228 A.D. 470 | N.Y. App. Div. | 1930
Respondent was admitted to practice as an attorney and counselor at law in the State of New York at a term of the Appellate Division of the Supreme Court of the State of
The petition herein charges that respondent has been guilty of misconduct as an attorney at law under four general counts, as follows: Solicitation of personal injury claims, with thirty-one specific instances of solicitation set forth; converting to his own use various sums of money of clients, with four specific instances alleged; failure to obtain court orders fixing his fees in infants’ cases, with five instances alleged; and failure to comply with the provisions of court orders fixing his fees in infants’ cases, with four instances alleged.
Respondent answered the petition denying the charges, whereupon the matter was referred to a referee to take testimony in regard to the charges and to report the same with his opinion.
During the course of the hearings before the referee a general charge was added to the petition charging the respondent with the mingling of trust funds with his own.
The referee has duly reported and petitioners now move that respondent be adjudged guilty of professional misconduct and for such further action as the court may deem proper.
For failure to prove or sustain the charges in certain cases, petitioners admit such charges should be dismissed. This applies to thirteen alleged instances of solicitation (lettered 17) tt ; 77 it 77 tt 77 (l - 77 tt ^77 it „ 77 11 J. 77 tt „ 77 tt __ 77 ti _ 1, J; Jx.; LU, Ilj P, b> Vj U? Wj á £ 77 it (y> 77 L7 &7 two alleged instances of conversion (lettered “ ii ” and “ jj ”), one alleged instance of failure to obtain court order fixing fee in an infant’s case (lettered “ 11 ”), and one alleged instance of failure to comply with the provisions of the court order fixing his fee (lettered “ tt ”). In accordance with the recommendation of the referee in connection with specification “ tt,” respondent is directed to pay to Lena Oberlanger, the mother of Nathan Oberlanger, the sum of thirteen dollars and fifty cents, with interest from May 1, 1926. In passing we express the opinion that the counsel for petitioners was lenient in accepting respondent’s explanation in this instance. There was a charge of misappropriation, specification “ xx,” developed on the hearing in connection with specification 11 w,” but as the hearing progressed this misappropriation charged was shown to be without foundation.
The referee found that solicitation was proven in only three instances. No attempt was made to refute the testimony of the claimants in these instances. Respondent offered the explanation that one case came through a neighbor, another through a barber, and the third through a policeman. These individuals were not
A reading of the record satisfies us that solicitation was established in other instances in addition to the three found by the referee. In the Geldberg case (lettered “ d ”) it is probable that the efforts of Miss Weiss, a sister-in-law of respondent’s brother-in-law, caused the contact between Miss Geldberg and respondent’s office. Miss Geldberg’s testimony convinces us that she made no request to have either respondent or his representative call on her; that as a result of her discussion of her accident with her office associate, Miss Weiss, Fishman called at her home. She did not know- Mr. Fishman. What happened at this call is best explained in the following extract from her testimony; “ Q. What did he say? A. He said that he had heard that I had had an accident and that he would like to hear the particulars of my case and perhaps in some way he could help. Q. What else did he say? A. And I asked him why he felt he could handle my case so successfully. Q. What did he say? A. He said they had had similar cases and they were all settled satisfactorily. Q. Did he exhibit anything to you? A. Yes. Q. What did he exhibit to you? A. Photostat copies of cases that had been settled. * * * Q. What were they photostats of, of legal papers or checks or what? A. Of some checks. Q. And were those checks in substantial amounts? A. Oh, yes, for large amounts. Q. What else did Mr. Fishman say? A. Well,— Q. I am not trying to get the exact words. We want the substance of the conversation between you and'Mr. Fishman. A. Well, all the conversation that took
Fishman would not tell the witness who had told him she had met with an accident. He did not mention respondent’s brother-in-law, nor did he mention the fact that a person mutually known to the witness and respondent was the one who had recommended the case to respondent. There is the suggestion on the direct examination that this reference to respondent’s brother-in-law was not mentioned at the investigation before Mr. Justice Wasservogel. That is immaterial. What is material is that she made no request to have respondent or his representative call. We have considered the testimony of Dewey Levitoh, the brother-in-law of respondent, and, in view of the relationship, see no reason why his story should be preferred to that of Miss Geldberg, particularly as there is not the slightest suggestion of any motive which might prompt her to testify contrary to the actual facts. Fishman testified that he did not remember anything about Miss Geldberg.
In the Slavin case (lettered ((e ”) it is conceded that the description of the solicitor covers respondent’s employee Loew. Mrs. Slavin, however, testified that the man introduced himself as Fishman. Respondent’s contention is that Mrs. Slavin was recommended to him by her neighbor, Mrs. Zeitelin, a former client of his. Mrs. Zeitelin was not produced. Mrs, Slavin testified to an interview by respondent’s representative along the lines of the interview in the Geldberg case. Speaking of the visit by the man who called himself Fishman, Mrs. Slavin said: “ Why, he said that he had a very good lawyer and he would try to do his best with the case, and this lawyer works on a fifty fifty basis. And at first I did not consent to it, but then he talked so much and I finally gave him the case. * * * Well, he showed me different cases and said Mr. Fieldsteel won those oases and they were all satisfied,
This is another instance of respondent’s representative calling without invitation on a person with a claim for personal injury and urging and securing the retention of respondent. Mrs. Slavin made no request to have respondent or his representative call Upon her.
In the Krachy case (lettered “ r ”) the testimony of Annette Krachy, the sister of the injured infant, establishes solicitation. Respondent admits he represented the infant, but he had no definite recollection about the case. Miss Krachy’s testimony is that while the ambulance doctor was still at their home, a man, who she thought was Mr. Fieldsteel, and who said he was from Mr. Fieldsteel’s office and showed a card, came and, as she testified, “ said that he would handle the case for my mother and he said he did not see why we could not get a couple of hundred dollars. Of course there was only one stitch taken right on her forehead, we did not feel as though we wanted to be involved in any courts, and he said but a stitch was a stitch after all and it was worth a couple of hundred dollars, and my mother told him to call back a few days later. So he did and finally we did turn the case over to him.” As to this witness, the referee’s report states: “ Respondent’s attorney alleged this witness was extremely hostile because of events that had transpired during the prosecution of her case.” Nothing in her testimony indicates animus. In the absence of other testimony, the story of the intrusion of a stranger asking for the retainer for respondent must be accepted. Respondent accepted and profited by that retainer.
In the Bernstein case (lettered “ hh ”) Sam Bernstein, father of the injured infant Jacob, testified that he learned of the accident the day after it occurred through Mr. Leow. Bernstein testified that Leow came to his house the morning following the accident. He said: *' He came over in the morning, because I had made up my mind to go to the station house to tell that the boy did not come home the last night, and before I was ready Mr. Leow came over and he told me that, You know, I am a lawyer myself;’ and
The record contains much testimony relating to the efforts of respondent’s representative to secure retainers in other cases. In many such cases it appears that the representative called after the injured person or some member of the family had made inquiry of some friend or acquaintance about securing legal aid. For example: In the Nettie Goldberg case (lettered “1”) the testimony indicates that Fishman called as the result of Miss Goldberg’s mother talking with Mrs. Walkowitz and requesting the latter to send her lawyer. In the Benjamin Lichter case (lettered “ q ”) we are convinced Mrs. Lichter requested her friend Mrs. Poretz to phone for respondent, whom Mrs. Poretz had recommended as a good lawyer. In the Lipnich case (lettered “ v ”) it is possible Louis Haasner had been asked by one of Mrs. Lipnich’s daughters to recommend a lawyer; despite the testimony of the
There is a group of cases which came to respondent as the result of the recommendation of Drs. Levine and Uviller. Solicitation is charged in these cases, but it is clear that respondent was retained on the recommendation of these doctors. It is remarkable, however, that on the settlement of these cases the sum withheld for payment to the doctor should lead to charges that respondent retained more than he was entitled to. In the Loffman case (lettered “ oo ”) twenty-five dollars was paid to Dr. Levine; Mrs. Loffman testified she paid the doctor for every visit and did not owe him anything. In the Cutler case (lettered “ kk ”) five dollars was for the doctor, although Mrs. Cutler contends that Leow told her it was for his expenses. Twenty dollars was paid to Dr. Uviller in the Chuda case (lettered “ ss ”), although Mrs. Chuda testified she was told she would not have to pay the doctor, and the red-headed man (Leow) said he would make it all right with the doctor from his half. The referee in his report states: “ Many of the witnesses * * * ¿id not seem fully to understand the nature and purpose of the proceeding and seemed to evince a fear that, in some manner, an investigation was being made as to whether or not they had paid all that was due to the doctor who treated them or their children.” The suggestion in these cases is that the payments to the doctors were more in the nature of compensation for recommending the cases to respondent. That, however, was not established as a fact. The testimony as to payments to these physicians,' coupled with the testimony as to payments of premiums on bonds, satisfactorily disposes of the charges that respondent in these cases withheld more than he was entitled to. That is true, too, in the Friedman case (lettered “ rr ”), in which twenty dollars was paid to Dr. Uviller. The Friedman case is one of those in which the referee found solicitation. The testimony of Salomkin satisfies us that there was no improper withholding in the Mashlcow case (lettered “ nn ”).
There was no proof that an order had been obtained allowing compromise of the infant’s claim in the Berman case (lettered “ uu ”). The testimony is that the infant’s claim was settled for one hundred and twenty-five dollars and the parent’s claim for seventy-five dollars. The parent testified he received ninety-five dollars. Respondent’s testimony is that five dollars was for premium on the bond. The referee states in reference to the charge of failure to obtain the court order, “ The burden of proving the allegation was on the petitioner.” The parent testified he did not remember whether he signed an application for a court order. It seems to us in such a situation and in a proceeding of this character the burden was then on respondent to come forward. Faffing to do so, we must find that he failed to comply with the provisions of the Judiciary Law (§ 474, as amd, by Laws of 1912, chap. 229) and
We disapprove of the close alliance between doctors and members of the bar, whereby doctors act as “ feeders ” for lawyers devoting most of their efforts to negligence practice, and the lawyers in turn act as collectors for the recommending physicians. In the instances disclosed in the record herein there is nothing that indicates the sums paid to the doctors were the reasonable value of the services rendered, and there arises a suspicion that such payments covered more than actual medical services. This suspicion is enhanced when the testimony of claimants repudiates any understanding that the amount of the payment was to be deducted from the sum coming to claimants on settlement.
We condemn very strongly the practice of attorneys, as disclosed by this record, accepting retainers on a fifty per cent or other basis and delivering to their clients a sum which, through deductions for disbursements or payments due physicians, is less than the percentage due under the retainer.
The record establishes that respondent’s employees Leow and Fishman were actively engaged in the solicitation of cases for respondent. The referee has expressed it as his opinion that the employees were not hired for the purposes of solicitation. The testimony is too often repeated that claimants were approached by these employees, who were equipped with photostatic copies of checks, clippings, blank retainers, and the usual selling talk of solicitors, to allow us to escape the conclusion that respondent must have known, or should have known, that retainers were coming to him through the improper efforts of his employees.
Regarding the charge of mingling trust funds: The record discloses that it was respondent’s custom to deposit moneys received on settlements, in which he had a part interest, in his own general account; that he immediately drew a check to the order of the client interested for the portion due such client. There is no evidence that any claim was made against him as the result of such practice, or that he ever used any part of said funds, or that his account was ever depleted below the balance required to meet such checks. Since the promulgation of the new Special Rules regulating the Conduct of Attorneys and Counselors-at-Law in this department in
In disposing of this case we cannot refrain from expressing our appreciation of the thoroughness, earnestness and care with which the learned referee presented the evidence in his full and painstaldng report and while we do not accept all his conclusions, we none the less respect his zeal and fairness.
For the misconduct of which respondent has been found guilty he should be suspended from practice for the period of two years, with leave to apply for reinstatement at the expiration of that term, upon proof of his compliance with the conditions incorporated in the order.
Merrell, Finch, McAvoy and Proskaher, JJ., concur.
Respondent suspended for two years.