In re Thatcher

• Decision Date: 11 November 1911
• Docket Number: 2,172.
• Citation: 190 F. 969
• Parties: In re THATCHER.
• Court: U.S. District Court — Northern District of Ohio

190 F. 969

In re THATCHER.

No. 2,172.

United States Circuit Court, N.D. Ohio.

November 11, 1911

[Copyrighted Material Omitted] [Copyrighted Material Omitted] [Copyrighted Material Omitted]

C. A. Seiders, George P. Kirby, and Harry B. Thompson, prosecuting committee.

John J. Sullivan and Rhea P. Cary, for respondent.

KILLITS District Judge.

We approach the consideration of the charges and of the testimony affecting the standing of Charles A. Thatcher at the bar of this court with the feeling that the case has an importance much beyond cases of this kind generally, in that it affects broader interests than those of the respondent, much as it means to him. From the disbarment of Mr. Thatcher by the Supreme Court of Ohio in June, 1909 (80 Ohio St. 492, 89 N.E. 39), has come a plain conflict between the legislative and judicial branches of the state government, and an assiduous propaganda has cultivated a widespread public feeling that that court in its judgment and proceedings went to the limits of judicial arbitrariness and arrogance and actually invaded the sacred right of free speech.

In these days, when railing at the courts is somewhat fashionable, and is found to be a convenient means for inflaming public sentiment, when the wisdom of the fathers in providing for an independent judiciary finds many to question, that case is indeed important which deals indirectly at least, and none the less surely, with the issue which respondent and his friends have raised against the highest judicial authority of Ohio, and in which they have arrayed in antagonism two of the three branches of the state government. That the records before us compel something of a review of the state court's judgment will plainly appear as this discussion proceeds. In the unique and unfortunate circumstances before us, we find demand for analysis of the case in greater length than would otherwise be necessary.

The attention of this court was first called to the respondent's alleged professional delinquencies through the presentation of a certified copy of the judgment disbarring him and the demand of the committee prosecuting him in the state court, which committee was composed of members also of the bar of this court, that Thatcher ipso facto be removed from our rolls. This the court declined to do, but did refer the matter for advice to a committee of three members of the bar of this district, who were without the local atmosphere and wholly beyond the possibility of any bias whatever. The committee's recommendation was that a committee of prosecution be appointed to bring respondent formally to the bar of this court. December 9, 1910, the court acted upon the recommendation of this advisory committee, filing a memorandum in which the delay was explained, and in which these passages occur:

'This court entertains no opinion upon the merits of this matter save to honor the presumption that Mr. Thatcher, once having been found worthy of admission to its bar, continues in that happy state; but we do most strongly feel that the present anomalous and equivocal situation should be determined as soon as that consummation can be decently effected. It seems clear that the highest consideration toward this court, toward another court with which relations of comity must always exist, and toward Mr. Thatcher himself, demands action. The presence on the court files of the report of a committee whose advice the court sought challenges action. * * * If the Supreme Court of Ohio rightfully and justly characterized Mr. Thatcher in its judgment then the dignity of the federal court requires that it refuse Mr. Thatcher professional privileges after a proper inquiry; otherwise it must abdicate a claim that it is particular touching the moral qualifications of those who are permitted to plead at its bar. If the state court has perpetrated an injustice of which Mr. Thatcher is a victim, no better opportunity for vindication may be offered him than an investigation in this court. If he succeeds here, his rehabilitation in the state court would doubtless be but a matter of time. As the matter now stands, his partisans may refer to his ability to practice in this court as a ground for censure of the state court, and his enemies may also find in the same situation an occasion for cavil at this court. Each tribunal must therefore suffer in dignity and respect. That this very unsatisfactory and unpleasant situation may be ended, this court proposes now to follow the advice invoked of the body it designated last year, and appoint a committee to make a presentment upon which a hearing may be had.'

In selecting these gentlemen special attention was given to avoid any one who might be said to be within the influence of that portion of the local bar assumed by respondent to be leagued against him. We feel that our judgment in the selection was fully justified, and deep obligation is felt by the court to each member of the committee for the manner in which this vexatious, thankless, and laborious task was performed.

In order that respondent might not be embarrassed in the trial of several cases on our docket, the committee was directed to make no report prior to January 25, 1911. The committee did not in fact report until March 6th. Respondent's demurrers having been overruled, on the 23d of May the case came on to be heard upon the charges and answer.

Early in the case the court found itself at variance with the respondent and his counsel touching the nature of the office of attorney at this bar and of the proceedings in disbarment. We wholly disagree with respondent that the right to practice law is a properly right, to be treated with all the incidents peculiar to property. On the other hand, we hold that it is merely an extraordinary privilege, valuable to the holder, it is true, and granted to him for life on certain conditions, upon the reasonable maintenance of which by him depends his continuance in office.

By approved practice and ex necessitate an attorney at law is clothed in some measure with the court's power. For instance, his engagement in a case gives him the right to command the court's processes of summons and subpoena, and the court's officers are at his call to execute his will in behalf of his client for many purposes.

His retainer gives him the ear of the court, and also affords him the court's protection against a refractory client. He is the only proper vehicle of communication between the court and his client, and upon him the court must rely for the performance of many intimate and responsible duties. These and other considerations suggest that to call him an officer of the court is by no means a figure of speech. The accepted code of legal ethics is clear that in the presentation of his client's cause it is his duty to help save the court from error and imposition and to aid the court to a proper determination of the law and the facts. Theoretically, at least, it is counsel's first duty to see that the issue is justly decided, however his client is affected. Every jurisdiction not controlled by constitutional limitations requires that a candidate for admission to the bar shall show himself to have those qualifications, mental, educational, and moral, which promise a capacity to faithfully represent a client and to earn and retain a court's confidence.

Such being, then, the office, intimate and peculiar in its relation to, and vital to the well-being of, the court, and indispensable to the administration of justice, to say that it occupies the plane of property is to say that a court may not by its own proper methods protect itself against its creatures. The right to be admitted to practice, when the proper qualifications are shown to be possessed, is conceded. A court may not arbitrarily refuse the privilege. Once admitted, the right to maintain his professional position against anything less than a judgment of exclusion, arrived at after a formal hearing upon notice and in the exercise of a sound and judicial discretion, likewise abides with an attorney at law. This is the tenor of all the authorities. This is the extent of his 'estate' in his profession. No case cited to us or known to us says anything else, even in dictum, unless distorted from its context, or that the right to practice law has all the incidents of a property right. If Ex parte Garland, 4 Wall. (71 U.S.) 333, 18 L.Ed. 366, so frequently referred to by respondent's counsel, has any bearing at all on this question, it is in this line.

The language of Chief Justice Marshall in Ex parte Burr, 9 Wheat. (22 U.S.) 529, 6 L.Ed. 152, uttered 80 years ago, is the present law on the subject, and protects fully both attorney and court:

'On one hand, the profession of an attorney is of great importance to an individual, and the prosperity of his whole life may depend upon its exercise. The right to exercise it ought not to be lightly or capriciously taken from him. On the other, it is extremely desirable that the respectability of the bar should be maintained, and that its harmony with the bench should be preserved. For these objects, some controlling power, some discretion, ought to reside in the court. This discretion ought to be exercised with great moderation and judgment; but it must be exercised, and no other tribunal can decide, in a case of removal from the bar, with the same means of information as the court itself.'

The court uttering these words surely did not consider that it was dealing with a property right. Except where some constitutional or statutory provision intervenes, all reported attempts to review judgments of disbarment are found to have encountered this same theory of the status of the practice of law as a privilege, in distinction to an absolute...