State v. Peck

• Court: Supreme Court of Connecticut
• Writing for the Court: PRENTICE, C. J.
• Citation: 91 A. 274,88 Conn. 447
• Parties: STATE v. PECK.
• Decision Date: 13 July 1914

91 A. 274
88 Conn. 447

STATE
v.
PECK.

Supreme Court of Errors of Connecticut.

July 13, 1914.

91 A. 275

Appeal from Superior Court, Fairfield County; William L. Bennett, Judge.

Proceeding in the name of the State against Charles H. Peck on a complaint for alleged prefessional misconduct by the defendant as an attorney at law. Facts found and judgment rendered suspending the defendant from practicing law in the courts of the state indefinitely, and he appeals. Affirmed.

Robert E. De Forest, of Bridgeport, for appellant. J. Moss Ives, Special State's Atty., of Danbury, for the State.

PRENTICE, C. J. The acts, which in the complaint are charged as misconduct calling for the respondent's disbarment, and for which, as appears by the judgment file, he was disbarred, were all done by him in the course of the settlement of an estate of a deceased person in the probate court over which he presided. The misconduct alleged and made the basis of the judgment was misconduct connected with the performance of his judicial office. The claim made upon demurrer to the complaint, and renewed at the hearing, that such misconduct was not misconduct as a member of the bar, and therefore not of a kind to justify discipline as such member, is, for a double reason, wholly without foundation. In the first place, it did directly involve a misuse of the professional privilege. In the second, it disclosed a moral unfitness for the enjoyment of that privilege, and it matters not whether the disclosure came through professional channels or not.

An attorney at law admitted to practice, and in the exercise of the right thus conferred to act as an officer of the court in the administration of justice, is continually accountable to it for the manner in which he exercises the privilege which has been accorded him. His admission is upon the implied condition that his continued enjoyment of the right conferred is dependent upon his remaining a fit and safe person to exercise it, so that when he, by misconduct in any capacity, discloses that he has become or is an unfit or unsafe person to be intrusted with the responsibilities and obligations of an attorney, his right to continue in the enjoyment of his professional privilege may and ought to be declared forfeited. As important

91 A. 276

as it is that an attorney be competent to deal with the oftentimes intricate matters which may be intrusted to him, it is infinitely more so that he be upright and trustworthy. Unfortunately it is not easy to limit membership in the profession to those who satisfy the standard test of fitness. But scant progress in that direction can be hoped for if, in the determination of the qualification of professional fitness, nonprofessional dishonor and dishonesty in whatsoever path of life is to be ignored. Professional honesty and honor are not to be expected as the accompaniment of dishonesty and dishonor in other relations. So it is that we, in common with other courts, hold, as did Lord Mansfield more than a century ago, that misconduct, indicative of moral unfitness for the profession, whether it be professional or nonprofessional, justifies dismission as well as exclusion from the bar. In re Durant, 80 Conn. 146, 147, 67 Atl. 497, 10 Ann. Cas. 539; Fairfield County Bar v. Taylor, 60 Conn. 11, 17, 22 Atl. 441, 13 L. R. A. 767; Ex parte Brounsall, Cowp. 829; Boston Bar Ass'n v. Greenhood, 168 Mass. 169, 183, 46 N. E. 568; Sanborn v. Kimball, 64 Me. 140, 148; Delano's Case, 58 N. H. 5, 42 Am. Rep. 555; In re Percy, 36 N. Y. 651, 654.

The demurrer suggests in this connection that disbarment proceedings so far par-take of the character of official impeachment that they are not to be permitted in the case of a judicial officer. This objection is not well taken. Since a Judge of probate need not be an attorney, his disbarment can have no effect upon his official status. The courts cannot be held responsible for the character of elective officers, but they can and ought to be for the fitness of those who enjoy the privileges of the legal profession under their authority and sanction.

The demurrer asserts further that the complaint addressed to the court fails to set out misconduct, either professional or judicial, on the part of the accused. This general charge is elaborated by reference to specified disassociated allegations, of each of which it is said that it does not charge misconduct. The complaint, however, is to be looked at as a whole, and the question of sufficiency attempted to be presented by the demurrer must be determined upon the result of such an examination. The demurrer and counsel's argument in support of it proceed upon the assumption, or rather assertion, that the same tests are to be applied to a charge of misconduct on the part of an attorney addressed to a court for investigation and appropriate action as to a complaint in a civil suit between parties. This assumption mistakes the true character of a complaint of the former sort.

It has been contended in other jurisdictions that disbarment proceedings partake of the nature of criminal prosecutions, and accordingly require an observance in the preparation of complaints of the formalities and technicalities prevailing in such procedure. This contention, however, has not met with other than occasional approval by the courts. The most have made emphatic and sound reply that the proceeding was in no sense criminal but one undertaken "for the purpose of preserving courts of justice from the official ministration of persons unfit to practice in them." Ex parte Wall, 107 U. S. 265, 288, 2 Sup. Ct. 569, 27 L. Ed. 552; Sanborn v. Kimball, 64 Me. 140, 147; Boston Bar Ass'n v. Greenhood, 168 Mass. 169, 183, 46 N. E. 568; In re Bowman, 7 Mo. App. 567.

Neither are they civil actions. A "civil action" is one between parties. Here an attorney is called to answer to the court of his appointment for his conduct as an officer of that court. The inquiry is directed solely to his continued fitness. There is no plaintiff. The state is not a party, as would appear by the title mistakingly given upon the record to these proceedings. No person is a plaintiff. There may be, indeed, as in this case there is, one who has called the court's attention to alleged misconduct; but he is in no sense a party, and has no interest in the outcome save as all good citizens or worthy members of the bar may have. The complaint made, the court controls the situation and procedure in its discretion as the interest of justice may seem to it to require. It may even act upon its own motion without complaint, and thus be the initiator of proceedings:

"It (the hearing) was an investigation by the court into the conduct of one of its own officers, not the trial of an action or suit." Fairfield County Bar v. Taylor, 60 Conn. 11, 15, 22 Atl. 441, 442 (13 L. R. A. 767).

"The proceeding to disbar an attorney is neither a civil action nor a criminal proceeding, but is a proceeding sui generis, the object of which is, not the punishment of the offender, but the protection of the court" In re Bowman, 7 Mo. App. 567.

Section 11 of our rules regulating the admission, suspension, and displacement of attorneys, indeed, provides that complaints for misconduct shall be proceeded with as civil actions, but this does not either make the proceeding a civil action, or necessitate that the complaint be marked by the same precision of statement or conformity to the recognized formalities or technicalities of pleading which are expected in complaints in civil actions. The one supreme requisite is that it be sufficiently intelligible and informing to advise...