Attorney at Law, Admission to practice, Disbarment. Practice, Civil, Disbarment proceedings: venue, petition, motion to dismiss, service of notice, waiver of defence, specifications, laches. Venue. Waiver. Evidence, Competency, Judicial notice, In disbarment proceedings, Court record. Laches. Res Judicata. Law of the Case. Notice. Constitutional Law.
A motion to dismiss a petition under G.L.c. 221, § 40, as amended by St. 1924, c. 134, for the disbarment of an attorney at law, relates only to matters apparent upon the record, raises only pure questions of law, and is not appropriate to the presentation of questions of fact. In a petition filed in the Superior Court under G.L.c. 221, § 40, as amended by St. 1924, c. 134, for the disbarment of an attorney at law, it was alleged that the attorney, after a full hearing in disbarment proceedings in the District Court of the United States for the District of Massachusetts, had been found by said court to have committed wrongful acts complained of and was disbarred from practice in said court, and a copy of the findings of the judge of that court "on which said decree was entered" was annexed to the petition. Such copy was over eleven pages in length. The court ordered that the respondent be served "with a true and attested copy of said petition." The return of the officer showed that the copy of the petition he served stated that "a copy of the findings of . . . [the judge of the said district court], on which said decree was entered, is hereto annexed (on file) marked A." The respondent moved to dismiss the proceeding on the ground that service upon him did not comply with the order of the court. This court, assuming in favor of the respondent that the conformity of the return of the officer to the order of the court was open on a motion to dismiss, held, that (1) The omission of the annexed copy from the papers served on the respondent was not a fatal defect to be taken advantage of on motion to dismiss; (2) The respondent was entitled only to reasonable notice of the proceeding; (3) In the circumstances, including the obvious familiarity of the respondent with the findings in the said district court, the petition itself gave the respondent the reasonable notice of the nature of the proceedings to which he was entitled. In a proceeding under G.L.c. 221, § 40, as amended by St. 1924, c. 134, for disbarment of an attorney at law, technical process and service are not required; form is not essential if in every matter of substance the respondent receives notice and reasonable opportunity to prepare and present his case. An objection to the prosecution in the county of Suffolk of a petition in the Superior Court under G.L.c. 221, § 40, as amended by St. 1924, c. 134, for the disbarment of an attorney at law on the ground that the respondent is a resident of Brookline in the county of Norfolk, raises a question of venue and not of jurisdiction of the court. The strict terms of the statute as to venue are not applicable to a proceeding under G.L.c. 221, § 40, as amended by St. 1924, c. 134, for disbarment of an attorney at law. Judicial notice is taken of local geography. An attorney at law who resided in Brookline in the county of Norfolk and had practiced in the county of Suffolk suffered no hardship by the mere fact that a petition under G.L.c. 221, § 40, as amended by St. 1924, c. 34, for his disbarment was brought in the county of Suffolk and not in the county of Norfolk. In the proceedings above described, the respondent filed a plea in abatement setting up in substance that the disbarment proceedings in the United States District Court for the District of Massachusetts were void because the respondent never had been a member of the bar of that court. At a hearing of the plea, evidence was received and it was found that, while the respondent never had been admitted to practice in that court by reason of a motion made in this district, he had been admitted in 1888 to practice in the United States Circuit Court for the District of Maine; and, previous to his disbarment, he had appeared in many cases in the District Court for the District of Massachusetts as attorney and counselor. At the hearing of the petition for disbarment in the Federal court, the respondent had appeared generally and had not objected that he was not a member of the bar of that court. The plea was overruled. Held, that (1) The necessary implication of the decision of the Federal court disbarring the respondent was that that court considered him a member of its bar even though the point was not expressly raised; (2) Since the Federal court had jurisdiction of the subject matter and of the respondent, the respondent, by his general appearance and conduct of the hearing in that court without raising the objection that he was not a member of its bar, had waived that defence; (3) Within the rules, in force in 1888, of the United States Circuit Court for the District of Massachusetts and of the District Court of the United States for that district, and the pertinent statute, the respondent was a member of the bar of the District Court of the United States for the District of Massachusetts by reason of his having become a member of the bar of the United States Circuit Court for the District of Maine in 1888; (4) The plea properly was overruled. Upon the hearing of the above described case on its merits by a judge of the Superior Court, other than the judge who had heard the plea in abatement, it was proper to exclude evidence, offered under a part of the answer called "plea in bar," setting up the same question as that raised by and heard under the plea in abatement. In the petition above described, it was averred that, in a proceeding brought in the Federal court "for the purpose of disbarring" the respondent for professional misconduct amounting to moral wrong, he was, after notice and full hearing, found by said court to have committed wrongful acts complained of and was disbarred from practice in said court; a full copy of the findings of the judge of the Federal court, containing a detailed description of eight alleged grounds of complaint, findings as to each and circumstances sustaining the complaints on six of the grounds, was averred; and it was requested that the court take such action as it might see fit. On demurrer, it was held, that (1) The petition set forth sufficient grounds for disbarment under G.L.c. 221, § 40, as amended by St. 1924, c. 134; (2) The specifications set forth in the copy annexed to the petition were ample; if the respondent had thought further specifications necessary, he might have asked for them; (3) The reference in the petition to the disbarment by the Federal court and to the proceedings leading thereto was in itself sufficient pleading as ground for disbarment; there was no uncertainty or indefiniteness in thus stating the charge in the present petition; (4) The petition did not proceed solely on the certificate of disbarment in the Federal court; inquiry was opened as to the foundation upon which that disbarment rested and the circumstances attendant upon it; and the respondent by it was given due notice of the charges and ample opportunity to defend against them; (5) No rights of the respondent under the constitution of the Commonwealth or under that of the United States were violated by requiring him to answer the petition and be tried thereon. From findings by the judge who heard the above described petition in the Superior Court, it appeared that he received in evidence the allegations in the disbarment proceedings in the Federal court, all the testimony and the arguments of counsel there taken, in stenographic form, the exhibits, and a copy of the findings of the judge and of his order for removal, but excluded testimony bearing on the merits of the issues presented in the proceedings in the Federal court; and that, in determining the effect to be given to the judgment of disbarment in that court, he adopted the rule prescribed in Selling v. Radford, 243 U.S. 46, and, applying it, found no infirmity disclosed in the proof in the Federal court, which established a want of private and professional character and guilt of a wilful and deliberate attempt to deceive the court, and no reason which convinced the judge that to allow the natural consequences of judgment of the Federal court to have their effect would contravene any principle of right and justice. A motion to dismiss the petition at the close of the evidence was denied. Held, that (1) The decision in Selling v. Radford states the law of this Commonwealth; (2) The decree of disbarment by the Federal court coupled with the findings by the Federal judge made out at least a prima facie case, and the motion to dismiss properly was denied; (3) The documentary evidence as to proceedings in the Federal court, introduced in evidence before the trial judge, was not hearsay; (4) It was proper to exclude the evidence offered to control the findings of fact in the Federal court; (5) A proceeding for disbarment being civil and not criminal in its nature, the rules of evidence applicable to civil trials rightly were enforced; (6) Every opportunity was accorded to the respondent to show all grave reasons likely to affect the conscience of the trial judge against giving to the judgment of disbarment by the Federal court its natural consequences; (7) In view of his findings of regularity of the proceedings in the Federal court, it was no part of the duty of the trial judge to review what took place there; (8) It appearing that the judge of the Federal court found in effect that at a hearing on a motion for attachment for contempt the respondent gave testimony which was misleading for the deliberate purpose of leading the court astray, and "a wilful and deliberate attempt to deceive the court" with reference to a certain circular letter sent out by him, and that, if "his testimony given at the hearing in the contempt proceeding did not amount to wilful perjury, it was an attempt to deceive the court," warranted an order of disbarment; (9) The fact that the attempt to deceive the court was unsuccessful was immaterial; (10) The fact that, in the findings by the judge of the Federal court, it appeared that the respondent had been found guilty of contempt of that court, was irrelevant. It was no defence to the petition above described that it was not presented to the Superior Court for three years after the disbarment of the respondent in the Federal court.
RUGG, C.J.
This is a proceeding designed to bring to the attention of the court for disciplinary action professional misconduct of an attorney at law. It was instituted by the Bar Association of the City of Boston, a Massachusetts corporation. Its initial step in court for convenience may be termed a petition. In truth the paper filed by it simply directed the attention of the court to the facts that W. Edwin Ulmer was admitted to the bar of this Commonwealth in 1897 under the name of William E. Ulmer and thereafter practised in Boston; that "in a proceeding brought in the District Court of the United States for the District of Massachusetts by the United States Attorney for said District for the purpose of disbarring the respondent for professional misconduct amounting to moral wrong he was, after notice and full hearing, found by said court to have committed wrongful acts complained of and disbarred from practice in said court by a decree filed on or about September 12, 1922. A copy of the findings of Morris, J., on which the said decree was entered is hereto annexed marked A." The prayer was that the court take such action as it may see fit.
I. The respondent filed a motion to dismiss. This form of pleading relates to matters apparent upon the record. It raises a pure question of law. It is not appropriate to the presentation of questions of fact. Paraboschi v. Shaw, 258 Mass. 531, 532, and cases there collected. Amidown v. Peck, 11 Met. 467, 468. The respondent set up in this motion and now argues that the service on him did not comply with the order of the court that he be served "with a true and attested copy of said petition" in that the copy served on him stated that "a copy of the findings of Morris, J., on which said decree was entered, is hereto annexed (on file) marked A." We assume in favor of the respondent that the conformity of the return of the officer to the order of the court is open on a motion to dismiss. Simonds v. Parker, 1 Met. 508, 511. The order of notice contains no explicit direction that the copy of the findings be annexed to the notice to be served on the respondent. But in any event the omission of the annexed copy from the papers served on the respondent was not a fatal defect to be taken advantage of on motion to dismiss. It is obvious from the record as a whole that the respondent was in truth familiar with the specified findings, and that the original was a matter of easily accessible public record, and that the petition itself gave him reasonable notice of the nature of the proceeding. He was entitled to that but not to more. Matter of Sleeper, 251 Mass. 6, 18. In a proceeding of this nature, technical process and service are not required. Form is not essential if in every matter of substance the respondent has had notice and reasonable opportunity to prepare and present his case. Boston Bar Association v. Greenhood, 168 Mass. 169, 184. Matter of Allin, 224 Mass. 9, 11, and cases there collected.
The eighth and ninth grounds in the motion to dismiss relate to venue. It there is set up that the defendant is a resident of Brookline in the county of Norfolk and that, as the proceeding is brought in Boston in the county of Suffolk, it ought to abate. This relates to venue and not to jurisdiction. Paige v. Sinclair, 237 Mass. 482. It raises a question of fact not appearing on the record. Strictly speaking, its merits are not open on a motion to dismiss, which, as already pointed out, deals solely with questions of law and not of fact. Assuming for the moment that it is open to the respondent, there is no merit in the point. Judicial notice is taken of local geography. Brookline is a town chiefly residential in character, and, although a part of Norfolk County, is not adjacent to any other part of that county and is almost entirely surrounded by Boston. It is hardly distinguishable in business aspects from other parts of Boston. Large numbers of its inhabitants engage in business in Boston. The conduct of the respondent on which these proceedings are founded took place in the courts of the United States held within the territorial confines of Suffolk County. It was said in Boston Bar Association v. Greenhood, 168 Mass. 169, 183, that an inquiry of this nature "is not a criminal proceeding. Its primary purpose is not punishment but the preservation of the purity of the courts and the protection of the public from attorneys who disregard their oath of office." It is not necessarily instituted, prosecuted, or forwarded by a writ. It is a proceeding at law. It is in the nature of an inquiry by the court into the conduct of one of its own officers. Proceedings may be brought in the most summary manner, provided constitutional rights are respected. It hardly could be contended that flagrant abuse of professional privileges or outrageous conduct committed in the presence of the court by an attorney resident in a distant county might not be tried summarily and without delay, instead of being justiciable only in the county of his domicil. Randall, petitioner, 11 Allen, 473, 479. Boston Bar Association v. Casey, 211 Mass. 187, 191. Matter of Sleeper, 251 Mass. 6, 12, 18, 19. Ex parte Robinson, 19 Wall. 505, 512, 513. Ex parte Wall, 107 U.S. 265. The proceedings in the case at bar conformed to the procedure pointed out in Boston Bar Association v. Casey, 211 Mass. 187, 191-193. The strict terms of the statute as to venue are not applicable. It is not conceivable that any undue hardship was inflicted upon the respondent by holding the trial in Suffolk instead of in Norfolk County. There is no indication of that nature in the record. He is alleged to have practised in Suffolk County.
Other matters set forth in the motion to dismiss have not been argued and are treated as waived. There was no error in overruling this motion.
II. The respondent filed a plea in abatement setting up in substance that the disbarment proceedings in the United States District Court for the District of Massachusetts were void because the respondent never was a member of the bar of that court. There are several answers to the contention thus put forward.
A. The necessary implication of the decision of the Federal court disbarring the respondent is that that court considered him a member of its bar even though the point was not expressly raised. That decision imports a finding of every fact essential to the conclusion reached. A court cannot disbar an attorney at law unless he has first in some way become a member of its bar. The courts of each jurisdiction must decide for themselves who is and who is not a member of its bar. No other court can enter an effective judgment on that point. The courts of each jurisdiction are invested with the right and charged with the duty of determining who may practise before them as an attorney at law. No court of any other jurisdiction is clothed with the power of reviewing such determination. This is the underlying principle of Selling v. Radford, 243 U.S. 46. That case further holds that an attack upon the soundness of such determination is confined to what may be disclosed by the record. There are enumerated in that case certain conditions which may lead the court of another jurisdiction not to give full weight and the natural effect to such determination, but these are confined to matters appearing "from an intrinsic consideration of the State record . . . of the . . . court" making such determination. A careful examination of the record of the proceedings in the Federal court would be necessary to determine (1) that there was notice to the respondent and full hearing on the charges presented; (2) that there was no "such an infirmity of proof as to facts found to have established the want of fair private and professional character as to give rise to a clear conviction on our part that we could not consistently with our duty accept as final the conclusion on that subject"; and (3) that no other grave reason exists why the natural consequences of that judgment should not be given their full effect. 243 U.S. at page 51. See Thatcher v. United States, 212 Fed. Rep. (C.C.A.) 801. The application of the principles of Selling v. Radford to the facts here disclosed will be considered later. The circumstance that in that case the admission to the bar of the Supreme Court of the United States had been based on an admission to the bar of a State court does not differentiate the principles there declared from application to facts disclosed on the present record. The fundamental question in all such cases is whether in the respondent there is absence of the sound private and professional character essential for an attorney at law.
B. The respondent appeared generally in the proceedings in the Federal court for his disbarment and did not contest the fact that he was a member of its bar and hence subject to its disciplinary action. On the contrary he engaged in a full trial on the merits of the charges presented as grounds for his disbarment. Plainly that court had jurisdiction of the subject matter of disbarring and disciplining those admitted to practice before it as attorneys at law, and it acquired jurisdiction of the respondent. No question of jurisdiction is thereafter open. The respondent might have interposed as a defence that he was not a member of the bar of that court nor amenable to its disciplinary action; but he did not. That was not an attempt to waive jurisdiction. It was the waiver of a defence. Want of jurisdiction cannot be waived. Defences may be waived. The case on this point is covered in principle by Lonergan v. American Railway Express Co. 250 Mass. 30, 40, 41. See also Bauer v. International Waste Co. 201 Mass. 197, 200, 201, and Reynolds v. Grow, 265 Mass. 578, 580, 581.
C. The judge who heard the plea in abatement received evidence and made findings of fact. Thus it appears that the respondent in 1888 was admitted to practice as an attorney in the United States Circuit Court for the District of Maine, then, as now, a district of the first circuit as is also the district of Massachusetts. The rules of the Circuit Court for the District of Massachusetts then in force provided that "Attorneys and counsellors admitted by the Circuit Court in any district in this circuit shall be attorneys and counsellors within and for this district." The Circuit Court for the District of Massachusetts, under the provisions of the Act of Congress of March 3, 1911, The Judicial Code, 36 U.S. Sts. at Large at page 1167, c. 231, § 289, abolishing the Circuit Courts and enlarging the powers of the District Courts, adjourned sine die on December 31, 1911, and was succeeded by the United States District Court for the District of Massachusetts. The latter court adopted the rules of the Circuit Court for the District of Massachusetts, including the rule quoted, and these rules continued in force until February 15, 1916, when new rules were adopted. Paragraph one, of the first division of said new rules entitled "Attorneys and Counsellors" is as follows: "Attorneys and counsellors heretofore admitted by the Circuit Court in this district, or heretofore or hereafter admitted by this court shall constitute the bar of this court." Other of these rules provide for admission on motion of attorneys admitted to practice in other districts. Further findings of fact were these: "There is no record of the respondent's admission to the bar either of the old Circuit Court for the District of Massachusetts or of the present District Court for the District of Massachusetts. The record kept by the respective clerks of said courts, however, was a record of attorneys admitted on motion, and no record was kept of the names of attorneys admitted in other districts of the First Circuit to whom the former rule of the Circuit Court for the District of Massachusetts first above quoted might apply. The respondent, prior to the decree of the United States District Court for the District of Massachusetts disbarring him, appeared as an attorney and counsellor in many cases pending in said Court. The respondent has never resigned nor been disbarred as an attorney and counsellor of the former Circuit or present District Court for the District of Maine. After hearing, I overrule the respondent's plea in abatement, and, so far as it may be material, I find and rule that the allegations of fact therein contained are not true in fact." Manifestly this was right. The respondent became a member of the bar of the Circuit Court for the District of Massachusetts by virtue of the rule in force at the time of his admission to that court for the district of Maine. It seems to us that the effect of rule one already quoted was to continue the respondent as a member of the bar of the district court of Massachusetts. The circumstance that his name was not enrolled on the records of that court as an attorney is of no consequence. He was recognized as such attorney and constantly practised as an attorney before that court. In any event that court had jurisdiction to deal with him as one of its attorneys.
D. It follows from what has been said that there was no error by the judge who heard the case on the merits in refusing to hear evidence on that part of the respondent's answer which was in the nature of a plea in bar touching the point whether he was a member of the bar of the Federal court, in excluding all offers of proof made in that connection and in overruling it. As matter of fact the issue had been tried on the plea in abatement and the findings were categorically against the contentions of the respondent. As matter of law the contentions presented are unsound. The reasons already have been stated. It is needless to examine the offers of proof in detail or the arguments presented in support of the contentions as to the law.
III. The respondent demurred to the petition on numerous grounds. It was alleged in the petition, as already stated, that the respondent was disbarred in the District Court of the United States "for professional misconduct amounting to moral wrong," copy of the findings of the judge of that court being annexed. That was a sufficient compliance with G.L.c. 221, § 40, as amended by St. 1924, c. 134, where it is provided that an attorney may be removed "for deceit, malpractice or other gross misconduct." The findings of the district court to which reference was made contain full and detailed statements of the charges made against him. The words of the statute are comprehensive. They are generic and not particular. They do not constitute narrow and technical specifications. Evidence supporting any want of moral probity or integrity, or showing misconduct of such nature that the respondent is unfit to be trusted by clients or by the court or to bear the responsibilities and perform the duties of an attorney at law is enough to warrant and to demand disciplinary action by the courts. It is required by G.L.c. 221, § 37, that applicants for admission to the bar shall be of good moral character. If and when an attorney at law ceases to possess such character, that is sufficient cause for disbarment. That is demonstrated by all of our decisions hitherto cited. To the same effect are O'Connell, petitioner, 174 Mass. 253, 262, Boston Bar Association v. Scott, 209 Mass. 200, Boston Bar Association v. Casey, 196 Mass. 100; 213 Mass. 549, 558, and Matter of Cohen, 261 Mass. 484. Moreover, the power to suspend or disbar an attorney for cause shown is inherent in the court and not dependent upon the statute. Matter of Carver, 224 Mass. 169. Boston Bar Association v. Casey, 211 Mass. 187, 192. Matter of Cohen, supra, at page 486, and cases there collected.
Of course the respondent was entitled to notice of the grounds of complaint against him. Matter of Sleeper, 251 Mass. 6, 18-20, and cases there reviewed. Ex parte Robinson, 19 Wall. 505. He received such notice by the petition as to satisfy every requirement. The specifications set forth in the copy annexed to the petition were ample. They gave him full notice of the charge. If the respondent thought that he ought to have further specifications, he might have asked for them.
The reference in the petition to the disbarment by the Federal court and to the proceedings leading thereto was of itself sufficient pleading as ground for disbarment. There is no uncertainty or indefiniteness in thus stating the charge in the present petition. Proof of that pleading would be adequate ground for affirmative judicial action. In the light of such pleading and such proof the vital question would be presented to the trial court as to the appropriate action in the light of the situation presented. As was said by Mr. Chief Justice White respecting a similar matter in Selling v. Radford, 243 U.S. 46, at page 50, "In coming to solve that question three things are patent: (a) That we have no authority to re-examine or reverse as a reviewing court the action of the Supreme Court of Michigan in disbarring a member of the Bar of the courts of that State for personal and professional misconduct; (b) that the order of disbarment is not binding upon us as the thing adjudged in a technical sense; and (c) that, albeit this is the case, yet as we have previously shown, the necessary effect of the action of the Supreme Court of Michigan as long as it stands unreversed, unless for some reason it is found that it ought not to be accepted or given effect to, has been to absolutely destroy the condition of fair private and professional character, without the possession of which there could be no possible right to continue to be a member of this Bar. Meeting this situation, we are of opinion that on the case presented our duty is not to review the action of the state court of last resort — a power which we do not possess —, not wholly to abdicate our own functions by treating its judgment as the thing adjudged excluding all inquiry on our part, and yet not, in considering the right of one to continue to be a member of the Bar of this court, to shut our eyes to the status, as it were, of unworthiness to be such a member which the judgment must be treated as having established, unless for some reason we deem that consequence should not now be accepted. In other words, in passing upon the question of the right to continue to be a member of the Bar of this court, we think we should recognize the absence of fair private and professional character inherently arising as the result of the action of the Supreme Court of Michigan so far as we are at liberty to do so consistently with the duty resting upon us to determine for ourselves the right to continue to be a member of this Bar."
The present petition does not proceed solely on the certificate of disbarment in the Federal court. Inquiry is opened as to the foundation upon which rests that disbarment and the circumstances attendant upon it. The respondent had due notice. Ample opportunity to be heard was afforded under the petition for investigation into matters relevant to the issue stated. It is too clear for further discussion that "the attempt to try" the respondent on the petition as filed was not in violation of any rights secured by the Fourteenth Amendment to the Constitution of the United States or by articles 1, 10, 12, 15, 29 of the Declaration of Rights of the Constitution of this Commonwealth, all of which are mentioned in the respondent's brief.
Every ground of demurrer argued has been considered. Those not argued are treated as waived. The demurrer was overruled rightly.
IV. After the disposal of these dilatory pleadings the case was heard on its merits. The respondent saved exceptions to the admission and exclusion of evidence and to rulings of law. So far as these have been already discussed as to their substance, no further reference will be made to them.
A motion to dismiss the petition was filed at the close of the evidence. The fundamental contention of the respondent, as we see it, is that the trial judge erred in his procedure. He sets that out in his findings in these words: "I had before me the allegations and the findings of the court in the disbarment proceedings in the Federal court, all the testimony in stenographic form, the arguments of counsel, the exhibits, and a copy of the findings of the judge and his order for removal. No testimony, however, was taken or permitted by me to be taken at the hearing before me bearing on the merits of the issues presented in the proceedings in the Federal court. In determining the effect to be given to the judgment of disbarment in that court, I have adopted the rule prescribed in similar circumstances in the case of Selling v. Radford, 243 U.S. 46. Conformably to that rule, while I do not deem the order of the Federal court to be binding on this court as a thing adjudged, I consider that it is my duty to give effect to the finding and order of that court so far as it establishes gross personal and professional misconduct on the part of the respondent and the want of fair private and professional character, subject, however, to the limitations prescribed in the case cited, viz: (1) that there was no want of notice or opportunity to be heard in the Federal court; (2) that there was no such infirmity of proof as to the facts found to have established gross personal and professional misconduct, and the want of private and professional character as to give rise to a clear conviction on my part that I could not justly accept as final the conclusion of the Federal court; (3) and that no other grave reason exists which convinces me that to allow the natural consequences of the judgment in the Federal court to have their effect would conflict with my duty not to disbar except upon the conviction that under the principles of right and justice I am constrained so to do. The respondent admittedly had due notice and opportunity to be heard in the Federal court, was present and represented by counsel, testified at the hearing and was fully heard. The full transcript of the testimony at that hearing, which I had before me, the exhibits, the full and careful findings of the court and the arguments of counsel before me as to the strength and weight of the testimony, disclose no infirmity in the proof establishing the want of private and professional character and the guilt of giving misleading testimony with intent to deceive; nor has any reason been disclosed which convinces me that to allow the natural consequences of judgment of the Federal court to have their effect would contravene any principle of right and justice."
There can be no successful contention to the effect that the trial judge did not follow governing principles of law as to the effect of the disbarment in the Federal court which he thus laid down for his guidance. There can be no doubt as to the soundness of those principles. We accept without further discussion the decision of Selling v. Radford as stating the law of this Commonwealth. The differences between the facts of that case and those of the case at bar relate to immaterial details and do not affect the dominating principles set forth in that opinion.
The motion to dismiss was denied rightly because the decree of disbarment by the Federal court coupled with the findings by the Federal judge made out at least a prima facie case. It was sufficient evidence on the issue involved to require a decision on the issue presented on the petition. It was competent evidence. De Propper, petitioner, 236 Mass. 500, 502.
The documentary evidence as to proceedings in the Federal court introduced in evidence before the trial judge was not hearsay. It was admitted but to show the circumstances out of which arose the disbarment proceedings in the Federal court, and what took place there. A proceeding for disbarment being civil and not criminal in its nature, the rules of evidence applicable to civil trials rightly were enforced. Boston Bar Association v. Greenhood, 168 Mass. 169, 183. See Attorney General v. Pelletier, 240 Mass. 264, 305.
It is to be observed that the trial judge received at the request of the respondent stenographic transcript of the whole testimony and all exhibits which were before the Federal court on the petition for disbarment. Every opportunity thus was accorded to the respondent to show all grave reasons likely to affect the conscience of the trial judge against allowing to the judgment of disbarment by the Federal court its natural consequences.
There was no such irregularity in the proceeding before the Federal court as to affect the force of its decision. There appears to have been the utmost fairness throughout the hearing in that court as disclosed on the present record. As hereinbefore pointed out, it was no part of the duty of the trial judge to review what took place in the Federal court.
While the findings of the Federal court were on several charges in favor of the respondent, several others were found against him. Among these was the most serious as affecting his professional character. That finding in effect was that at a hearing on a motion for attachment for contempt he gave testimony which was misleading for the deliberate purpose of leading the court astray. The ultimate finding was that he had made "a wilful and deliberate attempt to deceive the court" with reference to a certain circular letter sent out by him and that if "his testimony, given at the hearing in the contempt proceeding, did not amount to wilful perjury, it was an attempt to deceive the court." The conclusion that such conduct was a gross violation of an attorney's oath and universally held sufficient to warrant disbarment cannot be controverted. Such person is not fit to remain an attorney at law, and from that vantage ground to prey upon the confiding credulity of clients, and to pollute the public welfare by attempting the deception of those charged with administering justice. It is not necessary to determine whether the sufficiency of the evidence in the Federal court to support these findings was open before the trial judge, Matter of Sleeper, 251 Mass. 6, at page 12, because plainly the findings were amply warranted. It is no answer that the attempt to deceive the court was not successful. That fact does not palliate the offence or exonerate the respondent from the consequences of conduct violative of a primal duty of an attorney. Common honesty is essential for every lawyer. The want of it constitutes ground for disbarment.
The factor that the respondent had been found guilty of contempt in the Federal court is irrelevant. That adjudication rested on matters occurring before that hearing. The disbarment was founded on false testimony given at that hearing. The contempt of court and the cause for disbarment were wholly diverse. There is nothing in Ex parte Robinson, 19 Wall. 505, at all inconsistent with this conclusion. Disbarment may be grounded upon deceit or perjury committed in a proceeding for contempt of court.
The delay of three years in presenting the present petition after the disbarment in the Federal court is no defence. The main thing is whether the professional or personal character of the respondent shows that he is unfit to remain an attorney at law.
It is not necessary to analyze further the several findings of the Federal court. Out of ten charges there preferred six were found to be sustained. Some of them standing alone might not have been regarded as sufficient cause for disbarment. There is nothing in the findings or in the record to show that any error was committed by the trial judge in giving to those findings their natural effect.
The petition set forth cause for disbarment. Hence copies of the pleadings and findings of facts in the Federal court rightly were received in evidence.
The evidence offered to show that the respondent was never a member of the bar of the United States District Court for the District of Massachusetts was rightly excluded. That point is foreclosed by what has been said respecting the plea in abatement and plea in bar.
Evidence offered to control the findings of fact made by the Federal court was excluded rightly. That point is disposed of by what has already been said and by Selling v. Radford, supra.
The respondent has not been deprived of his property without due process of law. He has had both in the Federal court and in the trial on this petition ample notice and full opportunity to be heard according to established principles of law. He has been accorded all constitutional rights. Duane v. Merchants Legal Stamp Co. 231 Mass. 113, 125-128.
Every argument put forward in behalf of the respondent has been fully considered. There is nothing in any of them to indicate error.
Both bills of exceptions overruled.