Opinion
January 15, 1936, and January 16, 1936.
March 23, 1936.
Attorneys — Discipline — Professional misconduct — Procedure — General investigation upon request of court — Citations by court on its own motion — Inherent powers of court — Rules of court — Procedure — Constitutional rights of respondents — Disbarment — Employment of runners — Obtaining information from police officials — Agreement to defend criminals in the event of arrest — Evidence.
Upon the request of the president judge of a court of common pleas, the Board of Governors of the Bar Association appointed a committee to conduct an investigation to ascertain the nature, terms and conditions of the employment of lawyers who practiced largely in the criminal courts or who might have had improper and unprofessional relations with organized crime. This committee was authorized by the court of common pleas to issue subpoenas and administer oaths as provided by the Act of June 12, 1931, P. L. 543. In the order approving requests for such powers, the court specifically stated that the appointment was approved for the purpose of investigating charges against the professional conduct of the members of the bar of the court. After conducting its investigation, the committee submitted its conclusions to the court in the form of a report, which also contained a summary of the evidence. The court issued rules against the various respondents to show cause why they should not be disciplined for professional misconduct. The members of the bar thus cited were served with a copy of the rule, and the report and the summary of the testimony, as it affected them, taken and prepared by the committee. Answers were filed by respondents. The trials proceeded on the rules and answers thereto before the five president judges of the common pleas courts of the county. Decrees of disbarment were entered against the respondents, respectively. Respondents appealed.
Held: (1) That the entire proceedings were regular and that the respondents were not denied any constitutional rights; [99]
(2) The regularity of the citations issued by the court, and the proceedings based thereon, which were, as to the respondents, de novo, were not affected by the fact that the respondents were not afforded an opportunity to cross-examine the witnesses appearing against them before the committee; or that no specific charge had been submitted to the committee or to the court specifically naming the respondents as being guilty of unprofessional conduct, except the report of the committee to the court, with a synopsis of the testimony; or that the committee investigated matters which came to its knowledge, other than those specifically set forth as the subject-matter of the inquiry, including certain of the charges for which respondents were disciplined, especially in view of the express statement by the court of the broad purpose of the committee's investigation; [101-2]
(3) It was not error for the court to refuse to submit the testimony taken before the committee to respondents in advance of the trials, especially where respondents were given not only the names of the witnesses who would appear but a summary of their evidence, and, when the case was on trial, were furnished a transcript of the evidence taken before the committee; and where respondents were given full latitude to examine and cross-examine every witness who appeared against them, and were allowed every opportunity to be heard in their own defense; [101]
(4) It was not error to refuse to exclude evidence relating to the unprofessional conduct of certain of the respondents in a stated case in which they had appeared as counsel, on the ground that no mention of it was made in the original rules, especially where the citations which issued against them, and to which they made answer, incorporated a report of the committee and a summary of the testimony that covered this charge, among others; and where, upon the trials, the respondents disclaimed any suggestion that they did not have adequate notice of this charge; [102]
(5) It was proper for the court of common pleas to hear such facts of the case in which respondents were alleged to have been guilty of wrongdoing as were pertinent to the issues of the professional misconduct of respondents, even though the case had originated in the municipal court of the county. [102-3]
6. The courts have inherent power to investigate alleged professional misconduct of members of the bar, and to act against those charged with wrongdoing, with or without petition, complaint or affidavit. [99-100, 101]
7. Courts have inherent power to make and to follow rules governing such matters or to formulate new rules as the cases demand, so long as no right of the one charged with unprofessional conduct is violated; but the rules thus established do not restrict the general power of the court. [101]
8. A court has inherent power to discipline its members who appear before it guilty of professional misconduct. [99-100]
9. Where a court appoints a committee to make a general investigation of the conduct of members of the bar and thereafter issues citations against certain members based on the results of such investigation, the proceedings before the court are de novo and the burden of proof rests on the committee or those in charge to prove the charges of professional misconduct. [95-7, 100, 101]
10. Such committee having not only been instructed to investigate whether members of the bar were connected with organized crime but also appointed "for the purpose of investigating charges against the professional conduct of members of the bar" may take cognizance and submit in its report unprofessional conduct which came to their attention other than in connection with organized crime. [97, 101-2]
11. It is proper for a court, of its own motion, to issue citations against practicing attorneys for alleged misconduct. [97, 99-100, 101]
12. An attorney who employs a runner who, under the guise of a bail procurer, persuades those accused of crime to employ the attorney to represent them, and who induces police officials to furnish information relating to arrests for the purpose of enabling the attorney to secure representation of the persons arrested, will be disbarred. [100]
13. An attorney who agrees in advance to defend persons if and when arrested for criminal offenses whose future commission is a planned certainty, will be disbarred.
14. Where a large number of cases of the same kind of crime are defended by the same lawyer; where the defendants do not know and never have seen the lawyer prior to the moment of representation; and where the attorney's fees are paid by men known to be the leaders of a criminal system, the court may not only infer knowledge on the part of the attorney of the criminal combination, but from the frequency of his performance and knowledge, conclude that he becomes an actual participant therein.
Before KEPHART, C. J., SCHAFFER, MAXEY, DREW, LINN and BARNES, JJ.
Appeals, Nos. 316, 317, 318 and 321, Jan. T., 1935, by respondents, respectively, from decrees of C. P. No. 3, Phila. Co., Dec. T., 1934, Nos. 7624, 7623, 7625 and 7627, in re proceedings to discipline Herbert W. Salus, Samuel W. Salus, Albert P. Goldberg and Bernard L. Lemisch. Decrees affirmed.
Rules to show cause why respondents should not be disciplined. Before DAVIS, McDEVITT, STERN, FINLETTER and SMITH, P. JJ.
The facts are stated in the several opinions of the Supreme Court and are in part as follows:
THE "NUMBERS RACKET."The commercial lottery, popularly designated as the "Numbers Racket," is a highly organized system which, during its period of greatest popularity, was under the control of several groups. The lottery itself consists in placing a bet upon a certain number. At the end of the day the winning number is determined by some system of chance, usually the result of horse races at a certain track, and the person holding such number is paid off his bet at odds which run from 500 to 1, although some banks began by paying 600 to 1. In the groups which organize and conduct these lotteries there are a few men at the top who finance the operations called "the bankers." These men take the risk of paying off the winning numbers, but the odds are so arranged that they always win in the long run. If luck runs against them and there are too many "hits," that is, too many people with winning numbers, they reduce the odds after the play has been made, or fail to pay entirely.
The bankers have a great many men on the street who solicit bets and collect money for them. This practice produces larger play and returns. These subordinate employees are known as "writers." The player can bet any amount he desires from one cent up on a number consisting of any combination of three numbers under ten. The writer collects the money and in return gives the player a slip upon which is written the number upon which the bet is placed and which acts as a receipt for the money. The writer takes down these bets in duplicate; the carbon copy is delivered by him to an intermediate between the banker and the writer, called a "pick-up man." His function is to collect daily the cash and slips from all the writers in his district. The City of Philadelphia is divided into districts and in each there is a pick-up man. The slips are then taken to a "drop house," and from there to the headquarters operated by the bankers. In the banking headquarters, adding machines and other clerical paraphernalia are maintained. When the winning number is determined at the end of the day, the bankers give each pick-up man the money needed to pay off the bets in his district, and the pick-up men divide this money among the writers, who then pay off the lucky players.
There was and is competition between the various groups for this business. During the trial of one of appellants, an interesting example of the tribute levied by a large and powerful group, known as the "69th Street Mob," upon smaller groups was brought to light. A representative of the "69th Street Mob" called on a smaller banker and stated that it would be necessary that a certain amount of each day's play be turned over to the "69th Street Mob." Evidently fearing the consequences of disobedience, it was finally agreed that the slips for certain numbers and the cash which went with them, aggregating five to ten per cent of each day's play, should be transferred daily to the "69th Street Mob." Similar tribute was levied on other small numbers banks in the City. By this system, the "69th Street Mob" increased the volume of its business and the amount of cash received. Although assuming the risks of "hits" of the transferred numbers, it avoided deduction of the writers' and pick-up men's commission. As part of the agreement the "69th Street Mob" promised the smaller banker police protection, the assistance of a "strong arm squad," and the services of attorneys who were to come to the rescue of any of the smaller banker's pick-up men or writers when arrested.
The compensation of numbers writers and pick-up men is not large and they are constantly subject to the danger of arrest. When the numbers writers and pickup men are arrested, they need to be released on "copies of the charge," they need bail and they need attorneys. When these writers are left to shift for themselves they are frequently released on copies of the charge secured by their friends or by political workers; and, when their cases come before the magistrates and later before the courts, they may have their own attorneys, or they may be unable or unwilling to employ attorneys. However, in a great many cases the bankers take care of subordinates by providing bail as soon as they are arrested and by providing an attorney to appear at the magistrate's hearing and at the trial in court if the defendant is held for court. The testimony of a great many members defendants was taken who were released and provided with attorneys though they asked for no help and paid no fees.
The numbers game reached very large proportions in Philadelphia; so large, that one group took in many thousands of dollars each week. Numbers play comes chiefly from the earnings of poor people; the bankers do not pay off fairly, they try to buy police protection, and they fight among themselves for money and for spheres of influence. They secure sinister political influences, they corrupt police officials, they establish improper relations with magistrates. Their strong arm squads force obedience to the heads of the mob with violence which runs all the way from assault to murder. The notorious "public enemies" who established this racket have built up a smooth running machine wherein one cog fits into another. The writer is a cog; the pickup man is a cog; the bail procurer is a cog; the strong arm squad is no more and no less a cog of this machine than the inconspicuous clerk who mans the adding machine at the numbers bank. The attorney who knowingly participates in such a racket by agreeing in advance to regularly represent the organized criminals and their henchmen is still another cog.
THE "DRUNKEN DRIVERS RACKET."Blasband, a bail procurer connected with the Salus law offices, whose ostensible business was to procure bail for persons arrested, made an arrangement with two telephone operators in the office of the Chief Police Surgeon so that he could learn immediately of the arrest of any person for driving while intoxicated. The Surgeon's office must be notified promptly of these arrests so that an examination of the arrested person may be made; that office and the telephone operators are in a position to know when any police station has an arrest charged with driving while intoxicated. The telephone operators were paid five dollars for any case in which they furnished Blasband with information and in which he successfully placed bail. This bail procurer kept in almost hourly contact with the Police Surgeon's telephone operators for news of arrests. The switchboard operator would simply give back numbers as "8, 10, 11 or 36," etc., which meant that a drunken driver (name unknown) had just been arrested in the 8th, 10th, 11th or 36th Police District. Thereupon the bail procurer drove out to the Police District named, often arriving there before the police surgeon. After the doctor's examination he obtained a copy of the charge, which he took to one of a group of magistrates whom he knew and obtained the magistrate's signature to the copy. Returning to the station house, he had the drunken driver released and thereafter took charge of him. Sometimes the man was driven to Blasband's home; sometimes to a hotel; sometimes he was driven around by Blasband all night, while the latter paid his visits to various station houses. He told the arrest that he would obtain for him the services of one of the lawyers with whose office he was connected, and induced him to employ these particular lawyers. Blasband described to defendants the seriousness of the charge of drunken driving, pointed out that an attorney would be necessary and that the Salus office had the necessary political influence to handle such matters and secure better results. There was a uniformity in the testimony of the various witnesses concerning his activities which showed an efficient, well organized business. Sometimes he arranged and set the fee to be paid for legal representation. He carried cards upon which appeared the address of the law office with which he was connected and the home telephone number of one of its lawyers. He made a charge for securing a copy of the charge and arranged for entering bail at the magistrate's court the following morning. Sometimes the release of a drunken driver from a cell in a station house could not be procured by anyone except this bail procurer. His influence at some police stations was so powerful that it often occurred that a defendant, when arrested as a drunken driver, or someone with him, was denied the right to telephone to his family, his friends or his lawyer before the bail procurer's arrival. He had three or four assistants, and seemed to be able to cover the entire City of Philadelphia upon the tips that he obtained in the manner described.
Throughout the entire city from May 1st to December 31, 1934, 502 copies of charge were secured in drunken drivers cases, of which this particular bail procurer obtained 92 and his nearest competitor 12. Five other men secured three copies each. The Salus office represented many of the cases procured by this runner. Blasband had in his possession at all times cards of the Salus office, and on his own cards appeared the phone number of Herbert W. Salus; he was employed by the office in many cases to take care of drunken driving cases; he fixed fees in a great many cases; many of the persons for whom he procured bail subsequently retained the Salus office; he was paid a large sum of money by this office, and a claim against him on account of a bail-bond overcharge was compromised by Herbert Salus by deducting the overcharge from the fee. This is proof of the most convincing kind that Blasband's runner activities are chargeable to the attorneys with whom he was connected.
The court below found from the testimony that this bail procurer and the attorneys devoted their energies particularly to persons of means who, being placed in a disagreeable predicament arising from their misconduct and being fearful of punitive and social consequences, were particularly susceptible to persuasion aimed to induce them to pay a fee out of all proportion to the professional services rendered. The evidence shows that in some of these cases the attorney demanded and received $500 and, in one of them, as much as $1,500 for legal services involving nothing more than an appearance at a magistrate's hearing. Mr. Goldberg, one of respondents, referred to this magistrate as "favoring" them. This fact, together with the further finding of the successful results apparently obtained by this law office in cases before that magistrate, indicate that the fees were intended to be based upon "influence" rather than legal services to be rendered by a member of the bar.
The system employed by the bail procurer and the Salus office was characterized by the court below to have involved these very improper elements: (1) securing retainers through the services of a runner — incidentally a person with a criminal record and now under bail on the charge of perjury for giving false testimony in the present hearing; (2) obtaining business by such runner through an arrangement of bribery or "tipping" of police officials; (3) frightening prisoners as to the possible consequences of their situation and of the charges against them; (4) obtaining in many cases what would seem to be exorbitant fees as the result of the fear thus aroused in the prisoners and the hope held out to them of results to be obtained otherwise than through the due processes of the law.
As to the contention that Blasband was not compensated for bringing these cases to the office, the court had no hesitation in finding the fact to be otherwise. The evidence shows that the checks and cash purporting to be "loans," are only explainable in this fashion.
THE KROEKEL CASE.After a trial, bitterly contested for two days, Paul Kroekel was convicted of fornication and bastardy in a case in which Marie Clayton was prosecutrix. Kroekel was ordered to pay $9 a week for the support of the child and $35 lying-in expenses. A new trial was granted. It was while the new trial was pending that the real cause for disbarment arose. Appellant, Samuel W. Salus, instructed his son to set to work on the case. On October 3, 1933, at the instigation and suggestion of the son, Mrs. Stewart, wife of Walter Stewart, with whom Marie Clayton had frequently associated, signed an affidavit prepared by the Salus office with the approval of Samuel W. Salus, in which she charged Walter Stewart and Marie Clayton with adultery and fornication. The idea was conceived in the Salus office and Mrs. Stewart was an unwilling affiant. She stated to Arthur that she could not prove the facts set forth in the affidavit and that it would be perjury, but she was persuaded by appellant's son to sign it on the representation the warrant meant nothing and would only be used if the occasion arose which required its use.
The warrant was placed in the hands of a private detective. This detective was not engaged to investigate facts in connection with, appertaining to or in relief of the case on trial, but for the direct purpose of framing Miss Clayton and to see, if necessary, that the evidence to sustain a charge was on hand. The detectives tried to make appointments with Miss Clayton for this purpose. Unsuccessful, they continued to shadow her. On October 13, 1933, Miss Clayton met Stewart and proceeded in the latter's car to his family's home in Springfield Township, Montgomery County. They stopped in the driveway of Stewart's home and were then arrested at the point of a pistol by the detective and his associates. They used the warrant previously given. The evidence in support of the alleged sexual offense for which they were arrested was of the most flimsy character. Though the arrest took place in Montgomery County and the offense was supposed to have been committed there, Miss Clayton and Stewart were taken to a police station at 12th and Pine Streets, Philadelphia. The magistrate who conducted hearings at this police station owed his position to the political influence of Herbert and Samuel Salus.
On the morning following her arrest, Miss Clayton was visited by Albert P. Goldberg, a member of the bar and an employee of the Salus law office. Goldberg testified that he was requested to see Miss Clayton by a man whom he met at the police station. No effort was made to produce this man or identify him so that he could be produced. The court below calls the hiring of Goldberg a "motivated" scheme to place Miss Clayton in the hands of an attorney who would thereafter handle her in a manner most beneficial to the Salus law office and Kroekel. Goldberg, though in the Salus office, acted as attorney for Miss Clayton after he had full knowledge that his office had interests directly antagonistic to hers. He testified that he did not have any knowledge of the Kroekel case until after he had been asked by Miss Clayton to represent her and it was only after Miss Clayton had stated that she wished to drop the Kroekel charges that he decided to act as her representative. Miss Clayton denies this. Her version of what transpired between herself and Goldberg is that the latter first mentioned the Kroekel case to her; suggested the unfavorable publicity which would follow both the Kroekel case and the charge then pending against her before the magistrate; and intimated that perjury charges were being brought against her by the Salus law office in connection with her testimony in the Kroekel case.
The court below found that Goldberg persisted in urging Miss Clayton to allow him to represent her and that he could do more for her because he was in the Salus office. He took no steps to investigate the legality of the prosecution against Miss Clayton, the evidence in support of the charge, the validity of the warrant or the jurisdiction of the court which was to hear the charge. Instead, he advised Miss Clayton to drop the prosecution in the Kroekel case in exchange for which he was to secure her release on the fornication charge before Magistrate Medway.
On the date set for the second trial of the Kroekel case, Samuel W. Salus represented Kroekel and Goldberg represented Miss Clayton and, in open court, upon Miss Clayton's statement that she wished to withdraw her prosecution, a bill was submitted and a verdict of "Not Guilty" entered. A few days later, without consulting or informing Mrs. Stewart, the prosecution against Miss Clayton was withdrawn. No fee was ever requested from her nor did Goldberg request a fee from Miss Clayton.
Rules made absolute and respondents disbarred. Respondents appealed.
Errors assigned, among others, were various rulings on evidence and procedure.
B. D. Oliensis, with him Nathan Lavine and John P. Connelly, for appellant (Appeal, No. 316).
John P. Connelly, with him Nathan Lavine and B. D. Oliensis, for appellant (Appeal, No. 317).
Nathan Lavine, with him B. D. Oliensis and John P. Connelly, for appellant (Appeal, No. 318).
Wm. A. Gray, with him Edward A. Kelly, for appellant (Appeal, No. 321). C. Brewster Rhoads, with him John F. Headly and James W. Tracey, Jr., for Committee of Censors of Philadelphia Bar Association.
Argued January 15, 1936, and January 16, 1936.
These proceedings originated in a letter from the President Judge of Common Pleas No. 2, Philadelphia County, addressed to the Chancellor of the Bar Association. That letter stated that there was a firm and widespread belief that criminal gangs and racketeers regularly employed members of the bar; that they obtained professional advice and guidance from these attorneys in their systematic lawbreaking; and that the actual defendants, gangsters' agents, are represented by counsel whom they have never seen or heard of until the attorneys appear beside them at the bar of the criminal court, and that the fees of these attorneys are paid by the heads of the organizations.
The letter asked for the appointment of a committee to conduct an investigation for the purpose of ascertaining the nature, terms and conditions of the employment of lawyers who practice largely in the criminal courts or who might have improper and unprofessional relations with organized crime. The Board of Governors, with the concurrence of the Chairman and the Chancellor, appointed a committee of five to conduct the investigation, and, on petition, this committee was authorized by the Court of Common Pleas to issue subpoenas and administer oaths as provided by the Act of June 12, 1931, P. L. 543. In the order approving the request for such powers the court specifically stated that the appointment was approved "for the purpose of investigating charges against the professional conduct of the members of the bar of the said court."
The Committee immediately began its investigation, concerning itself primarily with the "numbers racket." It examined police officials, magistrates, procurers of bail, defendants awaiting trial and those whose cases had been tried in the criminal courts. The scope of the inquiry embraced the calling of 425 witnesses and taking of approximately 4,000 pages of testimony. In the course of the investigation of the numbers racket it became aware of a number of other irregular practices involving chiefly the defense of drunken drivers of motor cars. It is to be noted with some regret that the officers of the law offered but little cooperation, and the work pursued by the committee was accordingly rendered more difficult. The committee found from the testimony before it that certain attorneys were guilty of improper conduct in connection with the numbers racket, the drunken drivers racket and with another individual case. They set forth their conclusions in the form of a report which also contained a summary of the evidence. The report was made to the court, and thereupon it issued a rule against the various appellants noted in the above numbers and terms, to show cause why they should not be disciplined for professional misconduct. The action of the court in issuing the citation was based on the report of the committee, the summary of the testimony and the recommendations involved in the report. No petition, complaint or affidavit was filed against any of the parties against whom the rule issued.
The members of the bar thus cited were served with a copy of the rule, and the report and the summary prepared by the committee of the notes and testimony taken before it, as it affected them. They filed an answer and requested leave to examine the notes of the testimony taken before the committee. This request was denied, but when the case was tried each of them was accorded the right to examine any of the testimony that was taken before the committee for the purpose of enabling them to examine or cross-examine the witnesses.
The trial proceeded on the rule and answer before the five president judges of the five common pleas courts of Philadelphia County. Testimony was taken which consumed considerable time and the judges, having found the several defendants amenable to discipline, disbarred them as appears in the opinions filed in each separate number and term above referred to. The specific findings of the court upon which the disbarment orders were made related to unprofessional conduct in connection with the drunken drivers racket, professional participation in the numbers racket in an improper and unethical manner not compatible with the office of a lawyer, and unethical conduct in connection with the Kroekel case.
In the memorandum filed by the reporter these three specific charges are dealt with factually at length, but as three cases involve the same specific legal questions, we consider phases applicable to all cases in this opinion.
It may be stated at the outset that if counsel were guilty of any one of the charges alleged their disbarment would follow. In The Canons of Ethics of the American Bar Association the following question was asked: "Is it professionally proper for an attorney to employ a 'runner' who, under the guise of a 'Bail Procurer,' persuades those accused of crime to employ the attorney to represent them?" It was answered as follows: "It is disreputable . . . to employ agents or runners . . . or to pay or reward, directly or indirectly, those who bring or influence the bringing of cases to an office, or to remunerate policemen, court or prison officials, physicians, hospital attaches or others who may succeed, under the guise of giving disinterested friendly advice, in influencing the criminal, the sick and the injured, the ignorant or others to seek professional services. A duty to the public and to the profession devolves upon every member of the Bar, having knowledge of such practices upon the part of any practitioner, immediately to inform thereof to the end that the offender be disbarred. Canon 28." The employment of runners is most unethical and highly improper, and should not be tolerated by any court to whose attention the facts are shown, nor by any association of lawyers who adopt and abide by the canons of professional ethics.
The release of a person on a "copy of the charge" is a loose practice which has grown up in Philadelphia County under the Act of April 9, 1915, P. L. 76, section 1.
In Maire's Disbarment, 189 Pa. 99, we disbarred an attorney for employing "runners" to secure negligence cases. The court below, affirmed in a Per Curiam opinion by this court, stated: "Lawyers who employ runners and pay them for hunting up cases . . . violate their oaths. They do not behave with all good fidelity to the court and client." See also Klensin v. Board of Governance, 312 Pa. 564.
Conduct similar to that here charged has been before other courts. The case of In re H__________ S__________, 69 S.W.2d 325 (Mo. 1934), involved charges against a lawyer for attempting to corrupt and induce a member of the police force of the City of St. Louis to furnish information to respondent relating to arrests, accidents, and injuries to persons for the purpose of enabling the respondent to procure representation of the persons injured against those alleged to be legally liable for such accidents and injuries. For this action the lawyer was disbarred. In Re Winthrop, 135 Wn. 135 (1925) practices very similar to those involved in the present case likewise met with disbarment. See also In re Sims, 97 S.C. 37.
An attorney who agrees in advance to defend persons if and when arrested for criminal offenses whose future commission is a planned certainty, or from whose conduct such an agreement may be inferred, forfeits all right to practice law. Such conduct not only obstructs justice but prevents the due administration of law. An attorney is under no obligation to aid his client in crime. His duty is to prevent its perpetration, if possible. An attorney may defend persons accused of participating in the numbers racket as writers, pick-up men or bankers, and their clients need not be limited. It is not the number of persons defended that counts, but it is the regularity, character and purpose of employment. When the purpose is to guide and aid a combination of persons engaged in crime, an attorney becomes part of the criminal system. Where a large number of cases of the same kind of crime are regularly defended by the same lawyer, where the defendants do not know and never have seen the lawyer prior to the moment of representation, and where the attorney's fees are paid by men known to be the leaders of a criminal system, a court may not only infer knowledge on his part of the criminal combination but, from the frequency of his performance and knowledge, conclude that he becomes an actual participant therein. While ostensibly defending the writers, pickup men and the like, the real employment is from the heads of the criminal organizations.
The misconduct in the Kroekel case is so obvious and flagrant that it needs no discussion.
If the profession is to be kept to the standard which it claims as part of its heritage, then punishment must be visited on those whose professional conduct transgresses these standards. If attorneys are permitted to accept regular employment from criminal leaders to defend members of the criminal band there will be an end to law and order. Obstructing or preventing the administration of law has been held sufficient to merit disbarment in many cases of conduct less reproachable than here: 2 R. C. L. 1091. If the practice of the law is to degenerate into a scramble through its commercialization by attempts to secure business through runners, bail procurers and the like, then it is useless to set up or claim any ethical standards as guides for the incoming attorneys. They seek to practice in a profession that has been known for generations to set up for its government and control the highest ethical standards. These standards are not to be corrupted. It is the element of commercialism run riot with consequent lack of fidelity to court and client that strikes at the dignity of the courts, the practice of the law and the judicial system as a whole. It has a tendency to wrest that system from its high position as a part of and as a potent influence in government and to destroy the courts as the last line of defense in the preservation of a free people as a nation. If this practice is to be continued, the legal profession forfeits its lofty position in the community and fast loses the respect of the humblest citizen. The public, keenly alive to professional conduct, will cease to be influenced by such a body and will in time erect some other system or body in which the public will have confidence.
Appellants challenge the regularity of the proceedings. It is conceded that nothing was irregular up to the time the committee was appointed. But the charge is made that first, the appellants should have been called before the committee and given an opportunity to have cross-examined all of the witnesses appearing against them and, second, that, as no specific charge had been submitted to the committee or the court specifically naming these individuals as participants except the report of the committee with a synopsis of the testimony, the appellants were denied a constitutional right and the entire proceedings were without legal support.
If the action of the court in disbarring appellants had been based on the testimony taken before the committee without summoning or giving appellants an opportunity to know the charge, employ counsel and make defense, the proceedings would be not only prejudicial to appellants' rights but would be without legal justification. Although disbarment proceedings need not take any particular form ( In re Myrland, 45 P.2d 953; In re Baily, 30 Ariz. 407) the indignant feelings aroused by unethical conduct should not flame to the point where the right of the attorney to be heard in his own defense is sacrificed through disorderly procedure. The power to disbar must be exercised with caution: In re Graffius, 241 Pa. 222. But there is nothing in this record to show that any of appellants' interests were not safe-guarded and recognized.
The work of the committee that had been appointed by the chancellor and approved by the court was in the nature of and similar to an investigation by a grand jury. The committee was endeavoring to find out the facts in connection with a growing suspicion that members of the bar had been associated and connected with gangs that had for their object the commission of crime. The committee was given wide powers. They assembled their facts from the evidence and submitted a report; it was on that report that the court acted in issuing its citation as noted. Courts need not wait for specific complaints when through regular court proceedings or otherwise it learns of unprofessional conduct ( In re Keenan, 192 N.E. 65, 68; Randall v. Brigham, 7 Wall. 523; Matter of Wool, 36 Mich. 299; Fish v. State Bar of Calif., 4 P.2d 937, 941), nor can it only act on petition, complaint or affidavit. It would indeed be sad if courts could not inaugurate their own system of investigation into the unlawful practices of members of the bar. But our courts are not so helpless. The law is otherwise. In supervising the activities of the court and its members, courts have an inherent power to investigate unprofessional conduct with or without complaint. When the matter is the investigation of a vicious practice grown to a system, a system which is itself criminal or grossly unprofessional and unlawful in its purposes, and which can only be broken up by an impartial investigation into its activities to find out what members of the bar were associated or connected with such system of organized crime, it is not necessary that specific charges be leveled at some one individual; the court may take cognizance of the condition and, of its own motion, call for explanations from those of its members involved therein. The court was clearly right in appointing this committee to furnish it with the necessary information. When it received information leading to a case or cases for discipline it was well within its authority in issuing citations to the offending members. Thereafter, as to them, the proceedings were and are de novo. The burden rested on the committee or those in charge to prove their case by evidence which left clear the conclusion of unprofessional conduct prejudicial to the practice of law and subversive of their oath of office.
In these cases, after the formal citation issued against them, every possible right was accorded appellants. They had due notice of the charges. They were given information as to their nature, they filed answers and filed the motion to dismiss the proceedings which is now being considered. They were given every opportunity to be heard in their own defense. They were given full latitude to examine and cross-examine every witness that appeared against them. Not a shred of defense that they could have legally offered was denied them. The testimony was all heard de novo and from that testimony the court made its findings.
It is the right and duty of a court to discipline its members who appear before it guilty of wrongdoing: In re Davies, 93 Pa. 116; Wolfe's Disbarment, 288 Pa. 331. Courts have an inherent power to make and follow rules governing such matters or to formulate new rules as the case demands so long as no right of the member charged is invaded. But the rules thus established do not restrict the general power of the courts; the power which establishes such rules in the first instance also enables the courts to disregard such rules and adopt the methods most suitable to the occasion. A court may conduct a general investigation of unprofessional conduct in an effort to rid the practice of undesirable members: People v. Culkin, 248 N.Y. 465. It has always been proper for a court on its own motion to issue citations against practicing lawyers: Ex parte Steinman, 95 Pa. 220; Maginnis's Case, 269 Pa. 186; Snyder's Case, 301 Pa. 276.
It was not error for the court to refuse to submit the testimony taken before the committee to respondents. They were no more entitled to the testimony taken than defendants to that taken before a grand jury. When summoned by rules to answer they were made aware of the charges against them. They were not only given the names of the witnesses who would appear but a summary of their evidence and, when the case was on trial, they were furnished a transcript of the evidence taken before the committee. They were deprived of no right by such procedure.
But it is argued that the committee should have confined itself solely to the subject-matter of the inquiry. It was not only appointed to ascertain whether members of the bar had a connection with organized crime and whether they aided and directed it and thus became a part of it by standing ready to defend those engaged in crime, but "for the purpose of investigating charges against the professional conduct of members of the bar." When it was ascertained from that investigation that other unprofessional matters were revealed, the committee, as an arm of the court, could not close its eyes to such matters because not specifically contained in the letter of their authority. It was directed to make a general investigation of unprofessional acts and, having done so, it submitted a report thereon with recommendations. It was for the court to consider or reject the report. When the rule was issued covering matters reported, a case against the offenders had legal life from that moment only. The charges were sufficiently specific to enable appellants to meet them and prepare their defense. See Klensin v. Board of Governance, 312 Pa. 564, 574; State v. Mosher, 128 Iowa 82.
It is argued that all the evidence relating to the Kroekel case should have been excluded because no mention was made of it in the original rule. A court may consider evidence relating to a new matter brought out during the course of a disbarment hearing: In re Burns, 40 P.2d 105, 106; In re Winthrop, supra. The technical character of the contention that the court could not go outside of the matter specifically designated is forcefully emphasized by the fact that after the Kroekel case had been developed and was before the court for consideration, appellants in open court disclaimed any suggestion that they did not have adequate notice of this charge preferred against them. See Re Sanitary District Attys., 351 Ill. 206. It must be remembered that the citations which issued against them, and which they were required to answer, incorporated a report of the special committee and a summary of the testimony that covered the three charges which we have noted above.
Appellants argue that appellants' professional connection with the Kroekel case should have been heard by the Municipal Court of Philadelphia County where the case had originated. The issue, based on detailed charges, was the professional conduct of appellants not the merits of the Kroekel case, and it was therefore proper that the court of common pleas hear such facts of the Kroekel case as were pertinent to the issue of professional misconduct: Sherwood's Investigation, 259 Pa. 254.
The orders made in the above appeals, Nos. 316, 317, 318 and 321, January Term, 1935, appear in the opinions of the court dealing exclusively with each particular appeal.