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It is laid down in all the books in which the subject is treated, that a court has power to exercise a summary jurisdiction over its attorneys to compel them to act honestly towards their clients, and to punish them by fine and imprisonment for misconduct and contempts, and, in gross cases of misconduct, to strike their names from the roll. If regularly convicted of a felony, an attorney will be struck off the roll as of course, whatever the felony may be, because he is rendered infamous. If convicted of a misdemeanor which imports fraud or dishonesty, the same course will be taken. He will also be struck off the roll for gross malpractice or dishonesty in his profession, or for conduct gravely affecting his professional character. In Archbold's Practice, edition by Chitty, p. 148, it is said: "The court will, in general, interfere in this summary way to strike an attorney off the roll, or otherwise punish him, for gross misconduct, not only in cases where the misconduct has arisen in the course of a suit, or other regular and ordinary business of an attorney, but where it has arisen in any other matter so connected with his professional character as to afford a fair presumption that he was employed in or intrusted with it in consequence of that character." And it is laid down by Tidd that "where an attorney has been fraudulently admitted, or convicted (after admission) of felony, or other offence which renders him unfit to be continued an attorney, or has knowingly suffered his name to be made use of by an unqualified person, or acted as agent for such person, or has signed a fictitious name to a demurrer, as and for the signature of a barrister, or otherwise grossly misbehaved himself, the court will order him to be struck off the roll." 1 Tidd's Practice, 89, ed. 9. Where an attorney was convicted of theft, and the crime was condoned by burning in the hand, he was nevertheless struck from the roll. "The question is," said Lord Mansfield, "whether, after the conduct of this man, it is proper that he should continue a member of a profession which should stand free from all suspicion. . . It is not by way of punishment; but the court in such cases exercise their discretion, whether a man whom they have formerly admitted is a proper person to be continued on the roll or not."
Now, what is the offence with which the petitioner stands
charged? It is not a mere crime against the law; it is much more than that. It is the prostration of all law and government; a defiance of the laws; a resort to the methods of vengeance of those who recognize no law, no society, no gov ernment. Of all classes and professions, the lawyer is most sacredly bound to uphold the laws. He is their sworn servant; and for him, of all men in the world, to repudiate and override the laws, to trample them under foot, and to ignore the very bands of society, argues recreancy to his position and office, and sets a pernicious example to the insubordinate and dangerous elements of the body politic. It manifests a want of fidelity to the system of lawful government which he has sworn to uphold and preserve. Whatever excuse may ever exist for the execution of lynch law in savage or sparsely settled districts, in order to oppose the ruffian elements which the ordinary administration of law is powerless to control, it certainly has no excuse in a community where the laws are duly and regularly administered.
But besides the character of the act itself, as denoting a gross want of fealty to the law and repudiation of legal government, the particular circumstances of place and time invest it with additional aggravations. The United States court was in session; this enormity was perpetrated at its door; the victim was hanged on a tree, with audacious effrontery, in the virtual presence of the court! No respect for the dignity of the government as represented by its judicial department was even affected; the judge of the court, in passing in and out of the place of justice, was insulted by the sight of the dangling corpse. What sentiments ought such a spectacle to arouse in the breast of any upright judge, when informed that one of the officers of his own court was a leader in the perpetration of such an outrage?
We have no hesitation as to the character of the act being sufficient to authorize the action of the court.
A question of greater difficulty is raised as to the legality of proceeding in a summary way on a charge of this nature. It is strenuously contended that when a crime is charged against an attorney for which he may be indicted, and the truth of the charge is denied or not admitted by him, it cannot be made the
ground of an application to strike his name from the roll until he has been regularly convicted by a jury in a criminal proceeding; or, at least, that this is true, when the act charged was not committed in his professional character.
As, in urging this argument, much stress is laid upon the fact that the petitioner, by his answer, denied the charge contained in the rule to show cause, it is proper to notice the manner in which this denial was made. The charge, as we have seen, was specific and particular: "That J. B. Wall, an attorney of this court, did, on the sixth day of this present month, engage in and with an unlawful, tumultuous, and riotous gathering, he advising and encouraging thereto, take from the jail of Hillsborough County and hang by the neck until he was dead, one John, otherwise unknown, thereby showing an utter disregard and contempt for the law and its provisions," &c. The denial of this charge was a mere negative pregnant, amounting only to a denial of the attending circumstances and legal consequences ascribed to the act. The respondent denied "counselling, advising, encouraging, or assisting an unlawful, tumultuous, and riotous gathering or mob in taking one John from the jail of Hillsborough County and causing his death by hanging, in contempt and defiance of the law." He was not required to answer under oath, and did not do so. Yet, free from this restriction, he did not come out fully and fairly and deny that he was engaged in the transaction at all; but only that he did not engage in it with the attendant circumstances and legal consequences set out in the charge. Even the name of the victim is made a material part of the traverse.
Upon such a special plea as this, we think the court was justified in regarding the denial as unsatisfactory. It was really equivalent to an admission of the substantial matter of the charge.
Nevertheless, the marshal of the court was called as a witness, and clearly proved the truth of the charge; and no evidence was offered in rebuttal. The case, as it stood before the court, was as clear of all doubt as if the petitioner had expressly admitted his participation in the transaction.
It is necessary, however, that we should examine the authorities on the question raised by the petitioner, as to the
power of the court to proceed against him without a previous conviction upon an indictment.
It has undoubtedly been held in some of the cases that where the offence is indictable, and the facts are not admitted, a regular conviction must be had before the court will exercise its summary jurisdiction to strike the name of the party off the roll. At first view this was supposed to be the purport of Lord Denman's judgment in the anonymous case reported in 5 Barn. & Adol. 1088. That was a case of professional misconduct in pecuniary transactions. Lord Denman is reported as saying: "The facts stated amount to an indictable offence. Is it not more satisfactory that the case should go to a trial? I have known applications of this kind after conviction, upon charges involving professional misconduct; but we should be cautious of putting parties in a situation where, by answering, they might furnish a case against themselves, on an indictment to be afterwards preferred. On an application calling upon an attorney to answer the matters of an affidavit, it is not usual to grant the rule if an indictable offence is charged." And the Solicitor-General, Sir John Campbell, who made the application in that case, being requested to look at the authorities, afterwards stated that he could find no precedent for it. In that case, however, the rule applied for was one requiring the attorney to answer charges on oath. On a similar application in a subsequent case charging perjury and fraud, In re
3 Nev. & Perry, 389, Lord Denman said: "Would not an indictment for perjury lic upon these facts? We are not in the habit of interfering in such a case, unless there is something amounting to an admission on the part of the attorney, which would render the intervention of a jury unnecessary."
In another case in the Exchequer, Ex parte, 2 Dowl. P. C. 110, where an attorney had been sued in an action at law for an aggravated libel, and a verdict had been rendered against him with only one shilling damages; on an application being then made to strike him off the roll, Lord Lyndhurst said: "Have you any instance of such an application on a verdict for the same criminal act, but for which no criminal proceedings have been taken?" and intimated that if there was any such case, the rule would be granted, but added: "Here there was
conflicting evidence at the trial, and it is doubtful whether the publication was brought home to the defendant; and the jury seemed to have so considered it: " and the rule was refused.
But this matter was carefully reviewed by the Court of Exchequer in the subsequent case of Stephens v. Hill, 10 Mee. & W. 28, where motion was made against an attorney who had conspired with others to induce a witness for the opposite party to absent himself from a trial, giving him money, &c. It was objected that the application to strike from the roll could not be heard on these charges without a conviction, inasmuch as a conspiracy is an indictable offence. Lord Abinger took a distinction between a rule to show cause why an attorney should not be struck off the roll, and a rule calling on him to answer the matters of an affidavit with a view to strike him off the roll. The latter course he conceded would be improper, if the offence was indictable, because it would compel the attorney to criminate himself; but not so the former, for he might clear himself without answering under oath; and that this was all that Lord Denman meant in the case before him. Lord Abinger said that as long as he had known Westminster Hall, he had never heard of such a rule as that an attorney might not be struck off the roll for misconduct in a cause merely because the offence imputed to him was of such a nature that he might have been indicted for it; but he said that in the case of applications calling upon an attorney to answer the matters of an affidavit, he had known Lord Kenyon and Lord Ellenborough frequently say, You cannot have a rule for this purpose, because the misconduct you impute to the man is indictable; but you may have one to strike him off the roll. After noticing and explaining the language attributed to Lord Denman, as before stated, Lord Abinger adds: "If, indeed, a case should occur where an attorney has been guilty of some professional misconduct for which the court by its summary jurisdiction might compel him to do justice, and at the same time has been guilty of something indictable in itself, but not arising out of the cause, the court will not inquire into that with a view of striking him off the roll, but would leave the party aggrieved to his remedy by a criminal prosecution."
This expression, about leaving the party aggrieved to his