the very falsehood previously told out of court was repeated on the witness stand before the single justice and thus perjury was committed, and on that ground alone;

(4) Although the finding of perjury was proper, it was not due process of law, and was error, for the single justice to disbar the respondent for the perjury committed at the trial before him without a charge of that specific nature having been made and his being given an opportunity to be heard thereon;

(5) It seems that, if the single justice had issued to the respondent an order to show cause why he should not be stricken from the roll of attorneys for the cause of perjury committed in the pending trial, he could have heard that charge summarily and entered the judgment thereon which seemed to him to be required;

(6) The orders, "No order of disbarment is made on this finding" of gross misconduct and "An order is to be entered disbarring the respondent solely on the ground of perjury committed in the trial before me," were vacated and the proceeding was ordered to stand for disposition before a single justice upon all the findings of fact made by the single justice who formerly heard the case, such weight to be given to such findings as they seemed entitled to and such order to be made as the single justice should be of opinion justice required.

No error of law is disclosed in a denial of a motion for a new trial of a proceeding for disbarment of an attorney at law based on alleged newly discovered evidence, and especially where the single justice would have been warranted in finding that the evidence was not newly discovered.

It is not, as matter of law, an unlawful exercise of discretion by a trial judge to deny a motion for a new trial based on alleged newly discovered evidence, even if the evidence is newly discovered and is material.

PETITION, filed in the Supreme Judicial Court for the county of Suffolk on October 1, 1920, by The Bar Association of the City of Boston, praying that Alvah G. Sleeper "may be removed from the office of attorney at law in this Commonwealth, or that such other action may be taken as" the court "may deem wise."

The substance of the specifications in the petition, as stated in the bill of exceptions, was as follows:

"1. That the respondent was guilty of gross misconduct when he came voluntarily to testify before the committee of the Bar Association, and deliberately lied to the committee by denying that he had told Arthur E. Keating and William H. Proctor a story as to representations made by his client to him, as said Keating and Proctor had in substance testified before the committee.

"2. That if said story was true he was guilty of gross misconduct as a citizen and a multo fortiori as a member of the bar in lying about it to shield Joseph C. Pelletier and

Daniel H. Coakley, and prevent the exposure of an offense so serious.

"3. That if the story was false, the respondent was guilty of gross misconduct in that he told the whole of it to said Keating and Proctor, and parts of it to the Committee in William G. Thompson's office, thereby exposing a public official and brother lawyers to lying and disgrace, and in that later at the formal hearing before the Committee, he so qualified his denials, and so declined without any sufficient reason to testify on important details, as to furnish only a partial exoneration of the men he had traduced."

By virtue of the authority given by R.L.c. 165, Section 44; St. 1919, c. 260, the Attorney General, with the approval of the court, designated Henry F. Hurlburt, Esquire, to conduct the proceedings.

The petition was heard by Jenney, J. Material evidence at the hearing is described in the opinion. At the close of the evidence, the respondent asked for the following rulings:

"1. Upon all the evidence in the case there is nothing to show deceit malpractice, or other gross misconduct upon the part of the respondent.

"2. That there is no evidence to support any finding other than that the respondent has been faithful to all his duties to his client and as an attorney and counsellor of this court.

"3. That the charge of gross misconduct on the part of an attorney, constituting a cause of disbarment, consists of moral turpitude in his relations with his client.

"4. That scurrilous remarks of one attorney relative to another are not cause for disbarment, the remedy being a civil one to be instituted by the one aggrieved and is answerable in damages.

"5. That the petitioning corporation has no control over the respondent who is a non-member; that his appearance before it is purely voluntary and he is under no obligation to disclose any act to said association or any committee thereof.

"6. That the respondent was under no obligation to disclose any confidential relation with any client,...