In re Ulmer

• Decision Date: 12 September 1929
• Parties: In re ULMER.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

268 Mass. 373

167 N.E. 749

In re ULMER.

Supreme Judicial Court of Massachusetts, Suffolk.

Sept. 12, 1929.

Exceptions from Superior Court, Suffolk County; McLaughlin, Judge.

Disciplinary proceedings by the Bar Association of the City of Boston against W. Edwin Ulmer, an attorney at law. Order denying motion to dismiss and overruling demurrer and plea in abatement, and respondent brings two bills of exceptions. Exceptions overruled.W. B. Grant and E. R. Anderson, both of Boston, for respondent.

C. W. Mulcahy, of Boston, appointed by court to conduct proceedings.

RUGG, C. J.

This is a proceedings designed to bring to the attention of the court for disciplinary action professional misconduct of an attorney at law. It was instituted by the Bar Association of the City of Boston, a Massachusetts corporation. Its initial step in court for convenience may be termed a petition. In truth the paper filed by it simply directed the attention of the court to the facts that W. Edwin Ulmer was admitted to the bar of this Commonwealth in 1897 under the name of William E. Ulmer and thereafter practiced in Boston; that ‘in a proceeding brought in the District Court of the United States for the District of Massachusetts by the United States Attorney for said District for the purpose of disbarring the respondent for professional misconduct amounting to moral wrong he was, after notice and full hearing, found by said Court to have committed wrongful acts complained of and disbarred from practice in said Court by a decree filed on or about September 12, 1922. A copy of the findings of Morris, J., on which tae said decree was entered is hereto annexed marked A.’ The prayer was that the court take such action as it may see fit.

[1][2][3] 1. The respondent filed a motion to dismiss. This form of pleading relates to matters apparent upon the record. It raises a pure question of law. It is not appropriate to the presentation of questions of fact. Paraboschi v. Shaw, 258 Mass. 531, 532, 155 N. E. 445, 446, and cases there collected. Amidown v. Peck, 11 Metc. 467, 468. The respondent set up in this motion and now argues that the service on him did not comply with the order of the court that he be served ‘with a true and attested copy of said petition’ in that the copy served on him stated that ‘a copy of the findings of Morris, J., on which said decree was entered, in hereto annexed (on file) marked A.’ We assume in favor of the respondent that the conformity of the return of the officer to the order of the court is open on a motion to dismiss. Simonds v. Parker, 1 Metc. 508, 511. The order of notice contains no explicit direction that the copy of the findings be annexed to the notice to be served on the respondent. But in any event the omission of the annexed copy from the papers served on the respondent was not a fatal defect to be taken advantage of on motion to dismiss. It is obvious from the record as a whole that the respondent was in truth familiar with the specified findings, and that the original was a matter of easily accessible public record, and that the petition itself gave him reasonable notice of the nature of the proceeding. He was entitled to that but no to more. Matter of Sleeper, 251 Mass. 6, 18, 146 N. E. 269. In a proceeding of this nature, technical process and service are not required. From is not essential if in every matter of substance the respondent has had notice and reasonable opportunity to prepare and present his case. Boston Bar Association v. Greenhood, 168 Mass. 169, 184, 46 N. E. 568.Matter of Allin, 224 Mass. 9, 11, 112 N. E. 494, 496, and cases there collected.

[4][5][6] The eighth and ninth grounds in the motion to dismiss relate to venue. It there is set up that the defendant is a resident of Brookline in the county of Norfolk and that, as the proceeding is brought in Boston in the county of Suffolk, it ought to abate. This relates to venue and not to jurisdiction. Paige v. Sinclair, 237 Mass. 482, 130 N. E. 177. It raises a question of fact not appearing on the record. Strictly speaking, its merits are not open on a motion to dismiss, which, as already pointed out, deals solely with questions of law and not of fact. Assuming for the moment that it is open to the respondent, there is no merit in the point. Judicial notice is taken of local georaphy. Brookline is a town chiefly residential in character, and, although a part of Norfolk County is not adjacent to any other part of that county and is almost entirely surrpounded by Boston. It is hardly distinguishable in business aspects from other parts of Boston. Large numbers of its inhabitants engage in business in Boston. The conduct of the respondent on which these proceedings are founded took place in the court of the United States held within the territorial confines of Suffolk County. It was said in Boston Bar Association v. Greenhood, 168 Mass. 169, 183, 46 N. E. 568, 575, that an inquiry of this nature ‘is not a criminal proceeding. Its primary purpose is not punishment, but the preservation of the purity of the courts, and the protection of the public from attorneys who disregarded their oath of office.’ It is not necessarily instituted, prosecuted, or forwarded by a writ. It is a proceeding at law. It is in the nature of an inquiry by the court into the conduct of one of its own officers. Proceedings may be brought in the most summary manner, provided constitutional rights are respected. It hardly could be contended that flagrant abuse of professional privileges or outrageous conduct committed in the presence of the court by an attorney resident in a distant county might not be tried summarily and without delay, instead of being justiciable only in the county of his domicil. Randall, petitioner, 11 Allen 473, 479.Boston Bar Association v. Casey, 211 Mass. 187, 191, 97 N. E. 751.Matter of Sleeper, 251 Mass. 6, 12, 18, 19, 146 N. E. 269. Ex parte Robinson, 19 Wall. 505, 512, 513, 22 L. Ed. 205. Ex parte Wall, 107 U. S. 265, 2 S. Ct. 569, 27 L. Ed. 552. The proceedings in the case at bar conformed to the procedure pointed out in Boston Bar Association v. Casey, 211 Mass. 187, 191-193, 97 N. E. 751. The strict terms of the statute as to venue are not applicable. It is not conceivable that any undue hardship was inflicted upon the respondent by holding the trial in Suffolk instead of in Norfolk County. There is no indication of that nature in the record. He is alleged to have practiced in Suffolk County. Other matters set forth in the motion to dismiss have not been argued and are treated as waived. There was no error in overruling this motion.

II. The respondent filed a plea in abatement setting up in substance that the disbarment proceedings in the United States District Court for the District of Massachusetts were void because the defendant never was a member of the bar of the court. There are several answers to the contention thus put forward.

[7][8] A. The necessary implication of the decision of the Federal court disbarring the respondent is that that court considered him a member of its bar even though the point was not expressly raised. That decision imports a finding of every fact essential to the conclusion reached. A court cannot disbar an attorney at law unless he has first in some way become a member of its bar. The courts of each jurisdiction must decide for themselves who is and who is not a member of its bar. No other court can enter an effective judgment on that point. The courts of each jurisdiction are invested with the right and charged with the duty of determining who may practice before them as an attorney at law. No court of any other jurisdiction is clothed with the power of reviewing such determination. This is the underlying principle of Selling v. Radford, 243 U. S. 46, 37 S. Ct. 377, 379, 61 L. Ed. 585. That case further holds that an attack upon the soundness of such determination is confined to what may be disclosed by the record. There are enumerated in that case certain conditions which may lead the court of another jurisdiction not to give full weight and the natural effect to such determination, but these are confined to matters appearing ‘from an instrinsic consideration of the record of the * * * court’ making such determination. A careful examination of the record of the proceedings in the Federal court would be necessary to determine (1) that there was notice to the respondent and full hearing on the charges presented; (2) that there was no ‘such an infirmity of proof as to facts found to have established the want of fair private and professional character as to give rise to a clear conviction on our part that we could not, consistently with our duty, accept as final the conclusion on that subject’; and (3) that no other grave reason exists who the natural consequences of that judgment should not be given their full effect. 243 U. S. at page 51, 37 S. Ct. 377, 61 L. Ed. 585. See Thatcher v. United States (C. C. A.) 212 F. 801. The application of the principles of Selling v. Radford to the facts here disclosed will be considered later. The circumstance that in that case the admission to the bar of the Supreme Court of the United States had been based on an admission to the bar of a State court does not differentiate the principles there declared from application to facts disclosed on the present record. The fundamental question in all such cases is whether in the respondent there is absence of the sound private and professional character essential for an attorney at law.

[9] B. The respondent appeared generally in the proceedings in the Federal court for his disbarment and did not contest the fact that he was a member of its bar and hence subject to its disciplinary action. On the contrary he engaged in a full trial on the merits of the charges presented as grounds for his disbarment. Plainly that court had jurisdiction of the subject-matter of disbarring and disciplining those admitted...