Sacher v. Association of the Bar of the City of New York/Dissent Reed

Mr. Justice REED, dissenting.

The conclusion of the Court that the conduct of Mr. Sacher in the trial of Dennis v. United States, 341 U.S. 494, 71 S.Ct. 857, 95 L.Ed. 1137, did not justify the order of disbarment entered against him by the United States District Court for the Southern District of New York seems so inimical to the orderly administration of justice as to justify this expression of dissent. We trust that the purpose of the dissent will not be misinterpreted as an implied criticism of those members of the bar who undertake the task of the representation of unpopular clients. Those who provide such counsel in the spirit of justice and in accordance with the dignity of the courts are to be commended. They enhance the tradition of American lawyers of seeing that all defendants have proper representation before the courts. The purpose of this dissent is to show that in reversing the disbarment of Mr. Sacher this Court departs from its previous practice of leaving exclusions from their bars to the district courts except when there has been an abuse of discretion.

If no protest against such action were made here, we think the danger of the adoption of tactics akin to those of Mr. Sacher by other lawyers in other cases of intense partisanship or involving deep feeling would be materially enlarged. The contagiousness of unethical practices is shown by the conduct in the Dennis case by another member of the bar that resulted in his conviction of contempt, 343 U.S. 1, 72 S.Ct. 451, 96 L.Ed. 717, and in his suspension from membership in the District Court bar for two years. The New Jersey Supreme Court disbarred this other lawyer from the practice of law in that state on the basis of such contempt conviction. In re Isserman, 9 N.J. 269, 87 A.2d 903; Id., 9 N.J. 316, 88 A.2d 199. That action resulted in his disbarment from our bar. 345 U.S. 286, 73 S.Ct. 676, 97 L.Ed. 1013.

The misconduct charged against Mr. Sacher occurred in a long drawn-out trial lasting from January 17, 1949, with occasional intermissions until a verdict of guilty, subsequently affirmed here, was reached on October 21, 1949. The charges and findings as to improper conduct do not refer to an isolated instance but to a course of reprehensible conduct throughout the trial. The charges were filed by the Association of the Bar of the City of New York and the New York County Lawyers Association after the verdict in the Dennis case. At that time the trial judge in the Dennis case had imposed on Mr. Sacher as punishment for his contemptuous conduct a sentence of six months. This was upheld by this Court after the order of disbarment and has been served. The sentence was a punishment for Mr. Sacher's contempt of court. Disbarment not punishment for contempt but a cleansing of the bar by ousting. Punishment for contempt should not be considered as a prohibition of or in mitigation of discipline in disbarment proceedings. In fact, a prior conviction adds force to the need to disbar. The Court's per curiam opinion in this case seems to incline to the contrary view. Apparently it looks upon the affirmance of the contempt conviction as something that must soften the attitude toward disbarment.

Coming to the merits of this disbarment, we limited consideration on certiorari to the following question:

'Accepting the facts as found in the memorandum decision of     Chief Judge Hincks, does permanent disbarment exceed the      bounds of fair discretion, particularly in view of the      punishment of petitioner's individual misconduct as a contempt and the finding that the      proof does not establish that he so behaved pursuant to a      conspiracy or a deliberate and concerted effort?'

That limitation accepted the following findings made by Chief Judge Hincks as a valid and unassailable foundation for decision:

'As to Mr. Sacher, I find as charged in Par. 14,

'(1) that with intent to delay and obstruct the trial, he     disregarded numerous warnings of the court concerning wilful,      delaying tactics and persisted in making long and repetitious      arguments and protests, *  *  * and made needless reiterations      of objections of others, *  *  *.

'(2) that for the purpose of bringing the court into general     discredit and disrepute, (a) he insinuated that various      findings made by the court were made for purposes of      newspaper headlines, *  *  * (b) he accused the court of      prejudice and partiality, *  *  * and (c) made disrespectful,      insolent and sarcastic comments and remarks to the court,      many of which were with intent to provoke the court into      intemperate action which might be availed of as ground for      mistrial or later as error on appeal, *  *  *.

'Mr. Sacher's proved misconduct, as charged in this paragraph     *  *  * in my judgment requires disbarment.'

(Record references omitted.)

'3. By Paragraph 16 it is also charged that Mr. Sacher 'made     insolent, sarcastic, impertinent and disrespectful remarks to      the Court and conducted' himself 'in a provocative manner.'      This charge also I find abundantly proved by the cited      references to the record.' It would take voluminous quotations from the huge record to document Chief Judge Hincks' conclusions. Our order on certiorari accepts their truth. The trial court commented:

'That such conduct was unprofessional needs no exegesis: I so     hold. Even more closely than that dealt with in the preceding     Section it touches the vitals of the judicial process: even      greater is its tendency to obstruct the attainment of      personal justice. And the proven volume of this misconduct     also was such as to constitute a serious obstruction to the      proper conduct of the trial. Overpersistence in argument, as     observed above, tends to breed confusion. Provocative conduct     tends to breed turbulence. Insolent and disrespectful remarks     to the Court tend to undermine the judicial authority      indispensable to the power effectively to cope with such      intrusions which by their very nature obstruct the      development of the real merits of the case.

'For proved misconduct falling within this branch of the     charge, I conclude that an order of disbarment is required.'

The Court, as it must by its grant of certiorari, bases its action on the facts of disrespect to the trial court, wilful delay, and a purpose to discredit the administration of justice. It differs from the trial court only as to the measure of discipline required. By reversing the judgment below, without discussion of the accepted rule in federal courts that the exercise of judicial discretion in disbarment will not be overturned on review unless there is a clear abuse of discretion, this Court now summaryily places itself in the position of a trial court. It acts, not upon an abuse of discretion by the trial court, but upon a record to determine for itself the proper extent of punishment. Certainly this Court does not mean to rule that conduct such as the accepted facts disclose does not support the discretion of the trial judge in disbarring Mr. Sacher.

Such a change of the course of decision is a disservice to the orderly progress of trials. It stimulates rather than deters the adoption of the strategy of the Dennis case. It intrudes unnecessarily this Court's views of the proprieties into the discipline of bars of regions and communities whose attitude toward courtroom behavior diverges from our own. It is enough if we stand ready to say that an abuse of discretion by a trial court will not be allowed to stand. We should not substitute our discretion for that of the trial judge. Calm and reasoned presentation of facts and law are not only more effective but are essential if administration of justice by the courts is not to be disrupted by such courtroom tactics as were used in the Dennis trial. We demand tolerance for those who differ. Conformity is not expected or desired. There is room for every shade of opinion and expression short of incitement to crime. But there is not room for violence, offensive expletives or interference with orderly procedure in a courtroom, and such an attitude is not to exalt order over liberty but to exalt reason over force. An atmosphere filled with unproven personal charges or innuendoes of wrongful action is not conducive to dispassionate appraisal of the truth of matters under judicial investigation. I would uphold the discipline administered by the bar and trial judge by affirming this judgment.