(dissenting).
In a proceeding against another lawyer caught in this same legal tangle, four justices of the Supreme Court, after pointing out that the charge by the judge in the Dennis trial of a deliberate conspiracy to obstruct justice was found to lack support in the evidence both in the contempt case and in this present disciplinary proceeding, said: “What remains is a finding that lie was guilty of several unplanned contumacious outbursts during a long and bitter trial.” They continued: “Perhaps consciousness of our own short patience makes us unduly considerate of the failing tempers of others of our contentious craft. But to permanently and wholly deprive one of his profession at Isserman’s time of life, and after he has paid so dearly for his fault, impresses us as a severity which will serve no useful purpose for the bar, the court or the delinquent.” In re Isserman, 345 U.S. 286, 294, 73 S.Ct. 676, 680.
Four other justices rested their contrary decision on the procedural rule of the Court requiring that a member of its bar who has been disbarred from practice in any state should be disbarred before it unless he showed good cause to the contrary. That rule operated by reason of Isserman’s disbarment by the highest court of New Jersey to put a burden upon him which he had not met. Since the justices were equally divided (one justice not sitting), the operation of this burden against him led to liis disbarment by the narrowest of all possible margins. Here there are several significant differences favorable to this respondent, which I should think render this an a fortiori case for reversing the harsh doom visited upon him below.
First, no procedural rule here operated against respondent; on the contrary, there is a definite one in his favor. For as the majority opinion herewith correctly points out, the burden of proof was definitely on the petitioning associations. Second, there are the differing situations out of which these procedural rules stem. As the Supreme Court points out, it will follow a state court ruling of disbarment “in the absence of some grave reason to the contrary.” 315 U.S. at page 288, 73 S.Ct. at page 677. Under such circumstances disbarment in the district court below would be automatic. General Rule 5(b) of the United States District Courts for the Southern and Eastern Districts of New York. Considerations of convenience, of fairness to litigants, and of the dignity of the federal courts support such comity. But here the courts of New York have not spoken. Since state proceedings would go immediately before the bench of the First Department, Appellate Division, N.Y. Judiciary Law, McK.Consol.Laws, c. 30, § 90, subd. 2, we here lack the conviction which action pro or con by that distinguished tribunal would afford us. Perhaps the state courts are waiting on our decision; but that only makes our responsibility the heavier.
Finally, two further considerations suggest important differences on the record in the case histories of the respective counsel. Respondent here had 24 years of unblemished professional conduct in the state and federal courts before his entry on the famous trial. On the other hand, Isserman had been previously convicted of a crime and suspended for a time from practice. In the Supreme Court there was dispute as to how much weight should be accorded these facts; the warmth of the dispute suggests, however, that they did assume considerable importance. Further, on the crucial question of conduct in the four years subsequent to the trial, the justices apparently had little information on Isserman; the dissent does speak well of such personal appearances as he had previously made before them. But as to Sacher we *362have all this and substantially more. In addition to appearing in his own behalf, this respondent has appeared below and before us in cases of some difficulty where not only has his conduct been uniformly courteous and dignified, but his professional ability of unusually high order, as we have pointed out. United States v. Hall, 2 Cir., 198 F.2d 726, 727, 730, certiorari denied 345 U.S. 905, 73 S.Ct. 644, on appeal from D.C.S.D.N.Y., 101 F.Supp. 666, where the record showed commendation also by the district judge; U. S. ex rel. Nukk v. District Director of Immigration and Naturalization, 2 Cir., 205 F.2d 242. .Were we to select a public defender, we could hardly do better than seek respondent’s services in cases of this type where it is difficult to secure able representation and will undoubtedly become more so in consequence of decisions such as this.
Indeed, everyone seems to concede, though an argument against respondent is made on the very concession, that respondent, a lawyer of ability, knows how to conduct himself in his profession and can do so if he feels the need. The fear is expressed that such conduct cannot “safely” be relied upon; but since we do not have here the remotest intimation of danger to clients by defrauding or otherwise, this must be a fear that district judges hereafter cannot control their courtrooms with respondent present. For my part I repudiate this idea. It seems to me that respondent, after his searing experience, including a severe sentence of imprisonment, gives good earnest of proper professional conduct, and that our judges are quite capable — if need there be — of exercising the proper degree of firmness and dignity necessary for the fitting conduct of judicial business.
This, therefore, seems to me a quite unnecessary and ill-fitting example of judicial harshness which apparently does trouble my brothers, judging from the sense of apology with which the sentence is affirmed. I cannot believe that this can stand as the final action of the courts in the premises, or that an application for reinstatement will not meet with more favor when the present atmosphere of hysteria has somewhat abated.
Having thus briefly discussed the particular fate of this respondent, perhaps I should stop here. But since I feel most deeply that involved are more than the vicissitudes of one individual, even the hon- or and reputation of the federal courts for sober impartiality, a fuller analysis of the legal basis for this decision seems impelled. Before I turn to the facts, I must raise two important questions of law as to which I think the majority holding is erroneous. The first is in treating this case as one primarily within the discretion of the district court. And the second is in disposing of this important question, touching as it does the integrity of the court, by a panel, and not the full court.
Treating the last matter first, on the appearance of Western Pac. R. Corp. v. Western Pac. R. C.o., 345 U.S. 247, 260, 274, 73 S.Ct. 656, with at least an implication of criticism of our practice of never sitting en banc, it seemed to me that an issue appropriate to be disposed of by the full bench was here presented. Accordingly I asked the Chief Judge to poll the court, which he did; of the active judges available to sit in this case, three voted against sitting en banc and two for it. Consequently my request was not given effect; and decision here, involving, as I believe, errors of law and of fact, is by only a minority of the court. That I be-' lieve is not right.
Now considering the responsibility of this court on appeal, I do not wish to convey any criticism of Judge Hincks, who sat in this case as a designated visiting judge and who acted with dignity and devotion. But these very circumstances seem to point the more to the ultimate responsibility which should be ours and the wisdom of the New York law, cited above, requiring the proceedings to go at once to the appellate court. The difficulties of Judge Hincks’ position, called upon as a visitor to weigh in considerable part the criticized actions of a fellow, albeit local, judge, are obvious. He never should have been placed in such a position. His concern is clear; *363it led him to what I believe may be termed a leaning over backwards in both directions to make markedly favorable fact findings for respondent and then like legal conclusions for the petitioners and thus for his brother judge and court. For so we have the result — surely anomalous and not duplicated elsewhere in the precedents — of absolute disbarment of a lawyer whose conduct has no taint of “venality or lack of fidelity to the interests of his clients,” hut only an “excess of zeal in representing his clients” or qualities “unobjectionable in commercial fields” or making him in negotiations “a trustworthy and highly effective representative.” There must be something topsy-turvy when in “our contentious craft” — to use the Supreme Court’s apt expression — a lawyer loses his profession permanently for displaying those very qualities most often associated with it. I do not believe that can be the law.
For the law, I believe, is rather clear. The fundamental principle is aptly stated in Bradley v. Fisher, 13 Wall. 335, 80 U.S. 335, 355, 20 L.Ed. 646, thus: “A removal from the Bar should, therefore, never be decreed where any punishment less severe — such as reprimand, temporary suspension, or fine — would accomplish the end desired.” So we have implicitly recognized that open, and hence controllable, misconduct at a trial where no venality was involved would not warrant disbarment when we said in In re Doe, 2 Cir., 95 F.2d 386, 387: “Disbarment is fitting only when the attorney has been guilty of corrupt conduct; of some attempt to suborn a witness, or to bribe a juror, or to forge a document, or to embezzle clients’ property, or other tilings abhorrent to honest and fair dealing.” These are upper court rulings; the appellate courts seem without question to accept the responsibility which should be theirs and to reverse freely where the penalty of disbarment is considered too severe. See also In re Patterson, 9 Cir., 176 F.2d 966; Bartos v. United States District Court for Dist. of Nebraska, 8 Cir., 19 F.2d 722; In re Fisher, 7 Cir., 179 F.2d 361, certiorari denied Kerner v. Fisher, 340 U.S. 825, 71 S.Ct. 59, 95 L.Ed. 606. Here is no question of evaluating the credibility of witnesses; in fact everything turns upon the printed transcript of the Dennis trial, with which we have a familiarity by repeated exposure somewhat more extensive than had the visiting trial judge. And so if the penalty is too severe here, it is our legal duty and responsibility to take action to. correct it.
Thus I come once more to the occurrences at the Dennis trial and their bearing upon the judicial process operating through the medium of Anglo-Saxon procedure. When that trial was planned, it seemed that it might well afford a demonstration, of world-wide interest, of the capacity of American courts to show evenhanded justice to all litigants even under the difficult circumstances of a mass trial involving matters of opinion. At its conclusion, although its course had been marred by certain boisterous incidents, it seemed that considerable satisfaction was possible with an outcome reached under the peculiar difficulties present. But that assurance was soon dispelled when the trial judge took the unprecedented course of summarily sentencing the defense lawyers, without trial or hearing, to substantia! terms of imprisonment for their conduct during the trial and for a conspiracy to obstruct justice which he concluded existed. This overshadowed at once all the fine and persistent efforts of the prosecution in preparing and conducting so hard a case. But more, it raised the insistent question whether the judge’s action did not appear more of a vindictive than a judicial nature. Nevertheless he was sustained by divided judicial votes on most of his substantive charges, the conspiracy charge falling. But whatever the strict legal merit of these decisions, they held far more immediate popular appeal than sober professional approval; and the doubts which have permeated the scholarly legal field1 suggest *364the unwisdom for other judges to try so summary a.course.
Hence even were there nothing more in the record to soften an otherwise deserved condemnation of the lawyers’ conduct, I should still feel a judgement of disbarment should not stand. As already stated, this decision depends absolutely on the record made in the contempt case; nothing new has been brought out against the respondent and nothing elsewhere has been allowed to operate in his favor. Even at the time of the judgment of contempt, the fiery occurrences at the trial were receding into the past. Of the 22 incidents charged against this respondent (in addition to the general charge of conspiracy) 6 occurred before the jury trial started; and the disturbances appear to have lessened as the trial went forward, the last one cited being a month before the close of the trial.2 To rekindle the heat ,of courtroom altercations some years after to justify permanent disbarment is itself a somewhat dubious .practice; but I suggest that'the unconvincing character of the incidents picked out for stress below and here points to the general undesirability of so extensive a retribution for this type of conduct.
The first of the two instances noted by the majority is respondent’s cross-examination of a witness as to pleas of guilt to criminal charges in order to impeach his credibility. In the contempt proceedings we held unproven the charge that respondent continued the cross-examination when it was permitted by the court under what he knew to be a misapprehension of the facts which he failed to correct. United States v. Sacher, 2 Cir., 182 F.2d 416, 424-425, affirmed Sacher v. United States, 343 U.S. 1, 72 S.Ct. 451, 96 L.Ed. 717. But curiously that unproven charge is now brought back and used against respondent on a theory of implied admission by failure to indulge in some formal pleading denial. This seems to me to be building an artificial case on so formal and technical a ground as to be really distressing. It is perfectly obvious that this proceeding rests wholly on the contempt, charges and order entered against respondent by the original trial judge and that the present action would never have been brought without them. To say then that such of the contempt charges as have been eliminated by careful and formal appellate adjudication must again be separately denied so as not to avail the petitioners here is to employ the most regressive and questionable form of procedural technicality to destroy a man’s livelihood. The merits of this particular charge are not now re-examined by the majority; so far as they appear available to us, our previous decision seems more in accord with the facts than our present one.3
The other incident which affected the judge below more than my brethren here was respondent’s remark that if the United States Attorney “were a contemporary of Jesus he would have had Jesus in the dock.” This seems to have been first stressed as *365antireligious in tone. Obviously it is not. It is rather an example of the not uncommon practice of citing historical allusions to reflect upon the merits of the charges being litigated; that this allusion took a somewhat provocative form indicates only a possibly ill-advised attempt at emphasis.4 Considering the prosecutor’s reaction, an apology later would have tended to greater brotherly accord among counsel. But to make its lack a basis for disbarment seems to me an incredibly unreal approach to the realities of criminal trials in this country. Certainly one whose business in life is to scan trial records can hardly display a shock of surprise at this comparatively trivial incident compared to what occurs in many a trial without later reprisals.5
Beyond all this, however, there still remains a consideration suggesting amelioration of penalty, to which I must advert— touching as it does the honor and prestige of the court — no matter how much T personally should like to avoid doing so. It is now well known that there has been criticism in the highest circles of the judicial conduct of the Dennis case on the ground that the judge himself engaged in the altercations with counsel and even to a certain extent promoted them. 343 U.S. 14-89, 72 S.Ct. 451.6 I do not want to recount the details which 1 had hoped could soon be forgotten; and I can find sympathy for the elements of provocation apparent.7 But as the judge is held to have accepted the provocation at the time, so by that much he and those who agree with him are behooved to tolerate some reciprocal lack of restraint from the attorneys and refrain from continued retributive actions against them. We do not need even to formulate or express criticisms of the human mortals who participated in this drama to feel that the circumstances now make most undesirable so sharp- a judgment as this. For our courts should he, like Caesar’s wife, above suspicion; in my judgment they are strong enough by virtue of a solidly achieved reputation for fairness, poise, and impartiality to afford avoidance of any appearance of vindictiveness or prejudice. The events of the Dennis trial touched the judge so closely, as the authorities just cited show, that retribution initially started at his hands can only appear to many to be vindictive, and later affirmations timorous and protective. I do not believe our courts should give occasion for so nearly merited a shadow on their good repute. Under the circumstances a grant of mercy here would show the courts great in tolerance and human understanding, and consequently in strength; but they stand to gain nothing, certainly with the discriminating, beyond a sacrifice of confidence, if they allow vindictive harshness to control their actions. *366In short, why must the most serious wounds to justice be self-inflicted?
I would reverse.
, For critical comments, see 2 Buffalo L. Rev. 153; 37 Corn.L.Q. 795; 66 Harv.L. Rev. 170 ; 12 Law.Guild Rev. 39 ; 36 Mmn. L.Rev. 965: 31 Ore.L.Rev. 80; 24 So. Calif.L.Rev. 112; 2 Stan.L.Rev. 763; 99 U. of Pa.L.Rev. 540; 6 Vand.L.Rev. 120; 62 Yale L.J. 509, 510; Frank, United States Supreme Court: 1951-52, *36420 U. of Chi.L.Rev. 1, 43-47; Harper and Haber, Lawyer Troubles in Political Trials, 60 Yale L.J. 1; and see also Whitty, 14 Mod.L.Rev. 89, and Stubbs, 30 Can.B.Rev. 643. For exculpatory comments see 38 A.B.A.J. 594; 7 The Record 192, 206; [1952] U.Ill.L.Forum 300; 36 Va.L.Rev. 957.
. See United States v. Sacher, 2 Cir., 182 F.2d 416, 431, 464, note 1, 465, note 4. There seems to have been a drying up of untoward incidents by the defendants after the judge exercised firmness toward the lay accused in June after 2% months of trial. Of course there will always remain the question whether firmness toward counsel, exercised at an early date, even before the jury trial started, would not have solved many problems. It has been urged that the trial judge was wise in avoiding the chance of mistrial by refraining from earlier action. But, as a justification for later retributive action, this seems wholly irrelevant; the case had gone to a conclusion, and speculation on what might otherwise have happened cannot affect that outcome. See 182 F.2d at page 465, 343 U.S. at page 21, 72 S.Ct. 451.
. It appeared that the witness had withdrawn pleas of guilt to the charge of carrying concealed weapons, to receive later acquittals; respondent’s contention is that he wanted to show the witness’ appearance and testimony induced by promises of such reward.
. See the comment of Professor Countryman of Yale University, 174 The Nation 641, Juno 28, 1952: “Thirty-two years ago, in another Communist prosecution, Clarence Harrow charged that the prosecutor ‘would have sent Christ to jail just the same as you would these defendants.’ In the comparative calm of the 1920 Red hunt no one thought of disbarring Harrow or holding him in contempt. And tlie bar weathered many more years of his zealous arguments for the defense.”
. As the opinion points out, of 36 instances of specific acts of alleged misconduct in the Dennis record, the district court found 28 supported. It is difficult to see how the 8 he found not proven differed materially in nature, intent, or consequence from those supported; the nuances of differentiation relied on suggest the somewhat ephemeral nature of the changing human conduct under stress here so drastically penalized.
. See also 60 Yale L.J. 1 and other citations in note 1 supra.
. Moreover, I certainly have no wish to defend the conduct of the attorneys; nor have I ever. Thus in what I hoped was a careful choice of words 1 said: “To one schooled in Anglo-Saxon traditions of legal decorum, the resistance pressed by these appellants on various occasions to the rulings of the trial judge necessarily appears abominable.” 382 F.2d at page 463. This limitation of judgment to the one series of incidents arising out of trial rulings was not an over-all characterization of the appellants as members of the bar, as apparently assumed, e£. In re Isserman, 9 N.J. 269, 87 A.2d 903, 904; the procedural occasion for the altercations is a necessary and important element to be recalled when the issue is as to the weight of the punishment to be inflicted.