# In re Sawyer

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## Concurring Opinions

    Black
    Stewart

## Dissenting Opinion

    Clark
United States Supreme Court
360 U.S. 622
In re Sawyer
Argued: May 19, 20, 1959. --- Decided: June 29, 1959
Mr. John T. McTernan, Los Angeles, Cal., for petitioner.
Mr. A. William Barlow, Honolulu, Hawaii, for respondent.
Mr. Justice BRENNAN announced the judgment of the Court, and delivered an opinion, in which The CHIEF JUSTICE, Mr. Justice BLACK, and Mr. Justice DOUGLAS join.
This case is here on writ of certiorari, 358 U.S. 892, 79 S.Ct. 153, 3 L.Ed.2d 119, to review petitioner's suspension from the practice of law for one year, ordered by the Supreme Court of the Territory of Hawaii, 41 Haw. 403, and affirmed on appeal by the Court of Appeals for the Ninth Circuit, 260 F.2d 189.
Petitioner has been a member of the Territorial Bar in Hawaii since 1941. For many months beginning in late 1952 she participated, in the United States District Court at Honolulu, as one of the defense counsel in the trial of an indictment against a number of defendants for conspiracy under the Smith Act, 18 U.S.C. § 2385, 18 U.S.C.A. § 2385. The trial was before Federal District Judge Jon Wiig and a jury. United States v. Fujimoto, D.C., 107 F.Supp. 865. Both disciplinary charges against petitioner had to do with the Smith Act trial. One charge related to a speech she made about six weeks after the trial began. The speech was made on the Island of Hawaii, at Honokaa, a village some 182 miles from Honolulu, Oahu, on a Sunday morning. The other charge related to interviews she had with one of the jurors after the trial concluded.
The Bar Association of Hawaii preferred the charges which were referred by the Territorial Supreme Court to the Association's Legal Ethics Committee for investigation. The prosecutor who represented the Government at the Smith Act trial conducted the investigation and presented the evidence before the Committee. The Committee submitted the record and is findings to the Territorial Supreme Court. Because the suspension seems to us to depend on it, see 79 S.Ct. 1384, infra, we deal first with the charge relating to the speech. The gist of the Committee's findings was that the petitioner's speech reflected adversely upon Judge Wiig's impartiality and fairness in the conduct of the Smith Act trial and impugned his judicial integrity. The Committee concluded that petitioner 'in imputing to the Judge unfairness in the conduct of the trial, in impugning the integrity of the local Federal courts and in other comments made at Honokaa, was guilty of violation of Canons 1 and 22 of the Canons of Professional Ethics of the American Bar Association and should be disciplined for the same.' The Territorial Supreme Court held that '* * * she engaged and participated in a willful oral attack upon the administration of justice in and by the said United States District Court for the District of Hawaii and by direct statement and implication impugned the integrity of the judge presiding therein * * * and thus tended to also create disrespect for the courts of justice and judicial officers generally * * *. She has thus committed what this court considers gross misconduct.' 41 Haw. at pages 422-423.

## Notes

* ↑ The affirmance was by a 4-3 vote. The appeal was heard en banc by 9 judges but was decided by 7 because of retirement of one judge and the death of another.
* ↑ At the conclusion of the Smith Act trial, District Judge Wiig requested the local Bar Association to investigate the conduct of petitioner. The Bar Association took no action as the Attorney General of the Territory conducted an investigation. As the Rules of the Supreme Court of the Territory then stood, only the Attorney General or a person aggrieved could file charges of unprofessional conduct against an attorney. After investigating the matter, the Attorney General did not file a complaint. A Committee of the Bar Association then proceeded to study the question of bringing charges against petitioner, and, in the wrds of the then President of the Association:
* ↑ Canon 1 is entitled 'The Duty of the Lawyer to the Courts.' It reads:
'It is the duty of the lawyer to maintain towards the Courts a respectful attitude, not for the sake of the temporary incumbent of the judicial office, but for the maintenance of its supreme importance. Judges, not being wholly free to defend themselves, are peculiarly entitled to receive the support of the Bar against unjust criticism and clamor. Whenever there is proper ground for serious complaint of a judicial officer, it is the right and duty of the lawyer to submit his grievances to the proper authorities. In such cases, but not otherwise, such charges should be encouraged and the person making them should be protected.'
Canon 22 is entitled 'Candor and Fairness.' It reads:
'The conduct of the lawyer before the Court and with other lawyers should be characterized by candor and fairness.
'It is not candid or fair for the lawyer knowingly to misquote the contents of a paper, the testimony of a witness, the language or the argument of opposing counsel, or the language of a decision or a text-book; or with knowledge of its invalidity, to cite as authority a decision that has been overruled, or a statute that has been repealed; or in argument to assert as a fact that which has not been proved, or in those jurisdictions where a side has the opening and closing arguments to mislead his opponent by concealing or withholding positions in his opening argument upon which his side then intends to rely.
'It is unprofessional and dishonorable to deal other than candidly with the facts in taking the statements of witnesses, in drawing affidavits and other documents, and in the presentation of causes.
'A lawyer should not offer evidence which he knows the Court should reject, in order to get the same before the jury by argument for its admissibility, nor should he address to the Judge arguments upon any point not properly calling for determination by him. Neither should he introduce into an argument, addressed to the Court, remarks or statements intended to influence the jury or bystanders.
'These and all kindred practices are unprofessional and unworthy of an officer of the law charged, as is the lawyer, with the duty of aiding in the administration of justice.'
We do not perceive any specification by the Committee of the respect in which Canon 22 was thought to have been violated by petitioner's speech, and such a violation does not occur to us.
This work is in the public domain in the United States because it is a work of the United States federal government (see 17 U.S.C. 105).
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