Summary
In Grievance Committee of the Bar of New Haven County v. Sinn, 128 Conn. 419, 422, 23 A.2d 516 (1941), we concluded that "[i]n [presentment] proceedings a defendant is entitled to notice of the charges against him, to a fair hearing, and a fair determination, in the exercise of a sound judicial discretion, of the questions at issue, and to an appeal to this court for the purpose of having it determined whether or not he has in some substantial manner been deprived of such rights."
Summary of this case from Pinsky v. Statewide Grievance CommitteeOpinion
The ultimate question in disbarment proceedings is whether the defendant is a fit person to be longer allowed the privileges of being an attorney. His relations to the tribunal and the character and purpose of the inquiry are such that unless it clearly appears that his rights have in some substantial way been denied him, the action of the court will not be set aside upon review. In the present case the defendant attorney not only directed the officer to attach property but upon a replevin action brought by a conditional vendor of the property directed the officer to refuse to surrender it. Held that there was a legal inference of a promise by the attorney to reimburse the officer for any loss sustained by him. Where judgment was rendered against the officer for nominal damages and costs, which he was compelled to pay, the attorney's debt to him was not an ordinary one but was an incident of the practice of law and specifically concerned the defendant's good faith toward a deputy sheriff. The ground of his refusal was not inability to pay but a denial of liability and of responsibility. The court was not in error in suspending him from practice for a period of sixty days. A hearing such as this is not the trial of a criminal or civil action or suit, but an investigation by the court into the conduct of one of its own officers, and, therefore, while the complaint should be sufficiently informing to advise the court of the matters complained of, and the attorney of the charges made against him, it is not required that it be marked by the same precision of statement, or conformity to the recognized formalities or technicalities of pleadings are expected in complaints in civil or criminal actions. The court found other facts which strengthened the validity of the conclusion arrived at, such as that there was an express agreement of the attorney to pay the costs. While those further facts were not specifically alleged in the presentment, they were well within the issue, the attorney had specific notice of his acts and conduct under investigation, and it was not necessary to allege all the details. While it might be that the court could not base a disbarment or suspension of an attorney upon a finding made by it that he gave false testimony at the hearing, without charges being brought against him based upon it, it could consider this fact, at least to the extent of determining the penalty which should be imposed upon his being found guilty of charges within the scope of the complaint against him.
Argued October 14, 1941
Decided December 17, 1941.
PRESENTMENT by the plaintiff praying that a rule issue to the defendant to appear and show cause why he should not be disbarred or otherwise disciplined, brought to the Superior Court in New Haven County where the rule was entered (Munger, J.), a demurrer to the presentment and complaint was overruled (Simpson, J.) and the issues were tried to the court, McEvoy, J.; judgment suspending the defendant from practice for a period of sixty days, from which he appealed. No error.
The appellant filed a motion for reargument which was denied.
Ephraim Edward Sinn, pro se, the appellant (defendant).
Arthur T. Gorman, assistant state's attorney, with whom was Abraham S. Ullman, state's attorney, for the appellee (plaintiff).
This case came to the Superior Court upon a presentment by the grievance committee of the New Haven County bar association alleging that the defendant, a member of the bar of that county, had been guilty of professional misconduct, and asking that he be directed to appear before the court and show cause why he should not be disbarred or otherwise disciplined. The presentment made the following charges: The defendant delivered to Mark McDermott, a deputy sheriff, a writ of attachment in an action wherein Howard Beauchamp was defendant, with directions to attach as the property of Beauchamp an automobile then in the latter's possession. The attachment was made, and thereafter the assignee of the vendor in a conditional bill of sale of the automobile to Beauchamp made demand upon the officer for possession of the car. The defendant, upon being informed of this demand, directed McDermott to refuse it, and he did so. The assignee then brought a replevin action, the defendant represented McDermott at the trial, and judgment was rendered in favor of the plaintiff therein to recover possession and for damages of $1 and costs of $82.75, which McDermott was compelled to pay. He demanded reimbursement, but the defendant refused to recognize any responsibility on his part, refused to pay, has decided $150 for services in representing McDermott in the replevin action, and has refused to pay the sheriff for services rendered in making the original attachment, except to allow these sums as a setoff to the claim of $150 for services. A rule to show cause was issued by the court, the defendant appeared and demurred to the presentment, the demurrer was overruled, an answer filed, a hearing had, and judgment entered suspending the defendant from practice as a member of the bar of Connecticut for a period of sixty days. The defendant appealed.
In proceedings such as this a defendant is entitled to notice of the charges against him, to a fair hearing, and a fair determination, in the exercise of a sound judicial-discretion, of the questions at issue, and to an appeal to this court for the purpose of having it determined whether or not he has in some substantial manner been deprived of such rights. In re Durant, 80 Conn. 140, 147, 150, 67 A. 497; Grievance Committee v. Ennis, 84 Conn. 594, 602, 80 A. 767. The ultimate question is whether he is a fit person to be longer allowed the privileges of being an attorney. Fairfield County Bar v. Taylor, 60 Conn. 11, 16, 22 A. 441. His relations to the tribunal and the character and purpose of the inquiry are such that unless it clearly appears that his rights have in some substantial way been denied him, the action of the court will not be set aside upon review. In re Durant, supra, 150.
Error is assigned in overruling the demurrer. The questions raised in its various grounds are all involved in this appeal. With all the facts before us it is unnecessary to rule on the effect of a decision upon a demurrer. Thomas' Appeal, 85 Conn. 50, 51, 81 A. 972.
The trial court found true the charges specifically alleged in the presentment, and no changes can be made in its finding. It was not alleged that the defendant specifically agreed to pay the costs of the replevin action. Under the circumstances alleged the attorney is justly regarded as having personally requested the services rendered, and as having personally directed the officer to take the property attached. He is therefore personally liable for the consequences of his acts, one of which is a legal inference from these facts of a promise to reimburse the officer for any loss sustained by having taken the property of the wrong person. Higgins v. Russo, 72 Conn. 238, 242, 43 A. 1050. While in that case the attorney had in his hands money paid by his client to use, if necessary, in defending the validity of the contemplated seizure, the reasoning of the opinion validly supports a rule that as between attorney and officer the former is liable to the latter for the consequences of actions performed at his express command. The present case is stronger in that the attorney not only directed the officer to attach the property of another but upon a replevin action directed the officer to refuse to surrender the property.
The grievance committee is not a collection agency, and did not attempt to collect the debt rightfully owed by the defendant, but complained that the latter's conduct in refusing to pay the officer for a loss occasioned by defendant's direct order constituted professional misconduct. The debt was not an ordinary one but was an incident of the practice of law, and specifically concerned the defendant's good faith toward a deputy sheriff who at his direction and upon his order had incurred an obligation for which, the law holds, the defendant must recompense him. The ground for the refusal was not inability to pay, but a denial of liability and of responsibility. We cannot say that the court was in error in its conclusion that the facts alleged and proved warranted the relatively mild discipline imposed by it. A large measure of discretion is vested in the Superior Court in passing upon the conduct of an attorney upon charges preferred against him by the grievance committee. Grievance Committee v. Ennis, supra, 602; In re Durant, supra, 150.
The trial court went beyond the specific allegations of the presentment and found the following additional facts: There was an express promise by the defendant to pay the costs of the replevin action, if judgment should be rendered against the officer; the officer at no time retained the defendant to represent him in the replevin action or agreed to compensate him for such services; the defendant had no thought or intention of charging for them; his ultimate charge afterthought and not bona fide, but was made solely to enable him to set off the amount of the charge in a threatened action by the officer to collect the replevin costs. These facts were found upon evidence to which no objection was made, and which was quite sufficient to support the finding. The defendant contends that these facts are beyond the issues defined in the pleadings. The short answer is that a hearing such as this is not the trial of a criminal or civil action or suit, but an investigation by the court into the conduct of one of its own officers, and that, therefore, while the complaint should be sufficiently informing to advise the court of the matters complained of, and the attorney of the changes made against him, it is not required that it be marked by the same precision of statement, or conformity to the recognized formalities or technicalities of pleadings, as are expected in complaints in civil or criminal actions. In re Peck, 88 Conn. 447, 452, 91 A. 274; Fairfield County Bar v. Taylor, supra, 15. No new burden is imposed upon the defendant. He had specific notice of his acts and conduct under investigation. It was not necessary to allege all the details of such conduct. It is true that the allegations of the presentment were thus broadened by other facts not specifically alleged, but they were well within the issue. See Mechanics Bank v. Woodward, 74 Conn. 689, 691, 51 A. 1084.
We have already stated that the facts specifically alleged and proved in relation to the replevin costs are sufficient to imply a promise to pay them. The court's further finding that there was an express agreement to that effect is therefore of no moment, except to strengthen the validity of the conclusion arrived at. The court's findings in relation to the defendant's conduct in making a charge for services come within the rule already discussed, and were proper findings of fact in relation to the charges made in the presentment. There was bad faith on the part of the defendant in making such a charge in the manner and for the purposes stated in the finding, and we cannot say that the court abused its discretion in concluding that it constituted professional misconduct.