Beatty, C. J. My views of this case differ in some particulars from those of my associates.
It was not because of Mr. Philbrook’s assault upon a member of this court—gross and unjustifiable as I deemed it to be—that I joined in the order citing him to show cause. So far as that part of his offense was concerned I should have waited until the final determination of the appeal in Rankin v. Newman, before deciding what, if any, action it was necessary or proper to take.
But, as is clearly shown in the opinion of the court (In re Philbrook), Mr. Philbrook did not confine himself to an assault upon Justice Harrison in his character of attorney for Levinson’s executor, and as advisor and participant in the settlement of the executor with the surviving partners. He went much further: he distinctly threatened the other members of the court with public infamy and disgrace if they did not decide the cause of Rankin v. Newman in his favor. This he did, not only in the express terms of that part of his brief set forth in the citation, but indirectly and by every sort of implication through page after page of that portion of his brief to which his attention was directed by the reference to said pages.
In his long and carefully prepared answer in writing Mr. Philbrook makes no retraction or qualification of this objectionable language, but, on the contrary, distinctly reavows every thing he has said.
•He claims—and I fully concede the claim—that if a justice of this court has been a party, or attorney, or [482]witness, or in any other manner so connected with a canse which is on appeal here as justly to subject him to criticism, counsel charged with the presentation of such cause must be allowed the same freedom of criticism as in the case of any other person. But the logic of this proposition is that the fact that such party or witness is a member of this court is wholly irrelevant: it has nothing to do with the case. Mr. Philbrook, however, does not hold himself bound by the logic of his proposition. He does not criticise Justice Harrison’s conduct as attorney for Levinson’s executor the same as if he were not a member of this court, but apparently because he is a member of the court he assails him with the bitterest invective, for the purpose of giving point and force to the proposition to which his whole argument tends, that we cannot affirm the order of the superior court without making ourselves participants of the fraud which he charges, and thereby giving all men reason to know that the courts of the country are corrupt.
In this consists the offense of which, in my opinion, the court was compelled to take cognizance on its own motion—a step to which, I may say, we resorted with great reluctance. The law which in such cases makes us the judges of offenses against the court places us in an extremely delicate and invidious position,but it leaves us no alternative except to allow the court and the people of the state, in whose name and by whose authority it acts, to be insulted with impunity, or to exercise the authority conferred by law for the purpose of compelling attorneys to “maintain the respect due to courts of justice and judicial officers.”
If an attorney were to approach a court or a judge with the offer of a bribe to decide a cause in his favor, or if he were to menace a judge with personal violence -or pecuniary loss if he decided against him, it cannot be doubted, that all men would concede the propriety of depriving him of his privileges as an attorney, and if. this is so it cannot be denied that some penalty is in[483]curred by an attorney who reinforces his argument by announcing to the court with endless repetition that an adverse decision will make the judges participants of a fraud and sharers in the infamy of its perpetrators.
It is not necessary, however, to elaborate this proposition here. It is plainly enough set forth in the opinion of the court, and does not even need exposition, for it must be obvious to the meanest apprehension that threats or menaces of any character addressed to a court as a part of, or in aid of, the argument upon the law and facts of a case is an obstruction to the free and unbiased consideration which every cause should receive; and that if such means of influencing the action of the court should become common, as they might if allowed to pass unrebuked, no rights would remain secure.
Mr. Philbrook himself, by his tardy disclaimer, made in the course of his oral argument, seems to admit the justice of these views.
But as above stated he makes no disclaimer or retraction in his written answer to the citation, which remains a public record of the court. On the contrary, he therein deliberately reaffirms and insists upon the propriety of every word contained in his brief. He claims, of course, never to have understood until his attention was called to it by a brother attorney during a recess of the court taken just before the close of his argument, that he was charged with having menaced the judges with any disagreeable consequences to themselves in ease of an adverse decision. He asks us to believe that, with one of the most offensive passages of his brief set before his e\\7es in the terms of the citation, and with ten days for the careful reconsideration w7hich he says in his answer he has given to the matter, he never saw what is patent to the observation of every one else.
It is difficult to credit Mr. Philbrook with such simplicity of understanding, but it may be true that he has become so blinded by his animosity against Justice [484]Harrison, and so dominated by the belief that the “ secret transaction of September 6,1890,” as he terms it, was a gross and wicked fraud, that he has lost the capacity of regarding any other aspect of the case. Indeed his conduct during the hearing of the citation would seem to indicate that this is so. For, after devoting the greater part of two days to a vindication and renewal of his assault upon Justice Harrison, he interrupted the course of his argument for a few moments to inform the court that during the recess a brother attorney in whom he had confidence had informed him that to some minds the language of his brief might convey the idea of a threat. He, however, professed not to see it even after his attention had been so directed to the matter, but offered, if the court differed with him, to cancel the offensive passages in the briefs on file, and in those which he had distributed among his friends.
In my opinion this retraction was wholly insufficient. Mr. Philbrook had not only been informed by a brother attorney of the offensive construction which might be put upon his brief, he had been notified at the opening of the proceedings by the argument of Mr. Hayne that such was the construction placed upon it by the committee of the Bar Association, and he was plainly informed from the bench that it was understood in the same way by the court. If, in spite of these plain intimations he was still unable to see what was so clearly apparent to others, it ought to have occurred to him that he would do well to take further advice of those in whom he had confidence as to the propriety of modifying his written answer, and of introducing into that permanent record a plain and unequivocal retraction or disavowal of the intention to threaten the court. That he has never done so, nor offered to do so, leaves his offense entirely unmitigated in my eyes, and imposes upon the court the necessity of inflicting the due penalty. As to the character of the penalty I concur in the view of the court that it should be suspension of his privileges as an attorney.
[485]Upon the other branch of the case I should have had nothing to say if Mr. Philbrook had not, by devoting himself to that exclusively and ignoring every thing else, challenged the judgment and opinion of the court. Under the circumstances I cannot pass it over in silence without seeming to dissent from the views of my associates, and, therefore, I feel bound to add that, while I fully concede the right of Mr. Philbrook to attack the settlement between Levinson’s executor and the New-mans, and to argue the propositions of fact and of law upon which he arraigns the conduct of Justice Harrison, I see nothing in the case to justify the conclusion that the advice given to the executor as to the construction of the partnership agreement, and his duty to settle according to such construction, was not entirely proper.
The proposition of law for which Mr. Philbrook contends, viz: That notwithstanding such settlement may have been entirely free from fraud, in fact it must be held fraudulent in law—a constructive fraud—because advised and witnessed .by a gentleman who was then a candidate for the supreme bench, is one which it is open to him to argue, and since it is involved in the appeal of Ranlcin v. Newman, I express no opinion concerning it.
It appears from Mr. Philbrook’s own showing that at the time of the settlement neither he nor his clients, the mother and sisters of Levinson, were claiming or had ever suggested that the articles of partnership were invalid. On the contrary, they were then and after-wards asserting their validity and claiming under them. Nor did they then claim or suggest that the inventory made in pursuance of the said articles was false or incorrect in any particular, except in the omission of the item of the “goodwill,” the whole controversy being merely as to the proper construction of an agreement, then conceded to be valid and binding, with reference to the single question whether or not it embraced or excluded the “goodwill.” As to this matter the difference between them was open, express, and well under[486]stood, and there is not the slightest reason to suppose that Judge Harrison’s opinion was less honest or loss sound than that of Mr. Philbrook. Mr. Philbrook, indeed, is not entirely consistent with himself in this matter, for, unless I have misapprehended his position, he is now claiming that the Newmans, by the exercise of undue influence, induced their dying and partially demented partner to execute an agreement which sacrificed his interest in the goodwill; and, if this is so, it is scarcely consistent to claim that Judge Harrison misconstrued it, or that he can be blamed for the advice given to the executor at a time "when neither Mr. Phil-brook nor any one else had ever suggested fraud or undue influence in the procurement of the agreement.
I concur in the judgment.
Rehearing denied.