State ex rel. McCormick v. Winton

• Decision Date: 05 January 1885
• Parties: STATE ex rel. McCORMICK v. WINTON.
• Court: Oregon Supreme Court

5 P. 337

11 Or. 456

STATE ex rel. McCORMICK v. WINTON.

Supreme Court of Oregon

January 5, 1885

Geo. H Durham, for relator.

Raleigh Stott and C.B. Bellinger, for defendant.

LORD J.

This is an information on the relation of Hugh McCormick, filed in this court against F.D. Morton, asking for an order to show cause why he should not be removed from his office as an attorney of this state. The facts alleged are, in substance of this character:

In the year 1883, at a regular term of the circuit court for Clatsop county, the complainant, James Franklin, William Bannister James McCarty, James Driscoll, and William Loyd were indicted by the grand jury of said county for the crime of kidnaping. As their attorney, the defendants so indicted employed the said Winton to defend them, and paid him the full amount he demanded as his fee to make such defense. Of the defendants indicted upon said charge, James Franklin was first put on trial, but the jury, failing to agree, were discharged by the court. Upon this result, it is alleged that the said Winton,--

"Then well knowing that the said Franklin could not be again tried during that term of the court, but desiring to take advantage of his client and extort money from him and his friends, went in person to Mrs. B. Grant, in whose employment the said Franklin then was, and told her that if Franklin was tried again during that term he would surely be convicted, but that if she would give him three hundred dollars he would see that the case was continued until the next term of said court; that he could influence the prosecuting attorney to continue the case."

The indictment against the other defendants, including the complainant, was not tried during the January term, but was continued until the August term of said court, 1883. The information then proceeds as follows:

"That immediately thereafter, and prior to the transactions hereinafter stated, the said Winton became possessed of information which satisfied him that the prosecuting attorney did not intend to prosecute the case against the said McCormick, and intended to dismiss the same and in the month of ______, 1883, the said Winton represented to the said McCormick, and to one Mrs. Louise Collins, with whom he was engaged in business, that if they would pay him sufficient money he could and would corrupt the prosecuting attorney and the prosecuting witness, and cause said action to be dismissed, and that said McCormick's only safety was in getting such action dismissed; that he could corrupt the said witnesses and officer, and secure the dismissal of said action; and the said Winton thereby induced the said McCormick and Mrs. Collins to pay to him the sum of nine hundred dollars for said purpose, although he well knew said action would be dismissed in any event, and knew that his said clients were ignorant of such fact, and that he only made such representations for the purpose of extorting money from said McCormick and Mrs. Collins," etc.

By reason of the premises it is further alleged that the said Winton has been guilty of willful deceit and misconduct in his profession, and of violating the confidence reposed in him by his clients.

An order having been granted to show cause, the said Winton appeared and answered. By consent, the case was referred to a referee, to take the testimony and report the same to the court. At the time appointed for the hearing--the evidence and report of the referee having been submitted--it was suggested by counsel for the defendant that they desired to interpose an objection to the power or jurisdiction of the court to make the order upon the fact alleged. Before proceeding to read the evidence, and a trial upon the merits, leave to raise the objection as if the same had been regularly taken by demurrer was conceded to be the legal right of the defendant, and granted. This objection is that when a crime is charged against an attorney for which he may be indicted, the court will not entertain jurisdiction in such case until he has been regularly convicted by a jury in a criminal proceeding; or, conceding the right of the court to make the order to show cause, it will refuse to proceed, at least when such charge is denied and not confessed by him.

We are, therefore, to consider whether such a case has been presented by the facts alleged and denied, as will authorize the court to act,--to exercise its summary power of suspension or disbarment. Our Code provides that an attorney may be removed or suspended by the supreme court for either of the following causes, arising after his admission to practice: (1) Upon his being convicted of any felony or misdemeanor, involving moral turpitude, in either of which cases the record of his conviction is conclusive evidence; (2) for willful disobedience or violation of the order of a court requiring him to do or forbear an act connected with or in the course of his profession; (3) for being guilty of any willful deceit or misconduct in his profession; (4) for a willful violation of section 1006, which, among other things, impose upon an attorney the duty to employ, for the purpose of maintaining the causes confided to him, such means only as are consistent with truth, and to maintain inviolate the confidence of his clients. Code, § 1015.

The proceeding here is upon the information of another, other than the court or any of the judges thereof, and is verified by the oath of the party making the accusation; and in such case, unless it appears that the accused should be required to appear and answer the same, the accusation shall be dismissed at once. Sections 1016-1018. At the time appointed in the order, the accused must appear and answer the accusation, unless, for sufficient cause, the court assign another day for that purpose; and if he do not appear, the court may proceed and determine the accusation in his absence. Section 1019. He may demur to the accusation for insufficiency, or controvert it by answer. The demurrer and answer are required to be in writing, and the latter is to be verified by the oath of the accused in the same manner as a pleading in an action at law. Section 1020. If the demurrer for insufficiency be not sustained, the accused shall answer forthwith. If he plead guilty, or refuse to answer the accusation, the court shall proceed to judgment of removal or suspension. If he controvert the matters charged, the court shall then, or at such time as it may appoint, proceed to try the accusation and give a judgment of removal, suspension, or acquittal, according to the law and the right of the case. Section 1021. At common law, attorneys were, as now, under the statute, officers of the court; and as such they were liable to be punished in a summary way, either by attachment or having their names struck out of the roll of attorneys, for any ill-practice attended with fraud and corruption, and committed against the obvious rules of justice and common honesty. Bac.Abr. "Attorneys," 474. This is an inherent power residing in the court without the aid of statutory enactment. The exercise of the power may be, as it often is, regulated by statute, but the statute does not create it. Its existence is necessary and incidental to the court for its own protection, to secure the proper administration of justice, to maintain the prestige of the profession for integrity, to conserve the public good, and to protect clients from malpractice attended with fraud and corruption. Ex parte Smith, 28 Ind. 47; Penobscot Bar v. Kimball, 64 Me. 140; Fletcher v. Daingerfield, 20 Cal. 427; In re Woolley, 11 Bush, (Ky.) 95.

It is, therefore, laid down by the text-writers upon this subject, as deducible from the practice and decisions of the courts in such cases, that a court has the inherent right to exercise this summary jurisdiction over its attorneys, as officers of the court, to require and compel them to deal justly and honestly with their clients, and to punish them by fine and imprisonment for contempts or misconduct in their office, and, in cases where the malpractice or misconduct in their professional capacity showed them to be unfit persons to practice the law, to strike their names from the roll. 1 Field, Pr. 89, (9th Ed.;) Archb.Pr. 148, (Chit.Ed.)

The question which has presented the most difficulty, and out of which there has grown some difference of opinion, is where the facts charged against the attorney are indictable, but are in nowise connected with his professional employment,--acts done in his private but not in his professional, capacity. In such cases it has been held by some courts that where the misconduct alleged, though done in his private capacity merely, and not in his official capacity, is of such gross character as to gravely affect his standing as an attorney, that they will exercise the power of removal or disbarment. This seems to be an exception to the general rule, as held by other courts, which confines the exercise of such summary jurisdiction over an attorney to cases where the misconduct was committed in his professional character, or was in some way or in some matter so connected with his professional character as to be the direct result of it. Courts adhering to this rule, when the misconduct alleged constitutes an indictable offense not growing out of, or in any way connected with, his professional employment or duties, refuse to proceed in this summary manner, but leave the party injured to obtain relief by a prosecution in the proper court, or the matter to be prosecuted by a public officer, upon whom the law devolves the duty of prosecuting criminal offenses; but there is, no doubt, much authority for extending the rule to misconduct for acts which are indictable, and committed outside of the professional...