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evidence to support finding other than that he] 13. New trial 99-Denial of motion for had been faithful to his duties to his client new trial for newly discovered evidence held and as attorney and counselor. without error. 5. Attorney and client

54-Exclusive provInce of trial judge to follow own convictions in believing or discrediting testimony.

In disbarment proceeding, it was exclusive province of trial judge to follow his own convictions in believing testimony of respond-. ent and discrediting contrary testimony.

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8. Attorney and client 54-Finding that attorney, in giving testimony, was knowingly guilty of perjury held without error.

Notwithstanding charge of perjury at hearing was not included among charges set forth in petition for removal, there was no error in trial justice's finding that respondent, in giving testimony at trial, knowingly failed to tell truth and was guilty of perjury.

9. Attorney and client 49, 54-Gross misconduct in open court may justify suspension or removal, but attorney should be heard thereon.

Gross and outrageous conduct in open court by attorney may be such as to justify summary proceedings for suspension or removal, but he should be heard thereon before he is condemned.

10. Constitutional law 275 (1) Attorney cannot be deprived of right to practice except by proceedings complying with due pro

cess.

Right of an attorney to practice his profession is both liberty and property, of which he cannot be deprived except by proceedings complying with due process. 11. Attorney and client 52-Even though disbarment was based on perjury in disbarment trial, attorney should have opportunity

alleged newly discovered evidence was availaWhere trial justice may have thought that ble at all times, and it was merely corroborative of evidence given at trial, there was no error in denying motion for new trial on that ground.

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Respondent requested the following rules: nothing to show deceit, malpractice, or other Upon all the evidence in the case there is gross misconduct upon the part of the respondent; that there is no evidence to support any finding other than that the respondent has been faithful to all his duties to his client and as an attorney and counselor of this court; that the petition for disbarment was not a proper method to obtain the information sought, the respondent should have been informed by legal process of the information sought, and, in case of dispute as to the duty of disclosure, the court should have determined that issue, and the information, if proper, should have been imparted under the protection of the court.

F. W. Mansfield, of Boston, for petitioner. W. B. Grant, W. P. Dyer, and F. M. Ryder, all of Boston, for respondent.

RUGG, C. J. This is a petition for the disbarment of the respondent, an attorney at law. One of the charges set forth in the petition for disbarment was that the respondent had told separately to Arthur E. Keating and to William H. Proctor, both members of the state police, that one of the respondent's clients, Hollis H. Hunnewell by name, had represented that he already had paid on three different occa sions a large sum of money by way of blackmail to certain lawyers; that an appointment had been made for him to go to a designated room in a Boston hotel, where he feared that a further demand would be made on account of the same matter; that the respondent advised Hunnewell to go pursuant to the appointment; that the respondent fol12. Attorney and client 39-Perjury by at- lowed shortly after and found in the room torney is ground for disbarment. three lawyers, who were named to Keating

to be heard thereon.

Before disbarment was entered on ground that attorney was guilty of perjury in disbarment trial, there should have been charge of that specific nature and opportunity to be

heard.

Commission of perjury by an attorney at and to Proctor, and that after a brief conlaw is sufficient ground for disbarment. versation all left the room and no money was

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(146 N.E.)

paid, and that the respondent voluntarily appeared before a committee of the Boston Bar Association to make a statement concerning this affair, and deliberately lied about it by denying that he had told to Keating and Proctor the matters and things repeated by them. There were other charges connected with the same transaction, but it is not necessary to state them because the findings center about this one.

The case was heard at length before a single justice. He filed "findings of fact, rulings, and order" as follows:

"I find as follows:

"(1) Alvah G. Sleeper made to Arthur E. Keating and William H. Proctor, in substance, the statements set forth in the petition for his disbarment. This finding is based not only on the testimony of Keating and Proctor, but upon that of other witnesses. It is supported by the conduct of Sleeper.

"(2) Sleeper, at the hearing before the subcommittee of the grievance committee of the Boston Bar Association, finally denied that he ever made the statements.

"(3) While upon the witness stand before me as a witness in his own behalf he denied making them.

(4) In giving such testimony, he knowingly failed to tell the truth, and was guilty of the crime of perjury.

"(5) There was no evidence that the statements made by Sleeper to Keating and Proctor were true. Sleeper not only denied making them, but negatived the facts set forth therein. The parties referred to in the statements emphatically denied their truth. Hollis H. Hunnewell, named therein, although in New

York, was unwilling to come to this commonwealth to give testimony, and his deposition was

not taken.

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"(8) Sleeper was guilty of gross misconduct when, before the subcommittee of the grievance committee of the Boston Bar Association he untruthfully denied that he had told Keating and Proctor the story hereinbefore referred to. No order of disbarment is made on this finding.

they are warranted by direct testimony or as inferences from all the evidence. The only matter for us to decide, even upon a full report of the evidence, is whether the general or special findings made can be sustained on any reasonable view of the case as presented to the trial court. Randall, Petitioner, 11 Allen, 472; Boston Bar Association v. Greenhood, 168 Mass. 169, 182, 46 N. E. 568; Boston Bar Association v. Casey, 227 Mass, 46, 51, 116 N. E. 541; Moss v. Old Colony Trust Co., 246 Mass. 139, 143, 144, 140 N. E. 803.

[2] There was no error of law in denying the respondent's request, to the effect that there was nothing in the evidence to show deceit, malpractice, or other gross misconduct on his part. It appears to be conceded that in the spring or summer of 1920, a committee of the Boston Bar Association had under consideration and investigation charges against two Boston attorneys, to the effect that they had conspired to extort money from Hollis H. Hunnewell by threats of criminal prosecution. There seems also to be no dispute about the fact that Keating and Proctor, members of the state police, each appeared before that committee and made a

statement respecting those charges against the two Boston attorneys. There was ample evidence before the single justice to the effect that each made a statement before that committee in substance and effect that the respondent had told the witness in categorical detail that a client had consulted the respondent about a request that he go to a

room in a Boston hotel, at a specified time, and meet the two lawyers then being investigated by the committee; that, after preliminary advice, the client went to the room in the hotel as requested, where the respondent soon followed and found there these same two lawyers, together with another; that some conversation followed and the meeting broke up without any money being paid. Proctor also said that he told the respondent that the client was Hollis H. Hunnewell, and the respondent replied that that was so. There was evidence tending to show that thereafter the respondent came before the same committee. He first declined to make any statement whatever respecting what occurred in the room in the hotel, and, later, on examination by one of the attorneys whose conduct was being investigated, and who was said to have been in that room, de

"The respondent duly requested certain rulings which are hereto annexed. I refuse those numbered 1, 2, and 8. Those numbered 3 and 4 are immaterial in view of my order; those numbered 5, 6, 7, and 9 are given, although some of them are now immaterial and very like-clared unequivocally that that attorney was ly too broad in their scope.

"An order is to be entered disbarring the respondent solely on the ground of perjury committed in the trial before me."

[1] A proceeding for the disbarment of an attorney at law is at common law and not in equity. Therefore, when in such proceeding questions are presented to this court respecting general or special findings of fact made by the trial court, such findings stand when

not in the room. He also asserted that be had never made to either Keating or Proctor a statement that he had seen the attorneys under investigation at the room in the hotel. A stenographic report of the statement made to that committee by the respondent was presented in evidence. Keating and Proctor testified before the single justice. Their testimony does not appear to differ in any material particular from their statements to the

committee. The ground covered by the several statements to the committee was the subject of full inquiry at the trial before the single justice, as well as all other matters involved. The respondent also testified before the single justice, as did numerous other witnesses who had talked with him about this subject. No further review of the evidence is necessary to demonstrate that it was a pure question of fact whether the charge for disbarment already summarized was proved. The credibility of witnesses was wholly for the single justice. If the testimony of Keating and Proctor, and that of other witnesses, were believed, that charge was sustained.

It follows that there was no error of law in denying the first request for ruling. Paragraphs 1, 2, and 3 of the findings of the single justice are amply supported by evidence. [3] The first sentence of paragraph 8 of the conclusions of the single justice discloses no error of law. If it be treated as a finding of fact, it plainly is supported by the evidence. In this aspect it is but little more than a summarization of the special findings which have gone before, except that embodied in paragraph 4. If it be regarded as a ruling of law, it is free from error. An attorney at law who made, to two members of the state police, one of whom at least was engaged in an official investigation, statements concerning other members of the bar of the nature shown on this record, and who later, when charges of the same character as those described in his statements were being investigated by a committee of the Bar Association, denied that he ever made such statements, is guilty of gross misconduct. It was a flagitious falsehood. If the statements made to the state police were false, it was his clear duty to say so before the committee of the Bar Association. That committee was engaged in an important and highly estimable public service in making inquiry into the conduct of two members of the bar against whom grave charges had been made. If the charges were groundless, the two members of the bar were entitled to exoneration; if they were well founded, proceedings for their disbarment ought to be instituted to the end that they be removed from the ranks of an honorable profession, and thus the public be protected and the administration of justice purged of untrustworthy officers. It was a painful duty which the committee was trying to discharge. To make false statements to a committee, undertaking such salutary public service, is a peculiarly atrocious form of untruth. Conduct of that nature violates the standard of probity and rectitude, which is a fundamental prerequisite for every attorney at law. Common honesty is essential for every lawyer. The want of

ment. Berman v. Coakley, 243 Mass. 348, 354, 137 N. E. 667, 26 A. L. R. 92, and cases there cited.

[4] Plainly in view of what we have already said, the second request ought not to have been given, to the effect that there was no evidence to support any finding other than that the respondent had been faithful to all his duties to his client and as an attorney and counselor of the court. No one could be regarded as faithful to the obligations imposed on him as a member of the bar who committed the acts found to have been done by the respondent.

[5] The finding made in the course of the trial as a basis for a ruling and embodied in paragraphs 5, 6, and 7, of the conclusions of the single justice, to the effect that the respondent was consulted by Hollis H. Hunnewell with respect to his relations with a designated woman, also finds support in the evidence. Several witnesses testified with greater or less positiveness that the respondent had identified a man of that name as his client. It was the exclusive province of the trial justice to follow his own convictions in believing that identification and in discrediting the testimony of a contrary tenor. Boston Bar Association v. Hale, 197 Mass. 423, 436, 83 N. E. 885.

[6] It is not necessary to review the evidence in detail or to discuss the various arguments designed to support the credibility of the respondent and to throw distrust upon that of other witnesses. The trial justice was acting wholly within the bounds of his duty in passing upon all those matters. His conclusions are not subject to review here.

[7] The eighth request was refused rightly. This petition for disbarment was not designed to elicit information as to the relations of the respondent with his client but to determine whether the respondent's professional conduct has been so reprehensible as to render it proper with a due regard to the public welfare for him longer to be a member of the bar. Inquiry as to his relations with his client Hunnewell was merely and properly incidental to that main issue.

[8] There was no error of law in the finding No. 4 by the single justice that the respondent in giving testimony at the trial before him, "knowingly failed to tell the truth and was guilty of the crime of perjury" in a designated particular. Of course, no charge of such perjury was or could be included among the charges set forth in the petition for removal of the respondent. One of those charges was that he was (to quote the words of his exceptions), "guilty of gross misconduct when he came voluntarily to testify before the committee of the Bar Association, and deliberately lied to the committee by denying that he had told Arthur E. Keating and William H. Proctor a story as to represen

(146 N.E.)

Keating and Proctor had in substance testified before the committee." The respondent, in his answer, denied that he had made such false statement. The subject of the veracity and honesty of the respondent touching a specified matter was thus directly put in issue. The charges confined the inquiry as to that veracity and honesty to a designated occasion. When the respondent offered himself as a witness in his own behalf, it was inevitable that his examination would cover that specified matter. The entire issue on that charge was whether he had made the statements to Keating and Proctor which they said he had made to them. Nobody contended that those statements were true because there was no evidence that they were true. In its last analysis one inevitable and necessary question for the single justice to decide was whether the respondent was telling the truth with reference to the matter specified in the charge. The respondent as a reasonable man must have known that that was a necessary and inevitable question for decision. The only escape from the decision of that question would be so utterly to disbelieve Keating and Proctor and the other witnesses as never to reach the question whether the respondent was telling the truth. That, however, was very remote. Their testimony would naturally be given some credence under all the circumstances. The respondent was not advised to rest his case without testifying himself. It is manifest that there was categorical contradiction between the testimony of Keating and Proctor, corroborated by other testimony, on the one side, and the testimony of the respondent, on the other side. There was no possibility of reconciling such completely repugnant and incompatible testimony. There was no rational ground for thinking that the testimony on the one side or the other was mistaken. That on both sides could not be true. That on one side must be false. The respondent and intelligent counsel must have perceived all that when the respondent took the witness stand to testify in his own behalf. His whole hope of prevailing in the case rested on the question whether the single justice would believe his testimony. The issue really narrowed to the single point whether the respondent was telling the truth or was committing perjury in his testimony respecting the specification of the charge. If such a situation had presented itself on a trial to a jury, counsel on each side in their arguments rightly would have discussed the truthfulness of such a witness. The presiding judge, in his charge, rightly could have told the jury that the real point for them to consider was the veracity of such a witness. These are but various phrases for expressing the thought described with technical accuracy by the inquiry, did he commit perjury or not? Since the single jus146 N.E.-18

tice could not escape deciding the question whether the respondent was committing perjury before him, it was the part of frankness and of propriety on his part to state that fact as one of his findings. It showed the grounds on which rested his ultimate findings of the facts. Perjury of a witness in testifying before a court is not infrequently taken into account in that very proceeding. In cases where, in addition "to the essential elements of perjury under the general law, the further element of obstruction to the court in the performance of its duty" is found to exist, the witness adjudged guilty of such conduct may be committed for contempt. Ex parte Hudgings, 249 U. S. 378, 383, 39 S. Ct. 337, 63 L. Ed. 656, 11 A. L. R. 333, where United States v. Appel (D. C.) 211 F. 495, is cited with approval. As before pointed out, the incidental finding that a witness has committed perjury is not infrequently the basis of the verdict of a jury.

The first sentence of paragraph 8 of the findings of the single justice is in effect a necessary conclusion from paragraphs 1, 2, 5, 6, and 7. It is in substance both a finding and a ruling. As has been pointed out earlier in this opinion it is not tainted with any error of law. The second sentence of paragraph 8 is in these words:

"No order of disbarment is made on this finding."

That sentence must be read in connection with the final sentence of the conclusions, which is in these words:

"An order is to be entered disbarring the respondent solely on the ground of perjury committed in the trial before me."

The meaning of these two sentences, read together, is that the single justice, although finding the respondent guilty of gross misconduct as charged in the petition for removal, did not make an order for disbarment on that ground alone; he passed the question by without decision whether such order ought to be made; but, because the respondent had committed perjury in defense to the petition for removal touching the very incident on which the charge in the complaint was framed, his character and conduct were such that an order for disbarment was made. These two sentences do not mean that the respondent would not have been disbarred or disciplined at all because of the falsehood told out of court. That would be unthinkable conduct on the part of any judge who had made the findings here set forth. If it were susceptible of that construction, it would be manifestly erroneous as matter of law. These two sentences, taken together, signify that, whatever that discipline might have been for the gross misconduct by itself the order for disbarment was made because the very falsehood previously told out of court

was repeated on the witness stand before the single justice and thus perjury was committed, and on that ground alone.

[9] We accept unqualifiedly, and adopt without reservation, the statement of law in Ex parte Robinson, 19 Wall. 505, at pages 512, 513, 22 L. Ed. 205:

"There may be cases undoubtedly of such gross and outrageous conduct in open court on the part of the attorney as to justify very summary proceedings for his suspension or removal from office; but even then he should be heard before he is condemned. The principle that there must be citation before hearing, and hearing or opportunity of being heard before judgment, is essential to the security of all private rights. Without its observance no one would be safe from oppression wherever power may be lodged."

other findings. The respondent in the case at bar was fully heard on the matter whether he had made the statement to Keating and Proctor as they had testified. That was the whole point of his trial. He was given ample notice of that charge by the petition on which he was being tried to the end that, if found guilty, he might be disciplined. That was the very subject about which he volunteered his own testimony before the single justice. The charge itself implied that if his statement before the Bar committee, alleged in the petition to have been false, were found to have been false, the repetition of the same statement on his trial would be perjury and that such perjury could not escape the attention of the trial justice and could not fail to be given weight in the order made on the petition for re[10] The right of the respondent to prac-moval. The respondent had the fullest optice his profession so long as he behaved him- portunity to be heard on that subject. Evself therein is protected both by the Consti-ery opportunity for explanation or defense or tution of this commonwealth and that of the United States. That right is both liberty and property, partaking of the nature of both, and is guaranteed by constitutional mandate against unwarrantable interference. The respondent cannot be deprived of it except by proceedings complying with due process of law. Lawrence v. Board of Registration, 239 Mass. 424, 428, 132 N. E. 174; Attorney General v. Pelletier, 240 Mass. 264, 295, 134 N. E. 407; Selling v. Radford, 243 U. S. 46, 51, 37 S. Ct. 377, 61 L. Ed. 585, Ann. Cas. 1917D, 569. The case at bar is a proceeding for removal of the respondent on the ground of false statements made by him out of court, but upon a solemn occasion where highly important proceedings were pending. Of that alleged misconduct the petition for removal gave the respondent ample notice. He offered himself as a witness on his trial of that peti

tion and repeated the same statement, found by the single justice to have been false when made out of court, while he was testifying as a witness under oath. It may be that this is the kind of case referred to as an exception to the general rule requiring special notice to an offending attorney of the grounds of complaint, stated in these words in Bradley v. Fisher, 13 Wall. 335, 354, 355 (20 L.

Ed. 646):

apology on that subject already had been offered him. That is a necessary inference from the trial itself upon the charges contained in the petition. It is demonstrated by a careful examination of the entire record. He repeated under oath in court the same falsehood made out of court before the committee. This is not an instance of perjury committed upon some collateral and incidental, though material, matter, but upon the very subject of the trial when that subject is the truth or falsity of a previous statement made by the witness himself.

Matter of

There are numerous decisions where the fact that an attorney has attempted to avert an order for disbarment or discipline by perjured testimony has been taken into account and apparently given weight in the ultimate decision and in the penalty imposed for lapsCohn, 120 App. Div. 378, 105 N. Y. S. 84; es from professional integrity. Matter of Joseph, 135 App. Div. 589, 120 N. Y. S. 793; Matter of Smith, 148 App. Div. 291, 132 N. Y. S. 304; Matter of Levine, 148 App. Div. 296, 132 N. Y. S. 124; Matter of Voxman, 148 App. Div. 286, 290, 132 N. Y. S. 217; In re Thorn, 164 App. Div. 151, 149 N. Y. S. 507; In re Nichols, 165 App. Div. 901, 149 N. Y. S. 1099; People v. Brown, 218 Ill.

301, 308, 75 N. E. 907; In re Peck, 88 Conn. 447, 458, 459, 91 A. 274, Ann. Cas. 1917B, 227. The case at bar is nothing more than this. It is supported by these authorities.

"Except where matters occurring in open court, in presence of the judges, constitute the grounds of its action, * * * and even where the matters constituting the grounds of com. plaint have occurred in open court, under the personal observation of the judges, the attor-strate that the commission of perjury by an ney should ordinarily be heard before the order of removal is made."

[11] Nevertheless we are of opinion that before disbarment was made on that ground alone, there ought to have been a charge of that specific nature and opportunity to be heard. This however does not affect the va

[12] It requires no discussion to demon

attorney at law is sufficient ground for disbarment. Indeed it is difficult to conceive of the commission of such an offense by an officer of the court which would not require disbarment. There is no room in the profession of the law for those who commit de liberate falsehood in court.

The conclusion is that there is no error

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