Bartos v. United States District Court

KENYON, Circuit Judge

(concurring). I concur in the general conclusion announced by Judge LEWIS that the order of disbarment should be set aside, but do not agree with some of the reasons expressed therefor, and as my conclusion is based in part on somewhat different grounds it seems proper to state them.

The trial court filed a written opinion basing its decision upon two propositions, viz.:

First. That the offense with which Bar-tos was charged and to which he pleaded guilty was a misdemeanor involving moral turpitude.

Second. That the breach of the oath which Bartos took upon admission to the practice in that court obligating him to support the Constitution of the United States and to demean himself uprightly and according to law had been broken by this unlawful manufacture of intoxicating liquor; that said action on his part was not good demeanor, and that his disregard of the oath he had taken to support the Constitution of the United States and the Constitution of Nebraska warranted the order of disbarment for three years.

In expressing his view as to the first ground the Court said: “The weight of authority favors the view that an intentional violation of the National Prohibition Act may be an offense involving moral turpitude. It is not necessary to say that all intentional violations of the act are such offenses, but the deliberate act of unlawfully manufacturing a large quantity of intoxicating liquor for beverage purposes is an act of moral turpitude, when it is done by a leading attorney at-the bar, who has had many years of experience in the practice of his profession. It is an act which is not according to good morals, and an act of depravity in the private and social duties which he owes to his fellowman and to society in general, and is contrary to the accepted and customary rule of right and duty between man and man.”

Well-established grounds for disbarment of an attorney are that he has been convicted of a felony or of a misdemeanor which involves moral turpitude. Moral turpitude is a term having a well defined meaning in the law. It is a phrase describing qualities which inhere in certain wrongful acts. 5 Words and Phrases, First Series, p. 4580, refers to it as follows: “ ‘Moral turpitude’ is defined as an act of baseness, vileness, or depravity in the private and social duties which a man owes to his fellowman, or to society in general, contrary to the accepted and customary rule of right and duty between man and man.” “Turpitude” is defined by Webster as, “Inherent baseness or vileness of principle, words, or actions; shameful wickedness; depravity.” In the leading ease of Ex parte Wall, 107 U. S. 265, 273 , 2 S. Ct. 569, 575 , ( 27 L. Ed. 552 ), it is said: “If regularly convicted of a felony, an attorney will be struck off the roll as of course, whatever the felony may be, because he is rendered infamous. If convicted of a misdemeanor which imports fraud or dishonesty, the same course will be taken. He will also be struck off the roll for gross malpractice or dishonesty in his profession, or for conduct gravely affecting his professional character.” The court *728 in its opinion quoted from Lord Mansfield as follows: “It is not by way of punishment; but the court in such cases exercise their discretion, whether a man whom they have formerly admitted is a proper person to be continued on the roll or not.” See 16 C. J. 58; Gillman v. State, 165 Ala. 135 , 51 So. 722 ; 27 Cyc. 912; Fort v. City of Brinkley, 87 Ark. 400 , 112 S. W. 1084 .

None of the eases cited by the trial court in its opinion or by the government in its brief is where the offense against the National Prohibition Act consisted of the manufacture in one’s own home of intoxicating liquor for the sole purpose of serving it to the family and guests. Almost all of the eases deal with sales. I think no case can be found where the facts are at all similar to those here presented.

The Eighteenth Amendment prohibits the manufacture of intoxicating liquor, as well as the sale. It is a matter of general knowledge, however, that intoxicating liquors are made in many of the homes of the country for the use of the family and guests, and not for sale. That is of course a violation of law —a crime malum prohibitum, not malum in se. If, however, the liquor in the home had been obtained before the passage of the Eighteenth Amendment and the National Prohibition Act it could be kept and there would be no crime in its possession if there for the “personal consumption of the owner thereof and his family residing in such dwelling and of his bona fide guests when entertained by him therein.” U. S. Comp. Stat. § 10138%t.

Further, under the National Prohibition Act warrants to search a private dwelling cannot be issued except by the filing of an affidavit that such residence is being used for the sale of intoxicating liquor. Therefore a party having intoxicating liquor in his home is protected under the National Prohibition Act from any search thereof unless there is evidence of sales. The act itself in this respect recognizes some moral distinction between possession of liquor for use in the home, and liquors for sale.

The mere use of Equor in the home has not been generally regarded as involving any element of immorality or moral turpitude. While the manufacture there is a technical violation of the law, the use of it in the home is not condemned by the National Prohibition Act.

The evidence shows Mr. Bartos manufactured the beer in the basement of his home for the use of himself, family and guests. There is no evidence that he ever sold any of it or gave any of it away, and no such claim is made. He was never charged with or convicted of any violation of the Volstead Act up to that time. There is nothing in the record except this affair to impair in any way his standing in the community. The offense of Bartos was possibly the mildest that could be committed under the National Prohibition Act, were it not for the large quantity of beer so made. Save for this, which arouses some suspicion as to the good faith of the evidence that it was for the use of his family and his guests, I do not think it would be claimed that there was moral turpitude, as that term is understood in the law, involved in thé act. Of course, seven hundred quarts of beer would indicate considerable capacity on the part of his family, or numerous guests with large capacities, but it is possible that it was to be used over an extended period of time.

The adoption of the Eighteenth Amendment and the National Prohibition Act were brought about by'a. general pubEe sentiment that the Equor traffic should be abolished and made an outlaw, and that the traffic itself was a moral evil, but can it be said that the general public conviction is that the use of Equor in the home is such a gross and flagrant offense as to evidence baseness and depravity in the private and social duties which a man owes to his fellow man? If not, then how can the manufacture of Equor in the home for such use be so regarded? There is no inherent immorality in the act of Bartos. It was not a trafficking in liquors. It did not reflect upon his honesty or integrity as a citizen. The court evidently considered that the act was not such as to unfit him for practice or make him untrustworthy in handling the business of his clients, as it did not permanently disbar him but only suspended him from his privilege as an attorney in that court for a period of three years. It would avail little to enter into a general discussion or review of the numerous cases which relate to some phases of this matter. I cite for convenience in future reference a number of them (also text-book references) bearing on the question of “moral turpitude” and disbarment of attorneys. 1 I am of the opin *729 ion that the act 'of manufacturing intoxicating liquor in the home for the use of the family and guests and not to be given away or sold does not constitute a misdemeanor involving moral turpitude as that term is used, defined and understood in the law, and with that part of the opinion I am in accord.

The trial court stated one reason for his decision as follows: “In this case there is more than the mere commission of a misdemeanor involving moral turpitude. The oath which attorneys take upon admission to the bar of this court obligates them to support the Constitution of the United States and to demean themselves uprightly and according to law. The oath taken upon admission to the state court also obligates the support of the Constitution of the United States and of the state of Nebraska. The Constitution of Nebraska, as well as the Constitution of the United States, forbade the unlawful manufacture of intoxicating liquor at the time the respondent committed his offense, and laws enacted in pursuance of these constitutional provisions made the manufacture illegal and imposed penalties for the violation. It cannot be called good demeanor by an attorney, nor can he be said to be possessed of the requisite good moral character to continue as a practitioner at the bar, when he both deliberately violates the Constitution and laws of the United States and of his state, and disregards the solemn oaths he has taken to support these constitutions.”

It is apparent therefore that the court based its order in part upon the ground that the act of plaintiff in error was bad demean- or on the part of an attorney who had taken an oath to support the Constitutions of the United States and the state of Nebraska and had violated it. This presents a phase of the case based on the relationship to' the situation which arises by the status of Bartos as an officer of the court. There are other reasons than conviction of a felony or a misdemeanor involving moral turpitude for suspension or disbarment of attorneys, one of which is professional misconduct, such as be.traying the confidence of a client, practicing a fraud upon the court, “and in fact in any conduct which tends to bring reproach upon the legal profession or to alienate the favorable opinion which the public should entertain concerning it.” 6 C. J. § 47, p. 588; Wernimont v. State ex rel. Little Rock Bar Ass’n, 101 Ark. 210 , 142 S. W. 194 , Ann. Cas. 1913D, 1156; Ex parte Ditchburn, 32 Or. 538 , 52 P. 694 ; In re Radford, 168 Mich. 474 , 134 N. W. 472 ; Weeks on Attorneys, §§80 and 81. The Circuit Court of Appeals of the Seventh Circuit quite recently called the Bar’s attention to the taking of frivolous appeals to delay litigation and suggested that were it continued it would constitute a cause for disbarment in that court.

An attorney by his admission to practice law in the United States courts becomes an officer thereof, holding his office during good behavior. On this subject I quote:

Prom Ex parte Robinson, 86 U. S. (19 Wall.) 505, 512 ( 22 L. Ed. 205 ): “The order of admission is the judgment of the court that they possess the requisite qualifications both in character and learning. They become by such admission officers.of the court, and, as said in Ex parte Garland, ‘they hold their office during good behavior, and can only be deprived of it for misconduct ascertained and declared by the judgment of the court after opportunity to be heard has been afforded.’ ”

Prom Ex parte Garland, 4 Wall. 333, 378, 379 ( 18 L. Ed. 366 ): “Attorneys and counselors are not officers of the United States; they are not elected or appointed in the manner prescribed by the Constitution for the election and appointment of such officers. They are officers of the court, admitted as such by its order, upon evidence of their possessing sufficient legal learning and fair private character. * * * Their admission or their exclusion is not the exercise of a mere ministerial power. It is the exercise of judicial power, and has been so held in numerous cases. It was so held by the Court of Appeals of New York in the matter of the application of Cooper for admission. ‘Attorneys and counselors,’ said that court, ‘are not only officers of the court, but officers whose duties relate almost exclusively to proceedings of a judicial nature. And hence their appointment may, with propriety, be intrusted to the courts, and the latter in performing this duty may very justly be considered as engaged in the exercise of their appropriate judicial functions.’ ”

In Re Niles, 48 How. Prac. (N. Y.) 246, it is held that attorneys and counselors at law should be classified and designated as judi- *730 eial officers. State v. Edmunson, 103 Or. 243 , 204 P. 619 ; State v. Burr, 19 Neb. 593 , 28 N. W. 261 ; Petition of Board of Law Examiners (Wis.) 210 N. W. 710 ; United States v. Green (C. C.) 85 F. 857 ; Weeks on Attorneys, p. 156.

The office of an attorney is one of dignity and power in which fidelity both to the court and to clients is imperative. It carries with it a duty to assist in the administration of justice. The right conferred to appear for suitors at the bar is not an absolute one, although as said in Ex parte Garland, supra, it “is something more than a mere indulgence, revocable at the pleasure of the court, or at the command of the Legislature. It is a right of which he can only be deprived by the judgment of the court, for moral or professional delinquency.” As.an officer of the court an attorney is under obligation not to intentionally be a law-breaker; not to impede the administration of justice; not to violate the Constitution of the United States; not to bring the court of which he is an officer into disrespect; not to hinder the enforcement of law or popularize the breach thereof. It is a breach of his official duty to intentionally bring reproach upon the legal profession or the court, to alienate favorable public opinion from the court, and when he does these things he is guilty of professional misconduct even though his acts be not misdemeanors involving moral turpitude. The profession of attorney at bar is not merely an instrumentality for making money. There are reciprocal duties and obligations involved.

When Bartos was admitted and enrolled in the United States District Court of Nebraska he took an oath that as an attorney and advocate of the District Court of the United States for that District he would demean himself uprightly and according to law, and that he would support the Constitution of the United States. That oath was not a mere gesture. He became an officer of the court. While every citizen is under obligation to support the Constitution and the laws of the United States, there is a difference between the obligations of an attorney in that respect and of the lay citizen. The attorney is given the right to practice in the court and to charge fees for his services. He stands as an exemplar of lawful conduct in his community. If he willfully violates the Constitution and the laws of his country, which as an officer of the court it is his special duty to support, he brings the administration of law and the courts into disrepute. He likewise fails to maintain the ethical standards of the bar and tends to bring the profession of the law into public distrust.

Justice Bradley in Ex parte Wall, 107 U. S. 265, 274 , 2 S. Ct. 569, 576 ( 27 L. Ed. 552 ), says: “Of all classes and professions, the lawyer is most sacredly bound to uphold the laws. He is their sworn servant; and for him, of all men in the world, to repudiate and override the laws, to trample them under foot, and to ignore the very bands of society, argues recreancy to his position and office, and sets a pernicious example to the insubordinate and dangerous elements of the body politic. It manifests a want of fidelity to the system of lawful government which he has sworn to uphold and preserve.”

In Bradley v. Fisher, 13 Wall. 335, 355 ( 20 L. Ed. 646 ), the court says: “The obligatiqn which attorneys impliedly assume, if they do not by express declaration take upon themselves, when they are admitted to the bar, is not merely to be obedient to the Constitution and laws, but to maintain at all times the respect due to courts of justice and judicial officers.”

In Planters’ Bank v. Hornberger, 4 Cold. (Tenn.) 531, 566, 571, the court said: “An attorney is a man set apart by the law, to expound, to all persons who seek him, the laws of the land, relating to high interest of property, liberty, and life. To this end, he is licensed and permitted to charge for his services.”

In People ex rel. Skelton v. Brown, 17 Colo. 431 , 30 P. 338 , the court said: “When this court grants a license to a person to practice law, the public and every individual coming in contact with the licensee in, his professional capacity has a right to expect that he will demean himself with scrupulous propriety as one commissioned to a high and honorable office.”

In Bar Association of City of Boston v. Greenhood, 168 Mass. 169,187 , 46 N. E. 568, 576 , the court says: “It is important that the oath of office taken by attorneys on admission to the bar should not be considered and treated by those who take it as an empty form. Nothing in the life of the people more deeply concerns their welfare than the administration of justice in our courts. The high standard of integrity which is prescribed by our Constitution and our laws for the officers of our courts should be maintained.”

The misconduct of an attorney outside of his professional dealings may be such as to justify disbarment. 2 R. C. L. p. 1099, § 192, and eases there cited. A court is under no compulsion to permit a moral leper to appear-at its bar, even though there be no ques-i *731 tion raised at all as to professional misconduct. The private character of an attorney at the bar may be such as to render him an unfit person to continue to be a member of such bar. Selling v. Radford, 243 U. S. 46 , 37 S. Ct. 377 , 61 L. Ed. 585 , Ann. Cas. 1917D, 569. However, the act of plaintiff in error in disregarding his oath of office and his duty as an officer of the court was not merely a private affair apart from his professional duties. Nor is it misconduct wholly divorced from his professional capacity. It was misconduct as an officer of the court. Where an attorney at law intentionally, knowingly, willfully, and persistently violates the Constitution of the United States he is not a proper party to practice law in the courts of the United States established by the power of the very Constitution he is violating. He gives notice by such conduct that he will not abide by the Constitution of the United States. If such fact should appear when a party is seeking admission to the bar, he would not be admitted to practice. While the disbarment of an attorney generally proceeds on the theory that he is not a fit man to further occupy the position, yet, it is within the sound judicial discretion of the court to discipline an officer thereof, whether an attorney or otherwise, for an act which tends to bring the court into disrepute, and to make such discipline a warning to others not to trifle with the duties imposed upon an attorney as an officer of the court. If that discipline involves taking from him for a limited period the right to practice at the bar of the court, he is entitled to a hearing thereon and a judgment of the court. The discretion of the court is, of course, not to be exercised lightly or arbitrarily.

In the matter of Francis Blake, 3 Court of the Queen's Bench and Court of Exchequer Chamber, 34, 39, the English court pointed out the duty and the right of a court to punish attorneys as a warning to others. Whether it be by contempt proceedings or striking the name from the rolls for a limited period, the result is the same. Discussing the matter the court there said: “These being the facts, we are bound so to deal with the attorney as to hold his ease out as a warning, and to show our vigilance in protecting persons who may have similar dealings with other attorneys. Although, therefore, we shall not take the extreme course of striking him off the roll, we must visit him with a punishment adequate to his offense by suspending his certificate for two years from 28th February last.”

If the evidence in- this record had shown a willful, deliberate, intentional violas tion of an amendment to the Constitution of the United States, I should feel the trial court did not abuse its discretion in suspending Bartos for three years from practicing at the bar of that court, although the punishment would seem rather severe. However, the record contains a strong, mitigating circumstance. Bartos testifies, and there is no contradiction thereof, that he was informed by the prohibition enforcement officers of the government ’that they were not enforcing the part of the law relative to persons who had liquor in their own homes for their own use, and therefore that he did not think he was violating any law at all, because “I always thought that the law was violated only to thte extent to which it was enforced.” It is a matter of common knowledge that, whether acting on direct instructions from their superiors or not, many of the prohibition enforcement officers have given the public to understand that light beer could be manufactured in the homes for consumption there, and that there would be no interference therewith. The law itself, as I have previously pointed out, draws a distinction between liquor manufactured in the home for use and liquor manufactured for sale; no search warrant being available to search homes where liquor is merely manufactured for home use and not for sale. It seems, therefore, that while Bartos as a lawyer knew his act was a technical violation of the law, his information from prohibition officers led him to the belief that that phase of the law dealing with manufacturing in the home for the -use of himself or family was not to be enforced. This circumstance mitigates the offense and it seems to me robs it of any such turpitude as would justify the severe punishment of a suspension from practice for a period of three years. The violation of his oath of office as an attorney was a technical one for which a reprimand of the court would have been sufficient punishment. The severe punishment administered under all the circumstances was in my judgment an abuse of the discretion imposed in the court, and for that reason I concur in the conclusion that the order of disbarment should be set aside.

Ex parte Secombe, 19 How. 9 , 15 L. Ed. 565 ; Bradley v. Fisher, 80 U. S. (13 Wall.) 335 , 20 L. Ed. 646 ; Brede v. Powers, 263 U. S. 4 , 44 S. Ct. 8 , 68 L. Ed. 132 ; In re Keegan (C. C.) 31 F. 129 ; Haussener v. United States (C. C. A.) 4 F.(2d) 884 ; Rudolph v. United States, 55 App. D. C. 362, 6 F.(2d) 487 , 40 A. L. R. 1042; State v. Peck, 88 Conn. 447 , 91 A. 274 , L. R. A. 1915A, 663, Ann. Cas. 1917B, 227; In re Sanford, 117 Kan. 750 , 232 P. 1053 ; State v. Bieber, 121 Kan. 536 , 247 P. 875 ; In re Jones (Utah) 249 P. 803 ; Hors- *729 ley v. State, 19 Ala. App. 263 , 96 So. 937 ; Underwood v. Commonwealth (Ky.) 105 S. W. 151 ; Hightower v. State, 73 Tex. Cr. R. 258 , 165 S. W. 184 ; Lotto v. State (Tex. Civ. App.) 208 S. W. 563 ; In re Disbarment of F. C. Cary, 146 Minn. 80 , 177 N. W. 801 , 9 A. L. R. 1272; People v. Meyerovitz, 278 Ill. 356 , 116 N. E. 189 ; People ex rel. Chicago Bar Ass’n v. Amos, 246 Ill. 299 , 92 N. E. 857 , 138 Am. St. Rep. 239 ; Ex parte Burr, 9 Wheat. 529 , 6 L. Ed. 152 ; Fairfield County Bar ex rel. Fessenden v. Taylor, 60 Conn. 11 , 22 A. 441 ,13 L. R. A. 767; Pippin v. State, 197 Ala. 613 , 73 So. 340 ; Black on Intoxicating Liquors, sec. 383.