*1 FRANKEL, IN THE MATTER OF CHARLES AN ATTORNEY-AT-LAW. Argued October 17 and November 1955 Decided February 13, 1966. *2 Fisher, by designation the rule: Mr. Harold H. Eor court. Weiss, on the E. Toolan 8am
Contra: Mr. John (Mr. Toolan, Bomond, <& brief; attorneys). Messrs. Haney was delivered by of the court The opinion at in practice attorney-at-law, J. respondent Hehek, he should not show cause Park, why was ruled to Asbury 28 and of sections for violations disciplined be disbarred or Ethics, as found the Canons 34 of of Professional Bur- Drenk, County Lester A. Honorable Judge this court under date of Sep- in a made to report lington, 6, 1955, to a reference made June 1955. tember pursuant that the Erankel one Drenk reported Judge *3 an for the had entered into and pursued arrangement Low cases Low for of automobile “procurement negligence him Low Erankel, which Erankel rewarded by paying for $40,” at the outset Erankel’s net fee less a sum paid 25% hereafter. of which more “ostensibly photographs,” lawyer for a Canon 28 declares to be “disreputable” out those with claims for personal “breed by seeking litigation action in order other or those injuries having grounds or runners clients, them as or to employ agents to secure reward, indirectly, or to or or directly for like purposes, pay such cases to influence the bringing those who or bring offi- remunerate court or office, policemen, prison his or to who suc- cials, may attaches or others hospital physicians, advice, disinterested ceed, friendly under guise giving criminal, injured, the sick and influencing A others, to seek his services.” professional ignorant inform, in the interest of the and the pro- duty the bar “knowl- fession, is laid member of upon every having the end that “to by any practitioner, of such practices” edge And 34 provides disbarred.” Canon offender be may fees for services is proper, except that no “division of legal a division of service or lawyer, upon with another based responsibility.”
There can no doubt that Low solicited negligence Erankel, even for the where the respondent injured cases had retained counsel in his He made to act behalf. person ait practice to the area of the accident photograph particular involved; and he then vehicles called upon at home, victim the or in his be, as case hospital might exhibited the photographs evidence, important pieces a retainer for the sought respondent as a specialist the field. He at a had his radio tuned bedside in to police accidents, broadcasts of automobile and not he infrequently on the was scene even before the arrival of the or the police ambulance. This early contact the injured person of the served possessed photographic evidence locale his primary purpose a retainer for the arranging respondent. Low Davis, called Jeremiah on P. patient at Mon- mouth Memorial Hospital treatment for undergoing injuries sustained in an automobile 10, 1953, accident on January a retainer for sought Wise, Jr., after Edward W. an had attorney, been Davis’ son engaged purpose by his direction, he, at Low, had been so by Davis, advised had who been a client of the Wise firm. Davis testified that Low was retainer visit; told Wise on an earlier that Low later, returned two or days three asked Davis for Wise, to see which permission was not and after a given, call telephone out Davis’ Low he presence told Davis mistake,” referred “making to Erankel as a lawyer, good and said that if Wise wanted he, Low, taken, had pictures “he will darned good for them.” He news- pay displayed *4 items and paper pictures of a in group attendance at a and identified banquet Erankel, one of the group lawyer he have would Davis retain. Low he admitted recom- mended Erankel. He said Davis asked for his opinion of Wise, and he he was a “there replied were good attorney but others that I and he personally preferred,” named Erankel did as one. But call Low on Wise and told him he had seen Davis at the and he could for him hospital case if get he would purchase Wise that he photographs. replied he retained; buy
had refused to been already photographs. at his in Keans-
Low a visit to John home paid Schaible he was confined treatment following hospital where burg, accident, him, in a and told injuries suffered highway testified, “that he in contact with a lot of Schaible has come he he has a his that for and these cases and friend of works him that the man is he would recommend very highly; a do a Prosecutor —and that he could very job good —he as far as advice was concerned.” He the best for me legal wrote down Erankel’s name. He told Schaible of pictures value, he had taken and their but he made no offer evidential call, “I to sell them. Low admitted the but said: don’t recollect went on.” He then it was agreed “quite' what to Schaible. He did he did recommend a possible” lawyer sell not recall offer to the photographs. an There instances the same all indi- pattern, were other a the use of the as means of cating obtaining photographs a retainer endeavors in direction for the His this respondent. are not were for denied. Insisting photographs them, sale to wanted he admitted that occasion any one who on he such than lawyers refused to sell other photographs Erankel.
In his answer to the averred formal charges Low, that he “on various dates between December had paid 14, 1953, 1952 and December for Iona compensation fide, valuable rendered by substantial and services investigation the said at a rate the net fee Low, approximating 25% received services in each case in respondent for legal services,” which said Low rendered such investigation rate” of ser- “method and compensation “investigation aid of vices services to respondent’s legitimate legal his clients” “is common respective accepted prac- County among lawyers tice Monmouth investigators,” division of fees with a and “is not a such as layman legal 34”; Canon and he maintained that is condemned by not made “with or were payments purpose understanding induce the said they were to Low to encourage bring
593 and to influence the cases bringing negligence arising and out of automobile to the respondent, cases were not in violation Canon 28.” The aof common allegation was abandoned at the practice hearing. clear,
We Drenk, as was that the Judge payments thus made Erankel Low were to not for “investigation services,” but rather as or reward” for the “pay successful solicitation of cases for negligence respondent, pursuant an to that end in arrangement of the cited canons disregard ethics. professional
In 1953 $6,303.53. Erankel Low paid Low conceded that his $8,000; income never exceeded gross his yearly yearly $5,000. would about His average be first check from Erankel 3, 1951, came Prior 1951 July $100. Low’s an- gross $2,500 nual income ran between and $2,700, and in 1951 $5,000,” or 1952 he “hit that Erankel began indicating was the major source of his income. The contention is that it was and ethical” for the “entirely legal “hire him, Low’s services as an and to investigator, after pay maximum 25 recovery, compensation approximating %” “net fee.” respondent’s But Low was a solicitor of certainly cases for negligence Erankel, and the evidence is clear and equally convincing, reason, doubt founded that Low rendered beyond any no services which would account for the investigatory payments made Erankel. Counsel directs attention to testimony actual, of Erankel Low latter an “performed in each case in bona which a check was investigation 'fide services”; to him for such and it issued insisted that cannot testimony rejected on sole “Express ground Rains, Rains v. 127 N. J. its improbability,” citing Eq. & A. and “Its 1940), alone can discredit impossibility (E. witness,” Berckmans, Berckmans v. 16 N. J. citing Eq. affirmed 17 N. J. 1863), A. Eq. 1864). (Ch. (E. & the burden It is said rests argument proof upon disbelief of the charges, prosecutor testimony and Low in this “will regard Prankel not an support that the reverse true,” affirmative finding testimony *6 and “Disbelief in testimony concerning particular facts does convert that into affirmative of testimony proof contrary not facts,” Co., R. 164 F. Pennsylvania Eckenrode v. 2d citing 91, 69 Cir. affirmed 335 U. S. Ct. (3 1947), 996 S. 93 v. 104 Conn. Poplowski, L. Ed. State (1948); Ct. Err. 1936). (Sup. A. may here. The charges
The is not principle apposite evidence; and the question direct or circumstantial proved by persuasion. satisfies the standard of is the evidence whether of belief conviction it have or quality constituting Does found, Drenk measure As persuasion? Judge of legal not one bit of and Low’s testimony than Erankel’s “other to corrobo- evidence on behalf of was adduced that Low performed investigating rate the fact alleged Low, services; by a taken no one statement of witness not Low, made or other police no any report by memorandum Low, no name of a witness or fact secured by report agency offered; wit- not one client or Low was ever discovered by him that Low had interviewed was to testify ness produced is evidence of the her.” no tangible investigation ox There deficiency proof Low—a singular of a case single con- But hypothesis. far the tendered goes negative itself, in in the context of the circum- clusive when viewed stances, net fee received is of the Low payment 35% case, less initial services in Erankel for legal given taken, $40, ostensibly irrespective for photographs payment incurred, of the expense of the service quantum given no at all cases which recovery and no compensation of remuneration does not comport standard had. This was service, as it of investigational varying with the hypothesis to the of the exigencies in time and effort according would rather earned case, but betokens particular sharing a fixed basis case percentage bringing net fee on legal The method peradventure. This clear beyond to Erankel. is latter; symbol a distinctive compensation to the theory recompense nature repugnant in its very endeavors. investigational for purely And these circumstances also cited Drenk by Judge out with assertion that the plainly keeping splitting of Erankel’s net fee merely compensate investiga- tive testimony service: Erankel Low that Low n wasnot informed of the formula of used percentage payment Erankel; of Low’s income came from gross 75% Erankel, while the Low’s remaining represented normal 25% Erankel; income before Low arrangement rendered only a “verbal” bill for but “investigations,” always typed bill for Erankel photographs; Low from the paid outset of his net fee for one-quarter even “investigations,” though Low had no previous as an experience and, not- investigator *7 his withstanding Low was not inexperience, required make written of his reports findings.
areWe not concerned here a claimed adverse inference from Erankel’s omission to evidence produce within his peculiarly knowledge and control. Interstate See Circuit, States, 208, Inc. v. United 306 467, 59 Ct. U. S. S. 83 L. 610 Ed. Commercial Molasses New (1939); v. Corp. York Tank 314 156, 62 86 Barge U. S. S. Ct. Corp., L. 1378; Ed. 89 also, A. L. R. (1941); 135 Fritzler v. Keith ley, 143 Neb. 9 N. 2d L. W. 154 A. R. 573. Frankel there is record no his acknowledges evidence corroborate own testimony Low made case actually investigations for which he was the at issue. And recompensed by payments this is an important circumstance on the of bearing nature Erankel’s relations wnth Low and the service which Low paid, major factor assessment of the testimony Erankel, Low, of an interested party, and of an interested witness. service, There no record the being proof of claimed it service, is inferable there was no fairly such but rather by division of fee imported Erankel’s net in the context circumstances. As Wells particular Judge said in Rains, rule Rains v. invoked supra, where the uncontradicted applies only “is con testimony not evidence, to circumstances in and contains trary no inherent or contradictions which alone or in improbabilites connection 596 as to
with other circumstances in excite suspicion evidence *” * * v. Mar the truth of the See Schmidt testimony. N. L. America, 86 J. coni Wireless Telegraph Company of Hoboken, & A. Bank Second National (E. 1914); 1918). J. L. 531 & A. Smith, New v. N. Jersey (E. not conclusive Erankel’s his relations with Low is appraisal issue; is in relation testimony the basic his to be weighed all and his interest. There is the circumstances own what he of rationalization says obscuring suggestion fee for Low’s success purpose sharing legal primary of the retainer. ful solicitation Drenk The made is confirmed. report Judge the matter discipline. object We come now to Court, the old Supreme was declared discipline, determine is to purpose essence punitive; primary not the trust unworthy practitioner whether the delinquent relation and client. attorney basic to the and confidence such, in moral as to make it his been quality, Has conduct entrusted with duties high that he cannot be evident If there be attorney? of the office of moral responsibilities unfitness, no measure short of disbarment disciplinary then suffice; protection he be ousted for should will To warrant disbar the honor of the profession. and, crime, must short of ment, gross, misconduct Ries, moral In re it reveal turpitude. requisite it is L. P., See In re 111 N. J. 1944). Ct. (Sup. N. J. L. *8 Ct. 1938). 569 (Sup. rule in disbarment was deemed early England,
Under admitted, had been fraudulently the attorney where justifiable felony, his of or other offense admission) convicted (after or “unfit to be continued an or attorney,” him rendered which use of his name to be made an unquali- suffered knowingly as of such or a person, signed or acted agent fied person, demurrer, as and for to a of signature name fictitious himself.” misbehaved Tidd’s barrister, “otherwise grossly or said that the essential l^TR, Mansfield ques- Lord 89. In Pr. but whether offender “is of punishment, is one not tion an and for attorney”; con- to practice unfit person an
597 Ex Brouns- viction of disbarment was ordered. felony parte hall, 829 Cowper, (1778). this rule has had in acceptance
This
general
country.
Whether the
should be “disbarred or
delinquent attorney
for a
for the exercise of a
merely
calls
suspended
period”
sound
in
discretion
relation to
cir
judicial
particular
cumstances;
severe,
of disbarment
so
“consequences
him in the
and in
both
eyes
community
degrading
him
his means of livelihood that courts
depriving
gen
take that
when the misconduct of the
erally
step
attorney
only
characterized as
and in cases of
may properly be
gross,
lighter
offenses or
a first
the minor
delinquency,
punishment
is
inflicted.”
cised,
caution,”
“with moderation and
controlled
basic
not
object
consideration
punishment
offender,
inter
rather the
disqualification
but
est
the law who has been
practitioner
guilty
for the
“misconduct, indicative of moral unfitness
profession,
such
whether it be
or
professional
nonprofessional,”
deficiency
sustain
from the
of character as
also
exclusion
bar.
would
v.
County
Broder,
Committee
Bar
Grievance
of Hartford
263,
Smith v. State S., 7 J. also C. 73 A. L. R. 393 Ct. See (Sup. 1930). 806. Client, p. Attorney § came from the Ameri- Canons Ethics Our of Professional Association; and we well have recourse to may can Bar so the chairman and administrative experience the philosophy Professional Committee on of the Association’s Standing Grievances, Drinker, Mr. S. who has this Henry Ethics and 46: work Ethics Legal p. in his recent on say (1953), “Ordinarily for disbarment should be the demonstra- the occasion wholly conduct, tion, in- of an attitude a continued course of professional recognition proper standards. with the consistent lawyer never be one should clear that will who Unless acts, censure, bar, suspension preferable. For isolated be at Only single private public, appropriate. where a offense or is more respectable lawyer, gross impossible is of a nature to be so bribery juror official, embezzlement, or court such as deliberate suspension imposed. like, Even here should or disbarment every doubt, particularly lawyer given benefit of should be reputation professional has a record and free from offenses where he charged.” like that
Erankel’s the canon itself as one offense is classed by It a serious transgres disbarment. is accounted justifying sion is the sworn obligation ethical principle law, the more reprehensible every practitioner vicious because the solicitation is had through agents Commonwealth, Ky. runners. See Chreste v. Ethics, 1916); W. 919 Drinker’s App. Legal p. S. (Ct. Quite and its et from its own inherent vice con seq. apart factor, it is a practice influence as a competitive taminating and so the more justice, that tends to course of corrupt incidence, fair and evil in its it is but although abominable that here. there is no say suggestion kind under the Yet is the first of its prosecution this 1:7-6, 1:25; Bule now B. B. Canons, adopted original like years and we are not aware of a proceeding And the has a professional had before. gone think free from otherwise. We blemish reputation tradition and the public these circumstances professional *10 alike served the of the respondent will be suspension good law for a two and until years, from the practice period court; further the and such will the order. the order of deemed But this is not to be the bar standard of action the of the offense. Eor such infractions measuring gravity in the future drastic measures be expected. more may Jr., I differ with J. J. (dissenting). Bkehnast,
William in that I think the disbarment of majority only respondent in the circumstances appropriate discipline single case. this
I. its dated had in a letter October proceeding origin Jr., Wise, 1953 from Edward W. a member of Esq., Bar, Monmouth to the Administrative Director County the Courts. The letter detailed the activities of photog- Low but did not mention other rapher respondent any “because Mr. I am not sure lawyer attorneys (said Wise) involved realize what this man is fully doing.”
The court on November 1953 directed an inquiry by Committee Monmouth Ethics Grievance County then The committee heard a number of wit- as constituted. nesses, named as the lawyer several of whom to direct the cases which he solicited. whom Low sought was named the witnesses in that con- No other lawyer nection. filed on April
The committee its court report Low, 1954. As the committee’s conclusion was “It to be the of this Committee to take duty does not appear referred further but rather that Low’s conduct be action As law enforcement to respondent, proper agencies.” states, Mr. Erankel’s “Realizing standing report Bar, the Monmouth the Committee is County member his statement the acts of solicitation to believe prone Erankel’s entirely Mr. Low were without Mr. knowledge.” was made The “statement” mentioned by respondent 26, 1954. The of that date February transcript committee on the respondent discloses that the committee made available to who had the witnesses transcripts testimony as he statement been heard and invited him to make such statement, made his He before he desired. was not sworn denied having he does not He appear. was not why merely purchased and said that he with Low arrangement him times him to employed investigate and at pictures but no member of cases. He offered to answer questions, unfortunate him This was most any. the committee asked had been events, questions light subsequent would have dis- him it is that respondent asked of possible *11 later, Drenk he did committee, closed to the as before Judge under a that had sums to Low contingent he paid large In such I that the committee case am confident arrangement. further this court that no inquiry would not have reported And it reason- may conduct was required. into respondent’s that in of the provision be concluded also ably light and that “a to the duty Canon 28 expressly enjoining member of the Bar every devolves profession upon of any of such practices upon part having knowledge end thereof, inform to the immediately practitioner then disbarred,” the committee would the offender may “The their Com- report have seen the unsoundness of so, insti- finds, attorney and that the who mittee regrettably in the this has been somewhat careless gated investigation made.” charges committee is con- the ethics upon grievance
Service service. But is service by not an cededly always easy to aid the court of this court required special designation of the constitutional discharge duty exclusively in the proper the bar to this court to members of who discipline assigned code. The final decision this our professional transgress make, alone to but situations calling per- court’s hard task are made known to ordinarily of this formance bar, and revealed they through us are only are and im- committees courageously ethics grievance McCracken, Mr. T. Robert distinguished partially presented. American Bar Committee chairman of the Association former Ethics, in his The article, on Maintenance Legal of Profes- sional Duty Courts, Standards-. Obligation of Cal. Rev. So. L. said: (1955), appears responsibility “It thus for the initiation and disciplinary proceedings equally by conduct of is shared about Practically proceedings bar and the courts. all such are started up the bar. All of them end in the hands of the courts. Neither group responsibility; group attempt can avoid the neither should part lawyers, to do so. But there is a natural reluctance on the acting committee, lawyers. even to attack the conduct of other They they are all members of the same craft. Ofttimes members They of the same local bar. are in constant contact with one They may belong clubs, legal social, another. to the same or both. They may They frequently granted even dine with one another. have another, appropriately, course, favors to one the conduct of profession. They anticipate meeting professionally, their one another perhaps socially, years They in the ahead. are often under pressure offending lawyer from close friends of the refrain taking problem action. These and other elements enter into the presented against an when accusation is made a member of the grievance bar and is under consideration committee or other body to examine into it.” performance ethics and committees grievance of this State has been There predominantly gratifying. evidence abundance work of our ethics and grievance committees of the truth of Mr. McCracken’s observation that,— *12 rarely perform duty. high “Yet the committee fails to its A sense obligation profession, necessity maintaining to the the for its standards, responsibility public eventually and a to the which it serves may overcomes reluctance which be manifest when is the task presented. Long hours, days first and even weeks are consumed examining group sifting members of the the evidence in order to just arrive at a determination as to the course to be followed. If requires had, preparation courageous a trial be it of the first order and presentation highly unpleasant of a situation. * * * * * whole, *, complaints on the are handled with
energy impartiality.” will, The committees think, I concede that difficult and as their unpleasant task be it may pales by comparison our own. The members of this court are also and it lawyers, rare case a unknown to
is a that involves disciplinary lawyer he a fellow Usually some of us. has been practitioner But, as a friend. a or more us and not infrequently one the has as to the United States said former President of here”; office, ours stops of that “The buck responsibilities we we are all too expression final and when the word give that, it, we are a often ending conscious stating painfully career. lawyer’s that the with the postulate
There can be no disagreement misconduct against toward charges professional attitude objec- attended professional must be same lawyer of clients’ affairs. which marks tivity handling and function of disciplinary proceedings true purpose in mind. is not must ever kept uppermost Discipline be It who lawyer imposed punish transgresses. have confi- that the shall continued public in order imposed itself of unable lawyers dence will profession purge honor measure standards of up high unwilling moral which we our decency by professional govern so, will not to our own that we do enhance conduct—and to further the end that self-esteem, solely public respect but shall not justice for administration purity That is a essential of a or diminish. first respect waver in the adminis- democracy; people the confidence of is a for free prime representative tration of justice requisite if be indeed that confidence It would tragic government. out it ever so suspicion, be lost should respect counted cannot be profession upon courage- slight, their ranks of who serious miscon- to rid its those ously ideals professional their demonstrate contempt duct and confidence respect earn that us. which 73: noted, Mr. aptly page As McCracken * “* * persist strange to the seems to confusion as there disciplinary proceedings. and over have Over the courts nature of particularly purpose proceedings, of such end stated consideration, punishment is not is under where disbarment public.” offender, protection of the but
603 and, at 75 : page “* * * public, nothing else, the Protection and lies at the thinking. basis of this It submitted that this doctrine is the sole
justification lawyer discipline contempt of a than actions other of court.” This has the been settled the function always concept disciplinary “to remove from proceedings: profession person whose has misconduct him unfit to proved be entrusted with the duties and to responsibilities belonging the office of and thus attorney, public those protect with charged the administration of 5 Am. justice,” Jur., Law, 249; at Attorneys sec. “to secure for the judicial respect process at protect public practitioners large who are unable or ethical uphold the standards unwilling Ark. L. profession,” 411, 5 Rev. 412 (1951); “the purpose disbarment is not to proceeding punish rather lawyer, but court itself and relieve protect of a member of who is public legal profession unfit to such, serve as order maintain the due the respect court attorneys who officers of the court are insuring character,” good professional 677, 7 Vanderbilt L. Rev. 691 ex rel. Chicago see Bar Ass'n (1954); People v. Baker, 311 Ill. N. E. 66, 554, 142 31 A. R. 737 Ct. (Sup. L. 221 1924), Williams, In re Minn. 23 W. 2d 4 N. (Sup. Haddad, 106 Ct. In re Vt. A. 103 1946), Ct. (Sup. In 1934), re Wash. 2d P. 2d Beakley, Ct. (Sup. 1940).
Our profession fully public has a acknowledges stake it the vital which to demand gives right vigilant action from the courageous profession itself of ridding those whose serious misconduct has their demonstrated unfit- ness to be practice allowed to law any longer. sacred mission entrusted to the to deal profession the vital affairs that affect whole human rela- pattern tions is reason that the insist public should enough only to the loyal those and devoted moral and ethical stand- high ards which we our labors shall deemed guide worthy *14 us share the
by to of that sacred high privilege discharging trust. that the lawyer’s Granted termination of a career is business for those have that assign- lamentable who hard ment, cannot falter when that as duty points we path the the administration of in inter- justice essential to public noted, est. has So. Cal. L. Rev. Hyde pertinently Judge 82-83 : (1955) “* ** judges public usually professional the the standards lawyers they profession individual know. The can actions hardly the of composed the those rise above level of of whom improper brings in conduct of its members that level lower public Thus, improper very the of even few indi- view. conduct profession greater propor- prestige much
viduals lowers the of the guilty misconduct to the tion than the number of those bears membership profession. lowers entire misconduct also the Such upon public respect the for the courts and has harmful effects judicial system.” the entire the Jersey constitutionally
So it is that of New people to cast this court the determine upon power exclusively II, VI, be Art. discipline to Const. Sec. imposed. justified 3. This with confidence par. done with the interest primarily would exercised power public who mind, to from demonstrate protect public lawyers their to their to serve the pub- inability distinguish obligation interests, lic their to the private personal damage and the commonweal. courts I offense, fully as shall demonstrate more Respondent’s later, nature, a most inimical wholly is of grievous interest, and of the feature of the contingent because public not as said “classed majority, only, arrangement, itself as disbarment” justifying the Canon one (significantly, mention as which Canons expressly offense only had little but one for which other states have disbarment), litigation disbarment. The breeding hesitancy decreeing a sum runners lay compensated by payment use of through evil so vicious and so recovery an upon contingent interest it has been danger fraught turpi- conduct moral unprofessional involving classified tude. 16 Ohio L. J. State In Chreste v. (1954). Com monwealth, 171 Ky. 77, 186 S. W. 926 (Ct. App. cited in the 1916), majority it was opinion, pointed ont there is “a wi,de very difference between the unprofessional undignified practice personal solicitation business indefensible and vicious practice employing agents and runners who not about the lawyers go country business soliciting strife and stirring up for a litigation stipulated fee,” consideration aor and the contingent offend *15 ing lawyer disbarred, 178 subsequently 311, 198 Ky. W. 929 S. (Ct. App. 1917). Eor other phases that case see Chreste v. Ry. Co., 75, Louisville 167 49, 180 S. Ky. W. B, L. R. A. 1917 1123 Id., 486, 173 (Ct. App. 1915); Ky. 191 265 S. W. App. And the con (Ct. 1917). contingent tract between respondent Low was the contrary public State, of this v. policy Ready National State Bank New ark, 117 & N. J. L. 554 1937); A. v. De (E. Peraino Mayo, 13 N. J. Misc. 233 P. 1935), because in (C. violation of N. J. 2AA. :170-83 S. aas denominating disorderly person * * * anyone “who solicits suit any in which damages * * * * * * the person soliciting by agreement * * * receives from the person solicited or his attorney, any the compensation dependent amount upon recovery suit”; any such see also N. A. 2A J. S. :170—85.
Yet disbarment is not respondent’s directed. The majority finds that opinion militating against disbarment are the is considerations that “this the first of its kind prosecution under the and that Canons” “the has respondent a profes- free sional from blemish otherwise.” reputation The “gravity conceded, offense” will presumably be deemed warrant disbarment case of lawyer hereafter misconduct, said, of similar since it guilty “For such infractions the future more drastic measures may be But misconduct, expected.” respondent’s as it did involving Low of some 53 cases over acceptance period of from July 1951 to and the years January payment 2% $7,363.69, Low therefor falls unquestionably into Mr. Drinker’s of “the demonstration re- category [implacably conduct, of an a continued course of
quiring disbarment] of proper attitude inconsistent with the wholly recognition Drinker, 46. Ethics standards," p. Legal (1953), professional at Drinker’s page And note Mr. apparent agreement, In the ordered in the Chreste case. with the disbarment of our unanimous finding circumstance misconduct, interest re- in this serious engaged demonstration, now, case, in this it, I see concrete quires, case, will to deal not, in some future of our perhaps, itas deserves to be dealt with. with this misconduct see misconduct was less And I fail to how respondent’s under cover of a good because carried on reprehensible esteem of the community. Logi reputation general Clark, In re inference is indicated. contrary cally, . 1906) N. Y. 77 N. E. (Ct. App.
II. here, events the moment to chronology Returning it, further on the face of required committee’s report, referred accordingly as to Low. court proceedings only term, County the matter Monmouth May grand heard the same jury further The grand *16 jury, inquiry. committee, and Low testified the as witnesses who before did not before the jury, well. Respondent appear grand he was to or requested we not informed whether or not The con- he to appear. grand jury whether himself sought the of a on its with filing presentment cluded deliberations that the occasion 21, 1954. But for presentment September not have into conduct inquiry respondent’s might further de- brought about court’s presentment appeared. Judge to the unusual procedure appointing cision adopt Fisher the matter and Mr. designating to investigate Drenk Drenk It was in the before proceeding him. Judge to aid was first obtained that the evidence with Low contingent arrange- his relationship true thereunder. The jury’s the sums paid grand he had and ment its that in forthright expression was presentment grand jury severity “This all criticizes and condemns with at practice improper photographer seeking its command the in injured persons representatives per- to influence or the of deceased any attorney attorneys. equal sons to retain the or services With severity any lawyer lawyers may encourage we condemn or who photographer so do.” This lay appraisal conduct, respondent’s particularly since it was made without of the- facts as to the benefit true with arrangement Low sums large paid by respondent to him, is more than straw the direction of the revealing wind of public sentiment. The presentment strongly implies would have dealt with grand jury the matter directly it was except “advised that (quite accurately) should it find any evidence indicating on the complicity part any lawyer lawyers -complained-of practices it has no jurisdiction to hand an indictment up in the matter since that offense is one to with be dealt by the exclusively this Supreme Court of state.” To that end the recommenda- tion was made that the be filed transcript testimony Courts, Administrative Director of the evincing, as it was within the clearly power do, of the grand jury its conviction that the case was of serious -import requiring on action our part to the offense if appropriate established to have been committed.
III. I do not think we can fail to emphasize seriousness of the offense committed by the In -respondent. vernacular, is “ambulance chasing,” this instance although effectiveness of Low’s service was due to his ability get the scene of the accident even before ambulance arrived. Three this decades ago pernicious practice rampant of the many sections and led country to numerous investiga- which, least, tions time at for a cleansed the profession of a number practitioners most guilty flagrant abuses. this was an By action of the large organized Many bar. at own will our bar recall similar investigations several of *17 our counties. See In re Bar Ass’n Hudson 109 County, N. J. L. 275 Ct. 1932). (Sup.
608 the public effects upon studies of the vicious
Informative the the sort practiced by misconduct of the courts and deterioration of respect the consequent to report in Mr. Wasservogel’s will be found Justice bar Eirst Division, Department, New Judicial York Appellate court, Judicial to that Second report and Mr. Justice Eaber’s Documents, 152d York Sess. Legislative New Department, The results 1929, 18, 52, No. 7 and 31. pages vol. Aaron’s Milwaukee, Wisconsin, are found Judge inquiry and Mr. Holmes’ L. Rev. 1 (1929) in 14 Marquette article See also L. Rev. 193 (1928). article in 12 Marquette Chasers,” 14 A. B. A. Jour on “Ambulance Nationwide War (1928). nal 561 common of abuses revealed a pattern investigations here, as to disclosed every practice, inducing
incident
therefor,
for the attorneys upon payment
cases
get
solicitor
Vail,
solicited, Matter
a flat fee for each case
whether
220,
414,
Y.
Div.
217,
239 N.
(App.
Div.
S.
App.
Matter
recovery,
a fee
the amount
1930),
upon
contingent
Div.
Littick, 225
Div.
232 N. Y. S.
App.
(App.
Schacht, 228
Div.
App.
Matter
salary,
or
1929),
straight
1930).
Div.
Clients’
N. Y. S. 516
(App.
suffered; both
solicitor were
lawyer
quickly
interests
for the client but how best
what was best
motivated not
If the ease
as lucrative as possible.
make
“business”
was to
value,
settle
disposition
not to be
great
proved
obtainable,
case
ignore
entirely,
amount
for any
ones. The solicitor’s
time for more lucrative
more
give
here,
if his
was on
demands, particularly
arrangement,
lawyer
on the
basis,
charge
put pressure
a contingent
carriers
settlements with insurance
Group
fees.
exorbitant
common,
the form of
sum
“lump
practice taking
became
without
a number of cases
breakdown accord
settlements”
merit of each. The competition
individual
among
to the
ing
keen that disgraceful
imposition upon
so
became
solicitors
became common. Court
injuries
in extremis
persons
not to
cases
achieve
brought,
became congested
calendars
often
case
brought
litigant
(indeed
justice
*18
without his
but to
knowledge),
force settlements. Perjury
and the manufacture of evidence became rife as the solicitor,
often with the
of the
knowledge
would
lawyer,
adopt any
expedient required to
give
appearance of an actionable
claim. And the
tendency
noted of the
left
practice,
unchecked, to increase and
itself.
perpetuate
State v. Kiefer,
197 Wis.
An of the abuses appalling summary to be apprehended practice in engaged by with Low appears in the Report Committee on Special Professional Abuses in Accident Litigation submitted in 1929 aby dis- committee, of which tinguished Mr. Henry Drinker, Jr., S. was chairman. It interesting many of the devices employed by solicitors at that time are identical with testified to as been many having practiced Low in by instant matter. The states: Report paid employed by attorneys “The solicitors—known as runners — ’ engaged practice, usually unscrupulous in this men of a low type lawyers employ them, and are known to be such who lawyers although always ignorance such cultivate deliberate They employ ingenious subterfuges their activities. all sorts of entrap cupidity ignorant and excite the of their credulous and prospects. carry newspaper Most of them around accounts of the large employers obtained, photostat verdicts which their have with large paid by facsimiles of checks which have been them to clients totally cases, creating unrelated the exhibition thereof to their prospects coming improper inference that similar results will be forth- knowledge in the solicited ease. noWith accurate of the legal possibilities ease, disregard of the and in of what little knowl- edge they have, they habitually promise in fact results far in excess any sanguine lawyer hope. they for which the could Nor do disparage attorney pro- hesitate to or defame other whom the may spective may already client have mind or whom he have retained. Many lawyers actively engaged practice soliciting of the claims, practices against accident continue such their real desires therefrom, particularly reputations to refrain those with estalished efficiency handling litigation, knowing long such that so competitors engage in such and the courts allow their the Bar practices, they employ them or lose all their must themselves business. lawyers always chasing there ambulance Side side independent adjusters, group develops not members of so-called men, may runners-at-large, be termed make Bar. These who securing powers searching claimants and out accident
a business claims, they attorney their those which are unable to settle of settle obtainable. by lawyers highest price they peddle among at the *19 the accident tendency is unrestrained Their to frame fake claims splitting com- of Their desire to avoid their fear disbarment. lawyer pensation them to settle sound claims to with a often leads great disadvantage of the ‘client.’ claims, organized conducted such solicitation of accident Such claims, type men, inevitably in of fake in results the manufacture appearance gross exaggeration of of scratches and bruises to the attempt major injuries, to attribute real in- and in the fraudulent really juries no causal relation accidents which had or ailments to testimony, usually perjured in collusion to them'—all means practice, phjrsicians a who make one or more of class of with a testimony giving expert contingent compensation, such as will of the case. meet the necessities claims, multiplication of accident real as well As a result of the very congested fabricated, become so as the court calendars have as seriously justice. effective administration of to interfere with the placed am- are instituted and Innumerable accident cases expectation bringing no chasers on the court lists with bulance trial, merely hope effecting in a small settlement but them on a nuisance value many basis, or in cases to advertise themselves extensively engaged in trial of such cases.” as in achieved in that day But the results salutary curtailing have to he unfortunately proved the practice or eliminating 64 of his work: notes, Mr. Drinker at page short-lived. chasing’ practice well and so of ‘ambulance is so known “The obviously improper require most no extensive comment. It is as to comprehensive investigations large communities, prevalent held, stamp have been with more or less suc- drives to it out jurisdictions.” usually temporary, many cess, but such sufficiently is now so appearing, A of chasing resurgence the House of the 1954 meeting Delegates that at Association, the Committee on Professional Bar American a resolution adopted calling and Grievances Ethics study committee to “personal of a special appointment Rev., Y. racket,” 30 N. Univ. L. supra, suit damage injury 182. p. Popular magazines note of the existence taking of the problem. See Digest, Readers The January Personal Raclcet—How Injury Shysters Cost the American People through Millions Law Suits. The Phony August Report on Special Committee Investigation, Solicita- tion and Handling Personal Claims Injury (the Commit- tee created by Resolution found in A. A. Reports B. 153 (1954)), reported that from “the almost unbelievable amount of data and it submitted to the com- correspondence” mittee found reason to recommend that its work be continued with an enlarged membership. “Quite
The majority shares opinion my view that apart from its own inherent vice and its influence contaminating factor, competitive is a practice that tends to corrupt the course justice, so the more abominable and evil in its however, incidence.” sentence concludes, “although it is fair but there is say no of that here.” suggestion I submit that in the light of studies the abuses found to attend the we always are not practice justified assuming that this is the case because there exceptional were no affirma- *20 tive some of proofs that the abuses were not also concomitants Moreover, of misconduct. I respondent’s do not see how we can fail uneasy to be about the of allegation respondent’s answer that his arrangement for Low “at compensating rate of the fee by net received approximating 25% for in each services case which the said Low legal rendered ** * such services investigation a common and in Monmouth accepted practice County lawyers and among and is not a of division fees with a investigators, legal layman * * such as is condemned Cannon 34 The allegation withdrawn at the and it is not clear what hearing respond- ent intended to it. imply proscribes Canon such an even if in fact Low’s service had been arrangement entirety in. the of cases. investigation
I sum up my that the may position evils almost believing certain to follow from on any equivocation our with part misconduct this sort such portend possibility scandal judicial and the and contempt system, prejudice, imposi- not hesitate the that we should to injury public, “upon tion clear our and now to make here and clearly unequivocally it are deemed to be grossly lawyers guilty stand the administration of the participate improper persons In other result is view, my and will be disbarred. laws truth expressed eloquent the fundamental with at odds to the Canons: the Preamble words of departments America, stability of and of all where the Courts “In peculiarly upon approval people, government it is rests the system establishing dispensing Justice be essential point efficiency high developed maintained so impartiality integrity confidence in the shall absolute have Republic, great extent, to a The future of the its administration. of depends upon pure of Justice and unsullied. It maintenance our maintained unless conduct and the. motives cannot be so approval profession are all our such as merit members just supplied) (Emphasis men.” IY. consideration,
An additional not adverted to in the majority dis- seems to me also to have a bearing upon opinion, misconduct. appropriate respondent’s cipline Threaded Canons Ethics is through of Professional lawyer’s candor relations upon emphasis as a hallmark of ethical Canon prime practitioner. courts that “The conduct of the expressly enjoins lawyer before lawyers the Court and with other should be characterized candor fairness.” is a A disciplinary judicial proceeding. proceeding Toft Ketchum, 18 N. J. I can (1955). conceive of no v. for a fuller judicial proceeding calling discharge obliga- and fairness than when one’s own tion of candor professional under review. conduct
Yet actions in this case were characterized by respondent’s *21 nor fairness either court neither candor or his ethics and committee. He lawyers grievance fellow not whatever no mention sums large made only paid committee, furthermore, when he before but Low appeared develop forced to the details before when finally Judge one Drenk, merely he described arrangement work, a characteri- and for purchase pictures investigation rejected must be found unanimously zation which we have one the arrangement in favor of the finding actually him. Low for cases chased compensate is, not that such conduct I the conclusion cannot escape when deter- to be considered necessarily, but only properly, which occa- the offense the discipline appropriate mining sioned proceeding. in this dissent.
The Chief Justice joins Many result). judges J. (concurring Wacheneeld, infliction of punish- little zeal I know have or ardor difficulty, matters. I have the same ment in disciplinary circumstances, varies with the my although judgment “faltered” in my duty. I doubt if I have yet this as to court I cannot subscribe to pronouncement in future cases without knowledge what we shall do with the vehement facts, am I much concerned nor made others this field superlative castigations endeavor. must out, view, my meted punishment dictates of own conscience my with the humble
accord not theirs. I an admonition have as well as just” long
“Be merciful field, have a in the disciplinary It too may place revered. in this ease have not prevailed written opinions discard it. me to upon with the result of only majority.
I record myself Heher, Oliphant, tioo years For suspension for —Justices Burling and Jacobs —5. Wacheneeld, and Justice For disbarment —Chief Justice Vanderbilt Brennan —2.