Lancaster daily intelligencer. [volume] (Lancaster, Pa.) 1864-1928, 1880-01-30

acquires rights Of which he cannot be de-
prived, at the discretion of the court. any
more than physician Of the practice of
his profession, mechanic of the exercise
of his trade, or merchant Of the pursuit
OF his commercial avOcatiOn 1t is true,
that, being officers of the court. attorneys
are in many respects subject to their orders,
but these orders must be the result Of some
sound and legal, and not Of arbitrary and
uncontrolled discretion"
As the respondents are charged with
having committed an act amounting to an
| indictable offense-the publication Of a
libel upon the court-but not committed
| in the presence of the court or while act
| ing in the capacity Of attorneys. this pro-
ceeding will not lie, even ii the alleged
Offense constitutes one Of the causes for
which an attorney can be disbarred, until
after their trial and conviction by jury.
| According to all the English and Ameri-
can cases, rule will not be entered
against an attorney who is charged with
the commission of an infamous crime, not
committed in the presence of the court, or
in his office of attorney, until he has been
convicted of such Offense according to law.
| But, assuming, for the sake of the argu-
ment, that these objections to the regular
ity of this proceeding are not we'll found
ed, and that the publication complained
of is, in fact, a libel on the court this is not
one of the causl fer which an attorney can
be legally disbarred.
| The publication was made by the re-
spOndents as the publishers of news
paper out Of court and concerning a case
with which they had no professional con-
nectiOn, and was in no sense their act rs
attorneys of this court.
In England there seem to be but two
causes recognized as sufficient to warrant
striking an attorney off the rOlls-actual
malpractice, attended with fraud or cor
ruptiOn, and conviction OF an infamOu
crime.
But the manifest tendency of all recen
legislation in this country, and, in fact, o
all recent decisions, is to curb and restrict
the power of courts in these summary
proceeding, to punish for cOntempts and to
disbar attorneys.
IN number Of the states Of the Union,
statutes have been enacted requiring all
charges of misconduct against attorneys
to be tried by jury. OIL regular and formal
complaints preferred. Such is now the
law in Arkansas in Alabama, in North
Carolina, in Indiana, in Missouri, and,
believe, in other states. In Illinois the
supreme court alone has power to dismiss
attorneys from office, the district courts
only having the power to suspend tempo
rarily. In Kansas, when charges are pre-
ferred against a lawyer, he is entitled, OH
alleging that the regular judge is preju-
diced against him, to change of renus.
or to have a judge appointed pro tem.,
from the members OF the bar, to try his
case.
From this examination of the English
and American authorities it may be ac-
cepted as settled law that court has no
right to expel one of its attorneys unless it
is cOnclusively shown that he has either
1st. Committed some act of malpractice
in his professional capacity which involves
the violation of his professional oath :Or
ID Been convicted Of some infamous
crime or
Sd. Any general bad conduct, OF some
grossly dishonest acts so impaired his
character for integrity As to render him
unworthy of public confidence, unsafe to
be entrusted with the powers of his profess
sion, and unfit to he continued Il member
it.
Does the alleged act OF these respOn-
dents, under the most unfavOrable con-
structiOn which can be put upon it, fall
under any one OF these legal causes fUs
dismissal from their office?
Certainly they have not been convicted
of any crime.
Certainly it will not be contcndcsl that
their alleged offence can be brought under
the third head, while their guilt or inno-
cence of the charge OF libel is legally un-
determined, even if it csmil come under
that class at any time.
70 hold that q court, whose conduct has
been scrutiniZed by an attorney, may set
aside jury and determine for itself
whether the scrutiny into its conduct is
fair, or expose the author to legal ami
madversiOn. is to hold doctrine SD
dangerous that it would not be recognized
as law by the supreme court, Or be long
tolerated by All enlightened public opinion.
If, therefore, that court, in the Austin
caseheld, that lawyer might he held pl Ofes-
sionally answerable for any libel on the
court, it meant he was answerable only
after conviction by a jury. Ii that is the
law, it is not applicable to the present
case.
] But what Chief Justice Gibson evidently
meant, was that court may summarily
| remove one Of its attorneys who, being
professionally concerned in case. ell
deavOrs to control judicial action in it, by
menace, or challenge, or violence or who,
for a similar purpose, endeavOrs to over
awe the court, or impair it's influence,
by exciting popular prejudice, through the
means of attacks in the public press.
But there must be a professional con-
nectiOn Of the attorney with the case in
which he seeks to control judicial action
or excite popular prejudice.
Does this language admit Of any other
construction?
Therefore" he says, the NOTICE
should be clearlg shOacn to be the requirement
Of an influence Orer tile judge in tile erer-
else Of lis judicial functions. by the instru-
mentality of popular prejudice"
And again he says, lit is the prostitu-
ton Of 1t (the right of an attorney to
scrutinize the conduct of a judge to ins-
pure purposes, that can bring him into
collision with his professional fidelity"
In McLaughlin's case 5 w. & 5. 272,
the court said, "In Austin and others
(5 Rawle 1917 it is held that it is 4 breach
of professional fidelity to attack the pro-
ceedings of the court, for impure and i'm
proper purposes, through the medium ofthe
public press"
How could the impure motive and im-
proper purpose which would bring IN at
torney into collision with his professional
fidelity exist, if he had no professional
connection with or interest in the case
commented on or criticized?
The impure motive must be the motive
Of the lawyer, not Of the citizen, to make
the LAWYER answerable as such.
h.