In re Manlapit

OPINION OP THE COURT BY KEMP, X (Coke, C. J., dissenting.) On March 2, 1920, the petition of J. Lightfoot, .acting attorney general of the Territory of Hawaii, was filed in the circuit court of the first judicial circuit praying that a rule-be entered against Pablo Manlapit to show , cause why his name should not be stricken from the roll of attorneys of the distinct courts of said Territory because of his unfitness to be trusted with the power of an attorney. The gravamen o'f the complaint is that on or about the 19th of January, 1920-, the said Pablo Manlapit, being then the president of the Filipino labor federation, caused to be issued over his name as president of the said Filipino labor federation an order requiring all the members of the said Filipino labor federation to strike and cease working upon the sugar plantations situate on the Island of Oahu for the alleged end and purpose of forcing the owners of said sugar plantations to increase the rate of wages paid to laborers on said plantations and that pursuant to said order a large number of Filipinos usually employed in the sugar industry on the Island of Oahu were on strike; that on or about the said 19th day of January the firm of Thompson, Oathcart & Lewis, — 549 — local attorneys, Avas specially retained to represent the Hawaiian Sugar Planters’ Association, a. voluntary association exercising a general advisory control over the sugar plantations Avithin the Territory of Hawaii in regard to the general policy of conducting the sugar business in the Territory of Hawaii; that it was agreed between the said firm of Thompson, Cathcart & Lewis and Mr. R. D. Mead, secretary of, and acting for, the HaAvaiian Sugar Planters’ Association, that Mr. F. E. Thompson, the senior member of said firm, should make inquiries in regard to the activities of said Filipino labor federation and keep the said HaAvaiian Sugar Planters’ Association advised of the activities of the officers of said federation and of the members thereof; that in pursuance of said retainer the said F. E. Thompson during all of the times hereinafter mentioned acted under the terms thereof; that on or about the 26th day of January, 1920, the said Pablo Manlapit solicited, and thereafter on the same day had, an interview with the said F. E. Thompson, at which interview said Manlapit stated in effect that realizing the strike called by bim could not be much longer maintained he, the said Pablo Manlapit, wanted to see what could be done with the said F. E. Thompson, as attorney for the Hawaiian Sugar Planters’ Association, looking to the termination of said strike and the return of the members of the Filipino labor federation to their work on the sugar plantations on said Island of Oahu; that after some preliminary conversation the said Pablo Manlapit stated that if he, the said F. E. Thompsonj acting for the HaAvaiian Sugar Planters’ Association, would give him, the said Manlapit, the sum of $50,000 he, the said Manlapit, Avould call off and determine the strike in the morning (meaning the . morning of the 27th of January, 1920) ; that said F- E. Thompson then and there refused to give — 550 — tlie said Pablo Manlapit the said sura of $50,000 or any other sum, whereupon said Pablo Manlapit said in effect that anybody would take a chance at making $50',000 and closed the interview. It is further alleged that said request for the payment o’f the sum of $50,000' to him was made by said Pablo Manlapit for the purpose and intention of wrongfully acquiring for his own personal gain from the said Hawaiian Sugar Planters’ Association the sum of $50,000 by calling off the said strike of the said Filipino labor federation. Upon the filing of this petition a rule was entered requiring the respondent Pablo Manlapit to answer the facts so alleged against him and to show cause on or before the 4th day of March, 1920, at 2 o’clock p. m. why his name should not be stricken from the roll of attorneys because of his unfitness to be trusted with the power of an attorney of said court. "In response to this order the respondent demurred, the grounds of demurrer being: (1) That said petition fails to state facts sufficient to charge the respondent with any offense against the laws of the Territory of Hawaii; (2) that said petition fails to set forth facts sufficient to constitute malpractice or any other offense giving the court jurisdiction herein; (3) that there is a misjoinder of necessary parties herein in that it fails to show that any party aggrieved by any act of malpractice. complains of the respondent; (4) that it does not appear in and by said petition that the relation of attorney and client existed between the Filipino labor federation and the respondent at any time. The demurrer was overruled and the respondent comes to this court on an interlocutory appeal allowed by the circuit judge. Under the demurrer counsel for respondent has argued several questions which we will notice. It is contended that before he may be compelled to answer there should — 551 — be a complaint by the party aggrieved supported by bis affidavit as to the truth of the allegations and that the complaint of the attorney general sworn to on information and belief is not sufficient to require him to answer. Fortunately the necessity for disbarment proceedings has not often arisen in this jurisdiction and local precedent is therefore limited, but a reference to the files of this court discloses that all of the more recent disbarment proceedings involving attorneys of this court were instituted by the attorney general and that the complaint in each case was sworn to by the attorney general on information and belief. In the case of In re Davis, 15 Haw. 377, it was decided that a complaint by the party aggrieved is not necessary and that in such a case an information may be filed by the attorney general. See also In re Achi, 8 Haw. 216. The character of verification required was not discussed in these cases but if the attorney general may institute the proceeding he must o'f necessity be permitted to verify his complaint on information and belief as in most cases he would only possess that character of knowledge of the facts. Act 19 S. L. 1919, which provides for the licensing of practitioners in the district courts of the Territory and for their punishment and disbarment, provides that “Said practitioners shall be summarily amenable to the courts of record, and may be fined, imprisoned or dismissed from the roll of practitioners for .satisfactory cause, upon the complaint of any party aggrieved by their malpractice, or for nonpayment of moneys collected by them for private parties, or for any deceit or other gross misconduct.” * This provision is in exactly the same language found in section 2331 R. L. 1915 relating to the punishment and disbarment of practitioners in this court and was enacted after the decisions above referred to which construed section 2331. We think that the enactment of this provision — 552 — under these circumstances constituted a legislative approval of the decisions above cited. We therefore hold that under this statute the disbarment proceeding may be instituted by the attorney general and that the complaint may- be verified by him upon information and belief. It is also contended that the acts complained of must relate to the attorney’s professional character and that those affecting his character as a man of integrity as a private citizen are not sufficient ground for instituting disbarment proceedings against him. It is further contended that it must appear that the relation of attorney and client existed between the attorney and the party aggrieved. In Ex parte Wall, 107 U. S. 265, 273, it is said: “It is laid down in all the books in which the subject is treated that a court has power to exercise a summary jurisdiction over the attorneys to compel them to act honestly toAvards their clients, and to punish them by fine and imprisonment for misconduct and contempts, and, in gross cases of misconduct, to strike their names from the roll. If regularly convicted of a felony an attorney will be struck off the roll as of course, whatever the felony may be, because he is rendered infamous. If convicted of a misdemeanor which imports fraud or dishonesty the same course Ayill be taken. He will also be struck off the roll for gross malpractice or dishonesty in his profession, or for conduct gravely .affecting his professional character. In Archbold’s Practice, edition by Chitty, p. 148, it is said: ‘The court will in general interfere in this summary Avay to strike an attorney off the roll, or otherwise punish him, for gross misconduct, not only in cases where the misconduct has arisen in the course of a suit, or other regular and ordinary business of an attorney, but where it has arisen in any other matter so connected with his professional character as — 553 — to afford a fair presumption that he was employed in or intrusted with it in consequence of that character.’ ” From this it would appear that the relation of attorney and client need not exist between the attorney and the party aggrieved in order to make the misconduct of the attorney ground for disbarment but the act with which he is charged must be of such a nature as to reflect upon his professional character. If an attorney may be disbarred .because convicted of a misdemeanor which imports fraud or dishonesty we see no reason why he should not be disbarred for acts which import fraud or dishonesty although they may not constitute a criminal offense. Any act which imports fraud or dishonesty on the part of an attorney necessarily reflects upon his professional character. Any other gross misconduct which would reflect upon an attorney’s professional character would also constitute sufficient grounds for disbarment. The most serious question presented in this case is whether the facts charged against the respondent, when tested by the above principle, constitute sufficient grounds for striking his name from the roll. He is in effect charged with having a conversation with F. E. Thompson, of the firm of Thompson, Cathcart & Lewis, an attorney of this court employed by the Hawaiian Sugar Planters’ Association, in which the respondent in his capacity as president of the Filipino labor federation proposed to call off and terminate an existing strike for the sum of $50,000; that when his proposal was refused he remarked that any one would take a chance on making $50,000 and closed the interview. No facts are alleged which would indicate that any fraud or deceit was used or attempted or that had the Hawaiian Sugar Planters’ Association elected to accept his proposition he would not or could not terminate the strike. It is not alleged that the respondent misrepresented — 554 — any fact or misrepresented his authority to act for the strikers. In fact the idea is negatived by the allegation that the proposal was made for the purpose of wrongfully acquiring the sum of $50,000 from the Hawaiian Sugar Planters’ Association “by calling off the strike.” The effect of this allegation is that had his proposal been accepted by the planters and the money paid the respondent intended to render, and would have rendered, the service for which he was asking payment. Under this state of facts no fraud was perpetrated and none attempted against the planters, neither does it appear that any fraud against the labor federation, for which respondeat purported to act, was contemplated, much less accomplished. How, we may ask, was the money to be wrongfully acquired? There are no facts stated in the complaint by which we can judge that the money would have been wrongfully acquired had his proposal been accepted. An allegation, therefore, that he intended to wrongfully acquire it is a mere conclusion of the pleader and cannot be answered by the respondent. The attorney general’s attempt to liken respondent’s proposal to soliciting a bribe has not impressed us as sound and the authorities cited are therefore not in point. The respondent no doubt .had a very fanciful idea of the liberality or gullibility of the sugar planters’ association and its attorney otherwise his proposal would never have been made, but so far as his conduct is disclosed by the allegations of the complaint all semblance of fraud and deceit is lacking and no gross misconduct is shown. Our conclusion is that the facts charged against the respondent in the complaint do not constitute a sufficient ground for striking his name from the roll and the demurrer should have been sustained. For the reasons herein the order overruling the demurrer is reversed and the cause remanded. J. Lightfoot, Deputy Attorney General, for petitioner. R. J. O’Brien (Andrews} Pittman & O’Brien on the brief) for respondent.