Friday, August 14, 2020

Bar Discipline In Canon Times

In the course of some research I encountered a truly fascinating bar discipline decision from the United States District Court for Maryland in 1934.

The accused attorney was a Communist who had represented a defendant charged with murder of a family of four on the Maryland Eastern shore.

Bernard Ades, a member of the bar of the state and federal courts in Maryland, was ordered by this court on November 29, 1933, to show cause why he should not be disbarred from further practice as a member of its bar, because of alleged misconduct on his part in connection with certain cases in the courts of the state. 

His counsel in the bar case were Charles Hamilton Houston and Thurgood Marshall.

The court's opinion drips with the casual racism of the times

The present charges relate to three cases, in each of which a colored man was indicted for the commission of a crime of violence against a white person in one of the counties of the state, to wit, Euel Lee, alias Orphan Jones, charged with the murder of Green Davis on October 10, 1931, in Worcester county; George Davis, charged with assault with intent to rape Elizabeth Lusby on November 21, 1931, in Kent county; and Page Jupiter, charged with the murder of Evelyn Reifsnyder on July 8, 1933, in Charles county. Prior to the preferment of the formal charges against Ades, the final judgment of the court in each of these cases had been executed. Lee and Jupiter had been hung, and Davis had been committed to the Maryland penitentiary to serve a sentence of sixteen years.

The principal ethics allegations came in the Euel Lee case, described here by The Dispatch in a 2007 story.

Seventy-five years ago this week, a transient African-American worker brutally murdered a Berlin farmer, his wife and their two teenage daughters in their beds, touching off one of the most protracted, most expensive trials in the history of Maryland with a controversial Communist lawyer representing the defendant who was ultimately convicted and hanged.

Ades provided a vigorous defense and secured a change of venue to Baltimore County (again from The Dispatch)

On Monday, Jan. 18, 1932, Lee’s trial began in Towson with the contingent from Worcester County at the prosecution table and Ades and his assistants at the defense table. Even the matter of jury selection was a point of contention as Ades argued Lee could not get a fair trial because black men were not allowed to serve on a jury.

However, the judges- sustained Ades’ objections [sic] and the trial resumed. With the preponderance of evidence against Lee, the prosecution rolled through its case in short order and the defense took little more time to present its own case, which was founded on the supposition that Lee was framed. The jury was given the case at 2:40 in the afternoon and returned with its verdict in just over half an hour. Lee was found guilty of murder in the first degree and sentenced to death by hanging.

Ades was not finished battling for his condemned client and quickly filed an appeal based on eight so-called irregularities, the centerpiece of which was his original objection about the black men not being allowed to serve on the jury. The Communist lawyer who had argued from one end of the state to the other for his client appealed to the U.S. Supreme Court and even President Franklin Delano Roosevelt to intercede for Lee, but in the end, he could not save his client.

Finally, on Oct. 27, 1933, over three years since the murders in Taylorville, Lee was dropped from the gallows and pronounced dead.

As to Ades' soliciting the case, the district court noted the Canons generally condemned the practice but

Notwithstanding these salutary rules, it cannot be laid down as an inflexible maxim that a lawyer may never volunteer his services to a litigant, where the litigant is in need of assistance, or where important issues are involved in the case; and this may be so even though questions of a controversial or political character are at stake. 

As to other allegations

The evidence fails to sustain the first charge that the respondent improperly injected himself in the Lee case, with knowledge of his guilt and contrary to Lee's desire...

There is no substance in the third charge in the Lee case that before the trial, Ades falsely represented himself as the sole attorney for Lee, although he knew that the circuit court for Worcester county had appointed able counsel to represent Lee. 

But some conduct was deemed "reprehensible" by the standards of 1934

The respondent, however, has gone to such extremes of action and statement in some respects as to merit the condemnation of the court. After all of his efforts on behalf of Euel Lee had failed, he brought an action in the Baltimore City court against the warden of the Maryland penitentiary on the day after the execution had taken place in order to require the delivery of Lee's body to him. He filed with the papers in the case a will of the deceased, executed the day before his death, in which the deceased bequeathed his body to Ades. The latter testified that the idea of such a will had originated with him, and that it was his purpose to take the body to New York City for a memorial service to be held in Harlem under the auspices of the International Labor Defense so as to show that Euel Lee was in fact innocent and that in his case there had been a "legal lynching" by the officials of Maryland; that the purpose was not to stir up race prejudice, but to show that the state of Maryland oppresses the colored race and does not recognize their legal rights. It was also brought out that Ades did not tell Lee of the intended disposition of his body, and that after signing the will, Lee also signed a statement requesting that the chaplain of the penitentiary have charge of his body after death and had expressed a desire that there be no spectacle made either of his death or of his funeral. The petition in this case was dismissed after hearing, and Ades himself was enjoined from interfering with the body, the judge holding that the will was void since Ades had abused the confidential relationship between him and his client by making himself the beneficiary, without disclosing the purpose which he had in mind. It follows that this charge against the respondent has been substantially proved. His conduct was not merely offensive to every instinct of good taste. It was to a high degree reprehensible in that he withheld from Lee the real purpose that he had in mind in obtaining the body, and that he proposed to stigmatize as unfair, a judicial proceeding in which a formal conviction had been sustained only after the case had been thrice reviewed by the highest court of the state. He was saved from carrying this purpose into effect only by the decisive action of Judge O'Dunne.

The above reference to the disposition of the body after the hanging comes from Wikipedia

A fight ensued over the body where Ades demanded the right to bury Euel Lee in New York as he was granted the right to his client's body in Lee's last will and testament. Fearing riots and further racial unrest, Ades was denied the right to bury the body in New York and is currently interred in an unmarked grave in Brooklyn, Maryland.

The district court on sanction 

Reviewing the whole case, it may not be said that the respondent's conduct throughout was wholly wrong. He has to his credit that actions of the trial court detrimental to the defendant in the Lee case were corrected, because they were regarded as improper, not merely by him or by the organization which employed him, but by the Court of Appeals of Maryland. This phase of his activities led one of the counsel opposed to him in the pending matter to say frankly in argument that the respondent had rendered a public service which, without him, would have been left undone. Still he is not free from serious breach of the standards which a lawyer must maintain. He made himself deliberately offensive to counsel appointed by the circuit court for Worcester county to serve with him in the Lee case, and to that court itself in the manner in which he spoke of it in his letter to Mr. Wailes. The bitterness and unfairness of his attack upon the other courts concerned in the Lee and Jupiter cases have just been described. He has seemed to be incapable of the very tolerance and sense of fair dealing which he declares is sometimes lacking in the institutions he attacks. The proper disciplinary action must be determined in view of the whole case. It does not seem to the court that the extreme punishment of disbarment should be inflicted. Much that  is blameworthy in the respondent's conduct carries its own antidote, for no one can succeed at the bar who comports himself as he has done. Taking into consideration the unquestioned service rendered in the Lee case, the injuries which the respondent suffered at the hands of lawless men while acting as counsel in that case, and the fact that he has already suffered a suspension from the bar of this court for approximately five months, it is believed that a public reprimand will suffice. This will be the judgment of the court.

Perhaps the "bitterness and unfairness of his attacks" on "justice" in the Jim Crow era was indicative of great and under appreciated courage.

I suspect that is why Ades was able to secure the services of the two greatest civil rights attorneys in our country's history. (Mike Frisch)

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