Pyke was charged and found guilty was such as rendered him as unfit person to be at the bar. And there is nothing we should more anxiously uphold than the principle that the same honour and the same integrity which are essential to the character and position of a barrister are also necessary to the character and position of an attorney. I quite feel that the individual who, in consequence of dishonest or dishonourable conduct, is unfit to be at the bar, ought not to be admitted to the other branch of the profession. Still I cannot help feeling, both on principle and precedent, that sentences of exclusion from either branch of the profession need not necessarily be exclusions for ever. And when we find that a gentleman has suffered twenty years' exclusion, and that the sentence, however right, has had the salutary effect of awakening in him a higher sense of honour and duty, we should not be inexorable. * Therefore, if Mr. Pyke will satisfy us by the testimony of trustworthy persons (especially members of the profession) that in whatever business he has since been engaged, whether assisting his father as law agent or as law agent on his own account, his conduct and character have been unimpeached and unimpeachable, we might grant his application. But, as it stands, we have nothing but the simple fact that he was disbarred as an unfit person to practise at that branch of the profession; and so long as that stands alone we cannot give effect to the application which has been made by Mr. Stammers with the greatest ability and propriety. BLACKBURN and MELLOR, JJ., concurring. Stammers now renewed the application on an affidavit of Mr. Pyke, which gave the history of his life since he was disbarred. It stated in detail the places where he resided; that he had never since been accused of crime or wrong, or been in debt, and had conducted himself "with undeviating integrity and rectitude"; that he had formed no connections, being utterly secluded from the world, and was unknown even to his tradesmen; that he had applied to several gentlemen of the bar who formerly knew him to certify to his good conduct during that period, but they refused on the ground that they had lost sight of him. He produced a letter from the Master of the Rolls, one of the benchers of Gray's Inn, stating that in his opinion nothing appeared during the investigation there which ought to disentitle him to be readmitted. Also a letter from the Lord Chief Baron that in his opinion the exclusion had been long enough. And lastly, a letter written by the Steward of Gray's Inn by command of the benchers, saying that nothing disclosed on the former occasion ought, after the lapse of time, to prevent his being restored to the rolls. Garth, for the Incorporated Law Society, urged that the applicant ought to be re-examined, and cited an instance where this was done. THE COURT however said, although they had required Mr. Pyke to produce testimonials of his good conduct since he was disbarred, they would not expect him to perform impossibilities; and that the circumstance of his having lived in complete retirement fully explained the absence of such testimonials. Application granted."" In re HARRIS. (Supreme Court of New Jersey, 1915. 88 N. J. Law, 18, 95 Atl. 761.) In the matter of the petition of John Harris to be restored to the roll of attorneys. Decided that the hitherto insuperable bar to petitioner's application is removable. GARRISON, J. * ** The provisions of section 5 [of the Practice Act] as to disbarment for malpractice and readmission to practice clearly contemplate that it shall be possible for an attorney who has been put out of the roll to be again admitted to practice, and the policy thus declared by the Legislature, and not "otherwise provided" in the Constitution, is binding upon us to the extent of forbidding our adoption of a rigid judicial policy to the effect that an attorney, once disbarred, shall never again be admitted to practice. Notwithstanding the fundamental policy that is thus inherent in the statute from which we derive our powers, there are certain minor questions of judicial policy that are open to our adoption or rejection, one of which is whether the making of complete restitution by the former attorney shall, in all cases, be a sine qua non to his restoration to the roll. In the recent case of In re Hawkins, 4 Boyce, 200, 87 Atl. 243, Chief Justice Pennewill, speaking upon this question for the Superior Court of Delaware, said: "We do not attach very much importance, as a rule, to the matter of restitution, because that may depend more upon financial ability or other favoring circumstances than repentance or reformation. A thoroughly bad man may make restitution, if he is able, in order to rehabilitate himself and regain his position in the community; and a thoroughly good man may be unable to make any restitution at all." Without underestimating the importance of restitution a moment's reflection must convince one that of all the factors that enter into the question of moral fitness the mere circumstances of restitution is the one most likely to be fortuitous and to depend upon conditions and circumstances that afford no reliable test of moral qualities. The money 98 In Ex parte Leith, 7 W. R. 579 (1859), an attorney who had been out of practice for eighteen years applied for a renewal of his certificate. Hill, J., said: "I think the applicant has been out of practice much too long to justify his readmission without examination." It was ordered that he be readmitted upon examination. In Ex parte Frost, 1 Chitty, 558, note (1815), it was said of an attorney, struck off the rolls and seeking readmission, that "the want of experience arising from his having discontinued practice was, independently of the other circumstances, a sufficient ground for not acceding to the motion." may have come from wealthy relatives, or from a lucky speculation or from engaging in some alien business venture, or it may have been borrowed, in which case the old liability is apparently extinguished by the creation of a new one. Taken in connection with other circumstances, restitution may be of the utmost significance, but this, oftener than not, is due to such other circumstances rather than to the mere fact of nonrestitution; as, for instance, if the former attorney became possessed of sufficient money with which to make restitution, but refused so to apply it. Upon the whole, we conclude that there should be no hard and fast rule upon the subject of restitution, but that each case should be considered and dealt with in the light of its own circumstances, bearing in mind that the aim of the court is to search the heart of the petitioner in order to arrive at a just judgment as to his moral standards as shown in his conduct. The evidence in the present case convinces us that the petitioner has made such restitution as his crippled capacity to earn money permitted, and has done so to the satisfaction of those who still have claims against him. * * * We conclude that the partial restitution the petitioner has actually made is not inconsistent with his moral reformation, and that his failure to make complete restitution should not be held to be an insuperable bar to his present petition. This brings us to a consideration of the merits of the present petition as disclosed by the proofs. * * * In the examination of the evidence itself we are impressed, at the outset, with the manner in which it was obtained, viz., that it was not procured by the personal solicitations of the petitioner or by any one acting in his behalf, but was elicited by the Bar Association in the course of an independent investigation, conducted entirely by its agents. Personally solicited letters or mere signatures obtained to a petition, while plenary evidence of the unwillingness of such signers to deny a personal favor, is very far from being cogent evidence of any particular state of facts, especially if it relates to the moral character of the person who obtains the letters or circulates the petition. This sort of evidence, if such it can be called, is so well understood as to be practically negligible. On the contrary, the body of testimony now before us lacks nothing that could make for its spontaneous and impersonal character. It is given by citizens of the highest standing from all walks of life, divided between the profession of the law and the laity, although naturally the former predominate over any other class. * * Mention has been made of the fact that the petitioner has supported. himself in part by the preparation of law students for their examination, and not the least impressive of the evidence before us comes from such former students; let one speak for the rest: "Mr. Harris COST.LEG.ETH.-11 prepared me, among others, for my bar examination, and in all his lectures and talks to us has stood only for the highest, noblest, and best ideals of the profession. We all know to whom we can go when blocked by a knotty or complicated problem, and know, too, that we'll get good, square, honest advice; for Mr. Harris has long been known as 'Dean of Our Legal Advisers.'" * Finding the testimony to be ample in quantity, given in a quasi judicial inquiry by witnesses of the highest standing and of unquestioned opportunity for knowing the truth of that to which they voluntarily testify, we can reach no other verdict upon the proofs than that the case is a proper one for the interposition of the court to relieve the petitioner from the disability under which he now rests, especially in view of the fact that the Bar Association, upon whose charges and presentation he was disbarred, has, after a thorough investigation, unanimously asked for his reinstatement. No one of these considerations, standing alone, and no group of them less than the whole, would support this conclusion, which rests emphatically upon the concurrence and combination of them all. This conclusion relegates the question of the proper practice to be pursued under section 5 of the Practice Act to such future application as the petitioner may be advised to make, the matter, as far as I know, never having been passed upon or considered by the court. All that we now decide is that the hitherto insuperable bar to such application is removed." 95 ANON. (20 Hen. 6, fo. 37. 1 Coke Inst. 215.) NEWTON, Chief Justice of the Court of Common Pleas, gave judgment of an attorney of that court, that had sued out a capias without an original, that his name should be drawne out of the roll of attorneys, and that he should never be attorney in this court, nor in any other court of the king, and that he should not meddle in them in the law; and to perform all this, he in those days was sworne on a book. And NEWTON said to him, The king hereafter, when you shall have better grace, may pardon you by his letters patents, etc., and then you may be restored againe." 94 In In re Brandreth, 39 W. R. 687, 60 L. J. Q. B. 501 (1891), the court or dered a solicitor restored to the rolls, although his conviction on a criminal charge still stood. 95 By statute this was an offense punishable by imprisonment for at least a year and a day. 1 Coke, Inst. 213. 96 "While the effect of the pardon was to relieve him of the penal consequences of his act, it could not restore his character."-Clay, C., in Nelson v. Commonwealth, 128 Ky. 779, 789, 109 S. W. 337, 340 (16 L. R. A. [N. S.] 272 [1908]). CHAPTER IV THE ETHICAL DUTIES OF LAWYERS TO COURTS A. B. A. CANON 1. THE DUTY OF THE LAWYER TO THE COURTS. It is the duty of the lawyer to maintain towards the Courts a respectful attitude, not for the sake of the temporary incumbent of the judicial office, but for the maintenance of its supreme importance.1 Judges, not being wholly free to defend themselves, are peculiarly entitled to receive the support of the Bar against unjust criticism and clamor. Whenever there is proper ground for serious complaint of a judicial officer, it is the right and duty of the lawyer to submit his grievances to the proper authorities. In such cases, but not otherwise, such charges should be encouraged and the person making them should be protected. B. B. A. CANON II.2 The SelECTION OF JUDGES. It is the duty of the Bar to endeavor to prevent political considerations from affecting the selection of Judges. It should protest earnestly and actively against the appointment or election of those who are unfit; and it should strive for the appointment of those who are properly qualified and are willing to forego other employments, whether of a business, political or other character, which may embarrass their free and fair consideration of questions before them for decision. The aspiration of lawyers for judicial position should be governed by an impartial estimate of their ability to add honor to the office and not by a desire for the distinction the position may bring to themselves. 1 "A Barrister ought not to recommend another as his leader or junior. And such questions as, Who is the best man for a witness action in such a Court? Which leader is the persona grata in such a Court? Do you get on all right with X. as your leader? are improper questions, and should not be answered."-Statement of the General Council of the Bar, The Annual Practice (1917) p. 2413. 2 A slight revision of A. B. A. Canon 2. • See paper by Simon Fleischmann, The Influence of the Bar in the Selection of Judges, N. Y. State Bar Assoc. Reps. (1905) p. 60. |