Since the judgment of this date appears to me probably final, or at least one which respondent can entertain little hope of reducing to less than indefinite suspension, with the present prospect of a more drastic penalty be*105cause of future developments in proceedings in which he is foreclosed, because I feel that no such judgment can yet be properly pronounced, and because of my conviction that there has thus far been herein neither hearing nor proof, I am obliged to dissent and state my reasons therefor.
The power and duty of this court to admit, disbar, reinstate, and govern by suspension and reprimand, members of the bar, its officers, is settled, unquestioned, and save in isolated cases and for a few fundamental rules, entirely discretionary. People ex rel. v. Weeber, 26 Colo. 229, 57 Pac. 1079. Discretion extends even to pardon for admitted offenders, and, when the facts justify, punishment and pardon may be included in the same judgment. People ex rel. v. Essington, 32 Colo. 168, 171, 75 Pac. 394. In exercising its power to discipline a court should be “considerate and careful,” and act “with great moderation and judgment.” People ex rel. v. MacCabe, 18 Colo. 186, 191, 32 Pac. 280. Adverse judgment should only be pronounced upon “clear and convincing proof,” especially where the charge involves the commission of a crime. People ex rel. v. Pendleton, 17 Colo. 544, 30 Pac. 1041. Previous reputation and standing of the accused “is a matter entitled to much consideration.” People ex rel. v. Benson, 24 Colo. 358, 370, 51 Pac. 481. The burden is upon the accuser to prove his charges and the court will “not be quick to take the naked charge as a proof of guilt.” People ex rel. v. Johnson, 40 Colo. 460, 464, 90 Pac. 1038. Although when charges are filed and served the accused makes no answer, still “the charges must be proven.” In re Walkey, 26 Colo. 161, 56 Pac. 576.
This respondent is known to us and admitted in argument to be one of the recognized leaders of the bar in Colorado. He has practiced his profession in Denver for twenty-five years. That he has been above reproach we have testified by judicial action, having appointed him a member of the “Bar Committee” of this court in *106January, 1924, on which, he served for more than twelve years, and from which he retired by voluntary resignation a few months since. For about the same period he served as a member of the Committee on Grievances of the Colorado Bar Association, a part of that time as its chairman. The former is this court’s committee on the character of applicants for admission to the bar. The latter, during most of respondent’s service, was established by rule and decision “an arm of the court” in disciplinary proceedings. If “Previous reputation and standing” ever stand one in stead when charged this respondent has, in the beginning, the protection of a very considerable barricade. The Attorney General, in his brief, insists that he has charged two crimes, conspiracy to commit the common-law crime of eavesdropping and the commission of that crime. He furthermore asserts that respondent’s answer admits the charges. If so it might be pertinent to inquire why no information against him, and particularly why no proceedings against his co-conspirators. But assuming the charges there is clearly no admission. There can be no such crime, the Attorney General admits, except the spying and listening be habitual, for the purpose of circulating slanderous and mischievous tales, and the private discourse heard be tattled abroad. All this being denied must be dismissed. The Attorney General further says he charges misconduct unworthy a lawyer, and as a part thereof he charges threats against officials, conspiracy to usurp their functions, to undermine confidence and incite contempt and opposition, all of which is denied and must be dismissed.
The Attorney General further says respondent was serving a client, using improper means to influence legislation, and stirring up litigation, all of which is denied and must be dismissed.
But this is not enough. Bespondent demands proof, and the Attorney General himself suggests that we interrogate respondent concerning some of these charges. *107If lie is to be questioned certainly he may also produce witnesses. If these must, or may, testify, will the prosecutor be permitted to sit silent? May a lawyer of character and standing be thus attacked and his demand for proof waived aside with a gesture? The Attorney General should produce the proof or withdraw the charges.
He does the latter, in effect, by his reply, which is limited to one printed page. Therein he says it is admitted “That respondent secretly placed microphones and attendant apparatus in the office of the governor of the state for the purpose of overhearing all conversations therein taking place. This is the sole issue before the court. The usual rules of ordinary legal procedure apply.” I must assume this means a motion for judgment on the pleadings was in order. If so, why all the charges of motive? Certainly the Attorney General would not intentionally scandalize a lawyer of standing, admit his charges are immaterial, and fail to withdraw them or support them with evidence. Moreover, it is well settled that the usual rules of ordinary legal procedure do not apply in disbarment cases.
Let us remember there is nothing legally confidential in conversations with the governor. No liability attaches, by common law or statute, to their disclosure. They are not in the class with Grand Jury or Executive Legislative sessions. This of course does not justify a lawyer in surreptitiously securing or scandalously disclosing them. He may still be disciplined therefor. I share the common detestation of “snooping.” Generally “snoopers” deserve contempt, but not always. Nations have been saved by them. We then call them spies and consider their conduct the highest patriotism. Their exploits became historic romances and their memories hallowed. It all depends upon motive and intent.
Assuming that respondent’s admitted conduct must be punished, what shall the sentence be? A mild private reprimand or professional death? The answer depends upon motive and intent. If respondent did what he ad*108mits, plus all the Attorney General charges, and with the motives imputed, I think he should be disciplined, possibly disbarred, not because his actions would be illegal, but because they would be indecent, unworthy a lawyer. But assume that we were at war and a lawyer had reliable information that the Governor, as Military Chief of the State, was hatching treason. Suppose for the purpose of foiling the plot he installs microphones, records the negotiations, reports the treason, and saves the state. Would any one advocate disbarment, or even a slap on the wrist? It is all a simple question of motive and intent. Respondent alleges these as justification and the Attorney General denies them. Respondent demands a hearing and the Attorney General answers—“There is nothing to hear, you have admitted guilt. I call for judgment on the pleadings.” In my opinion, if we grant the request, we are not “considerate and careful,” we do not act “with great moderation,” we do not require “clear and convincing proof,” we are “quick to take the naked charge,” we have not required that the accusation be proved, we have not given “much consideration” to “previous reputation and standing,” we have ignored intent and motive, and finally, we have condemned a man and a lawyer unheard.
I think the cause should be sent to a referee to take evidence and report, and that since charge and answer, accused and accuser, are known, and since the facts upon which motive and intent were founded are either immaterial or of public concern, that the hearing should be public.