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statute in some of the States, requiring a formal information under oath to be filed, with regular proceedings and a trial by jury. The cases are quite numerous in which attorneys, for malpractice or other misconduct in their official character, and for other acts which showed them to be unfit persons to practise as attorneys, have been struck from the roll upon a summary proceeding without any previous conviction of a criminal charge. See, amongst others, the case of Niven, 1 Wheeler, Crim. Cas. 337, note; Ex parte Burr, id. 503; s. c. 2 Cranch C. C. 379; In the Matter of Peterson, 3 Paige (N. Y.), 510; Ex parte Brown, 1 How. (Miss.) 303; In the Matter of Mills, 1 Mich. 392; Ex parte Secombe, 19 How. 9; In re John Percy, 36 N. Y. 651; Dickens's Case, 67 Pa. St. 169; In re Hirst and Ingersoll, 9 Phil. (Pa.) 216; Baker v. Commonwealth, 10 Bush (Ky.), 592; Penobscot Bar v. Kimball, 64 Me. 140; Matter of George W. Wool, 36 Mich. 299; People v. Goodrich, 79 Ill. 148; Delano's Case, 58 N. H. 5; Ex parte Walls, 64 Ind. 461; In the Matter of Eldridge, 82 N. Y. 161.

But where the acts charged against an attorney are not done in his official character, and are indictable, and not confessed, there has been a diversity of practice on the subject: in some cases it being laid down that there must be a regular indictment and conviction before the court will proceed to strike him from the roll; in others, such previous conviction being deemed unnecessary.

The former view is taken, or seems to be assumed, in the cases we will now cite.

In an anonymous case, reported in 2 Halst. (N. J.) 162 (1824), where the charge was larceny, the court refused the rule to strike off the roll, because the offence was indictable, and there had been no conviction.

In The State v. Foreman, 3 Mo. 412, the court refused to disbar an attorney for passing counterfeit money, knowing it to be counterfeit, and escaping from prison before being convicted therefor; the ground of refusal being that it was not a case within the Missouri statute, which required a conviction. Of course, being governed by the statute, this case is not in point.

In Ex parte Fisher, 6 Leigh (Va.), 619 (1835), Fisher commented to a jury in a manner which the judge deemed grossly

unprofessional and disrespectful to the court; and on the next day, after reciting the circumstances, made an order suspending his license for twelve months. This order was reversed by the Court of Appeals, on the ground that the party proceeded against must be regularly prosecuted by indictment or information, and found guilty by a jury. But as this decision was based upon a statute of Virginia, prescribing the course of proceeding, it is no authority on the point in question.

In The State v. Chapman, 11 Ohio, 430, an attorney had been charged with theft, and brought an action of slander therefor; the defendant pleaded the truth in justification, and obtained a verdict establishing his defence. Upon this, a rule was granted against the attorney to show cause why he should not be struck off the roll. He proved explanatory circumstances; and the court held that the verdict in the civil action was not sufficient to establish the charge of larceny, and discharged the rule.

In Beene v. The State, 22 Ark. 149, where the defendant had made an unwarrantable and atrocious personal attack upon the circuit judge for his action as judge; on application of the county bar to strike his name from the roll, the rule was granted; but the Supreme Court of Arkansas reversed the order, on the ground that the proceedings were irregular, and not in pursuance of the statute, which required regular charges to be exhibited, verified by affidavit, and a time fixed for hearing. The court also held that where the offence is indictable, there must be a regular conviction before the party can be struck off the roll; if not indictable, he was entitled to be tried by a jury. This case seems to have been decided upon the statutes of Arkansas.

In Ex parte Steinman and Hensel, 95 Pa. St. 220, the respondents published a libel against the judges of the Quarter Sessions of Lancaster County, Pennsylvania, accusing them of political motives in allowing a defendant to be acquitted. On being cited to show cause why they should not be struck off the roll, they took the ground, amongst other things, that they were charged with an indictable offence, and were entitled to a trial by jury. The court having made the rule absolute, they appealed, and the Supreme Court of Pennsylvania reversed the order. Chief Justice Shars wood, in delivering the opinion of

the court, said: "No question can be made of the power of a court to strike a member of the bar from the roll for official misconduct. . . . We do not mean to say 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 offences of the crimen falsi. But no one, we suppose, will contend that for such an offence 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." Reference was then made to a provision in the Bill of Rights of the Pennsyl vania Constitution of 1874, that "no conviction shall be had in any prosecution for the publication of papers relating to the official conduct of officers, &c., where the fact that such publication was not maliciously or negligently made, shall be established to the satisfaction of the jury;" and it was held that this provision, at all events, entitled the parties to a jury trial.

The cases now cited do undoubtedly hold, that where the offence charged is indictable and is committed outside of the attorney's professional employment or character, and is denied by him, a conviction by a jury should be had before the court will take action for striking his name from the roll.

There are other cases, however, in which it is held that a previous conviction is not necessary.

In Ex parte Burr, 1 Wheeler, Criminal Cases, 503, s. c. 2 Cranch C. C. 379, the Circuit Court of the District of Columbia struck Burr off the roll on charges made by Mr. Key, of various instances of malpractice, and also of dishonest conduct, in procuring deeds of property from persons in distress, &c. Burr objected, amongst other things, that he was entitled to a trial by jury. The court examined witnesses, who were cross-examined by the defendant, and Chief Justice Cranch delivered an elaborate opinion, concluding by making the rule absolute for disbarring the accused, holding that proceedings by attachment, as for contempt and to purify the bar of unworthy members, are not within those provisions of the Constitution which guarantee a trial by jury. This case was brought

to the attention of this court on an application for a mandamus to compel the Circuit Court to restore Burr to the bar, and the writ was refused. The court, by Chief Justice Marshall, expressed a disinclination to interpose unless the conduct of the court below was irregular or flagrantly improper; as where it had exceeded its power or decided erroneously on the testimony; and upon the testimony, it would be unwilling to interpose where any doubt existed.

Fields v. The State, Mart. & Y. (Tenn.) 168, was the case of a constable (but placed upon the same ground as that of attorneys), and the charge was, extortion. The Supreme Court of Tennessee, by Catron, J., held that a previous conviction was not necessary to enable the court below to suspend from office; that the constitutional privilege of trial by jury for crime does not apply to prevent courts from punishing its officers for contempt, and to regulate them or remove them in particular cases; that removal from office for an indictable offence is no bar to an indictment; that it is a proceeding in its nature civil, and collateral to any criminal prosecution by indictment; and that, even if acquitted by a jury, the party could be removed if the court discovered from the facts proved on the trial that he was guilty of corrupt practices.

In the subsequent case of Smith v. The State, 1 Yerg. (Tenn.) 228, the charge was that the attorney had accepted a challenge in Tennessee to fight a duel, and had fought with and killed his antagonist in Kentucky, where an indictment had been found against him. He demurred to the charge, and judgment was given against him on the demurrer, that his name be struck from the roll. The Supreme Court of Tennessee held the charge to be sufficient; but that, instead of receiving a demurrer, the Circuit Court should have proceeded to take the proofs to ascertain the truth of the charge. The court, by Catron, J., said: "The principle is almost universal in all governments, that the power which confers an office has also the right to remove the officer for good cause; the county court; constables, &c.; the senate; officers elected by the legislature and people; in all these cases the tribunal removing is of necessity the judge of the law and fact; to ascertain which,

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every species of evidence can be heard, legal in its character, according to common-law rules, and consistent with our Constitution and laws. This court, the Circuit Court, or the county court, on a motion to strike an attorney from the rolls, has the same right, growing out of a similar necessity, to examine evidence of the facts, that the senate of the State has when trying an impeachment. . . . The attorney may answer the charges in writing if he chooses, when evidence will be heard to support or to resist them; or, if he does not answer, still the charges must be proved, or confessed by the defendant, before he can be stricken out of the roll." The cause was thereupon remanded to the Circuit Court, to hear the proofs; and it was declared that if the facts were proved as charged, it would be amply sufficient to authorize that court to strike the defendant from the roll, even though there had been no law in Tennessee for the suppression of duelling.

Here, it will be observed, there was no conviction; nothing but an indictment found in another State; and yet the Supreme Court of Tennessee held that the court below might lawfully proceed with the case.

In Perry v. The State, 3 Greene (Iowa), 550, there were charges of misconduct as an attorney, and of perjury. The charge was dismissed for want of certainty; but as to the charge of false swearing, which it was contended could not be set up without a previous conviction, the court said that a conviction was not necessary.

In re John Percy, 36 N. Y. 651, an attorney was struck off the roll on the ground that his general reputation was bad, that he had been several times indicted for perjury, one or two of the indictments being still pending, and that he was a common mover and maintainer of suits on slight and frivolous pretexts. The order was affirmed on appeal. Some of the offences charged in this case were of an indictable character, and one point raised on the appeal was, that the court has no right to call upon an attorney to answer such charges, because it compels him to give evidence against himself. But to this the court answered that he is not compelled to be sworn, but may introduce evidence tending to show his innocence.

In Penobscot Bar v. Kimball, 64 Me. 140, an attorney was

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