
    *Ex Parte Fisher.
    December, 1835.
    Attorney at Law — Malpractice—Suspension of License —Case at Bar. — By the provisions of the statute 1 Rev. Code, ch. 76, § 6, a court cannot, for malpractice of an attorney or counsellor, committed in its presence, suspend the licence of the party offend ing, in a summary way, but must direct an information to be filed against him, and inflict the punishment on the verdict of guilty found on such information.
    Error to an order of the circuit superiour court of Jackson, suspending the licence of Henry J. Eisher as counsellor and attorney, for twelve months, for malpractice in that court. Eisher was one of the counsel there, for E. Turner, defendant in an indictment for an assault and battery on W. Carney, which was tried on the 11th September 1835 ; and it was in the argument of that cause before the jury, that what the court deemed malpractice in the counsel, occurred. The judge, it seemed, expressed his disapprobation of the course taken by the counsel, immediately after the jury retired from the bar, and said that he would not act upon the subject under the feeling of the moment, but would reserve it for deliberation, calling upon the bar, and especially the attorney for the commonwealth to bear in memory the occurrences at the trial.
    On the next morning, the court, in a written statement entered at large on the recoid, —after stating the evidence which had been given at the trial, on the part of the prosecutor, — stated further, that one of the defendant’s counsel read to the jury, a verdict and judgment for one dollar damages, which had been previously recovered by Carney against Turner, in a civil action, in the same court, for the same assault and battery for which Turner was indicted: that, the evidence being closed, the attorney for the commonwealth and the counsel for the defendant expressed their willingness that the jury should retire without argument; but the former asked the court to instruct the jury, that the recovery *in the civil suit was no bar to the indictment; upon which Fisher said, if any instructions were asked for, the cause should be argued : that the judge then remarked to the commonwealth’s attorney, that he did not understand the defendant’s counsel as contending that the recovery in the civil suit was a bar to the indictment, but that such recovery was given in evidence in mitigation of the fine ; after which remark, the defendant’s counsel manifesting a determination to argue the cause, the judge told the counsel on both sides to proceed, as time might be as well wasted in that case as in others: that the commonwealth’s attorney briefly opened the case, and stated to the jury that the recovery in the civil suit was no bar to the indictment, but was only to be considered as matter in mitigation of the fine : that Fisher, addressing the jury on behalf of the defendant, and adverting to what had fallen from the court about wasting time, said, the argument of the cause was occasioned bv the application of the commonwealth’s attorney to the court for instructions, and was proceeding to animadvert on the course of the attorney in so-doing, when the court stopped him, and told him, the attorney’s application, and the propriety of his course, were matters irrelevant to the issue, and therefore not to be discussed before the jury ; upon which Fisher said, he would proceed to those points of the defence which he had a right to urge to the jury as the exclusive judges both of the law and the facts of the case: and that Fisher then proceeded in his argument to the jury. Of the points and topics of this argument, the judge made quite a full statement — by which it appeared, that the counsel, after enforcing, at some length, the right and the duty of the jury, in every criminal case, to interpret and decide the law according to their own judgment, and though they ought to listen with respect to the instructions of the court as to the law, yet if they should be convinced by argument that the *law was otherwise, they ought to be governed by their own opinions,- — proceeded to argue the question of law, whether the recovery in the civil suit was a bar to the indictment ? He admitted, that it was not a bar, according to the law as laid down in the english law books, but he said there was no Virginia decision affirming the same doctrine. And he argued, that the common law of England had its origin in the barbarous times of the Saxons and Danes ; that the king, wanting sufficient resources to provide for his mistresses and bastards and other expenses, had assumed the right of redressing injuries done to his subjects by each other, by fines and amercements, which he put into his own coffers, and thence originated the doctrine in England, that a recovery for a trespass in a civil suit was no bar to an indictment for the same offence ; that the doctrine had been sustained in England, by subservient judges and mean truckling juries, and he meant now to make a grave effort to see whether it would be sustained by our juries. He then proceeded to examine the question, what binding force the rules of the common law ought to have in Virginia ? And he contended, that the courts and judges were constantly so modifying the common law by their decisions, as to adapt it to the spirit of our institutions and the improvements of the age, and that, consequently every jury, in a criminal case, as judges of law, were invested with the same power of modifying or rejecting its provisions, as in their judgment should seem right. As instances of modifications of the common law by the judges, he referred to some adjudications of the general court, which he insisted were such, and which were stated in the judge’s account of his argument. [Of these illustrations, it is enough to say, that, as the judge reported them, they were apparently made in a strain of irony and ridicule ; though the counsel, in a solemn affidavit afterwards made, denied that such was his intention *in making them.] And he concluded his remarks on the question of law, by an earnest appeal to the jury, to disregard the barbarous rule by which a man might be made to pay twice for the same offence, in a case where they had full power to modify the law, and to decide what laws were obligatory and what not, without accountability to any human power. 
    
    The judge having made this statement, (which three members of the bar declared on oath, was substantially accurate, but which Fisher, in affidavits made by him, declared to be inaccurate and imperfect in several particulars) proceeded to make an order in the following words : “ The said Henry J. Fisher being known to the judge as a practitioner of law of some eight or ten years standing, and that he possesses more than an ordinary share of legal learning, and is the efficient prosecutor of the pleas of the commonwealth in the county courts of two of the counties of this circuit, the court cannot arrive at the conclusion, that the singular proposition and arguments here set down, were either the result of ignorance of the law, or mistaken conceptions in relation thereto ; but that they must be regarded as a wilful and aggravated abuse of his privilege as counsel and attorney ; that such a course of conduct and argument, is contrary to the professional honesty of demeanor which his situation enjoins, and contrary to his duty, which requires him to execute his office according to the best of his skill and abilities ; and that the same constitutes a malpractice in his office of counsel and attorney: therefore, it is considered, that the licence of the said Henry J. Fisher, as counsel and attorney, be suspended for the space of twelve months.”
    ^Johnson, on Fisher’s behalf, first presented a petition to the court of appeals for a supersedeas to the order; but that court refused to allow it, on the ground that it had no jurisdiction of the case. And now he applied to this court for a writ of error — 1st, Because the court below had no authority, in this summary way, to suspend the petitioner’s licence, the statute having plainly prescribed the mode of proceeding in such cases, and requiring an informaiton and the verdict of a jury. 2ndly, Because the facts .recorded by the judge, did not constitute malpractice for which the licence of counsel ought to be suspended.
    
      
       Attorney at Law — Suspension and Disbarment. — in Ex parte Hunter, 2 W. Va. 145, the court said: "It will be observed also, that there is a marked distinction between the power of the court to supersede or annul the attorney’s license, as provided in the 5th and 6th sections of chapter 164 of the Code and the common law power to disbar him from practicing as an officer of the particular court. In the former case it can only be done for the causes assigned, and in the mode prescribedby the statute, and when so done supersedes or annuls the license altogether, and alike debars from admission, and disbars after admission from all the courts of the state. (Fisher’s Case, 6 Leigh. p. 619.) But in the latter case, that is, of amotion or suspension from the particular court — the court exercises only the common law powers of a court of record, and its judgment, whether called a judgment of amotion, suspension, expulsion, disbarment, or striking from the roll of attorneys, only affects the official position of the party in that particular court.” The principal case is further cited in Ex parte Hunter, 2 W. Va. 145, to the point that this supervision of the court over its own attorneys, and power of suspension or amotion of them from office, is also a power above and beyond the general power to punish by fine and imprisonment for contempt. The principal case is cited with approval on p. 186 of Ex parte Hunter, supra.
      
      Same — Same—Construction of Statute. — in State v. McClaugherty, 33 W. Va. 257, 10 S. E. Rep. 409, the court construed § 6. ch. 119. W. Va. Code as follows: “It Is very apparent that this statute Is intended to apply only to cases the o'bj ect of which is to suspend or annul the license of an attorney absolutely and in all courts, and not to proceedings for the revocation of the privilege of an attorney to practice in the particular court revoking such privilege. That such is the proper interpretation of the statute appears from the decision in Fisher's Case, 6 Leigh 619, rendered in 1835, under a statute from which ours was taken, and. as to the question here presented, identical with ours.”
      And in Walker v. State, 4 W. Va. 753, the court, in speaking of this same section of the W. Va. Code, saitl: “This was not a proceeding under the 6th section of chapter 119 of the Code, p. 590," to suspend or annul the license, as was the proceeding in fi’isher’s Case, 6 Leigh 619; hut was a common law proceeding, independent of the statute, to suspend or revoke the privilege of practicing law in the particular court in which the proceeding was had, as was the proceeding in Rice's Case, 18 B. Monroe, 472; and in the case of Mills, 1 Manning’s Rep. 392.” The principal case is distinguished Ex parte Wall, 2 Sup. Ct. Rep. 583. See monographic note on “Attorney and Client” appended to Johnson v. Gibbons, 27 Gratt. 632.
      Licensed Attorney — Right to Qualify. — The right of a licensed attorney to be permitted to qualify with a view to practice his profession, upon taking the oaths required by law at the time of his application, is as unquestionable as his right to practice after he has qualified. Ex parte Quarrier, 2 W. Va. 570, citing the principal case.
    
   *SCOTT, J.

The assignment of errors, in this case, presents two questions — 1. Had the circuit superiour court authority, in this summary way, to suspend the licence of the plaintiff in error? 2. Do the facts recorded constitute malpractice authorizing a suspension of his licence? And there may be a third question, viz. whether they amount to a contempt for which the party may be fined and imprisoned in a summary way?

The courts of Westminster hall have, at all times, exercised the power of punishing their officers, among which are the attorneys, in a summary way, for misbehaviour in office. The punishment is inflicted, sometimes by attachment; sometimes, by fine; at others, by striking their names from the roll of attorneys, by which they are disabled from practising in the court inflicting that punishment. The power of thus punishing the officers of the court, although a branch of the general power of punishing contempts summarily, yet greatly transcends the limits of the general power. For, although the latter authorizes the infliction of fine and imprisonment at the discretion of the court, yet a judgment of suspension or amotion from office, can only be pronounced in this summary way upon an officer of the court. It would seem, then, that independently of any statutory restriction, the courts of record of this commonwealth might, in a proper case, suspend or annul the licence of an attorney, so far as it authorizes him to practice in the particular court, which pronounced the sentence, but no farther.

The right to practice as an attorney in Virginia, is not conferred by the court as in England, but is derived from a licence obtained in a prescribed mode, which entitles the person obtaining it to be admitted as an attorney and counsel in each and all of the courts of the commonwealth. To deprive him of such a licence, is, therefore, the exertion of a higher authority than that which can be exercised by any one court, by analogy to the *english practice. If, therefore, such a power is possessed, it must have been conferred by statute. The only statute under which it can be claimed, is that concerning' counsel and attorneys. The question is, whether the provision contained in the 6th section o± that statute, directing an information, applies only to an accusation of malpractice not committed in the presence of the court, or embraces also a malpractice detected by the court from its own observation?

Before a court can pronounce the sentence of the law upon an offender, the fact of his guilt must judicially appear. In ordinary cases the party having been prosecuted by indictment or information, the facts are either confessed, or found by a jury; and when they so appear, the court adjudges him to undergo the punishment denounced by the law against his offence. But summary convictions for contempts are exceptions to this general rule. In such cases, the fact must either be known to the court by having occurred in its presence, or be confessed by the party upon interrogatories, which he is bound to answer. When the criminal act is perpetrated in the presence of the court, it records the facts, and nothing remains but to pronounce the sentence of the law. When the alleged contempt is committed without the presence of the court, if the party will take upon himself to deny the fact charged by the interrogatories, the court takes his answer to be true, and will not hear other evidence. The only remedy, if he swears falsely, is a prosecution for perjury. 4 Blacks. Comm. . 287. The restriction in regard to the admission of other evidence than that derived from the answers of the party to interrogatories, does not apply to a proceeding against an attorney for malpractice. The constant course, when the malpractice is not sufficiently known to the court, is to proceed by rule to shew cause, on which evidence for and against the accused is heard.

*It may be strongly argued, that the legislature did not intend to relax the rigor of the common law in regard to attorneys, but merely meant to provide a remedy co-extensive with the mischief, by conferring upon the court before which they should stand convicted of malpractice, the power to expel them, not only from that but from all the courts of the commonwealth: that as the licence gave them admission into all, so a conviction of unfitness to appear in one, should eject them from all: but that it was not designed to refer it to a jury to inquire into a fact, which already appeared by the record; it was not designed to place the judge in the attitude of an accuser before a jury impannelled in his own court. A slight change in the punctuation, would give additional force to this construction. On the other hand, it may be argued, that the genuis of our institutions and the general tendency of our legislation, are, in all criminal prosecutions, to refer the question of guilt or innocence to a jury: that the punishment authorized by this statute, is exceedingly severe, being no less than degradation from a highly honourable profession; a profession which is justly looked upon as the high road to wealth and distinction: and that a construction, which, in a case so seriously affecting his character and fortune, would deprive the accused of the justly prized trial by jury, ought not to be adopted but to effectuate the clear intention of the legislature.

Now, upon an examination of the language of this statute, such an intention is far from being manifest. On the contrary, the natural interpretation of that language, in the order in which it stands on the statute book, leads to a different conclusion. We do not feel authorized, in this case, to transpose or change it, even by altering the punctuation. We are of opinion, that before such a judgment as that pronounced by the court below can be given, the party accused must be regularly prosecuted by information or indictment, and found guilty by a jury.

'*'This renders it unnecessary to decide the other questions. If the facts charged amount to malpractice, for which the licence of the accused may be suspended or revoked, the case is still open for a prosecution in the mode prescribed.. If they amount to a contempt of an inferiour degree, punishable by fine and imprisonment, it is equally open. And as this court may be called upon in a future stage of the case, to pass upon these questions, it is deemed improper to say more upon them now. The judgment of the court below, must be reversed.

The other judges concurred: but

ERY, J.,

delivered a separate opinion. He said — I concur in the opinion, that the order or judgment of the court below, suspending Mr. Eisher’s licence was erroneous. I think a just construction of the 6th section of the statute concerning counsel and attorneys, requires a proceeding by information, in every case in which it is sought to annul or suspend a licence. This construction of the 6th section, is confirmed by the provision of the Sth section, which allows a summary proceeding for the same purpose, in a case of a conviction for felony. Counsel and attorneys are licenced in the manner prescribed by the statute, and when licenced, they are entitled to be admitted to practise in all the courts of the commonwealth. Licenced by three judges, they may appear at the bar of the court of appeals. The Sth and 6th sections before mentioned, prescribe the manner in which such licences may be suspended or taken away. The power is not given to the county courts. It is confided only to the higher courts. The cause and manner for and in which the power is to be exerted, are prescribed.

Is this power exclusive or cumulative? If exclusive, the court below did not pursue it. If cumulative, and the same power can be found elsewhere, it must be ^'sought for in the powers of a court of record at common law. But, it is believed, the powers of no court at common law, extend farther than to fine, imprison, or disbar from its own forum. Contempts, or other misconduct, may be punished by fine, imprisonment, or striking-from the roll of attorneys. But striking from the roll of one court, did not extend to any other court. An attorney expelled from the common pleas, might still practice in the, king’s bench, until the latter also excluded him. This it would do, it is true, upon proof of the record of the other court, provided the. case for which such court had acted, was an offence which ought to disqualify him. See the cases collected in 2 Petersd. Abr. Attorney C. a. 607-611.

This power of the court was one incident to the control of its own officers, — to its right of self-protection, — and to its superintendence of the administration of justice. The power to debar from practice in all courts of the kingdom, is clearly distinguishable from it. Now, it is the latter power (to debar from practice in all the courts of the commonwealth) which is designed to be given and regulated by our statute, and which the court exercised in its judgment in this case. If our statute left any power of suspension or disbarring, it is only in the particular forum acting.

If the circuit superiour court had the power to suspend in this case, because it is a court of record, independent of the statute, what could hinder the county court from exerting the same power? It is a court of record, and the power is not taken away; and if conferring the power on the superiour courts, for special causes, and to be exercised in a specific mode, leaves still in those courts the same power, as courts of record, at common law, that power must equally exist in the county courts, nor can the proviso relating to those courts affect it. The office of a proviso is to limit or except something from the operation of the en-ácting clause. How the proviso in this statute, has any connexion *with the enacting clause, I cannot discover. But if the enacting clause do not touch or affect the powers of the county court, neither can the proviso, which is a limitation upon, or exception from, its operation.

Again: the same power is given to the judges of the courts of appeals and chancery, as is given to the judges of the circuit courts. Could a judge of the court of chancery, under our old system, or the court of appeals, suspend or revoke a licence, except in the manner prescribed?

The provision for annulling licences for specific causes, and in a specific mode, excludes the idea, that there were any other causes, or manner, for and in which the same thing could be done. If the power existed in the courts before, the statute must have intended to regulate it. If it did not, it intended to confer it. In either case, the statute must be pursued. The law, in saying that the court shall direct an information for malpratice, cannot leave it to its discretion to do so or not: that would involve a contradiction.

The court below was, doubtless, misled by the particular phraseology of the statute. It must have supposed, that where the judge acts from his own observation, as for a matter passing in court, no information was required by the true construction of the statute: that it was only when complaint was made in writing, that the counsel was required to be summoned, and an information directed. The separation of the sentences in the fourth line of the 6th section by the semicolon, and the terms in the second member of the sentence, “complaint in writing,” and “the party accused shall be summoned,” may have led to this construction. The term “party accused” would! seem to be properly referred, both .from con-nexion and meaning, to “complaint in writing:” it does not seem appropriately referrible to the “observation of the judge.” “Party ^accused” implies an accuser; and the statute might well be supposed not to predicate this of the judge. The words “shall be summoned” also seem more appropriate to an offence out of court, than to one occurring in its presence. This construction would be plausible if not conclusive, if the punctuation of the second part of it was different from what it is. To adopt it, the stop in the eight line of the section, must be removed to the tenth line, and put after the words “therein charged.” The court below, I presume, supposed that a sound construction required it to be so read. However, this is a liberty, which, I think, we cannot take in construing it, especially as it is not countenanced by any previous publication ; and without it, there is insuperable difficulty in giving it such construction. As it stands, the first part of the sentence must have reference to “party accused;” else, there is nothing which the court can do from its own observation. The sentence has no verb, or correlative, with which it can be connected. Besides, taking the whole section as it stands, whatever else the judge may do upon his own observation, it is only where the party is found guilty on an information, that sentence of suspension can be given.

To apply my observations more particularly : the offence stated in this record, was either a malpractice, within the meaning of the statute, or it was something else. If it was malpractice, then an information was necessary in order to suspend. If it was not, then suspension was not the appropriate punishment. If it was a contempt of the laws generally, or of the court particularly, — a rudeness, indecency or indecorum, unbecoming a member of the bar, the court was not without the power to prevent or punish. The counsel might have been admonished, that his language or arguments were improper, and that they should not be repeated or pursued; he might have been fined and this repeatedly; *or finally, he might have been committed. And the same power of fining or committing might have been exerted, though the offence were also a malpractice. The duty and power of the court, in this respect, are well expounded in the case of The King v. Davison, 4 Barn. & Ald. 329; 6 Eng. C. L. R. 440, where a party accused conducted his own defence, and was first admonished, and afterwards - fined three times in the course of his argument. The principles there stated apply a fortiori to a defence made by counsel, who must be presumed to possess more knowledge of his duty. Chief justice Abbott said — “The question, indeed, is a momentous one. It is absolutely a question, whether the law of the land shall, or shall not, continue to be properly administered. Eor it is utterly impossible, that the law can be so administered, if those who are charged with the duty of administering it, have not power-to prevent' instances of indecorum in their own presence. That power has been vested in the judges, not for their personal protection, but'for that of the public. ’ ’ Bajdey, J., said, ■ — 1‘The question is shortly this, whether for the future, decency and decorum, shall or shall not be preserved in courts of justice ; or whether, under colour of defending himself against some particular charge, a defendant is at liberty to introduce new, mischievous and irrelevant matter upon his trial. I agree, that a defendant, in all cases, should have every facility allowed him in his address to the jury, provided he confines himself within those rules which decency and decorum require. In every case, the subject of discussion before the jury, is to be considered, and a judge is bound to see that the arguments which are adduced, are such as are consistent with decency and decorum, and not foreign to the matter on which the jury have to decide” — '“Every man, who comes into a court of justice, either as a defendant or otherwise, must know that decency is to be observed there, that respect is to be paid to the *judge, and that, in endeavouring to defend himself against any particular charge, he must not commit a new offence. Of the power of a judge to fine for a contempt of court, I have not the least doubt.” And Holroyd, J., said — '“As far as I can enter into the consideration of the subject, as to the propriety of the fines in question, I think the judge was fully justified in imposing them, and not only fully justified, but was called on, in discharge of his duty, to impose them, in order to prevent the line of defence, in which it was manifest the defendant was determined to proceed, even after a warning had been given him to desist. The judge had the defence of the law entrusted to him, and he must either have permitted a breach of it, in which case I think he would have abandoned his duty, or he must have fined and imprisoned the party” — ■“After the first fine was imposed, one should have supposed it would have prevented a repetition of the offence; but it seems as if there was a direct design to set at defiance the law; for the defendant said, he would persist in that course of defence” —“In the case of an insult to himself, it is not on his own account that he commits, for that is a consideration which should never enter his mind. But, though he may despise the insult, it is a duty which he owes to the station to which he belongs, not to suffer those things to pass, which will make him despicable in the eyes of others. It is his duty to support the dignity of his station, and uphold the law, so that in his presence, at least, it shall not be infringed. I think the judge in this case was justified in stopping the defendant in this line of his defence, and was justified in fining nim for persisting in it.”

From the principles above cited (and they might be extended from the same and other cases) it is clear, that a court is possessed of full power to punish any indecorum, or any improper or unbecoming language, either of counsel or party, in its own presence: that it can *judge of the relevancy of the argument, enforce respect towards the court, and other persons, and prohibit and punish every abuse of the right of argument. The court may interrupt the counsel, and forbid any point to be discussed, or any course of discussion, which, in its discretion, it thinks ought to be prohibited. Whatever order, or direction the court may give in such case, the counsel must observe it, or be guilty of a contempt, and be liable to every punishment of one. And this, whether the order or direction were right or not. If wrong, (and I admit the discretion is not arbitrary,) the counsel must take his exception and submit. He cannot be allowed to disobey any order of the court, or treat it otherwise than with respect. If the court should prohibit any fair discussion of the law or the facts, such as it is decided the counsel is entitled to, the court would err, and the matter might be corrected in another forum. But whatever the court decides or orders, must, for the time, be submitted to; and every wilful disobedience of it, deserves and ought to be promptly punished. This power of the court, it seems to me, is ample to vindicate a due respect for itself and the laws, in a case like that in this record. The additional power of summary suspension or revocation of licence, is not necessary for such purpose.

Whether the facts stated in the record, amounted to malpractice, for which an information might have been directed, my brethren think ought not now to be decided ; because it is not necessary to do so, for the decision of the case; because an information may still be ordered, and it would not be proper to prejudge the matter; and because the examination of this question might delay the decision of the cause until the next term, upon an inquiry which is not necessary to the determination of it. Under this view of the subject, I have forborne to consider it.

Order reversed.  