"No question can be made of the power of a court to strike a member of the bar from the roll for official misconduct in or out of court. By the seventy-third section of the act of April 14, 1834, it is expressly enacted that if any attorney at law shall misbehave himself in his office of attorney he shall be liable to suspension, removal from office, or to such other penalties as have heretofore been allowed in such cases by the laws of this commonwealth. We do not mean to say-for the case does not call for such an opinion-that there may not be cases of misconduct not strictly professional which would clearly show a person not to be fit to be an attorney, nor fit to associate with honest men. Thus, if he was proved to be a thief, a forger, a perjurer, or guilty of other offenses of the crimen falsi. But no one, we suppose, will contend that for such an offense he can be summarily convicted and disbarred by the court without a formal indictment, trial, and conviction by a jury, or upon confession in open court. Whether a libel is an offense of such a character may be a question, but certain it is that if the libel in this case had been upon a private individual, or upon a public officer, such even as the district attorney, the court could not have summarily convicted the defendants and disbarred them."

A similar doctrine obtains in the courts of England. Thus, in a case in 5 Barn. & Adol. 1088, the solicitor general of England moved the court of king's bench for a rule calling on two attorneys of the court to show a cause why they should not be struck off the roll, on affidavits charging them with professional misconduct in certain pecuniary transactions. Lord DENMAN, the chief justice, replied:

"The facts stated amount to an indictable offense. 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 offense is charged."

The court, however, desired the solicitor general to see if any precedent could be found of such an application having been granted. The solicitor general afterwards stated that he had been unable to find any, and the rule was discharged. My brethren are mistaken in supposing that in this case the attorneys were required to answer under oath the charges made.

And in a case in 3 Nev. & P. 389, a motion was made to the court of queen's bench to strike an attorney off the roll on an affidavit alleging a distinct case of perjury by him. The attorney had sworn to the sum of £374 as the expenses of witnesses, which was reduced before the master to £47. It was contended that the court could exercise its summary jurisdiction on the ground of the perjury. But the chief

justice replied: "Would not an indictment for perjury lie upon these facts? We are not in the habit of interposing in such a case, unless there is something amounting to an admission on the part of the attorney which would render the interposition of a jury unnecessary." The moving counsel answered that there was enough in the affidavit to show a distinct case of perjury, but that there was no admission. The rule was, therefore, refused.

To the same purport are numerous other adjudications, and their force is not weakened by the circumstance that it is also held that it is no objection to the exercise of the summary jurisdiction of the court that the conduct constituting the delinquency, for which disbarment is moved, may subject the party to indictment. When such is the case he is not required to answer the affidavits charging the official delinquency, for no one can be compelled to criminate himself, and the court confines his inquiry strictly to such acts as are inconsistent with the attorney's duty in his profession. It looks only to the professional conduct of the attorney, and acts upon that.

In Stephens v. Hill, which was before the court of exchequer, a distinction was drawn between the misconduct of an attorney outside of a proceeding in court which might subject him to an indictment, and such misconduct committed by him in a proceeding in court. For the former no motion to disbar would be entertained; for the latter the motion would be heard. There, an attorney for the defendants had persuaded a material witness for the plaintiff to absent himself from the trial of the cause, and had undertaken to indemnify him for any damage he might sustain for so doing. Upon affidavits disclosing this matter, application was made to disbar the attorney. It was objected that the court would not exercise its summary jurisdiction when the misconduct charged amounts to an indictable offense, as was the conspiracy in which the attorney was engaged. But the chief baron, Lord ABINGER, answered that he never understood that an attorney might not be struck off the roll for misconduct in a cause in which he was an attorney merely because the offense imputed to him was of such a nature that he might have been indicted for it; that so long as he had been in Westminster Hall he had never heard of such a rule, though the court would not require the attorney to answer the affidavits. "If, indeed," said the chief baron, speaking for the court, "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 would 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." And, again: "Where, indeed, the attorney is indicted for some matter not connected with the practice of his profession of an attorney, that, also, is a ground for striking him off the roll, although in that case it cannot be done until after conviction by a jury." 10 Mees. & W. 31, 32. The conduct of the attorney in that case tended to defeat the administration of justice, and was grossly dishonorable. He had employed, for the success of his cause, means inconsistent with truth and honor. He was, therefore, rightly disbarred, without reference to his liability to a criminal prosecution for his conduct.

There is no case I have been able to find, after a somewhat extended examination of the reports, where, for an indictable offense, wholly distinct from the attorney's professional conduct, the commission of which was not admitted, he has been compelled, in advance of trial and conviction, to show cause why he should not be disbarred, cxcept one in Tennessee for accepting a challenge to fight a duel and killing his antagonist. Smith v. Tennessee, 1 Yerg. 228. This case is exceptional, and finds no support in the decisions of the courts of other states. There is no case at all like the one at bar to be found in the reports of the courts of England or of any of the states of the Union.

In the numerous cases cited in the opinion of my brethren, the matter which was the subject of complaint, and the ground of the action of the court, related to the conduct of the party in his professional business or in business connected with, or growing out of, his profession. Thus, the advertisement of an attorney that he could procure divorces for causes not known to the law, without publicity, or reference to the parties' residence; colluding with a wife to manufacture evidence to procure a divorce; the misapplication by him of funds collected; his bribery of witnesses, hiring them to keep out of the way, or to disregard a subpoena; his falsely personating another in legal proceedings; instituting suits without authority; knowingly taking insufficient security; forging an affidavit to change a venue; substituting the name of his client for his own in an affidavit to procure alimony; altering a letter to a judge in order to secure the allowance of bail; attempting to make an opposing attorney drunk, in order to obtain an advantage of him on the trial of a cause; obtaining money from a client by false representations respecting the lat

ter's title to lands, and advances for taxes; and many other like matters, which operated as a fraud upon the court and tended to deceive it, and were inconsistent with professional honor and integrity, were very properly considered as sufficient grounds for temporary suspension or absolute expulsion from the bar. And in this class of cases we sometimes find objections were taken that the offenses charged subjected the attorney to liability for indictment, and for that reason should not be considered; and it was in answer to such objections that language was used which apparently conflicts with the views I have expressed, but not really so when read in connection with the facts. In those cases the conduct of the attorney, even when furnishing ground for indictment, was, independently of its criminal character, open to consideration on a motion to disbar, so far as it affected him professionally; and so it was said that it was no objection to such consideration that he might have been also indicted for the offense committed-language which can have no application where the offense, as in this case, had no connection with the party's professional conduct.

In illustration of this statement I will make a brief reference to some of the cases cited by my brethren, and upon which they seem chiefly to rely. That of Stephens v. Hill, in the court of exchequer, already explained, confirms what I have said. There, while holding that the fact that the matter complained of might subject the attorney to an indictment would not prevent an inquiry into it, so far as it affected his professional conduct, Lord ABINGER takes particular pains to say, as appears from the quotation from his opinion which I have given, that where the matter is not connected with the practice of the attorney's profession, though it might be ground for striking him from the roll, "in that case it cannot be done until after conviction by a jury."

In the Matter of Francis Blake, 3 El. & El. 34, the court held that its summary jurisdiction over its attorneys is not limited to cases in which they have been guilty of misconduct, such as amounts to an indictable offense, or arises in the ordinary course of their professional practice, but extends to all cases of gross misconduct on their part, in any matter in which they may, from its nature, be fairly presumed to have been employed in consequence of their professional character. In that case money had been lent to an attorney, previously known and employed as such, upon his note, and a deed of assignment of a mortgage on an estate in Ireland, by which a greater

amount was secured to him. The estate getting into the Irish encumbered estates court, the attorney borrowed the deed from his creditor for the purpose, as alleged, of supporting his claim in that court, but in reality in order to obtain the payment of the amount secured to him. Having established his right to that payment, he returned the deed to the creditor, and afterwards received the whole amount secured, and appropriated it to his own use. It is with reference to these facts that Chief Justice COCKBURN uses the language quoted by my brethren. He said that although Blake applied to the lender in the first instance as an attorney, he thought the transaction had ultimately resolved itself into a mere loan between them as individuals.

But the transaction had evidently grown out of their former relation as attorney and client. Mr. Justice CRAMPTON, in concurring with the chief justice, said: "In the present case, I cannot say that Blake's fraud was not committed in a matter connected with his professional character. If he did not act in it as an attorney; he at all events took advantage of his professional position to deceive Beevirs,” (the lender.)

In Re Hill, L. R. 3 Q. B. 543, an attorney, acting as a clerk to a firm of attorneys, in completing the sale of certain property, received the balance of the purchase money and appropriated it to his own On affidavits stating the facts, a motion was made to strike him off the rolls. He admitted the misappropriation and was accordingly suspended for twelve months. Said Chief Justice Cock

use.

BURN:

"In this case, if the delinquent had been proceeded against criminally upon the facts admitted by him, it is plain that he would have been convicted of embezzlement, and upon that conviction being brought before us, we should have been bound to act. If there had been a conflict of evidence upon the affidavits, that might be a very sufficient reason why the court should not interfere until the conviction had taken place; but here we have the person against whom the application is made admitting the facts."

It is difficult to see the pertinency of this decision to the position taken by my brethren. These two cases are, in the language used, the strongest to be found in the reports on that side; but their facts give it no strength whatever.

In Penobscot Bar v. Kimball, 64 Me. 140, the attorney had been convicted of forging a deposition, used by him in a suit against his wife for a divorce; and, though pardoned for the crime, the fraud upon the court remained, and for that and for other disreputable practices and professional misconduct, rendering him “unfit and un