People ex rel. Elliott v. Green

• Decision Date: 29 February 1884
• Citation: People ex rel. Elliott v. Green, 3 P. 65, 7 Colo. 237 (Colo. 1884)
• Parties: PEOPLE ex rel. ELLIOTT v. GREEN.
• Court: Colorado Supreme Court

3 P. 65

7 Colo. 237

PEOPLE ex rel. ELLIOTT v. GREEN.

Supreme Court of Colorado

February 29, 1884

It is not necessary that an indignity or insult to a judge by an attorney should occur in open court, nor that it constitute a statutory contempt of court, in order to confer on this court jurisdiction to disbar therefor.

The nature and probable consequence of every deliberate act must be held to be intended by its author.

BECK C.J.

The petition of the Hon. VICTOR A. ELLIOTT, judge of the district court of the Second judicial district of this state, recently filed in this court, charges the respondent, Thomas A. Green a duly licensed attorney at law residing in the city of Denver, with malconduct in his office as an attorney. It charges that the respondent halted the relator as he was driving through the street with his daughter, a young lady and addressed abusive, insulting, and threatening language to him, concerning his judicial action in a certain cause theretofore and still pending and undetermined in the district court of Arapahoe county, wherein said Green was counsel for the defendants; that he accused said judge with tyranny and oppression in said cause; that said relator had procured its submission to a prejudiced judge for trial; and further, that the respondent assailed the relator with vile epithets and threatened to expose him by publishing the said accusations in the newspapers.

Upon the filing of the foregoing petition a rule was entered herein that the respondent be cited to appear and show cause why his name should not be stricken from the roll for malconduct in office. The respondent appeared and answered the petition, and a hearing has been had. The answer admits that the facts contained in the petition, descriptive of the respondent's alleged conduct, are substantially true as stated, but denies that he entertained the motives therein charged against him, to-wit, that he intended thereby to embarrass and intimidate the relator in the discharge of his official duties as judge of said courts, or to disgrace him as a judge. There being no traverse of the substantial allegations of facts contained in the petition, for the purpose of testing the intentions of the respondent, an issue was framed presenting the question whether the respondent's conduct and language to Judge ELLIOTT upon the street constitutes such malconduct in his office as an attorney at law as to warrant this court in striking his name from the roll. Upon the hearing, the respondent was permitted to introduce testimony in mitigation of the offense charged against him, the same matters to be considered in justification, if adjudged admissible for that purpose. Testimony was likewise produced by the relator concerning the same matters of fact mentioned by the respondent's witnesses, and subsequently the case was submitted to the court upon the briefs and arguments of counsel of the respective parties.

Upon a careful consideration and review of the whole case, we are of the opinion that the respondent's course has been unreasonable and unprofessional throughout. Reprehensible as his conduct has been, there is little doubt that a retraction of his acts and words, at any time prior to the submission of the case for our judgment, accompanied by a proper apology to the district judge, manifesting a disposition to make suitable reparation for the indignity offered him, would have caused a dismissal of this proceeding. But the attitude and bearing of the respondent have been, as to the relator, wholly defiant. His position is that he has done nothing wrong; that his conduct was justifiable; and that no occasion exists for an apology on his part. He makes the further point that the offensive language complained of having been addressed to Judge ELLIOTT out of court, the same does not constitute a statutory contempt, and for that reason it does not warrant the respondent's disbarment. Such being his disposition and course in the matter, it only remains for us to declare the law applicable to the facts and circumstances of the case. The language of the statute upon the subject of striking an attorney from the roll is broad and plain. It is, 'the justices of the supreme court, in open court, shall have power, at their discretion, to strike the name of any attorney or counselor at law from the roll, for malconduct in his office.' Gen. St. p. 136, § 5.

The grave and delicate responsibility imposed upon this court by the statute is duly appreciated. The profession of an attorney is to him of the highest importance. It comprises his regular means of subsistence. No argument, therefore, is necessary to show that the power of striking from the roll should be most judiciously exercised. The case should be clearly made out to warrant a removal from the bar, and the removal should appear to be necessary either to the maintenance of that degree of respect which is due to courts and judges or to preserve the respectability of the legal profession itself. The power should never be arbitrarily exercised. It may be remarked in this connection that the statute not only vests this court, but by implication it enjoins a solemn duty upon this court, which in a proper case must be exercised. Said Chief Justice MARSHALL: 'This discretion ought to be exercised with great moderation and judgment, but it must be exercised.' Ex parte Burr, 9 Wheat 529. A proper regard for the integrity of our honored profession, and for the preservation of judicial authority,...