DISSENTING OPINION.
HANNA, J.(dissenting) — I cannot agree with the last proposition considered in the foregoing opinion, that is, as to what is said upon the subject of notice.
My first ground of objection is largely one of fact. While conceding that the relator was entitled to notice, it would seem, under the facts of this case, that he had at least waived his rights in this respect. It is true that the charge of fraud or,deceit arises for the first time upon the consideration of the motion to set aside the verdict, and also true that this motion did not inform the relator that he would be subjected to the penalties of suspension or disbarment. Nevertheless, the relator made answer in person to the charges which were directed against him, and squarely met the issue as to the truth or untruth of these charges, the facts being found against him.
The entire proceeding, as it addresses itself to my mind, and there is little or’ no authority to be found which' will aid in a consideration of thé question, is to’ be likened to an act of contempt, committed within the presence of the court. The court had full knowledge of the facts which had become a matter of, record, and it seems to me to be putting form before-substance to say that the court should have commenced new proceedings by a rule to show cause, and inquired into the same facts for the sole purpose of determining upon a question of suspension or disbarment.
.This court, in its majority opinion, is attaching too much importance at this stage of the proceedings, to the rights of relator in the matter of the technical objection which he here urges. Particularly is this true in view of the fact that these technical objections can be raised later, when the matter comes before us upon its merits. This phase of the matter is of no particular importance, except as it may be controlling upon the discretion to be exercised by this court in the issuance of the writ here applied for. A writ of mandamus not being a writ of right, and the issuance thereof being a matter within the discretion of the court, this courf closely approaches forbidden ground in permitting the use of the writ for the review of a question decided upon by the district court, which, at most, in my opinion, can only be considered an erroneous exercise of jurisdiction.
The majority opinion, as stated, attaches too much importance to the rights of the individual, and fails to give adequate consideration to that larger aspect of the question here involved, which arises out of the relation of an attorney toward the court and the profession. The same technical procedure that might be required in criminal cases cannot be said to properly belong to the field occupied by proceedings for disbarment or suspension. The right of an attorney to practice law may be of great public importance, and for this reason he would not have the same right to be heard in technical objections that other individuals would be permitted to raise, when haled before the court on charges growing out of ordinary infractions of the law. There is said to be an inherent .right in all courts, not only to disbar attorneys at law, but to suspend temporarily, and this right is said to exist because of the necessity existing that courts may protect themselves against the conduct of attorneys, that the administration of justice may be properly carried on, and that clients may be protected against fraudulent or other objectionable conduct by attorneys. See Thatcher v. United States, 212 Fed. 800, at 806, 129 C. C. A. 255.
While not many cases 'in point are cited or found, I refer to a few which are somewhat instructive. In the case of Kandall, Petitioner, in Mandamus, 11 Allen (Mfess.) 473, it is said, concerning the elements of discretion in the issuance of the writ of mandamus, that the court will not issue the writ, although the attorney had been disbarred from practice without any previous formal written charge of misconduct against him, and with no summons-or other process to bring him before the court, he having appeared and having had a full hearing on the merits, and that on the facts found the removal was proper. As I said, the cases are not similar in point of fact; but, as pointed out in that case, the court was of the opinion that in no just or proper sense could the proceedings be deemed criminal proceedings in which a party had the right to insist on a full, formal and substantial description of the matter with which he is charged, nor was it essential to the validity of the judgment of the court that it should be founded on legal process, as the term is understood and used in the Magna Charta, or in the Declaration of Eights, in this connection the court saying:
“At common law, an attorney was always liable to be dealt with in a summary way for any ill practice attended with, fraud or corruption, and committed against tbe obvious rules of justice and honesty. No complaint, indictment, or information was ever necessary as the foundation of such proceedings. Usually they are commenced by rule to show cause, or by an attachment or summons to answer; but these are issued on motion or bare suggestion to the court, or even on the knowledge which the court may acquire of the' doings of an* attorney by their own observation. No formal or technical description of the act complained of is deemed requisite to the validity of such a proceeding. Sometimes they are founded on affidavit of the facts, to which the attorney is summoned to answer; in other cases, by an order to show cause why he should not be stricken from the roll; and, when the courts judicially know of the misconduct of an attorney, they will, of their own motion, order an inquiry to be made by a master without issuing any process whatever, and, on the coming in of his report, will cause his name to be stricken from the roll.”
Had tbe district court in this case attempted to disbar the relator, possibly a different question would be presented; but even in such case the discretion of this court in the issuance of the writ would rest 'somewhat upon the question of whether or not the district court had done a manifest injustice, which involves very largely the question of whether or not the attorney was heard in his defense,- and was' charged with the acts complained of in such manner as to bring home a knowledge of the character of his alleged misconduct. In the ease of State v. Kirke, 12 Fla. 278, 95 Am. Dec. 314, the court has much to say upon the question of discretion in applications for the writ of mandamus- and is in point on that element of this matter.- • '
In Ex parte Wall, 107 U. S. 265, 2 Sup. Ct. 569, 27 L. Ed. 552, quoting from an opinion by Mr. Justice Field, in the case of Randall v. Brigham, 7 Wall. 523, at 540, 19 L. Ed. 285, it is said:
“Tbe informality of tbe notice, or of the complaint by letter, did not touch the question of jurisdiction. The plaintiff understood from them the nature of the charge against him; and it is not pretended that the investigation which followed was not conducted with entire fairness. He was afforded ample opportunity to explain the transaction and vindicate his conduct.”
In conclusion, I am of the opinion that the same strict rules which might be applicable to a disbarment proceeding are not applicable to this case which involves the element of suspension only, temporary in its operation, and only to have force and effect until such time as this court can hear the case for disbarment on its merits. In other words, I believe that the district court has jurisdiction, even to summarily order the suspension of an attorney who has been guilty of the practice of alleged fraud or deceit, during the conduct of a case in court, without citing the attorney to show cause, and that the discretion of this court in the issuance of its writ of mandamus is not adequately appealed to by the facts presented for our consideration.
I therefore dissent.