State Ex Rel. Wood v. Raynolds

• Decision Date: 13 June 1916
• Docket Number: No. 1924.,1924.
• Citation: 158 P. 413,22 N.M. 1
• Parties: STATE EX REL. WOODv.RAYNOLDS, DISTRICT JUDGE.
• Court: New Mexico Supreme Court

22 N.M. 1

158 P. 413

STATE EX REL. WOOD

v.RAYNOLDS, DISTRICT JUDGE.

No. 1924.

Supreme Court of New Mexico.

June 13, 1916.

Syllabus by the Court.

Each court of superior and general jurisdiction possesses the power to disbar or suspend an attorney, for malfeasance or misfeasance in office, as a necessary incident to its organization, and the legislative department of the government, being only equal and co-ordinate with the judicial, cannot deprive the courts of such inherent power. Held, that a district court has the power to suspend an attorney from practice in such court, for fraud and deceit practiced upon such court, upon notice and hearing, until the Supreme Court, upon a hearing had, either disbars such attorney or restores him to his right to practice his profession.

Courts possess no power to disbar or suspend an attorney upon an ex parte proceeding, but such an attorney must be given notice and have full opportunity to be heard and defend.

Mandamus by the State, on the relation of Francis E. Wood, against Herbert F. Raynolds, Judge of the Second Judicial District Court of the State of New Mexico. Ordered that writ issue.

Hanna, J., dissenting.

Courts possess no power to disbar or suspend an attorney upon an ex parte proceeding, but such attorney must be given notice and have full opportunity to be heard and defend.

E. R. Wright, of Santa Fé, for relator.

Reed Holloman and Francis C. Wilson, both of Santa Fé, for respondent.

ROBERTS, C. J.

This is a proceeding in mandamus instituted by the state of New Mexico on behalf of the relator, Francis E. Wood, against the respondent, as judge of the Second judicial district of this state, to compel the respondent, as such judge, to vacate and set aside a certain order made by him suspending the relator from practicing law in the courts of the Second judicial district until the further order of the court. From the pleadings filed, it appears that relator was attorney for the defendant in a certain cause tried in the district court of Bernalillo county, wherein Ernest Meyers was plaintiff and the Ernest Meyers Company, Incorporated, was defendant. In such case, the defendant pleaded payment of the claim of plaintiff, and at the trial relator, in behalf of his client, introduced in evidence an instrument purporting to be a release of the claim of plaintiff. Upon application of the relator, and upon the strength of the so-called release, the court directed a verdict in favor of defendant. Subsequently, the plaintiff made a motion to set aside the verdict, in which motion it was alleged that the so-called release was procured by fraud and false representations, and that no money passed or other consideration was given for such release, and that the defendant and Francis E. Wood, the relator herein, were cognizant of the facts and circumstances under which said release was procured, and, in introducing said release in evidence as proof payment, the said Francis E. Wood perpetrated a fraud upon the court. The motion to set aside the verdict was verified.

The return to the writ of mandamus herein shows that a copy of the motion above referred to was served upon the relator personally by the sheriff; that the relator filed a motion alleging that the affidavit of plaintiff was false upon its face and filed maliciously and willfully with the intent and purpose of slandering and injuring relator, and praying that the same be stricken from the files, because the facts alleged in said motion reflected upon the honor and integrity of the relator, and were scandalous and impertinent. Relator also prepared and filed a brief in support of his motion, setting up what he conceived to be the facts of the case. A hearing was had upon the motion to set aside the verdict, at which time the relator appeared, and subsequently the court entered an order setting aside the verdict on the ground that it was “obtained by fraud upon court and jury.” In the same order it was further provided that--

“the said Francis E. Wood be suspended from practicing in the courts of the Second judicial district of the state of New Mexico, until the further order of this court, and that the clerk of this court transmit to the Supreme Court of New Mexico the original papers in this case, together with a copy of said opinion, copies of letters filed herein, to the end that the court may take such action in regard to the disbarment of said Francis E. Wood as it may be deemed fit and proper.”

The relator alleged that the action of respondent, in suspending him from the right to practice law in the courts of the Second judicial district, was illegal and void for three reasons: First, because the respondent was without jurisdiction to enter the order of suspension; second, because the proceedings were improperly instituted and prosecuted in that the relator was not notified, and had no opportunity to be heard; third, because no sufficient cause was shown to support the order of suspension. In view of our conclusion, the third ground will not be considered.

[1] The first proposition urged may be narrowed to the question as to whether or not a district court in this state has the authority to suspend an attorney from the right to practice in said district for malpractice or other acts warranting suspension or disbarment, until the Supreme Court pass upon the charges and complaint, disbar, or restore the attorney to his right to practice.

While the order in the present case suspends the relator until the further order of the court, it is apparent that the object in view by the district court was the suspension of the relator until final judgment had been pronounced upon the matter by the Supreme Court.

Under the statutes of this state, a comprehensive system has been adopted with reference to the admission, suspension, and disbarment of attorneys. The power to admit, suspend, and disbar, so far as the statutes of this state are concerned, reposes in the Supreme Court (chapter 8, Code 1915). Under the statutes, no provision is made for disbarment or suspension by the district courts, and no prohibition against such action is found in the statute. On the other hand, under the statute the exclusive power of admission is vested in the Supreme Court, with a right in the district court only to grant a temporary certificate to practice law. On behalf of the relator, it is urged that the district courts have no power to suspend a person duly licensed as an attorney by this court. It is argued on behalf of relator that, while courts have an inherent power to disbar or suspend an attorney for proper cause, that the power to so act rests only in those courts which have the power to admit, and further that it is competent for the Legislature to restrict or abridge the power to disbar or suspend; in other words, that the Legislature may repose the sole power of disbarment or suspension in certain courts to the exclusion of all others.

We believe the cases are fairly uniform upon the proposition that the right to admit to practice and to suspend or disbar are distinct, the former depending upon the statute and the latter an inherent right in all courts of superior or general jurisdiction. Some of the cases, notably the case of Winkelman v. People, 50 Ill. 449, seemingly imply that it is competent for the Legislature to vest the exclusive right of disbarment or suspension in the Supreme Court; but cases so holding imply that it would be proper for the district court to suspend an attorney from practice until the Supreme Court could pass upon the question, as was apparently attempted to be done by the respondent in this case. The great weight of authority, however, is to the effect that each court of superior and general jurisdiction possesses the power to disbar or suspend an attorney as a necessary incident to its organization, and that the legislative department of the government being only equal and co-ordinate with the judicial cannot deprive the courts of such inherent power. The following cases and authorities are fairly uniform upon the proposition that the two functions, the right to admit and the right to disbar, are distinct, the former depending upon statute and the latter being an inherent right possessed by all courts of superior and general jurisdictions: Weeks on Attorneys at Law, § 80, p. 140; State v. Kirke, 12 Fla. 278, 95 Am. Dec. 314; In re Mills, 1 Mich. 392; In re Robinson, 48 Wash. 153, 92 Pac. 929, 5 L. R. A. (N. S.) 525, 15 Ann. Cas. 415; State v. Mosher, 128 Iowa, 82, 103 N. W. 105, 5 Ann. Cas. 984; Ex parte Bradley, 7 Wall. 364, 19 L. Ed. 214; 2 R. C. L. 81.

In Weeks on Attorneys at Law, supra, the author says:

“As an attorney at law is an officer of the court, the latter may exercise its summary jurisdiction over him to the extent of depriving him of his office, and striking his name from the rolls. This the court may do in cases of malpractice, though the offense be not indictable. Attorneys may forfeit their professional franchise by abusing it, and a power to exact the forfeiture must be lodged somewhere. Such a power is indispensable to protect the court, the administration of justice, and themselves. Abuses must necessarily creep in, and attorneys themselves are vitally concerned in preventing the vocation from being sullied by the misconduct of unworthy members. The court, too, has this power on the ground of self-protection, outside of the common law and outside of the statutory doctrine of contempt, in cases where an attorney has shown himself unfit to be one of its officers; and such unfitness may be displayed not only by moral delinquency, but by acts calculated and intended to injure the court. But charges merely affecting a person's character as a private citizen, and not his official character as an attorney, will not support an application to strike from the rolls.

The power to strike from the rolls is inherent in the court itself. No statute or rule is...