Dissenting Opinion
Gordon, Jr., P. J.,February 28, 1952. — I am unable to concur in the decision of the majority of the court disbarring respondent because of his conviction in the United States District Court for the Eastern District of Pennsylvania of “conspiracy to defraud the United States in the performance of its governmental function” of issuing passports.
As I read the testimony in that case from the record in the Federal court upon which respondent was convicted, I am convinced that his offending was more the act of an inexcusably credulous and careless official, than of one who deliberately and corruptly conspired with others to defraud the Government. His misconduct consisted in having, over a period of years, wrongfully affixed his signature as United States Commissioner to the jurats of affidavits as to the birth or citizenship of some 25 or 30 elderly Chinese citizens of this country, who were applying for passports for temporary visits to China, notwithstanding the affiants did not appear and actually take the oath before him. He did this at the solicitation of, and as an accommodation to, one John Lee, a Chinese whom he knew and trusted as a friend and client, and who represented to respondent that the infirmities of age made it difficult for the applicants to appear personally at his office. In some cases he signed the jurats in blank, and in others the affidavits were already filled out at the time he signed them.
*82It was neither charged in the indictment, nor contended by the Government at the trial, that the contents of the affidavits were false, or that passports would not have been granted to the applicants had the affidavits been properly sworn to before respondent. The only conspiratorial fraud charged against him was that by what he did, he induced the issuance of passports by the Government upon papers that purported to be, but were not in fact, lawfully executed affidavits —not that he conspired to procure passports for persons who he knew were not entitled to them. However deplorable, and even criminal, his offense may have been, it is but fair to respondent to note that it does not appear to have worked substantial public harm. Because of the dangers inherent in respondent’s negligent performance of his duties as a public official, his misconduct may well have merited the direct and heavy penalty of 18 months’ imprisonment meted out to him by the district court, a penalty which he has paid in full. Nevertheless, in deciding whether any further punishment in respect to his office of attorney of this court should be inflicted upon him, it is important to correctly and accurately appraise the true character of the offense which he committed.
That he was highly censurable for not having been more alert to the impropriety and dangers of such a reckless neglect of his duty in the manner in which he notarized the affidavits, I concede. At the same time, I do not agree that the evidence fairly supports the conclusion of the majority opinion that respondent was bribed by Lee to affix his official certification to them. The only evidence respecting his taking of bribes was given by Lee, who was also indicted with him, and who pleaded guilty and testified against him. Lee’s testimony upon this subject, which respondent explicity denied, was to the effect that he made all such payments *83privately to respondent and is wholly uncorroborated. Coming as this testimony does from the lips of the real ringleader in whatever frauds were perpetrated upon the United States Government, who pleaded guilty, and who acknowledged that he was testifying against respondent in the hope of benefitting himself by doing so, it is not believable. The uncorroborated word of such a man is worth nothing against that of a defendant who categorically denies the charge, and who was able to, and did, bring a host of witnesses to testify to his good reputation. Others may think differently, but I cannot give overbearing weight to such polluted testimony.
I do not defend respondent for relying upon the word of the man he trusted. Nevertheless, it was a very human and understandable fault, that is frequently committed, without any consciousnesss of moral delinquency, by innumerable notaries and others who administer oaths, and one which I fail to perceive any sound reason to condemn with an undiscriminating censoriousness. Wrong as his actions may have been, they do not, in my judgment, reveal moral turpitude. The only circumstance that would have imparted such a character to what he did, would have been satisfactory proof that he corruptly accepted money for his misconduct, and, as I have already pointed out, not a single witness testified to that effect, except the man who is a self-confessed conspirator, who, I believe, duped and betrayed his friend, and who later became a Government witness in the hope of lightening his own punishment.
In the light of the worst that was fairly shown against respondent, I see no justification for viewing his misconduct as in any true sense venal. Whatever may be said about the folly of his conduct, the credible evidence utterly fails to make him out a knave. He did not cheat or betray a client, or in anyway misconduct *84himself as an attorney of this court, or even violate a law of this Commonwealth. This alone demands that the evidence upon which he was convicted in the Federal court be carefully scrutinized, in order to determine the true nature and extent of his offending against the fundamental moralities. Surely, we are not required, as the majority opinion seems to imply, to blindly accept respondent’s conviction as sacrosanct and beyond question, or to assume that the jury that convicted him based its verdict upon a finding that every derogatory fact testified to by the witnesses against him was true. It is our duty to weigh and analyze the evidence offered against him, and to form our own independent judgment, with due respect to the verdict and judgment of the Federal court, of the nature and quality of his guilt, and its relation to his fitness to continue the practice of his profession.
Viewed in this way, I believe he deserves neither the oppressively severe penalty of disbarment, nor the disciplinary remedy of suspension from practice. With the imprisonment he has undergone, he has already received heavy and adequate correctional punishment for what he did, and, as he has not practiced his profession since he began serving his sentence, he has suffered the equivalent of a suspension from practice for almost two years. To now disbar him from a profession in which he has built up over the years an unblemished reputation for integrity, whose rules of be-haviour he appears never to have violated, and whose honor he has never besmirched, would, in my judgment, be unjust and utterly disproportionate to the gravity of his misconduct.
I have long felt that the courts too often apply the supreme penalty of professional death without fully realizing its dreadful consequences. The attorney who, in his youth, has studied and prepared himself for his high calling, who through a long life has conducted *85himself with due decorum and propriety, and who makes the mistake of misjudging the extent and character of his powers as a public official, in matters as to which he is not performing the duties of an attorney of any court, should never be condemned to a life of personal and economic degradation and penury, unless his acts disclose a moral obliquity and unfitness that make the ultimate penalty inescapable.
The truth is that disbarment, as a correctional measure, is savage and illogical. The avenues to prosperity for himself and his family are almost completely closed to the disbarred attorney. The blight of his condemnation by the court remorselessly pursues him. Positions of trust and confidence are closed to him; the activities for which his special training and talents fit him are no longer available. Few will trust him, and a suspicious world will shrink from employing him. Thus, he and his are condemned to the dreary life of the unskilled worker, in which he is constantly driven to deception to conceal his shame, in order that he may earn a modest living. Disbarment should be reserved for those attorneys whose misconduct reveals a fundamental moral unfitness for continued public trust and confidence. It is not, and should never be employed as a disciplinary measure for the erring, but solely as a means of protecting the public in its dealings with the members of the profession. This being its true function, disbarments that are later converted into suspension by reinstatement, as has heretofore so frequently occurred, are to be deplored.
We, as judges, should be more alert to the significance and consequences of our actions, when administering discipline to a member of our bar. In some instances, the crushing penalty of disbarment is doubtless necessary to protect the public from the unscrupulous individual, but they are far fewer than those in which it has been heretofore applied. In our very na*86tural and proper zeal to uphold the honor of the profession, we sometimes become unduly critical, and disbar when we ought only to discipline; and in the present case, I cannot bring myself to agree with my learned brethren, for whose wisdom and judgment I have the highest respect, that this respondent has evinced a lack of moral fibre that requires his disbarment.
I would, therefore, dismiss the petition of the bar association to further discipline respondent since he has already suffered as much corrective punishment as he deserves for his wrongdoing, and his acts, culpable as they may have been, do not merit the penalty that a majority of the court has decided to inflict upon him.