State v. Cannon

• Decision Date: 23 July 1929
• Citation: 226 N.W. 385,199 Wis. 401
• Parties: STATE v. CANNON.
• Court: Wisconsin Supreme Court

199 Wis. 401

226 N.W. 385

STATE

v.CANNON.

Supreme Court of Wisconsin.

July 5, 1929.

Dissenting Opinion, July 23, 1929.

Original action in this court, begun May 10, 1928, by the State Bar Commissioners, pursuant to the provisions of section 256.28 of the Statutes of 1927, to disbar from practice the defendant, Raymond J. Cannon. The matter was referred to Hon. E. C. Fiedler, who took the testimony and reported findings of fact, and recommended that defendant be suspended from practice for two years, and that he be required to pay the costs and expenses of this action. Report confirmed.

Crownhart, J., dissenting in part.Spencer Haven, Sp. Counsel, of Hudson, for the State.

W. A. Hayes, of Milwaukee, and Henry Lockney, of Waukesha, for defendant.

STEVENS, J.

[1] The power to protect courts and the public from the official ministration of persons unfit for practice in them was fully established in the former decision of the court in this case, State v. Cannon, 196 Wis. 534, 221 N. W. 603, where it was held that, when the people by means of the Constitution established courts, they became endowed with all judicial powers essential to carry out the judicial functions delegated to them. The courts established by the Constitution have the powers which are incidental to or which inhere in judicial bodies, unless those powers are expressly limited by the Constitution. But the Constitution makes no attempt to catalogue the powers granted. It is the ground work upon which the superstructure of government is raised, by the exercise of those powers which are essential to carry out the functions imposed upon each department of government. These powers are known as incidental, implied, or inherent powers, all of which terms are used to describe those powers which must necessarily be used by the various departments of government, in order that they may efficiently perform the functions imposed upon them by the people.

It is essential to the administration of justice by the courts that they should be aided by members of the bar, who are “quasi officers of the state whose justice is administered by the court.” In re Mosness, 39 Wis. 509, 510 (20 Am. Rep. 55). The bar is as essential as the bench. “It is very important to the people and the court that the standard of admission to the place and retention thereof should be as high as practicable in law, and maintained as high as practicable in fact. Much power in that regard is vested in the court by the Constitution, incidental to its possession of judicial power and its duty to enforce, through careful administration, legislative tests of eligibility.” Vernon County Bar Association v. McKibbin, 153 Wis. 350, 352, 141 N. W. 283, 284.

[2] But the courts are not powerless, in the absence of legislative tests of eligibility, to protect themselves, and the people whom they serve, from those members of the bar whose conduct has been such as to forfeit their right to longer act as ministers of justice in the courts. “It is well settled that a court authorized to admit an attorney has inherent jurisdiction to suspend or disbar him for sufficient cause, and that such jurisdiction does not necessarily depend on any express constitutional provision or statutory enactment.” 6 C. J. 580. Cases from most jurisdictions of the United States are cited in Corpus Juris to sustain this proposition.

[3] The courts of Wisconsin frequently exercised this inherent power before the enactment of chapter 84, Laws of 1903, which was the first legislative act upon the subject of disbarment in Wisconsin. When the people framed the Constitution creating courts, those judicial tribunals were endowed with the inherent power to admit and disbar attorneys––a power which was generally exercised by courts at the time the Constitution was framed, and generally recognized as one of the powers essential to the performance of the judicial duties imposed upon courts. The nature and effect of the acts of which the referee found the defendant guilty were not changed by the adoption of the amendment to section 256.29 of the Statutes which was passed in 1927. These acts constituted grounds for disbarment prior to the enactment of this statute.

The record presents something of the life history of a man who has won for himself an education and a place at the bar. His counsel admit that he has made mistakes that may subject him to criticism, but they urge that he should not be held accountable for these mistakes to the same degree as if he had enjoyed larger opportunities as a boy and had not been compelled to fight his way, moved at all times by the instinct of self–preservation. The achievements of those who win place for themselves by their own unaided efforts always deserve commendation. But the right of a lawyer to maintain his place at the bar must be determined by his conduct as a minister of justice, not by his early struggles for an education. The public has a right to be protected from the unfit practitioner, without regard to whether he was required to struggle against adversity, or was reared in the lap of luxury.

Defendant's habit of meeting and overcoming all obstacles that were encountered by him explains, but does not justify, the acts and course of conduct of which the referee found the defendant guilty. A reading and study of the entire record satisfies the court that the findings of the referee upon which the court bases its conclusions are supported by the great weight of the evidence of witnesses who appear to have no interest in the controversy. Some of their testimony is contradicted by the defendant and by those associated with him, although there is much to support these findings in the testimony of the defendant and of his witnesses.

The record discloses the defendant as a man whose purpose it was to let nothing stand in the way of making his profession yield him the largest possible financial return, without regard to the established canons of professional conduct. To accomplish that end the referee found that he began the Huelse suit without authority from the injured man; that he improperly displaced attorneys previously retained; that he purposely and knowingly misled and deceived courts; that he collected excessive, exorbitant, and unconscionable fees from his clients; and that he commercialized his profession by the organized solicitation of business.

In the Adams case the defendant secured the approval of a settlement of a case brought by a minor by suppressing the fact that he was charging $4,200 for his services, under a contingent 33 1/3 per cent. contract, for compromising that case without a trial, thereby misleading and deceiving the court into approving the settlement. When the facts were subsequently disclosed to the court, the defendant refunded $1,700 of the fee retained by him.

In the Dr. Wright case he exacted a retainer of $750 and demanded an agreement for the payment of $1,000 additional, if the doctor's license to practice medicine was not canceled––a result which could be accomplished only by subverting plain statutory requirements. It could not be accomplished by the exercise of professional knowledge or skill. It could be attained only by what may be described as lobbying methods. It may be conceded that negotiations with a district attorney looking towards a recommendation of leniency in case of a plea of guilty is proper, where the penalty imposed is within the law. However, where the penalty imposed as the result of such negotiations is not within the law, but is contrary to the express provisions of the law, the whole transaction is tainted with suspicion.

The words of Chief Justice Ryan, speaking for this court with reference to an analogous question, aptly characterizes the conduct of the defendant in this matter: “Any agreement of the character here in question * * * between a public prosecutor and the attorney of the defendant in an indictment is * * * a bargain for judicial action and judgment, hardly, if at all, distinguishable in principle from a direct sale of justice. * * * The profession of the law is not one of indirection, circumvention, or intrigue. * * * The duty imposed by professional retainer is direct and open. Professional function is exercised in the sight of the world. * * * Professional weapons are wielded only in open contest. No weapon is professional which strikes in the dark. * * * A lawyer may openly, upon open retainer, advocate his client's cause, however bad, and be within the function of his profession. But a lawyer who otherwise uses personal or professional influence to bend justice in favor of his client; who uses any influence for his client upon the administration of justice, except open professional service and advocacy; who seeks by device or intrigue advantage for his client in litigation––is outside of professional duty and function.” Wight v. Rindskopf, 43 Wis. 344, 354, 356, 357.

Where an attorney charges for such a result, a result which circumvents the law, a result which in no manner depends upon professional services, a result which cannot be attained without connivance with or misleading public officials, it reveals a character far beneath the standard required of ministers of justice.

Another incident that demonstrates that the defendant did not permit either the law or the orders of courts to stand in the way of the accomplishment of his purpose is found in the case in which he was adjudged guilty of contempt. The courts had twice denied him the right to examine a witness in a highly sensational case that attracted much newspaper attention. In defiance of these court orders, he procured a court commissioner, a court reporter, and a battery of newspaper men, including a photographer, and proceeded as if taking a deposition, in order that the same might be exploited in the newspapers, and incidentally that it might advertise him. No early struggle against adversity can justify one, and especially a...