In re O'Brien

Watson, C. ' J.

(after making the foregoing statement). From what is shown in the above statement as to the allegations and charges contained in the original complaint, the respondent was charged with two offences committed by him in connection with the case of Eastman and Clement v. Vermont Marble Company, namely: First, an attempt to deceive the chancellor before whom the cause was then on trial, and to that end, wilfully and knowingly giving false testimony, the effect of which was, if believed, to show that the alleged written agreement was, as to Eastman and Clement, newly discovered evidence, within the meaning of the law, a fact essential for them to establish in order to entitle them to the relief sought; and second, by unlawfully conspiring with Eastman to deceive the court by knowingly and wilfully giving false testimony to show and for the purpose of establishing that said alleged written agreement was a *174 genuine instrument, when in each respect he then and there knew the fact to be otherwise, the ultimate purpose and design of the two together being to “defeat, reverse, and nullify a previous decision and decretal order of the court of chancery against Eastman and Clement, and a decision and mandate of this Court.

The offence charged against the respondent in connection with the case of Stickney v. Estate of Holmes, was that he permitted his client to use, and consented to his using, in evidence in the trial thereof, a false, fictitious, fraudulent, and fabricated book-account to establish his claim against the estate, with full knowledge that said book-account was of such dishonest character, in violation of his oath as an attorney of this Court.

[1] If the charges be true, they were attempts by the respondent, in two cases pending in the courts of this State, and on trial therein, in one of which he was counsel of record for the' plaintiff, to pervert' and obstruct justice: in one by deceiving the court through perjured testimony given by himself, and in the other by permitting his client to use in evidence as a genuine book-account kept by the latter in due course of business, a dishonest piece of evidence fraudulently prepared for the very purpose of procuring a verdict in the latter’s favor. These were grave charges, not to be overlooked nor allowed to pass without a full and searching investigation according to law governing such proceedings; for if, by any act- of commission or omission, an attorney deceives the court so that he obstructs or pollutes the administration of justice, or by the suppression of truth obtains a result not warranted in law, he is guilty of malpractice and renders himself unworthy of the privileges which his license to practice law confers upon him. Wernimont v. State, 101 Ark. 210 , 142 S. W. 194 , Ann. Cas. 1913 D, 1156.

Commissioners being appointed to hear the evidence and make report of the facts found by them, and a time being fixed by them for such hearing, the respondent addressed his motion to this Court asking that the hearing be postponed on the grounds: First, that the aforementioned criminal prosecution, pending against him, should be determined before anything further be done in the disbarment proceedings; and second, that his physical disability was such as to prevent him from attending such hearing at the time fixed therefor. Both grounds of the motion were opposed by the Attorney General, as without merit. *175 In view of the character of the charges made in the complaint for disbarment, the first ground of the motion, necessarily decided in limine upon the complaint and answer, was overruled; and as to the second ground, the Court stated in effect that it was a question which could better be determined by the commissioners as it might be made to appear before them.

[2] Although the petitioner in effect states in his petition that it was discretionary with this Court to order an investigation of the charges made against him, as it did, without awaiting a trial on the information for perjury, yet the failure sd to await, is one of the several reasons urged why the filing of the petition for reinstatement should be granted. In Ex parte Wall, 107 U. S. 265 , 27 L. ed. 552, 2 Sup. Ct. 569, the Court, speaking through Mr. Justice Bradley, said: “From this review of the authorities in this country, it is apparent, that whilst it may be the general rule, that a previous' conviction should be had before striking an attorney off the roll for an indictable’ offence, committed by him when not acting in his character of an attorney, yet, that the rule is not an inflexible one. Cases may occur in which such a requirement would result in allowing persons to practice as attorneys, who ought, on every ground of propriety and respect for the administration of the law, to be excluded from such practice. A criminal’ prosecution may fail, by the absence of a witness or by reason of a flaw in the indictment, or some irregularity in the proceedings; and, in such cases, even in England, the proceeding to strike from the roll may be had. But other causes may operate to shield a gross offender from a conviction of crime, however clear and notorious his guilt may be: a prevailing, popular excitement; powerful influences brought to bear on the public mind or on the mind of the jury; ’ and many other causes which might be suggested; and yet, all the time, the offender may be so covered with guilt, perhaps glorying in it, that it would be a disgrace to the court to be obliged to receive him as one of its officers, clothed with all the prestige of its confidence and authority. It seems to us, that the circumstances of the case and not any iron rule on the subject, must determine whether and when it is proper to dispense with a preliminary conviction.”

In our opinion it would be difficult finding á ease where, in the circumstances shown by the complaint and the charges preferred, an investigation of the matter by disbarment proceedings, *176 without awaiting the result of a criminal prosecution, is more demanded for the protection of the courts of the State, for the well-being of the legal profession, and for the safety of the public, than where, as in the case of O’Brien, the charges are preferred by the highest prosecuting officer of the State, of' attempts to obstruct the due administration of justice by perpetrating, or attempts to perpetrate, a fraud upon the court. See In re Jones, 70 Vt. 71 , 39 Atl. 1087 ; 2 Thorn. Attys. at Law, § 778. And if this be done, or permitted to be done by an attorney of record in a ease on trial, as and in the manner charged in the complaint, in connection with the Stickney Case, it is not only a gross fraud, an outrageous imposition upon the administration of justice, but it is a violation of the attorney’s oath of office. People v. Beattie, 137 Ill. 553 , 27 N. E. 1096 , 31 A. S. R. 384.

This Court would subject itself to criticism as derelict in duty, if, in the circumstances and charges presented, the honor of the courts of the State, and of the legal profession, and the safety of the public, as involved in the administration of the law in its integrity, are seriously endangered, unless under its orders and directions appropriate proceeding be had according to law, to ascertain the truth or falsity of the charges as soon as reasonably may be, rendering such judgment as the facts found and reported, in justice require. The Supreme Court of the United States, speaking through Mr. Chief Justice Taney, has said respecting the power of disbarment: ‘‘The power, however, is not an arbitrary and despotic one, to be exercised at the pleasure of the court, or from passion, prejudice, or personal hostility; but it is the duty of the court to exercise and regulate it by a sound and just judicial discretion, whereby the rights and independence of the bar may be as scrupulously guarded and maintained by the court, as the rights and dignity of the court itself.” Ex parte Secombe, 19 How. 9 , 15 L. ed. 565. So the commissioners very properly disposed of the same ground of a motion subsequently made by the petitioner before them, by holding that they would not be justified in continuing the case because of that, since that was the question the Supreme Court had passed upon.

[3] The ruling made by the commissioners in disposing of the other grounds of the respondent’s said motion before them, seems to have been in accordance with the law and general rules of practice in this State. They said: ‘ ‘ That as to the possibility of some of the witnesses now charged with some criminal offence *177 claiming their privilege and refusing to testify, we should hardly be justified in continuing the ease for that reason, in trying to forecast what they might say or refuse to say. We can only deal with those things as they come. As to the statement made here by the defendant, by his attorneys, as to his physical condition and inability to go on with this case, we say that we should hardly be justified in continuing the ease on that statement alone; that, if the ease was to be continued by reason of the illness or sickness or inability of the defendant to participate in these proceedings, it should be upon such proof as to fully satisfy the commission of that fact and justify their action. As the case now stands, we think the hearing should go forward.”

There is nothing showing, and it is not claimed, that the witnesses referred to in the motion as claiming their privilege and refusing to testify, were subpoenaed by the respondent to be present at the hearing. They would have been obliged to obey such a subpoena, and to be sworn as witnesses. Then and not till then could any one of them claim the constitutional privilege which is strictly personal, and whether such privilege existed was a question for the commission to determine from the circumstances of the case and the nature of the evidence which the witness was called upon to give. In re Consolidated Rendering Co., 80 Vt. 55 , 66 Atl. 790 , 11 Ann. Cas. 1069.

[4] The part of the ruling relating to a continuance on the ground of the physical condition or inability of the respondent to go on with the hearing at that time, only went to the extent of saying that the mere statement of his counsel in that respect was not enough to justify a granting of the motion; that such proof should be presented as would satisfy the commissioners of the fact. This was in accordance with the well known practice in this State, and was exacting nothing unreasonable.

The report shows that,, upon such ruling being made, counsel for the respondent, instead of supplying or attempting to supply such proof, withdrew from the hearing and did not further participate therein, although one of said counsel remained in the room as an observer and listener at the proceedings throughout most of the hearing which thereafterwards continued for six days on evidence adduced.

[5] The petition alleges the filing of the information against the petitioner in the Rutland county court on the 13th day of April, 1918, by the Attorney General of the State, eharg *178 ing that he was guilty of the crime of perjury and. that he had falsely testified in substance as set forth in the petition, and further alleges that an information was also filed in the same court on the same day, against George P. Eastman, “in which it was alleged that he, the said Eastman, was guilty of perjury, in that he testified falsely with respect to said Exhibit No. 1, and with respect to his whereabouts on the occasion of your petitioner being in Albany aforesaid, and that the perjury charged in the case against your petitioner and against the said Eastman were each based upon the question of the validity of the contract or document known as Exhibit No. 1, and that the two cases were in fact companion eases. ’ ’ The petitioner further alleges that the issue in the criminal prosecution and in the disbarment proceedings were whether the document, Exhibit No. 1, was genuine or forgery; “that the perjury charged against said Eastman and the perjury and conspiracy charged against your petitioner depended entirely upon the question whether said document was genuine or a forgery”; that at the March Term, 1919, of the Rutland county court, Eastman was tried by jury for said crime of perjury and acquitted; that under the charge of the court upon some counts, at least, it became necessary for the jury to determine whether the document was genuine or a forgery; and, if genuine, there must have been an acquittal, if a forgery, a conviction, and in order to discharge Eastman it became necessary to find on those counts that the document was genuine.

Assuming it to be true that much of the evidence introduced in the Eastman trial would be proper evidence in disbarment proceedings against O’Brien, yet the verdict or judgment of acquittal in the Eastman case is not proper evidence in such disbarment proceedings. A hearing in the latter is judicial and must be governed by the same rules which govern other trials of questions of fact, and the evidence on each side must be such as is legally competent to maintain the issue. People v. Amos, 246 Ill. 299 , 92 N. E. 857 , 138 A. S. R. 239; 2 R. C. L. 1108, § 201; State v. Mosher, 128 Ia. 82 , 103 N. W. 105 , 5 Ann. Cas. 984. More than one reason might be given why the judgment in the Eastman criminal case is not competent evidence in disbarment proceedings against O’Brien, but it is enough to say that the parties are not the same. 1 Greenl. Ev. § 524; People v. Amos ., cited above.

*179

[1] The petitioner further alleges that, after the verdict of acquittal in the Eastman ease, he with counsel was in court, ready and urging the court to try the criminal case against him, and, the same being ordered for trial, the Attorney General entered a nolle prosequi of the case; and that this was done because the petitioner was not guilty of said charges and the State knew that he could not be convicted. But where disbarment may be ordered for criminal misconduct without awaiting a conviction thereof, an acquittal will not, as of course, prevent the entry of an order to that end. In the Matter of-, 86 N. Y. 563 ; People v. Thomas, 36 Golo. 126, 91 Pac. 36 , 10 Ann. Cas. 886. Nor will the refusal of a grand jury to find an indictment for the same criminal misconduct charged in disbarment proceedings, be a defence to the latter. In re Wellcome, 23 Mont. 213 , 58 Pae. 47. And for the same reason the entry of a nolle prosequi in a criminal prosecution does not constitute a defence to disbarment proceedings based on the commission of the crime. In re Dmis ', 93 Pa. St. 116, 39 A. R. 729; 2 Thorn. Atty. at Law, § 864. Mr. Greenleaf says: “It is obvious that, as a general rule, a verdict and judgment in a criminal case, though admissible to establish the fact of the mere rendition of the judgment, cannot be' given in evidence in a civil action, to' establish the facts on which it was rendered. If the defendant was convicted, it may have been upon the evidence of the very plaintiff in the civil action; and if he was acquitted, it may have been by collusion with the prosecutor. But beside this, and upon more general grounds, there is no mutuality; the parties are not the same; neither are the rules of decision and the course of proceedings the same. The defendant could not avail himself, in the criminal trial, of any admissions of the plaintiff in the civil action; and, on the other hand, the jury in the civil action must decide upon the mere preponderance of evidence, whereas, in order to a criminal conviction, they must be satisfied of the party’s guilt, beyond any reasonable doubt. The same principles render a judgment in a civil action inadmissible evidence in a criminal prosecution. ’ ’ 1 Greenl. Ev. § 537.

[7] The petitioner alleges that certain evidence to which reference is'made in the petition, is newly discovered. But inasmuch as his counsel withdrew.from participation in the hearing before the commissioners, and no evidence was introduced or even offered in his behalf, it is not apparent what bearing the so- *180 called newly discovered evidence has on the question now before us. If the filing'of the petition be granted,fit will be for reasons other than the alleged newly discovered evidence. It goes without saying that, if a rehearing be had of the issues presented by the complaint and the answer thereto, the door is again open for the reception of any legally competent evidence offered on either side.

The commissioners reported that, as to the charges made against respondent in connection with the Stiekney Case, they are not sustained. Substantially all the other charges in the complaint against him were found to be true. The findings are stated with great fullness in the report of the case in 93 Vt. 194 , 107 Atl. 487 , to which reference is here made. The petition, to file which leave is now sought, has received that careful and painstaking consideration, which a matter of this nature, and of such importance, not only to the petitioner, but to the courts of the State, to the legal profession, and to the public welfare, demands. Although the duties we have been called upon to perform in connection with these disbarment proceedings have been most unpleasant, and the occasion for their performance much to be regretted, we have always undertaken to perform them, and do now, as in our judgment the circumstances and the law require without fear or favor. We do not think the petition under consideration presents a case which ought to be entertained by way of vacating the judgment of disbarment or granting a rehearing of the original ease.

The filing of the petition is therefore denied.