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In re Sacher

decided: July 6, 1953.


Before Augustus N. Hand, Chase, and Clark, Circuit Judges.

Author: Hand

AUGUSTUS N. HAND, Circuit Judge.

This is an appeal from an order disbarring the respondent for professional misconduct while the jury was being selected and during the course of the trial of the communist leaders, who had been indicted under the "Smith Act," 18 U.S.C.A. ยง 2385, for advocating the overthrow of the government of the United States by force and violence, United States v. Dennis, 2 Cir., 183 F.2d 201, affirmed 341 U.S. 494, 71 S. Ct. 857, 95 L. Ed. 1137. The present proceeding was commenced by the service of an order to show cause issued upon a petition by the Association of the Bar of the City of New York and the New York County Lawyers' Association. On the trial before the District Court sitting without a jury the only evidence introduced was the record of the trial and the preliminary proceedings in the Dennis case - the respondent offered no testimony on his behalf. In a carefully considered opinion Judge Hincks held that the instances of misconduct shown by this record required Sacher's disbarment, although the judge stated: "I find in the entire record no intimation that his conduct was tainted by venality or lack of fidelity to the interests of his clients, - offenses which demonstrate a moral turpitude wholly absent here. His fault, rather, seems to have stemmed from a temperament which led to such excess of zeal in representing his clients that it obscured his recognition of responsibility as an officer of the court. Thus the very qualities which in my judgment make him professionally unfit to remain a member of this Bar might well be unobjectionable in commercial fields where competitive effort is not subject to the restraints required of an officer of the Court. For instance, in negotiations * * * I should expect that he would be a trustworthy and highly effective representative. * * *"

Paragraph 15 of the petition of the Bar Associations charged 36 instances of improper conduct, of which the court held 28 had been proved, requiring disbarment. Two of the specifications were discussed in detail by the District Court as evidencing particularly serious misconduct and have been emphasized on this appeal by the respondent as influencing the discipline imposed. One related to the continuation of a cross-examination by Sacher which the court permitted under what the respondent knew to be a misapprehension of facts which he failed to correct. The charge was held not to have been sufficiently established in the contempt proceedings against the respondent, see U.S. v. Sacher, 2 Cir., 182 F.2d 416, 424-425, and he argues that therefore it cannot be said to have been sufficiently proved here. But in this proceeding, as the judge below pointed out, Sacher did not deny the allegation that he knew of the judge's misapprehension, and did not seek to avail himself of his opportunity to testify. Although the burden of proof is on the petitioners, the accused attorney owed the court the greatest frankness in a proceeding such as this. Cf. Matter of Randel, 158 N.U. 216, 221, 52 N.E. 1106. We are not impressed by Sacher's argument that he did not have to deny this allegation since it was a conclusion of law, and we agree with the court below that his failure to correct the trial judge's misapprehension was a violation of his professional duty.

The second instance that was stressed by Judge Hincks was the respondent's remark: "They [the early Christians] did so many things, more than this evidence disclosed, that if Mr. McGohey were a contemporary of Jesus he would have had Jesus in the dock." Even if this remark was not quite such a serious breach of professional ethics as Judge Hincks thought (see Canon 17 of the American Bar Association's Canons of Professional Ethics), since the intended import may have been only that if the United States Attorney prosecuted secret groups now the same logic would have required him to have done so had he lived when Jesus did, it was capable of misapprehension. When its purpose and effect were evidently misunderstood as an attack upon the opposing counsel's religion, Sacher clearly should not have refused to apologize or explain.

In any event disbarment was decreed on other independent grounds which we believe fully justified the order. Two types of conduct alleged in Paragraph 16 of the Bar Associations' petition were each held to require that the respondent be no longer allowed to practice before the court. This paragraph charged that Sacher "persistently, in disregard of the repeated warnings and orders of the Court, argued without permission; [and] refused to desist from argument and comment" and that he made "insolent, sarcastic, impertinent and disrespectful remarks to the Court and conducted himself in a provocative manner." For a few examples of respondent's conduct see our opinion in United States v. Sacher, 2 Cir., 182 F.2d 416, at pages 423-24, affirmed 343 U.S. 1, 72 S. Ct. 451, 96 L. Ed. 717. The court further found that, although the charge in Paragraph 14 of the petition that a conspiracy had existed with other counsel representing other defendants to obtain specified improper objectives by improper trial conduct was not established, treating the allegations of a conspiracy as surplusage the proof of individual misconduct alleged in Paragraph 14 required disbarment. These charges were of substantially the same nature as those for which disbarment was ordered under Paragraph 16.

Basically the respondent's argument is that in view of his previous unblemished record disbarment is too severe a discipline to impose for conduct in part brought on by the demands of an unusual and important trial which took place in an atmosphere of hostility toward the defendants. He further maintains that instances of properly conducting himself subsequent to the Dennis trial established that the court's finding that his recalcitrance is congenital, so that similar misbehavior could be expected in the future, was clearly erroneous. The extraordinary nature of the trial was considered by the district court, and we agree that it provided no excuse for the many instances of misconduct of which the respondent was guilty. We think that it was incumbent on him not to have impeded the trial's progress in the ways that he evidently sought to do. Nor did the judge err in anticipating a repetition of such tactics if the respondent felt that they would be to his advantage, for he persisted over an extended period in his defiant and disorderly ways in the face of repeated warnings by the court.

The purpose of striking an attorney from the rolls of a court is not to punish him but to protect the court itself and relieve the public of a member of the legal profession, who is unfit to serve as such, in order to maintain the respect due the court by insuring that attorneys, who are "officers of the court," are of good professional character. See Matter of Rouss, 221 N.Y. 81, 85, 116 N.E. 782. Because the consequences of disbarment are necessarily severe, it is a measure to be exercised only for compelling reasons. See Ex parte Wall. 107 U.S. 265, 288, 2 S. Ct. 569, 27 L. Ed. 552. In the case at bar we think that the proved instances of unprofessional conduct, constantly repeated in the face of the court's admonitions, and continuing during a trial of extended duration, clearly demonstrated a lack of respect for the court and constituted a serious obstruction to the administration of justice. It is evident that the respondent either was unable to comprehend his obligations to a court of law or was unwilling to fulfill them when he felt it inexpedient to do so. Even if a less severe measure of discipline might have been imposed, we do not find any abuse of discretion in disbarring the respondent from practice such as was found to exist in In re Doe, 2 Cir., 95 F.2d 386. See In re Chopak, 2 Cir., 160 F.2d 886, 887, certiorari denied 331 U.S. 835, 67 S. Ct. 1516, 91 L. Ed. 1848.

On Petition for Rehearing.

Per Curiam.

Petition for rehearing is denied.

CLARK, Circuit Judge (dissenting).

In a proceeding against another lawyer caught in this same legal tangle, four justices of the Supreme Court, after pointing out that the charge by the judge in the Dennis trial of a deliberate conspiracy to obstruct justice was found to lack support in the evidence both in the contempt case and in this present disciplinary proceeding, said: "What remains is a finding that he was guilty of several unplanned contumacious outbursts during a long and bitter trial." They continued: "Perhaps consciousness of our own short patience makes us unduly considerate of the failing tempers of others of our contentious craft. But to permanently and wholly deprive one of his profession at Isserman's time of life, and after he has paid so dearly for his fault, impresses us as a severity which will serve no useful purpose for the bar, the court or the delinquent." In re Isserman, 345 U.S. 286, 294, 73 S. Ct. 676, 680.

Four other justices rested their contrary decision on the procedural rule of the Court requiring that a member of its bar who has been disbarred from practice in any state should be disbarred before it unless he showed good cause to the contrary. That rule operated by reason of Isserman's disbarment by the highest court of New Jersey to put a burden upon him which he had not met. Since the justices were equally divided (one justice not sitting), the operation of this burden against him led to his disbarment by the narrowest of all possible margins. Here there are several ...

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