Opinion
No. 14,097.
Decided February 5, 1940.
Original proceeding in disbarment.
Respondent Disbarred.
1. ATTORNEYS AT LAW — Disbarment. In disbarment proceedings the ultimate question is whether the attorney charged has shown himself an unfit person to be longer entrusted with the privileges and prerogatives of his profession and to further serve as an officer of the court.
2. Conviction of Criminal Offense — Judgment — Disbarment. Where conviction of a criminal offense and sentence of a respondent attorney in disbarment proceedings occurred in another jurisdiction, the rule that all presumptions favor the judgment still holds, and if he asserts a miscarriage of justice in the case upon which the petition against him is based, he has the burden of establishing his assertion. His defense, however, must go to the merits. Mere irregularities and technical errors are unavailing, and if the conclusion of gross moral turpitude still stands, the presumption remains.
3. Disbarment — Reputation. The public safety demands that no ability however great, no practice however long or creditable, and no reputation however unblemished, should exculpate a lawyer who prostitutes his profession by committing such a felony as here charged, or temper the judgment which should follow his conviction.
Mr. BYRON G. ROGERS, Attorney General, Mr. WALTER F. SCHERER, Mr. REID WILLIAMS, Mr. JOSEPH D. ISKOW, Assistants, for petitioner.
Mr. BEN B. LASKA, pro se. Mr. PHILIP HORNBEIN, Mr. LEO S. MOSES, Mr. THEODORE EPSTEIN, for respondent.
RESPONDENT, hereinafter referred to as Laska, an attorney at law of this bar, was informed against by the attorney general in a petition alleging his conviction and sentence in the United States District Court for the western district of Oklahoma under an indictment charging conspiracy to kidnap, and asking his disbarment. Laska admitted the charge, but asserted his innocence and pleaded that the offense was not such under state statutes. To this answer a demurrer was filed and sustained with leave to amend. People ex rel. v. Laska, 101 Colo. 221, 72 P.2d 693. The answer was amended, repeating the substance of the original, alleging that the federal statute under which the indictment was returned was not in effect at the time of the transaction, that for numerous reasons specified Laska did not have a fair trial, and detailing his version of the facts. A demurrer thereto was overruled and the attorney general, by replication, again demurred, for want of facts, to the answer as a whole and to the several portions thereof, denied new matter, and alleged that Laska was guilty of the acts charged. Thus at issue the cause was referred, for investigation and report, to the Denver district court, where it was assigned to and regularly heard by Hon. Henry S. Lindsley, one of the judges of that court. At that hearing Laska was present, in person and by counsel, and all essential evidence, oral and documentary, was adduced. Thereupon Judge Lindsley reported to this court the proceedings before him and his conclusion that Laska had been accorded a fair trial in Oklahoma and that his guilt had been there fairly and legally established. Thereupon the cause was briefed here and is now finally submitted. Since his sentence Laska has been and now is confined in the federal penitentiary.
The statute under which Laska was indicted is section 408c, 18 U.S.C.A. After conviction he appealed to the United States Circuit Court of Appeals, where the judgment was affirmed. Laska v. United States, 82 F.2d 672. He then petitioned the United States Supreme Court for review by certiorari and the writ was denied. Laska v. United States, 298 U.S. 689, 56 Sup. Ct. 957, 80 L. Ed. 1407. We here omit all further statement of facts. Our former opinion and that of the United States Circuit Court of Appeals, supra, give them in great detail. Suffice it to say that we concur in the latter's conclusion that "If he [Laska] did these things he deliberately entered as black a conspiracy as was ever hatched, and he ought to pay the penalty."
In a proceeding of this kind the ultimate question is whether the attorney charged has shown himself an unfit person to be longer entrusted with the privileges and prerogatives of his profession and to further serve as an officer of the court.
On Laska's contention that the statute under which he was indicted was inapplicable, two federal courts have found against him and the United States Supreme Court has, inferentially, affirmed that holding. But the acts charged, if committed, would have here the same result if no statute forbade them. People v. Weeber, 26 Colo. 229, 57 Pac. 1079.
Whether, technically considered, the question of Laska's guilt, or the fairness of his trial in the United States District Court, or both, are now presented, we consider immaterial. As to the fairness of that trial it has been adjudicated in the proper tribunal and the record thereof has our approval. Were it otherwise and any lingering doubt remained that the Supreme Court of the United States would take jurisdiction and correct such a miscarriage of justice, it seems to us the following cases would put that doubt at rest. Powell v. Alabama, 287 U.S. 45, 53 Sup. Ct. 55, 57 L. Ed. 158; Norris v. Alabama, 294 U.S. 587, 55 Sup. Ct. 579, 79 L. Ed. 1074. On the question of Laska's guilt of the acts charged, that guilt has been established by a jury and the proper tribunals have found that it was legally established. We concur in that conclusion but have not contented ourselves therewith. We have examined with care the evidence in the cause and find the verdict amply supported.
Where conviction and sentence occurred in another jurisdiction, for the violation of a statute thereof, the rule that all presumptions favor the judgment still holds. If that violation, as here, involves gross moral turpitude, disbarment, though not mandatory, follows in the absence of an adequate defense. He who asserts a miscarriage of justice has the burden of establishing it. He may, for instance, show the trial so unfair as to rebut the presumption, or establish his innocence by newly discovered evidence. His defense, however, must go to the merits. Mere irregularities and technical errors are unavailing. If the conclusion of gross moral turpitude still stands the presumption remains. This respondent has presented nothing which, in our opinion, removes either the presumption of a fair trial or the presumption of guilt.
The general principles governing and applicable to the foregoing are so familiar, and the authorities stating and reaffirming them so numerous and unanimous as to make further citation superfluous.
The public safety demands that no ability however great, no practice however long or creditable, and no reputation however unblemished, should exculpate a lawyer who thus prostitutes his profession, or temper the judgment which should follow his conviction.
It is accordingly ordered that respondent's name be stricken from the roll of attorneys of this court and that he be, and he hereby is, disbarred from further practicing law in this state.
MR. CHIEF JUSTICE HILLIARD dissents.
The following dissenting opinion was filed April 12, 1940.