COBB v. UNITED STATES, 3 Alaska Fed. 419

GILBERT, Circuit Judge (after stating the facts as above). It is assigned as error that a judgment of suspension was rendered upon a proceeding which was instituted for contempt. It is true that the information which was filed against the plaintiff in error contains the allegation that his conduct was contempt of court, but it contains a full statement of the facts of the case, and asks for a judgment appropriate thereto.

The court below, properly we think, regarded the proceeding, not as one for contempt, but as one for suspension or disbarment for misconduct, which is made a ground therefor by Pol.Code' Alaska, § 743, which provides that an attorney may be removed or suspended, among other causes, “for being guilty of any willful deceit or misconduct in his profession.” Although the information did not in express terms demand a judgment of suspension or disbarment, the plaintiff in error was present when the court ruled that such was the nature and purpose of the proceeding, and thereafter he had ample opportunity to make his defense.

He assented to the ruling that it was a proceeding for disbarment or suspension by moving that the cause be referred under

section 750. Said the court in Randall v. Brigham, 7 Wall. 523-540, 19 L.Ed. 285: “It is not necessary that proceedings against attorneys for malpractice or any unprofessional conduct should be founded upon formal allegations against them. * * * All that is requisite to their validity is that, when not taken for matters occurring in open court in the presence of the judges, notice should be given to the attorney of the charges made, and opportunity afforded him for.explanation and defense.

The manner in which the proceeding shall b$ conducted, so that it be without oppression or unfairness; is a matter of judicial regulation.” It is assigned as error that the court below overruled the motion of plaintiff in error to refer the case to three disinterested members of the bar under the provision of

section 750 of the Alaskan Code. That provision is expressly confined to a case where the accusation is made upon the knowledge of the court or the judges thereof. In such a case the accused may controvert ■ the accusation, and thereupon the issues of fact must by the court be referred to at least three disinterested members of the bar, who shall report their findings of fact upon the issues, and the judgment of the court shall be entered accordingly. The present proceeding is instituted under

section 744, which provides that the proceeding to remove an attorney shall be takén by the court “of its own motion for matters within its knowledge, or that of any of the judges thereof; otherwise it may be taken upon the information of another.” This proceeding was taken upon the information of another. The only question requiring any extended discussion is that which is presented upon the assignment of error that the court rendered judgment upon the pleadings. The plaintiff in error admitted in his answer that he wrote the communication and sent the same to the publisher, but he denied that he did so willfully or maliciously, or that the

article was willfully or maliciously or otherwise false or untrue, or that he 'had any intent to scandalize or traduce or disgrace the court. Upon the issue so raised, the plaintiff in error might, had he so chosen, have adduced testimony to sustain his denials, but upon the refusal of the court to refer the case to a committee of three members of the bar the plaintiff in error by his counsel announced in open court that he would not further appear in the case, or have anything further to do with the same.

The burden was upon him to show that statements made in the communication which were scandalous upon their face were not maliciously or willfully published, or were not false, and he cannot complain that upon his refusal to sustain such burden of proof, or to adduce any testimony whatever, the court took the information to be true. But it is contended that the “misconduct” of an attorney referred to in

section 743 is misconduct in his relation to his client only, and not misconduct in his relation to the court We find no ground for placing so narrow a construction of the statute. An attorney owes a duty to the court not less important than his duty to his client, and misconduct toward the judge, whether in or out of court, is not less reprehensible than misconduct toward the client.

But if, indeed,-the offense ■vvith which the plaintiff in error is charged is not among those enumerated in the statute, the court is not by such enumeration deprived of its inherent power to suspend or disbar an attorney for such unprofessional conduct as renders him unworthy to be a member of the bar. Ex parte Secombe, 19 How. 13, 15 L.Ed. 565; Beene v. State, 22 Ark. 149; State v. Chapman, 11 Ohio, 431. In Ex parte Cole, 1 McCreary, 405, Fed.Cas.No.2,973, Mr.

Justice Miller said: “In the case of an attorney of the court he may be removed from his office of attorney absolutely, or for a limited period of time, or, in the common phrase, may be suspended or disbarred for any matter or thing proved against him which shows that he is unfit to practice in the courts as one of its officers.” In Ex parte Steinman and Hensel, 95 Pa. 220, 40 Am.Rep. 637, Mr.

Justice Sharswood said: “No question can be made of the power of the court to strike a member of the bar from the roll for official misconduct in or out of court.” A published communication reflecting upon the character or- integrity of the judge of the court is conduct unbecoming an attorney for which he may be summarily disbarred. This general rule is well established. “It is the duty of an attorney, not merely to observe the rules of courteous demeanor in open court, but also to abstain out of court from all insulting language and offensive conduct toward the judges personally for their judicial acts.

For a breach of this duty the attorney may be suspended or disbarred.” 4 Cyc. 908; Beene v. State, 22 Ark. 149; In re Mains, 121 Mich. 603, 80 N.W. 714; Matter of Philbrook, 105 Cal. 471, 38 P. 511, 884, 45 Am.St.Rep. 59; People v. Brown, 17 Colo. 431, 30 P. 338; People v. Green, 7 Colo. 244, 3 P. 374, 49 Am.Rep. 351; Bradley v. Fisher, 13 Wall. 335, 20 L.Ed. 646; Ex parte Secombe, 19 How. 13, 15 L.Ed. 565.

The right of lawyers and others to criticize in a legitimate manner the conduct and rulings of judges is not to be questioned, but the right is transcended, when, as in this case, a judicial officer is subjected to scandalous and libelous charges and indignities. The deliberate publication of the accusation against the judge in a newspaper of general circulation gave it a gravity which a verbal criticism would not have possessed. The disclaimer of malice is of no avail when the contrary appears upon a fair

interpretation of the language which was used. The communication was false, scandalous, and libelous, and tended to degrade and insult the judge, and to impair the respect and authority of the court and bring it into disrepute, and destroy its efficiency in the administration of justice. Conceding the rule to be, as it has been stated in some of the authorities, that an attorney is answerable only for conduct calculated to influence and affect the judge judicially in the discharge of his official duties, it is obvious that the communication which was published here was of that character.

Its evident .tendency was to annoy and embarrass the judge in the discharge of his duties. It refers specifically - to other disbarment proceedings that are to be under investigation in the near future. It accuses the judge of being under the sinister influence of a gang which has paralyzed him for two years, and of having made a public promise to give a square deal, which he had not kept; in other words, it accuses him of having dealt unfairly with litigants in his court, and the inference is plainly suggested that he will continue so to do in the future.

These are charges which no attorney with a proper sense of his professional duty would make unless he were prepared to prove and sustain them. He must know that the publication and circulation of false and libelous charges against judges tends to deter from accepting the judicial office all save those who are insensible to abuse and insult, and to undermine confidence in the integrity of the courts on which rest respect for and obedience to the law itself. The judgment is affirmed.