Braverman v. Bar Assn. of Balto.

Delaplaine, J., delivered the opinion of the Court. Maurice Braverman, who was admitted by the Court of Appeals of Maryland to the bar of this State on October 7, 1941, has appealed here from an order of the Supreme Bench of Baltimore City disbarring him from the practice of law. The Supreme Bench acted upon a petition filed by the Bar Association of Baltimore City on October 8, 1953. The petition contained the following allegations: (1) that appellant was admitted to practice before the Supreme Bench on November 1, 1941, when he took the oath required of attorneys; (2) that on April 1, 1952, he was convicted in the United States District Court for the District of Maryland of the crime of conspiracy to violate Section 2 of the Smith Act, 18 U. S. C. A., sec. 2385, and he was sentenced on April 4, 1952, to pay a fine of $1,000 and to be imprisoned for a period of three years; and (3) that the Executive Committee of the Bar Association, acting upon the recommendation of the Grievance Committee, adopted a resolution that a proceeding be filed with the Supreme Bench for disciplinary action against him.

Appellant filed a demurrer alleging that neither the petition of the Bar Association nor the record of the case in the District Court contained any sufficient ground for disciplinary action against him. Section 2 of the Smith Act provides as follows: “Whoever knowingly or willfully advocates, abets, advises, or teaches the duty, necessity, desirability, or propriety of overthrowing or destroying the government of the United States or the government of any State, Territory, District or Possession thereof, or the government of any political subdivision therein, by force or violence, or by the assassination of any officer of any such government; or ³³³ “Whoever, with intent to cause the overthrow or destruction of any such government, prints, publishes, edits, issues, circulates, sells, distributes, or publicly displays any written or printed matter advocating, advising, or teaching the duty, necessity, desirability, or propriety of overthrowing or destroying any government in the United States by force or violence, or attempts to do so; or “Whoever organizes or helps or attempts to organize any society, group, or assembly of persons who teach, advocate, or encourage the overthrow or destruction of any such government by force or violence; or becomes or is a member of, or affiliates with, any such society, group, or assembly of persons, knowing the purposes thereof— “Shall be fined not more than $10,000 or imprisoned not more than ten years, or both, and shall be ineligible for employment by the United States or any department or agency thereof, for the five years next following his conviction.” On January 15, 1952, appellant and five others were indicted for conspiring to commit offenses against the United States by (1) advocating and teaching the duty and necessity of overthrowing the Government of the United States by force and violence; and (2) by organizing and helping to organize, as the Communist Party of the United States, a society, group, and assembly of persons who teach and advocate the overthrow and destruction of the Government of the United States by force and violence. The indictment specifically charged that appellant attended and participated in meetings of the Maryland District of the Communist Party in Baltimore on August 14, 1948, August 16, 1948, February 4, 1949, and March 19, 1949. In March, 1952, the defendants were tried before Judge Chesnut and a jury.

On April 1 the jury found the de ³³⁴ fendants guilty. On April 4 Judge Chesnut imposed the sentence upon appellant. The defendants appealed, and the case was argued before the United States Court of Appeals for the Fourth Circuit on July 1, 1952. On July 31, 1952, the Court affirmed the judgment.

Frankfeld v. United States, 4 Cir., 198 F. 2d 679, 684, 685 . Chief Judge Parker, speaking for the Court, said in the course of the opinion: “The contention of the government on the trial was that the Communist Party of the United States had as its objective the overthrowing of the government of the United States by force and violence as speedily as circumstances would permit and that the defendants were active members and officers of the party, participated in its purposes and gave it active support with knowledge of its unlawful objective. We think that this contention was amply supported by the testimony. “With respect to the purposes and activities of the Communist Party of the United States, there was evidence of a number of witnesses that it was actively teaching and advocating the overthrow of the government by force and violence and the establishment of a dictatorship of the proletariat, as soon as circumstances would permit, and that it was training a hard core of party membership in methods of seizing and holding power and directing the course of revolution when a favorable opportunity for seizing power should arrive. * * * “There was abundant evidence, not only that the Communist Party printed and circulated the revolutionary classics of communism, advocating the class struggle and the forcible seizure of power by the proletariat, but also that the party maintained schools in which members were indoctrinated in the principles and policies of the ³³⁵ party and were instructed in the techniques to be followed in overturning existing governments and in seizing and holding power. Some members of the party were sent to Moscow for instruction ; others were sent to schools maintained in New York City; and classes for instructing party members were maintained in Baltimore and other cities.

Plans were made for infiltrating the army and navy with communists and to place communists in key labor positions in important industries.” The petition of the Bar Association was heard before the Supreme Bench on June 20, 1955. The Bar Association offered in evidence a certified copy of the indictment of appellant and the docket entries of his conviction. Appellant offered a transcript of the trial of the case. On June 28 the Supreme Bench passed the order disbarring appellant from the further practice of law.

I. At the outset appellant complained that the petition of the Bar Association did not specifically allege which ground of disbarment it relied upon for disciplinary action, and hence he did not have fair notice of what to meet. The Maryland disbarment statute, as amended by the Legislature in 1952, Laws 1952, ch. 27, Code Supp. 1955, art. 10, secs. 13, 16, 17, provides as follows: “Charges of professional misconduct, malpractice, fraud, deceit, crime involving moral turpitude, or conduct prejudicial to the administration of justice, against any attorney at law may be filed in any court where such attorney is admitted to practice by any bar association acting through its appropriate committee * * *. In addition, any bar association of the State, acting through its appropriate committee, may file charges of being a subversive person, as defined by the Subversive Activities Act of 1949, against any attorney at law, in any court where such attorney is admitted to practice * * *. ³³⁶ “Every attorney who shall, after having an opportunity to be heard, * * * be found guilty of professional misconduct, malpractice, fraud, deceit, crime involving moral turpitude, conduct prejudicial to the administration of justice, or of being a subversive person, as defined by the Subversive Activities Act of 1949, shall, by order of the judges finding him guilty, be suspended or disbarred from the practice of his profession in this State. “Every attorney who shall, after a hearing held as hereinbefore prescribed, be found guilty of professional misconduct, malpractice, fraud, deceit, crime involving moral turpitude, conduct prejudicial to the administration of justice, or of being a subversive person, as defined by the Subversive Activities Act of 1949, shall have the right of appeal to the Court of Appeals of Maryland, as in civil cases, except the Court of Appeals shall have the right to review the entire proceedings and affirm, modify, alter or reverse the order from which said appeal is taken as the substantial merits of the cause and the ends of justice may require.” The action of a court in exercising its power to disbar or suspend an attorney is judicial in character, but the inquiry is in the nature of an investigation by the court into the conduct of one of its own officers, and is not the trial of an action at law, as the order which is entered is only an exercise of the disciplinary jurisdiction which a court has over its officers. It is recognized in this State and generally in America that in such an investigation, mere forms not affecting its merits should not stand in the way of protecting the court and the public by appropriate action after a full hearing.

In re Williams, 180 Md. 689 , 23 A. 2d 7, 11 . In Randall v. Brigham, 7 Wall. 523 , 19 L. Ed. 285, 293 , the Supreme Court of the United States, speaking through Justice Field, commented on this practice as follows: ³³⁷ “It is not necessary that proceedings against attorneys for malpractice, or any unprofessional conduct, should be founded upon formal allegations against them. Such proceedings are often instituted upon information developed in the progress of a cause; or from what the court learns of the conduct of the attorney from his 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.” The usual practice in proceedings to disbar attorneys in State courts is to make written charges or allegations of misconduct. The specific offense charged should be set out so that the attorney may be aware of the precise nature of the accusation he is to meet and may know how to defend. Ex parte Bradley, 7 Wall. 364 , 19 L. Ed. 214 ; People v. Amos, 246 Ill. 299 , 92 N. E. 857 .

However, no formal or technical allegations or descriptions of the alleged offense are necessary. Gould v. State, 99 Fla. 662 , 127 So. 309 , 69 A. L. R. 699; In re Keenan, 287 Mass. 577 , 192 N. E. 65 , 96 A. L. R. 679. A complaint against an attorney is sufficient if it is intelligible and informing enough to advise the court of the matters complained of, so that it can determine whether or not to institute an inquiry, and to inform the attorney of the accusations so as to enable him to prepare a defense. State v. Peck, 88 Conn. 447 , 91 A. 274 .

In the instant case the Bar Association of Baltimore City filed its petition with the Supreme Bench of Baltimore City on October 8,1953, alleging specifically that ap ³³⁸ pellant had been convicted of conspiracy to violate Section 2 of the Smith Act, and had been sentenced to pay a fine of $1,000 and to be imprisoned for three years. He was ordered to show cause, if any he had, on or before December 9, 1953, why disciplinary action should not be passed against him. Appellant moved for a stay of the proceedings, stating that he was then confined in the Federal Penitentiary in Lewisburg, Pennsylvania, but that he had applied for a parole and was eligible for release from prison in January, 1954. He was released from the Federal Reformatory at Petersburg, Virginia, on May 13, 1955.

As appellant was not heard by the Supreme Bench until June 20, 1955, he had ample time to prepare his defense. He was diligently represented by two attorneys. We find no merit in the complaint that he did not have ample notice of what charge he had to meet.

II

Appellant contended that he was not guilty of any crime involving moral turpitude, and that the disbarment does not rest upon a proper finding of such guilt. He argued that his conviction in the District Court was not conclusive upon the Supreme Bench; and that the Supreme Bench should not impose disciplinary action until it finds from its own study of the record in the criminal case that the conviction was proper, although he admitted that it was not necessary to try the case again. In many States there are statutes making the record of conviction of certain crimes conclusive of guilt in disbarment proceedings. In New York, for example, the Legislature enacted the following provision in the Judiciary Law: “Whenever any attorney and counsellor-at-law shall be convicted of a felony, there may be presented to the appellate division of the supreme court a certified or exemplified copy of the judgment of such conviction, and thereupon the name of the person so convicted shall, by order of the court, he struck from the roll of attorneys.” Consol.

Laws, c. 30, sec. 88, subd. 3, now McK. Consol. Laws, c. 30, Judiciary Law, sec. 90, subd. 4. ³³⁹ In In re Kaufmann, 245 N. Y. 423 , 157 N. E. 730, 732 , it appeared that Kaufmann and another lawyer had been convicted in the United States District Court for the Southern District of New York of the crime of conspiracy to make a false report to the Alien Property Custodian. The Appellate Division of the Supreme Court of New York disbarred them automatically upon proof of the conviction without independent ascertainment of the fact of guilt.

In 1925, however, they were pardoned by President Coolidge. They thereupon applied for reinstatement as attorneys at law. New remedies were available under another provision of the Judiciary Law: “Upon the reversal of the conviction for felony of an attorney and counsellor-at-law, or pardon by the president of the United States or governor of this state, the appellate division shall have power to vacate or modify such order or debarment.” Consol. Laws, c. 30, sec. 88, subd. 4, now Judiciary Law, sec. 90, subd. 5.

In accordance with that section, the two men, again claiming innocence, petitioned the Appellate Division to restore them to membership in the bar. The record made it plain that President Coolidge had granted the pardon because he was advised by his Attorney General that they were innocent. Their prayer was reinforced by distinguished judges and lawyers, who asserted a continued faith in them and a distrust of the justice of the verdict. In spite of the impressive challenge of the justice of the verdict in the District Court, the Appellate Division took the view that the verdict was conclusive and therefore refused to examine the evidence.

The New York Court of Appeals, reversing the orders of the Appellate Division, held that, as a result of the pardon by the President of the United States, the petitioners were entitled to have their fitness as members of the bar considered and determined. Chief Judge Cardozo said in the opinion of the Court: “The statute (Judiciary Law, § 88, subd. 3) does indeed set bounds upon this freedom of inquiry as long as the conviction stands and the ³⁴⁰ convict is without a pardon. While those conditions last, a court of this state in disciplining an attorney accepts the record of conviction and refuses to go back of it. The impediments once removed, the range of scrutiny is as wide as it was at common law.

No doubt the attorney seeking reinstatement has the burden of satisfying the court of his fitness to be restored to so honorable a fellowship. For the welfare and repute of the profession the order of disbarment stands until the presumption of its correctness has been persuasively rebutted. But the honor of the profession does not demand the sacrifice of the innocent. A pardon may in some conditions be a warning as significant as a judgment of reversal that the looms of the law have woven a fabric of injustice.” In other States the Courts have held the record of conviction conclusive of guilt even in the absence of a statute to this effect.

In Massachusetts it is established that in a disbarment proceeding a conviction of the attorney is conclusive and the issue of guilt or innocence cannot be retried. In In re Welansky, 319 Mass. 205 , 65 N. E. 2d 202, 204 , an attorney was disbarred after he was convicted of involuntary manslaughter. He contended that a conviction of a felony following a plea of not guilty is not uncontradictable evidence of guilt. The Supreme Judicial Court of Massachusetts, speaking through Justice Wilkins, upheld the disbarment with the following comment: “We think that the doctrine of Silva v. Silva, 297 Mass. 217 , 7 N. E. 2d 601 , ought not to enable a respondent attorney, after a