In view of the entire record in this case, and the findings of
the courts below, petitioner's permanent disbarment by the District
Court for his conduct in the trial of the Dennis
set aside as unnecessarily severe, and the cause is remanded for
further proceedings. Pp. 347 U. S.
206 F.2d 358 reversed and remanded.
This is a proceeding brought by respondent bar associations in
the United States District Court for the Southern District of New
York for the disbarment of petitioner from practice in that court.
Petitioner had previously been convicted of contempt in the same
court. See Sacher v. United States, 343 U. S.
The District Court, after disallowing eight of the
specifications in the petition for disbarment, found as to the
others that there was no conspiracy as charged therein and no moral
turpitude involved, and that the proven contumacious conduct of
petitioner stemmed from an excess of zeal for his clients that
obscured his recognition of responsibility as an officer of the
court. All of the conduct complained of occurred in one protracted
trial involving many defendants and counsel. See Dennis v.
United States, 341 U. S. 494
There was no allegation or proof
Page 347 U. S. 389
of prior misconduct in petitioner's twenty-four years of
practice. The Court of Appeals divided upon the propriety of
permanent disbarment, but unanimously questioned the importance of
one of the two specifications principally relied on by the trial
At the time the District Court made its decision in this case,
the contempt judgment was under review on appeal, and it did not
know and could not know that petitioner would be obliged to serve,
as he did, a six months' sentence for the same conduct for which it
In view of this entire record and of the findings of the courts
below, we are of the opinion that permanent disbarment in this case
is unnecessarily severe. The judgment is reversed, and the case
remanded to the District Court for further consideration and
appropriate action not inconsistent with this opinion.
MR. JUSTICE BURTON would affirm the judgment of the Court of
MR. JUSTICE CLARK took no part in the consideration or decision
of this case.
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.
, 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
Page 347 U. S. 390
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. 343
1, and in his suspension from membership in the District Court bar
for two years. [Footnote 1
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. 269 316, 87 A.2d
, 88 A.2d
. That action resulted in his disbarment from our bar.
345 U. S. 286
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
Page 347 U. S. 391
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. [Footnote 2
] 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 is not punishment for contempt, but a cleansing of the
bar by ousting. [Footnote 3
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
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
Page 347 U. S. 392
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? [Footnote 4
That limitation accepted the following findings made by Chief
Judge Hincks as a valid and unassailable foundation for
"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 willful,
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
Page 347 U. S. 393
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, willful
delay, and a purpose to discredit the administration of justice. It
differs from the trial court only as to the measure of discipline
required. [Footnote 5
reversing the judgment below, without discussion of the accepted
Page 347 U. S. 394
federal courts that the exercise of judicial discretion in
disbarment will not be overturned on review unless there is a clear
abuse of discretion, [Footnote
] this Court now summarily 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. [Footnote 7
Page 347 U. S. 395
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
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
The trial judge compared the conduct of this lawyer and Mr.
Sacher (see note 5
"I feel that [the other lawyer's conduct at the trial] is such
as to require firm disciplinary action. However, his attitude as
disclosed on the record and on his brief herein leaves room for
reasonable expectation that the experience of discipline may have
such restraining effect on his courtroom behavior that, in the
future, he may be safely expected to exercise without abuse the
privilege of membership in this bar."
The sentence was later affirmed in the Court of Appeals,
United States v. Sacher,
182 F.2d 416, and we denied
certiorari, 341 U.S. 952. Later, certiorari was granted, 342 U.S.
858. Disbarment followed. Thereafter, we affirmed the sentence of
contempt, 343 U. S. 343
1. The disbarment was subsequently affirmed, 206 F.2d 358.
Ex parte Wall, 107 U. S. 265
107 U. S.
"'The question is,' said Lord Mansfield, 'whether, after the
conduct of this man, it is proper that he should continue a member
of a profession which should stand free from all suspicion. . . .
It is not by way of punishment, but the court in such cases
exercise their discretion, whether a man whom they have formerly
admitted is a proper person to be continued on the roll or
See In re Isserman, 345 U. S. 286
345 U. S.
346 U.S. 894.
The Court refers to the language of the order, "permanently
disbarred." This, of course, should be read as a disbarment subject
to reinstatement. See
Drinker, Legal Ethics 49, and the
cases collected in 7 C.J.S., Attorney and Client, § 41, page 814; 5
Am.Jour. 443; 6 Fed.Dig. 355; In re O'Connell,
538, 250 P. 390, 48 A.L.R. 1236. Reinstatement may follow "a
sincere and timely change of attitude." Such an attitude on the
part of Mr. Sacher, Chief Judge Hincks says in his decision, did
not exist even at the time of the hearing of the charges.
The rule as to review of disbarment of Ex parte
9 Wheat. 529, announced by Chief Justice
Marshall, has been the guide for United States Courts:
"There is, then, no irregularity in the mode of proceeding which
would justify the interposition of this Court. It could only
interpose, on the ground that the Circuit Court had clearly
exceeded its powers, or had decided erroneously on the testimony.
The power is one which ought to be exercised with great caution,
but which is, we think, incidental to all Courts, and is necessary
for the preservation of decorum, and for the respectability of the
profession. Upon the testimony, this Court would not be willing to
interpose where any doubt existed."
at 22 U. S. 531
19 How. 9; Ex parte
7 Wall. 364. These early cases were under
mandamus practice. We now proceed by appeal and certiorari. See
Thatcher v. United States,
212 F. 801, 804. The principles of
case still govern and the weight accorded the
conclusion of the trial court remains unchanged. In re
206 F.2d 358, 361; In re Chopak,
886, 887; In re Schachne,
87 F.2d 887, 888; In re
126 F.2d 288, 289, 292; In re Patterson,
F.2d 966, note 1.
Burns v. United States, 287 U.
, 287 U. S.
"The question is simply whether there has been an abuse of
discretion, and is to be determined in accordance with familiar
principles governing the exercise of judicial discretion. That
exercise implies conscientious judgment, not arbitrary action. . .
. It takes account of the law and the particular circumstances of
the case, and is 'directed by the reason and conscience of the
judge to a just result.' . . . While probation is a matter of
grace, the probationer is entitled to fair treatment, and is not to
be made the victim of whim or caprice."
See United States v. McWilliams,
82 U.S.App.D.C. 259,
163 F.2d 695, 697, and cases cited.