§ 63. A threat of personal chastisement to the judge warrants the removal of an attorney.

The order of removal complained of in this case recites that the plaintiff threatened the presiding justice of the criminal court, as he was descending from the bench, with personal chastisement for alleged conduct of the judge during the progress of a criminal trial then pending. The matters thus recited are stated as the grounds for the exercise of the power possessed by the court to strike the name of the plaintiff from the roll of attorneys practicing therein. It is not necessary for us to determine in this case whether under any circumstances the verity of this record can be impeached. It is sufficient to observe that it cannot be impeached in this action or in any civil action against the defendant. And if the matters recited are taken as true, there was ample ground for the action of the court. A greater indignity could hardly be offered to a judge than to threaten him with personal chastisement for his conduct on the trial of a cause. A judge who should pass over in silence an offense of such gravity would soon find himself a subject of pity rather than of respect. $64. Failure to cite attorney to show cause.

The criminal court of the District erred in not citing the plaintiff, before making the order striking his name from the roll of its attorneys, to show cause why such order should not be made for the offensive language and conduct stated, and affording him opportunity for explanation, or defense, or apology. But this erroneous manner in which its jurisdiction was exercised, however it may have affected the validity of the act, did not make the act any less a judicial act; nor did it render the defendant liable to answer in damages for it at the suit of the plaintiff, as though the court had proceeded without having any jurisdiction whatever over its attorneys. We find no error in the rulings of the court below, and its judgment must, therefore, be affirmed; and it is so ordered.

Judgment affirmed.

Dissenting opinion by MR. JUSTICE DAVIS, CLIFFORD, J., concurring.

I agree that judicial officers are exempt froin responsibility in a civil action for all their judicial acts in respect to matters of controversy within their jurisdiction. I agree, further, that judges of superior or general authority are equally exempt from liability, even when they have exceeded their jurisdiction, unless the acts complained of were done maliciously or corruptly. But I dissent from the rule laid down by the majority of the court, that a judge is exempt from liability in a case like the present, where it is alleged not only that his proceeding was in excess of jurisdiction, but that he acted maliciously and corruptly. If he did so, he is, in my opinion, subject to suit the same as a private person would be under like circumstances. I also dissent from the opinion of the majority of the court for the reason that it discusses the merits of the controversy, which, in the state of the record, I do not consider open for examination.

EX PARTE BURR.

(9 Wheaton, 529–531. 1824.)

Opinion by MARSHALL, C. J.

STATEMENT OF FACTS.- This is a motion for a mandamus to the circuit court for the District of Columbia, to restore Mr. Burr to his place of attorney at the bar of that court. It is a very unusual application, on which the court has felt considerable doubts.

865. Judicial discretion as to removal.

On one hand, the profession of an attorney is of great importance to an individual, and the prosperity of his whole life may depend on its exercise. The right to exercise it ought not to be lightly or capriciously taken from him. On the other, it is extremely desirable that the respectability of the bar should be maintained, and that its harmony with the bench should be preserved. For these objects, some controlling power, some discretion, ought to reside in the court. This discretion ought to be exercised with great moderation and judgment; but it must be exercised; and no other tribunal can decide, in a case of removal from the bar, with the same means of information as the court itself. If there be a revising tribunal, which possesses controlling authority, that tribunal will always feel the delicacy of interposing its authority, and would do so only in a plain case.

866. Mandamus to restore attorney.

Some doubts are felt in this court respecting the extent of its authority as to the conduct of the circuit and district courts towards their officers; but without deciding on this question, the court is not inclined to interpose, unless it were in a case where the conduct of the circuit or district court was irregular, or was flagrantly improper.

$67. Charges should be sworn to, but the oath may be waived.

In the case at bar, the proceedings were supposed to be irregular because Mr. Burr was put to answer charges not made on oath. That the charges, in a regular complaint against an attorney, ought not to be received and acted on, unless made on oath, is admitted. It is a course of proceeding which is recommended by considerations too obvious to require that they should be urged. But this is not a proceeding of that description. The court did not call on Mr. Burr to answer an accusation in the nature of an information against him. The inquiry was invited by himself; the charges were made at his instance; and the court proceeded on them at his request. Mr. Burr himself, then, dispensed with the preliminary step of an affidavit to the charges which were to constitute the subject of that inquiry. He waived this preliminary. The testimony on which the court proceeded was all on oath, and obtained in a manner which is not exceptionable. There is, then, no irregularity in the mode of proceeding which would justify the interposition of this court. It could only interpose on the ground that the circuit court had clearly exceeded its powers, or had decided erroneously on the testimony. The power is one which ought to be exercised with great caution, but which is, we think, incidental to all courts, and, is necessary for the preservation of decorum, and for the respectability of the profession. Upon the testimony, this court would not be willing to interpose where any doubt existed. It is the less inclined to interpose in this case, because the complaint is not of an absolute removal, but of a suspension, which is nearly expired, after which Mr. Burr may be restored by the court itself, should not very serious objections exist to that measure.

Motion denied.

§ 68. Nature of the office- Admission-Removal.- Attorneys and counselors of the supreme court are not officers of the United States; they are not elected or appointed in the manner prescribed by the constitution for the election and appointment of such officers. They are officers of the court, admitted as such by its order, upon evidence of their possess ing sufficient legal learning and fair private character. The order of admission is the judgment of the court that the parties possess the requisite qualifications as attorneys and counselors, and are entitled to appear as such and conduct causes therein. Being by the solemn judicial act of the court clothed with his office, an attorney and counselor does not hold

it as a matter of grace and favor. The right which it confers upon him to appear for suitors, and to argue causes, is something more than a mere indulgence, revocable at the pleasure of the court, or at the command of the legislature. It is a right of which he can only be deprived by the judgment of the court, for moral or professional delinquency. Ex parte Garland, 4 Wall., 378. And then only after an opportunity to be heard has been afforded. Ex parte Robinson, 19 Wall., 512. See § 1.

§ 69. All courts have power to disbar attorneys who are guilty of professional misbehavior; but this is distinct from the power to punish for contempt. In re Paschal, 10 Wall., 483. See the case, § 222-225.

§ 70. It is the duty of an attorney to be courteous in court and out of court, and to refrain from all insulting language and offensive conduct toward the judges personally for their judicial acts. Bradley v. Fisher, 13 Wall., 335. See the case, §§ 56–64.

$71. Regulation — Eligibility of women.- It is within the police power of a state to prescribe regulations founded on nature, reason and experience for admission to callings requiring special skill and confidence; and a state law which excludes women from the office of attorney and counselor at law is not within the prohibition of the fourteenth amendment. (BRADLEY, SWAYNE and FIELD, JJ., dissenting.) Bradwell v. The State, 16 Wall., 142.

§ 72. Nor is the right of admission to practice in the courts of a state a right which belongs to citizens of the United States in that relation and character, and which a state is forbidden to abridge. The fourteenth amendment to the constitution does not confer this right upon women who are citizens of the United States and possess the requisite learning and character. Ibid.

§ 73. Under the constitution and laws of the United States, a federal court is without power to admit a married woman to its bar. A woman is without legal capacity to take the office of attorney. In re Lockwood,* 9 Ct. Cl., 349.

§ 74. Oath. The supreme court of the District of Columbia has an inherent right to regulate the terms of admission to its bar, and has a right to prescribe as one of the conditions of admission that the applicant take an oath prescribed by its rules, similar to that prescribed by the act of congress of July 2, 1862, for officers of the United States. Ex parte Magruder,* 6 Am. L. Reg. (N. S.), 294.

§ 75. Where an attorney admitted to practice in the federal courts had participated in the rebellion, and had received a full pardon therefor, he could not be required to take the oath, that he had never participated in any way in the rebellion, or had held office under the rebellious government, prescribed by act of congress of January 24, 1865, before being readmitted to practice. That act is unconstitutional as being in the nature of an ex post facto law, as in effect it makes an offense punishable in a way in which it was not punishable at the time of its commission; and the power of congress to prescribe rules for the admission of attorneys and counselors to the federal courts cannot be made the means of inflicting punishment for past offenses. Ex parte Garland, 4 Wall., 380.

§ 76. Unlicensed attorney practicing.- Where an attorney for a voluntary bankrupt, who signed the petition as such attorney, has not been admitted to practice in the district court, the proceedings will not be dismissed for that reason; but it seems that an order will be made on notice to the bankrupt and his attorney, declaring that the alleged attorney will no longer be recognized as such. In re O'Halloran, 8 Ben., 128.

§ 77. Removal for fraud. An attorney who is guilty of fraud will be stricken from the rolls, although his fraud be not of a public nature, or indictable. United States v. Porter, 2 Cr. C. C., 64. § 78.

for assisting in negro insurrection.— The superior court of the territory of Orleans, upon proof that an attorney of the court had, sixteen years before, aided in the negro insurrection in St. Domingo, disbarred him, although his conduct since that time had been fair. In re Dormenon,* 2 Wheeler, 344.

§ 79. - for infidelity to client.-A. negro filed a petition for freedom. He obtained an injunction restraining his master from removing him from the jurisdiction of the court. His attorney, believing the master intended to remove the negro, and knowing that two constables were employed by the master to take him for that purpose, told them that as the injunction had not been served, there was no danger on their part in apprehending him or taking him up. This was true, since while the master could not remove the negro, he might lawfully possess himself of him, and for this purpose his agents, the constables, might apprehend him. Held, that to his instructions the attorney should have added a caution not to remove the negro; but that since the omission of the attorney to give such additional caution may have arisen from a misapprehension of law, or an imperfect view of the whole case, the court was not justified in saying that it proceeded from infidelity of the attorney to his client. It was proposed by the constables that the attorney should be paid $25 in case the negro should be apprehended. He neither assented to nor resented the proposition, and suffered the

constables to go away believing that he would give the information desired, and would take the bribe. But he did not in fact give such information and expressed to other persons great indignation that the bribe should have been offered. He notified the negro of his intended apprehension, and cautioned him not to expose himself. Held, that, as the attorney might have considered it his duty to deceive the constables in order to notify the negro, the court would not consider this as infidelity to the client.

The attorney promised the constables that if the negro came to his office he would notify them, in order that he might be apprehended. But this promise was immediately followed by notice to the negro not to come to the office, and was therefore decided not to evince any unfaithfulness to the client. " Fidelity to his client is one of the first requisites in the character of an honorable practitioner at the bar. That fidelity requires that he should maintain all the just rights of his client; but it extends no further. It will not justify any attempt to evade the fair operation of the law, or to impede the administration of justice. A fault on either side of the true line of honorable professional conduct will equally meet the decided reprehension of the court." Ex parte Giberson,* 4 Cr. C. C., 503.

§ 80. Review of order of removal.— No appeal lies to the supreme court from an order of the district court disbarring an attorney. Ex parte Robinson, 19 Wall., 514.

§ 81. Where the court has exceeded its jurisdiction in disbarring an attorney mandamus is the proper remedy by which to restore him. Ibid.

§ 82. Restoration — Pardon of governor.— An attorney was disbarred under the territorial laws upon petition of the party injured, for failure to pay over money collected by him for▾ his client. On his petition to be reinstated he exhibited a pardon from the governor. The court held that the executive pardon had not the effect of restoring him to his position as attorney, and that the court would not reinstate him till it appear that restitution had been made to the client of the moneys detained. In re Browne,* 2 Colo. Ty., 554.

II. EMPLOYMENT AND AUTHORITY.

SUMMARY-Right to appear, § 83.- Authority of persons who are not attorneys, § 84.- No power to compromise, §§ 85, 86.— May submit to arbitration, § 86.- Satisfaction of judgment, § 87.

§ 83. Where two attorneys claim to represent the plaintiff and to control his suit, the court will, in the absence of instructions from the plaintiff, give the preference to the attorney first appearing, especially if he also represents parties having a power of attorney from the plaintiff coupled with an interest in the subject matter of the litigation. The court will not under such circumstances undertake to determine the mental capacity of the plaintiff to look after his own rights in selecting an attorney. Stewart v. Hilton, §§ 88, 89.

§ 84. An order for a continuance entered pursuant to a stipulation made by persons not parties, but to whom plaintiffs had conveyed an interest in the subject matter of the suit, in consideration of their furnishing means and services in carrying it on, and which persons, although not attorneys of the court, were allowed by courtesy to print their names at the bottom of the complaint as "counsel" and to appear as "counsel" in court with plaintiff's regularly appointed attorneys, will be set aside. "Counsel," especially when not attorneys, are authorized to represent their clients only upon the argument or hearing. The attorneys to a cause alone have power to prepare and file papers in and out of court, and generally to control the suit. Nightingale v. Oregon C. R. Co., §§ 90-92.

§ 85. An attorney authorized to collect has no authority to compromise, and his entry of satisfaction will not bind his client beyond the sum actually received. Pierce v. Brown, $$ 93, 94.

§ 86. An attorney at law has power to submit a cause to arbitration. Otherwise courts would not be justified in giving permission to enter a rule of reference when consented to by attorneys on both sides. But an attorney has no power to make a compromise without the consent of his client, and if he makes what is in fact a compromise, although it be in the form of an award, it will be set aside at the suit of the client, especially if it has been entered into without a comprehensive knowledge of all the facts, is inequitable, and the client is guilty of no laches in bringing suit to set it aside. Holker v. Parker, $$ 95, 96.

§ 87. Erwin assigned a demand against Blake to M'Connell, who employed Fulton, an attorney, by whom an action was commenced and carried on in all its stages for and under the direction of M'Connell, although in the name of Erwin, until it resulted in a judgment which became a lien upon Blake's land. Blake, on the last day the land was redeemable, paid the judgment in full to Fulton, the attorney, who gave a receipt discharging the whole of the claim. On a bill to compel a reconveyance from Erwin to Blake, held, that the assignment to

M'Connell had never been rescinded, and that he alone had a right to control the levy and the subsequent proceedings as to redemption by Blake, but that assuming that the assignment had been rescinded, Erwin' must be held to have ratified and adopted the acts of Fulton, he never having repudiated Fulton as an attorney nor notified Blake that he had not, as attorney, power to accept satisfaction of the judgment and discharge its lien, and having, by the testimony of several witnesses, declared his willingness to abide by whatever Fulton did in the premises. It seems that if a judgment debtor has a right to redeem property sold under execution, by payment of the amount to the judgment creditor, who has purchased the property, the attorney of the judgment creditor has implied authority to receive the amount and discharge the lien, especially if this be the usage in the state. Erwin v, Blake, §§ 97, 98. [NOTES.-See SS 99-139.]

STEWART v. HILTON.

(Circuit Court for Vermont: 19 Blatchford, 290–293, 1881.)

Opinion by WHEELER, J.

STATEMENT OF FACTS.-This suit is founded on contract, and was brought in the state court. It was removed to this court before the last term, the plaintiff being a citizen of Vermont, and the defendant of New York. According to the record certified from that court, attorneys of the state court, who were also attorneys of this court, appeared for the plaintiff there and have continued their appearance here. The practice in the state courts of this state, followed in this court, is for any attorney of a court to appear for any party to any suit or proceeding therein, without being required to ask or obtain any leave of the court for that purpose. Since the last term another attorney of the state courts and of this court has entered an appearance here for the plaintiff. At the call of the docket at this term the counsel for the plaintiff first appearing answer and set the case for trial; the counsel last appearing also answers, and insists upon entering a discontinuance. Upon this difference between the counsel for the plaintiff the court has heard them, summarily, upon such proofs by affidavit as they have been able to present, as to which is entitled to control and direct about the case. The plaintiff has been, in person, in court, but has not assumed, to the court, control or direction of the case or of the attorneys, in such manner as would warrant the court in acting upon his directions. From the proofs it sufficiently for present purposes appears, that the suit was brought upon an agreement between the plaintiff, his son Matthew Stewart, and the attorneys bringing it and appearing in it, that the attorneys should have a permanent lien upon the claim and the suit for their fees, charges and disbursements, and that the control and management of the claim and suit should be placed in the hands of Matthew to secure the agreement, and that a power of attorney irrevocable, with full power to employ other attorneys, was made by him to Matthew, in pursuance of that agreement; that the employment of the attorneys has been continued by him, and other considerable liabilities and expenses incurred by him and them, and charges have been made by them, none of which have been paid or reimbursed, or offered to be; that the plaintiff has made some agreement with the defendants, by which, for some sum of money, a part of which has been paid, the suit was to be discontinued at this term, against the understood wishes of Matthew and the attorneys; that the attorney last appearing was employed to carry out this agreement with the defendant; and that the power of attorney was formally revoked, and notice of that fact and of the employment of another attorney given to the attorneys, and they were discharged, so far as, by such proceedings, out of court and under the circumstances, they could be discharged,