of the nature of the charges against him and the notice given was sufficient in character to bring him before it to explain the matters to which the notice referred.
He apparently, however, proceeds on the theory at variance with fact that proceedings against attorneys for malpractice or any unprofessional conduct should be founded upon the formality of allegations akin to indictment. The fact is that such proceedings are often instituted upon information and as the Supreme Court of the United States has said, in Randall v. Brigham, in 1868, 7 Wall. 523, 540, 74 U.S. 523, 540, 19 L. Ed. 285, 'or from what the Court learns of the conduct of the attorney from its own observation. Sometimes they are moved by third parties upon affidavit; and sometimes they are taken by the court upon its own motion. 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 be conducted, so that it be without oppression or unfairness, is a matter of judicial regulation.' Nor is the proceeding a criminal one in which a party has a right to full, formal and substantial description of the offense judged. Or, as has been said further, by the same Court some fourteen years later in Ex Parte Wall, 107 U.S. 265, 289, 2 S. Ct. 569, 589, 27 L. Ed. 552:
'It is a mistaken idea that due process of law requires a plenary suit and a trial by jury in all cases where property or personal rights are involved. The important right of personal liberty is generally determined by a single judge, on a writ of habeas corpus, using affidavits or depositions for proofs, where facts are to be established. Assessments for damages and benefits occasioned by public improvements are usually made by commissioners in a summary way. Conflicting claims of creditors, amounting to thousands of dollars are often settled by the courts on affidavits or depositions alone. And the courts od chancery, bankruptcy, probate, and admiralty administer immense fields of jurisdiction without trial by jury. In all cases that kind of procedure is due process of law which is suitable and proper to the nature of the case, and sanctioned by the established customs and usages of the courts.'
Then the Court went on to say, quoting Judge Cooley, who in turn quoted Webster in the Dartmouth College case, 4 Wheat. 518, 17 U.S. 518, 4 L. Ed. 629, in his famous allusion to the law of the land:
"By the law of the land is most clearly intended the general law- a law which hears before it condemns; which proceeds upon inquiry, and renders judgment only after trial. The meaning is that every citizen shall hold his life, liberty, property, and immunities under the protection of the general rules which govern society."
The plaintiff has been afforded that and is entitled to nothing more.
Codes of ethics adopted by bar associations, of course, have no statutory force. They are indicative, however, of and reflect the attitude of the profession as a whole upon those courses of action which they frown upon and interdict, and they are commonly regarded by bench and bar alike as wholesome standards of professional ethics. The practice of law is a profession and not a trade.
Further, plaintiff mistakes the end result, which is not disbarment in the sense in which that term is generally understood- but on order excluding him from appearing as counsel before the Commission. The distinction is one in kind and not degree.
In re Fisher, 7 Cir., 1950, 179 F.2d 361, in which was cited Ex Parte Secombe, 1856, 19 How. 9, 60 U.S. 9, 15 L. Ed. 565, merely reiterates propositions of law which which there is no quarrel.
I conclude that the Commission had the legal power and authority to discipline the plaintiff in the manner it did, nor can it be said upon the record in this case that its action ,as arbitrary and capricious nor in any way derogative of those procedural safeguards alluded to above.
© 1992-2004 VersusLaw Inc.