, 1873-01-23
Supreme ourt rcer.

Supreme ourt O rGer.
Ex PARrE JAMES MCNAuGHr-MoT1oN FOB
REHEARlNG.
When the mutter was before this Court
ON motion to exclude Mr.. Mcknight
from further appearing in the case Of
Griffin Us. Nichols. the said Mcknight
was excluded. and our opinion filed
herein stating our views of the law.
With that exposition of the law we
are satisfied.
There have been filed, however, with
this motion for rehearing several addi-
tional affidavits. which fully develop
the facts in the case-facts Of which this
Court had not possession when the Or
der was made.
Upon a careful examination of all the
facts, we are convinced that the en-
ployment of Mr.. Mcknight by Griffin.
the libellant, was a special employment
to prosecute before the United States
Commissioner only, with special agree
ment that Mr.. Mcknight should be at
liberty to take retainer upon the part
of the defence if he should elect SO to
do.
While such practice is of doubtful pro-
priety. and should by no means be en-
couraged, still, Mr.. Mcknight might
lawfully take retainer for the defend
ant, Nichols, in the said case.
The order heretofore made, excluding
him, will be Vacated and set aside.
J. R. LEWIS. J.
We concur. o. JACOBS, C. J.
r. S. GREENE, Associate J.
This order of the Court is literally
that of the return of the jury, who bro't
in q verdict of mot guilty." with an
admonition to the prisoner not to do SO
again. If the Court simply intended to
place upon record their opinion that Mr..
McNaught violated an universal rule OF
practice with no criminal intention,
their conclusion is excusable by the af-
fidavits produced in his behalf, and in
the prevailing laxity in enforcing strict
rules of practice. But if we are to in
terpret this finding by the strict record,
their law is bad and the precedent viii, h
this decision establishes is worse. 1t is
the duty of the Court to establish ard
enforce rules of practice necessary to
maintain its own dignity. the honor of
the bar and the rights of suitors. To
decide that "practice is Of doubtful
propriety. and should by no means be
encouraged, and yet lawful, is with
out law or precedent, and is simply self
qualification. The rule laid down in
Hoffman's' Course of Legal Study, "
which is authoritative in all court prac-
tice, is as follows:
eff have ever had any connection
witha cause, l will never permit myself
when that connection is from any rea-
son severely to be engaged on the side
of nv former antagonist. Nor shall any
change in the formal aspect of the canse
induce ne to regard it as a ground OF
exception. 1t is poor apology for be-
ing found on the opposite side, that the
present is but the ghost of the former
cause.
The afidavits presented as to the fact
that Mr.. Mcknight had private nm
derstanding with the first client reserv-
ing the right to take retainer on the
other side, provided he could get one.
while they might go to show that Mr..
McNaught did not wilfully betray his
first client, the legal gentlemen upon
the Supreme bench well know that the
facts set forth therein had no legal bear
ing whatever upon the rule of law which
thew had laid down in their order exclu-
ding Mr.. Mcknight from the case. Can
a private understanding with poor. ig-
norant client, who knows nothing of his
legal rights and remedies but such in
formation as he derives from his law
yer, exempt the said lawyer from the
rules of practice specially designed to
protect clients against the duplicity and
treachery of attorneys? The Court,
while deprecating the practice as OF
doubtful propriety, and should by no
means be encouraged" yet determine
that in this special case it may lawful
ly" be done. ~2fH
Mr.. Mcknight is young man who
has had remarkably successful prac-
tice, and commanded in large degree
the sympathies of the Court. If he has
an honorable ambition in his noble pro-
fession and expects to obtain eminence
therein, he will hereafter admit that he
could have much better afforded to let
the record stand as evidence of one of
his youthful mistakes. than the Court
or the bar could afford this special re-
taxation in his behalf of auniversai rule
of practice so necessary to protect the
honor and dignity of tie bar against dis
reputable practices.
Mr.. Peter Craig. San Francisco un-
dertaker. claims the discovery of a new