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Peo. Ex Rel. Chi. Bar Assoc. v. Barasch





ORIGINAL PROCEEDING by information charging contempt.


An original action was filed in this court on March 18, 1958, by the People on the relation of The Chicago Bar Association and its Committee on Unauthorized Practice of Law. The information charged that respondent, Philip J. Barasch, was in contempt of court by holding himself out to the public as qualified to perform legal services and engaging in the unauthorized practice of law. Respondent answered, and we referred the matter to Honorable Roger J. Kiley, Justice of the Appellate Court for the First District, as Commissioner, to take proofs and report his conclusions of law and fact. The cause is here upon the report and exceptions thereto filed by both parties.

Respondent was admitted to practice by this court on October 11, 1934. On his own motion his name was stricken from the roll of attorneys on December 20, 1938, and he has not been readmitted.

The information charges generally that respondent is guilty of the unauthorized practice of law under the names "International Adjustment Company" and "Philip J. Barasch and Associates." Specific acts alleged to constitute the practice of law were also set up in separate specifications. Two were based upon letters written by respondent on February 5, 1953, and January 5, 1956, respectively, and two on occurrences in 1957.

At the outset we are confronted with respondent's contention that this is a criminal proceeding or in the nature of a criminal proceeding, and that the rules of criminal procedure must be followed, including proof of the charges beyond a reasonable doubt, application of limitations similar to the Statute of Limitations, and formality of information.

Contempt proceedings, while usually called civil or criminal, are, strictly speaking, neither. They may best be characterized as sui generis, and may partake of the characteristics of both. (People v. Doss, 382 Ill. 307; People ex rel. Martin v. Panchire, 311 Ill. 622; People v. Parker, 397 Ill. 305.) Proceedings in the nature of criminal contempt have been defined as those directed to preservation of the dignity and authority of the court, while it has been said that civil contempts are those prosecuted to enforce the rights of private parties and to compel obedience to orders or decrees for the benefit of opposing parties. (People v. Redlich, 402 Ill. 270; People v. McDonald, 314 Ill. 548.) These principles, while seemingly plain and adequate, are most difficult to apply. The line of demarcation in many instances is indistinct and even imperceptible. (People v. Gholson, 412 Ill. 294.) A further guide may be found in the purpose of punishment. Imprisonment for criminal contempt is inflicted as a punishment for that which has been done, whereas imprisonment for civil contempt is usually coercive and, as was said in the case of In re Nevitt, (8th cir.) 117 Fed. 448, "he [the contemnor] carries the key of his prison in his own pocket." While we have repeatedly held that contempt is not a crime, (People ex rel. Martin v. Panchire, 311 Ill. 622; People ex rel. Rusch v. Jilovsky, 334 Ill. 536; Anderson v. Macek, 350 Ill. 135; People v. Goss, 10 Ill.2d 533,) we are of the opinion that this proceeding is in the nature of criminal contempt. Nevertheless, in many areas a respondent is not entitled to the protection of all the safeguards surrounding one accused of crime. An exploration of some of those areas points up the difference.

The basic right of trial by jury for one accused of crime is not extended to one accused of criminal contempt, (People ex rel. Martin v. Panchire, 311 Ill. 622,) and its denial in such case does not violate any constitutional right thereto. (Green v. United States, 356 U.S. 165, 2 L.ed.2d 672, 78 S.Ct. 632.) Furthermore, the strict rules regarding the setting out of charges in an information or indictment have no application. (People v. Parker, 396 Ill. 583; People ex rel. Rusch v. Kotwas, 363 Ill. 336; People ex rel. Rusch v. Jilovsky, 334 Ill. 536.) A further illustration of the vast difference between prosecution of crimes and hearings in contempt proceedings is found in cases of direct contempt, or those committed in the presence of the court. Direct contempt may be dealt with summarily without the formality of pleadings, notice or hearing. This is true whether the contempt be civil or criminal in nature. People v. Gholson, 412 Ill. 294.

We turn to the question of whether the charges must be proved beyond a reasonable doubt. This may be somewhat academic in view of the proof, but the issue has been drawn squarely for the first time in this court and requires our attention.

People v. Spain, 307 Ill. 283, involved a contempt charge for failure to answer questions before a grand jury on the ground that respondent's answers might tend to incriminate him. The case turned on the constitutional inhibition against self-incrimination, but the opinion went on to say that the contemnor was entitled to the presumption of innocence until his guilt was established beyond a reasonable doubt. In People ex rel. Rusch v. Fusco, 397 Ill. 468, the statement in the Spain case that guilt in criminal contempt cases must be proved beyond a reasonable doubt was cited although civil, not criminal, contempt was the issue. The Appellate Court has followed the Spain case on the degree of proof required. Hollister v. People, 116 Ill. App. 338; People v. Hille, 192 Ill. App. 139; People v. Mortenson, 224 Ill. App. 221; People v. Gerrard, 15 Ill. App.2d 301.

Relators direct attention to the fact that in the eight previous original contempt proceedings for the unauthorized practice of law there was no intimation that proof beyond a reasonable doubt is required. In the first of such cases (People ex rel. Illinois State Bar Ass'n v. Peoples Stock Yards State Bank, 344 Ill. 462,) the court asserted its inherent right to authorize and prohibit the practice of law, in addition to its power to disbar or otherwise discipline. In neither that case nor those following, (People ex rel. Courtney v. Real Estate Tax-Payers, 354 Ill. 102; People ex rel. Chicago Bar Ass'n v. Motorists Association, 354 Ill. 595; People ex rel Chicago Bar Ass'n v. Chicago Motor Club, 362 Ill. 50; People ex rel. Chicago Bar Ass'n v. Goodman, 366 Ill. 346; People ex rel. Chicago Bar Ass'n, v. Novotny, 386 Ill. 536; People ex rel. Chicago Bar Ass'n v. Tinkoff, 399 Ill. 282; People ex rel. Illinois State Bar Ass'n v. Schafer, 404 Ill. 45,) was the degree of proof put in issue; consequently no inference may be drawn therefrom.

It is also argued that since the proof in disciplinary proceedings need only be clear and convincing, (People ex rel. Chicago Bar Ass'n v. Lotterman, 353 Ill. 399; In re Smith, 365 Ill. 11; In re Moore, 8 Ill.2d 373; In re Fisher, 15 Ill.2d 139,) one who is charged with unlawfully practicing law should not be clothed with greater protection. It would seem an anomaly, but contempt covers many other fields and the rule on degree of proof which we adopt must apply to all. We would not be justified in making one rule applicable to those charged with usurping our professional privileges and a different one for all others.

The great weight of authority is that the guilt of one accused of contempt, criminal in nature, must be proved beyond a reasonable doubt. (See: 49 A.L.R. 975-989 for annotations and assembled cases.) We adopt that view.

On the question of limitation, respondent points out that he does not claim that the Statute of Limitations bars the action but asserts that the court should not act if the Statute of Limitations was deemed applicable to the action or, in the alternative, that where the affront to authority cannot be said to have impeded the administration of justice for over five years it be treated as de minimis. The statute is not a bar, and the circumstances in each case should be carefully examined to determine when lapse of time would make it unjust or unfair to compel a respondent to answer contempt charges. This is the yardstick used in disciplinary cases and seems most equitable in this proceeding. (See: People ex rel. Healy v. Hooper, 218 Ill. 313; In re Anderson, 370 Ill. 515.) In some cases the statutory period of limitation might be considered too long, while others, such as a series of contemptuous conduct over an extended period of time, might justify charges long after the statutory period of limitation.

This case falls within the latter category. The charges of holding himself out as an attorney in the letters of 1953 and 1956 are followed by two additional incidents in 1957. The charges allege a continuing series of contempts. Under such circumstances it is not ...

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