Case of Lowenthal

California Supreme Court Sep 15, 1882 No. No. 8,559Published

Before: McKinstry

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Holding. The court held that an order admitting an attorney to practice may be set aside if it was obtained through the fraudulent concealment of a prior suspension from practice in another jurisdiction. The court overruled the defendant's demurrer, finding the accusation sufficiently alleged that the defendant's prior suspension rendered him ineligible for admission under the Code of Civil Procedure.

Issues

Whether an order admitting an attorney to practice may be set aside for fraudulent concealment of prior misconduct.
Whether an attorney's suspension from a lower court in another state precludes their eligibility for admission to practice in California under Section 279 of the Code of Civil Procedure.

Disposition. Objections overruled; defendant given twenty days to answer.

Quotations verified verbatim against the opinion

“Nevertheless this Court will be justified, of its own motion, in setting aside the order admitting the defendant to practice, should it appear that the order was obtained by means of fraudulent artifices or concealment.”

“The section of the Code means, not only that the applicant shall present a “ license”, showing that he had at a certain time been admitted in another State, but requires that this Court shall be satisfied that he has continued to be a member of the bar of such State, in good standing, up to the time of his application.”

Synopsis

Removal op Attorney—Former Adjudication.-—The order of this Court admitting an attorney to practice, is in the nature of a judgment that he possessed the requisite qualifications, when the order was made and entered. It follows that the judgment, while it continues in force, is an adjudication determinative of the fact that the defendant was of “good moral character, ” when he was admitted by this Court, and an attack upon his previous character can not be made the basis of an order for his removal.

Id.-—Power op the Court to Remove Attorney.—Nevertheless, this Court will be justified, of its own motion, in setting aside the order admitting an attorney to practice, should it appear that the order was obtained by means of fraudulent artifices or concealment; and it seems (though held unnecessary to decide), that in ascertaining whether fraud has been practiced by an application for admission, the Court would hear evidence to show that the order of admission yas secured by fraudulent concealment of facts affecting the moral character of the person admitted.

Id.—Id.—Production of License—Definition.-—The provision of Section 279 of the Code of Civil Procedure, that any person, “who has been admitted to practice law in the highest Court of a sister State, ” may be admitted to practice here “upon production of his license,” etc), means not only that the applicant shall present a license, showing that he had at a certain time been admitted in another state, but requires that this Court shall be satisfied that he has continued to be a member of the bar of such State, in good standing, and entitled to ingress to all the Courts of record in that State up to the time of his application; and where this is not the case, and the fact is concealed, the order of the Court admitting the applicant will be set aside.

Id.—Accusation—Pleading—Jurisdiction op Foreign Court.—Proceeding to remove an attorney who had been admitted to practice here upon a license of the Supreme Court of New York. It appeared from an order of the Marine Court, attached to the accusation, that the defendant had been suspended from practice in that Court until further order.

Held: If the order of the Marine Court was a valid order, and operative when the defendant made his application, he was not entitled to admission to practice and his license should be revoked. By alleging in the accusation the effect of the order of suspension, the accusers have sufficiently averred—as against a general demurrer or objection—that the Marine Court had power to make the order; an averment which must be taken as true in determining the validity of the objection to the accusation. Finally, as the case is presented, the power of the Marine Court is to be determined by the law of New York; which is a fapt which can only be ascertained when issues of fact are joined.

McKinstry, J.: The defendant objects to the written “ application” that it does not state facts sufficient to constitute a cause for his removal or suspension.

Section 287 of the Code of Civil Procedure provides that an attorney and counselor may be removed for certain causes “ arising after his admission to practice.”

With the exception of the alleged fraud of defendant, by which he obtained a license from this Court, the charges against defendant are based upon transactions occurring while he was a member of the bar of New York.

We do not deem it necessary to inquire whether under our Constitution the Legislature can limit the power of the Court, with respect to the.admission, removal, or suspension of attorneys. Assuming, for the present, that the authority to admit to the practice of the law has been conferred on this Court by the Legislature, Section 279 of the Code of Civil Procedure authorizes the Court to admit to practice one who has been admitted in the highest Court of another State, upon production of his license, “ and satisfactory evidence of good moral character.”

The order of this Court admitting the. defendant to practice is in the nature of a judgment that he possessed the requisite qualifications when the order was' made and entered. (Ex parte Garland, 4 Wall. 378.) It follows that the judgment, while it continues in force, is an adjudication determinative of the fact that defendant was of “ good moral character” when he was admitted by this Court, and an attack upon his previous character can not be made the basis of an order for his “ removal.”

Nevertheless this Court will be justified, of its own motion, in setting aside the order admitting the defendant to practice, should it appear that the order was obtained by means of fraudulent artifices or concealment.

It is not necessary to decide that this Court, in ascertaining whether fraud had been practiced by an applicant for admis[124]sion, would receive evidence derogatory from his general good character. It may be assumed that £he order of. admission would preclude such inquiry, even in a proceeding to annul the order. Inasmuch, however, as applications for admission are made ex parte, we do not wish to be understood as announcing that we would not entertain an application to set aside an order of admission based upon a charge that the applicant had fraudulently concealed from us his conviction of gross misconduct by a Court of another State, even although such conviction had not been followed by his'removal or suspension, but had been simply punished by fine or imprisonment, as a contempt. In such case the applicant would have obtained his admission by means of fraudulent concealment. The fraud and admission would, in effect, have been contemporaneous, and it would be extremely technical, to say the least, to hold that he was not subject to discipline until the order admitting him had been formally entered and he had taken the oath of office. And as the fact concealed, if any, would be a matter of record, which could be met only by other record evidence, no danger would be incurred by this Court being called on to try a doubtful question of fact, arising out of a charge, the offspring, perhaps, of envy or malice.

Case of Lowenthal

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