84 N.J. Eq. 523 | New York Court of Chancery | 1915
Upon reading and filing affidavits made by Charles M. Kase, Albert C. Fletcher, Charles S. Peaker and Bertha Peaker, his wife, which charged Simon Hahn with malpractice as a solicitor in chancery, an order was made upon him to show cause why he should not be adjudged guilty and thereupon be debarred from further practice as a solicitor or counselor of this court, or be suspended from practice as a solicitor or counselor for such period as the chancellor should order, or be otherwise disciplined and punished as might be deemed equitable and just. v The gravamen of the charge against Hahn is that' he, having been retained by Peaker as his solicitor to prosecute in his behalf an action for divorce against his wife, Bertha Peaker, upon the ground of adultery alleged to have been committed by her with Charles M. Kase, did thereafter and on or about December 30th, 1913, demand, extort and receive from Ease the sum of $25,-000 as the consideration for agreeing to refrain from prosecuting such action for divorce, and did afterwards misrepresent to, and deceive, Peaker concerning the amount of money had and received by him, Hahn, from Ease, in that Hahn represented and stated to Peaker that he received from Kase, for the consideration mentioned, the sum of $6,000, and did thereupon pay and deliver to Peaker the sum of $2,000, which he had received from Kase, with the additional representation that he, Hahn, had paid, or intended to pay, to the Gregory Detective Agency, composed of John and Francis Gregory, the sum of $2,000, being another third of the sum collected, and that he intended to retain for his own use, and as compensation for his services in the matter, the remaining one-third, namely, $2,000; whereas, in truth, Hahn retained for himself and converted to his own use the difference between $2,000, which he paid to Peaker, and such sum .as he paid to the Gregory Detective Agency (the exact amount being unknown), the balance of the $25,000 so paid to him (Hahn) by Kase as the consideration for agreeing to refrain from prosecut
Hahn’s defence was, shortly, this: That he was retained by Peaker to commence an action against Ease for the alienation of his wife’s affections, who, Peaker, suggested a suit for $50,-000; that he sent for Ease, who came to his office, and, upon being told of Peaker’s instructions, he, Ease, offered $25,000; that he, Hahn, sent for Peaker, who came down to his office and signed a release to Kase, expressed to be for *one dollar and other valuable consideration, upon delivery of which to Ease, he, Hahn, collected from him $25,000 — $20,000 in bills and $5,000 in a check; that he, Hahn, returned to his office and laid down the bills and check on his desk in the presence of Peaker and the two Gregorys, father and son, the detectives who had obtained evidence for Peaker, and said he would draw Peaker a check for $12,500 and retain the balance, $12,500, for his services according to their agreement; that the elder Gregory asked Peaker where they came in, and Peaker asked Hahn if he could not throw off part of his fee as he had to pay the Gregorys; that he, Hahn, finally consented to reduce his fee to $10,250, and was about to count out $14,750 to Peaker, when Peaker said that he, Hahn, should pay the Gregorys $9,000 then, which Hahn did, and gave it to the elder Gregory, who took and counted it and handed $4,500 to his son; that thereupon the Gregorys said they ought to get as much as he, Hahn, and that Peaker said they ought to be satisfied with $9,000; that no agreement was reached and the parties were to settle the next day, and Peaker asked Hahn to give him $2,000 then, and said there would be $3,750 coming to him; that Peaker appeared the next morning and said he had not settled the matter with the Gregorys and wanted him, Hahn, to keep the $3,750 for him until he called for it; that he, Hahn, heard nothing more about the matter until the middle of December, 1914, when the younger Gregory came to his office and accused him of having gotten $60,000 out of the matter; that Peaker visited his office January 4th, 1914, and said he had come to get his money, that he had agreed with the Gregorys, and was going to give them $1,250 out of the $3,750, and wanted Hahn to give him a check for $2,500 and send them a check for
There are three disputed questions of fact to be considered— (1) TVas Hahn retained to prosecute a suit for divorce or for alienation of affections? (2) Did he agree to divide equally with Peaker any sum he might collect from Ease? (3) Did Hahn disclose, in December, 1913, to Peaker and the Gregorys the amount which he collected from Ease ?
1. TVas the suit to have been one for divorce or for alienation of affections: Charles S. Peaker, who was a cab driver, testified that he visited Hahn’s office with Francis Gregory, and that he, Peaker, made an appointment with Halm for a later hour that day, when he again went to Hahn’s office and informed him, Hahn, of the facts of his case and asked Hahn if the evidence was strong enough for a divorce, and if so, to go ahead with the case; that Hahn said he would draw the papers, and when he got them prepared would send for Peaker; that later, by arrangement, Peaker brought his wife to Hahn’s office and Hahn informed her that her husband had brought him evidence to secure a divorce, and she said she was willing to make an affidavit of the story, which Hahn wrote down and read to her and she signed and swore to it.
Bertha Peaker, who was a domestic servant, and who was living apart from her husband, testified that she met him pursuant to appointment and went with him to Hahn’s office, and that when they went in Hahn said something about the divorce, and he then drew the affidavit about her relations with Ease, which she signed and to which she swore.
Charles M. Kase testified that Hahn sent for him and he went to his office; that then and there Hahn told him that he would probably get into a great deal of trouble if he did not meet the wants of a man who was going to bring a suit for adultery; that he took out a bunch of papers and laying them down said that
Albert C. Fletcher, Kase’s secretary, testified that Hahn came to Kase’s office on December 30th, 1913, and requested Kase to settle the Peaker matter for $25,000, saying refusal would mean Kase’s everlasting disgrace, and he heard him, Hahn, mention divorce proceedings.
Thus it appears that four witnesses, Peaker and his wife, Fletcher and Kase, testified that divorce proceedings-were the subject of Peaker’s intentions, while Hahn alone denies it. Whether a divorce or a crim. con. proceeding was contemplated can make no difference as to the receipt and disbursal of the money by Hahn, except as the question bears upon the jurisdiction of the court of chancery in this proceeding. That question will be considered and disposed of hereafter.
2. As to any agreement for Hahn’s compensation: Peaker says that on the afternoon of December 29th or 30th, 1913 (it was the latter date), Hahn sent for him and said he had settled the case out of court and that “here is $2,000 for you and I have got my fee, too. Here is $2,000 for you, exclusive of my fee and the detectives’ fee.” Peaker said that he did not ask him, nor did he tell him, how much he proposed to keep for himself or to pay tire Gregorys; that a little over a year afterwards (January 5th, 1915) he, Peaker, went again to Hahn’s office and said that he had heard some talk about the case, and said he thought Hahn had “double-crossed” him; that Hahn had received a large sum of money and did not tell him, and that he did not know what Hahn got nor what he paid the Gregorys, and if Hahn received $25,000, which he heard he had, then, he, Peaker, said he thought he was entitled to more money, to which Hahn replied that he was right and that he would give him more money, which he did, and gave him a check for $2,500.
Hahn’s story is that his agreement with Peaker was to divide equally fifty per cent, to each, as already stated.
3. Did Hahn, in December, 1913, disclose to Peaker and the Gregorys the amount he received from Kase? Peaker says that when sent for by Hahn, after lie had collected from Kase, that he, Hahn, gave him $2,000 and informed fiim that that was exclusive of his fee and the detectives’, without being asked by Peaker how much he had collected and without informing him, and that he, Peaker, had no idea what Hahn and the Gregorys got.
John Gregory testified that Hahn sent for him December 30th, 1913, and he went to his. office. Francis Gregory was there. He, John, says he was not sure whether Hahn gave the money to Francis and Francis gave it to him or whether Hahn gave it to him directly, hut he got $4,500 in bills, and Hahn said, “How is that, Chief, how is that?” and Gregory replied that it looked pretty good to him, and put it in his pocket; that he did not know how much Hahn had gotten or what he was going to keep,
Francis Gregory corroborates his father, and, on his recall, testified that on December 30th, 1913, he saw Hahn and Kase at the bank and saw money handed to Hahn by the teller; that he followed him back to his office and that Hahn sent for the elder Gregory and Peaker and informed him, Francis, before they got there, that he got $20,000; that Hahn did not in his presence or in the presence of his father and of Peaker, lay out $20,000 in bills and a check for $5,000; that there was never any discussion as 'to how much the Gregorys were to receive; that Hahn did not say that he was to receive one-half and was about to give Peaker a check for $12,500; that nothing was said about a check at all; that he saw Hahn give Peaker $2,000; that Peaker was not present when the Gregorys got the $9,000.
Peaker was not asked by either of the examining counsel as to who was present when he got the $2,000 from Hahn.
Now, if Peaker tells'the truth he had no agreement whatever as to the amount of Hahn’s fee. Hahn, who says that his fee was agreed between him and Peaker to be fifty per cent., stands alone in this assertion, and if the other three witnesses are to be believed either there was no agreement as to any amount, or it may be that it was to be thirds instead of halves.
The methods by which this collection was made from Kase is significant upon the bona fides, or rather lack of it, of this whole transaction. Succinctly stated this is what happened: On December 30th, 1913, the day after Hahn secured Bertha Peaker’s
Hahn, claiming to be prosecuting an honest claim for damages, having in his possession checks for $25,000, given by a responsible man to whom he had given a release from his client, made the unusual and extraordinary demand that the victim accompany him to a trust company upon which the check for $20,000 was drawn, and which, because it was a trust company as well as a bank, kept later hours than an ordinary banking institution, and induced them to do the unusual thing of paying $20,000 in cash on a check after banking hours. Of course they would do this only for a good customer and responsible man. This gives evidence of the desperation with which Hahn pursued Ease after he found him weak enough to yield to the unconscionable and outrageous demand made upon him, more in Peaker’s name than on his behalf. I call the demand unconscionable and outrageous because only a small recovery, if any, could have been obtained for Peaker from Ease, in my judgment, if a suit for the alienation of Peaker’s wife had béen brought, for reasons which will be hereinafter stated.
Perhaps I ought to advert to a feature of the testimony which was made much of on the argument by counsel representing the respondent. Peaker, in his preliminary affidavit in this matter, obtained by Mr. Barrett, who was assigned by Vice-Chancellor Howell to investigate this matter when rumors of it reached him, swore as follows:
“On December 30th, 1913, I was at the office of the Gregory Detective Agency, No. 828 Broad street, Newark, N. J. Hahn called up there on the telephone and said he wanted to see me. Gregory told him I was there and that I would go down to Hahn’s office at once. I went. I think this was about five o’clock in the afternoon. Hahn told me that he had seen Ivase and that Kase had paid him $6,000.”
On the witness-stand before me Peaker testified, as already stated, that when Hahn sent for him and gave him the $2,000 he did not tell him how much he had recovered from Kase. He was called on to explain the discrepancy between his affidavit and his examination in court and made the following answers to questions by Mr. Barrett:
*533 “A. Now, your Honor, with all due respect to you [Mr. Barrett], I will explain that to you; as I said, with all due respect to you, I did up at the office when you [Mr. Barrett] asked me, you asked me when Hahn gave me $2,000 if he told me he had received $6,000, and I said, ‘No, sir, he did not tell me what he had receivedthen you said, ‘Well, being he had given you $2,000, did you suppose ho had received $6,000?’ I said, ‘I didn’t have any idea at all what he had received;’ you asked me that in your office.
“Q. Well, now then, can you answer the question how you got the impression that Mr. Hahn had received $6,000?
“A. How I got the impression?
“Q. Xes; was it, as you now say, because you understood me-to say that it was six?
“A. That is the idea exactly; I wouldn’t have thought anything about any amount at all, because I didn’t have any idea what he had received.”
It is perfectly obvious that Mr. Barrett, a high-minded and honorable lawyer, would not have written into Peaker’s affidavit the statement that Hahn informed him, Peaker, that he got $6,000 unless he, Mr. Barrett, got the' idea from Peaker, and Peaker at the time he swore to the affidavit must have had a rather vague and indefinite recollection about the particular matter, or passed it by unnoticed, or else sworn falsely. I am convinced it was not the latter. In the first place, he had no object to swear except according to the fact. In the second place, he impressed me as an entirely candid and truthful man. But, even if he swore falsely as to whether Hahn told him what he received from Ease, that does not change the salient facts in the matter at bar. Even assuming that Peaker told an untruth in the affidavit, and invoking against him the doctrine falsus in uno, falsus in omnibus, that cannot operate to annihilate facts otherwise proved. However, as already intimated, I believe that an honest mistake was made in some way between Mr. Barrett and Peaker with reference to this fact in the affidavit, and that in this way the discrepancy in the testimony is to be accounted for. I regard it as an honest mistake.
The question of the legality of the contract for fees, said by Hahn to have been made between himself and Peaker, assuming the transaction to be as Hahn says it was, will now be examined.
In 2 Thornton on Attorneys 745 § 431, it is laid down:
*534 “Where a contract of employment between attorney and client is procured by unfair means, and the compensation therein fixed is so unreasonably excessive as to amount to an extortion, or to evince a purpose on the part of the attorney to obtain an undue advantage of the client, the contract will be deemed to be an unconscionable one, and may be set aside on the client’s application; the attorney being allowed only the reasonable value of the services rendered by him’in good faith. In such eases the burden is on the attorney to show that the contract was free from fraud, undue influence, or exorbitant demand. The court will not, of course, interfere with lawful contracts for compensation in which the charge made is not out of proportion with the services rendered.”
Quite in line with the text of Mr. Thornton is the case of Colgan v. Jones, 44 N. J. Eq. 274, where the court of errors and appeals adopted the conclusions of Williams, advisory master, who said (at p. 276) :
“It seems clear in this case that without attributing any misrepresentation to tire attorney, the parties could not have had in view the real nature and effect of the alleged bargain. The value of the subject-matter could not, from the nature of the case, have been equally or fairly understood by them, nor any approximation of it. It was, in effect, only an arrangement for a contingent fee, which is always under judicial control; for, being made by guesswork, a species of (perhaps innocent) gambling, it would be dangerous to decline such control as a matter of public policy. If, however, these parties can be supposed to have known, with some correctness, the value of the thing they were dealing with, then the inference of fraud on creditors would be irresistible to my mind. A poor laboring man, disabled, more or less, by his injury, knowing that his claim is worth some $4,-000, or thereabouts, gives it all to his lawyer, under the name of compensation, for getting it. Evidently, this is only a name. The affair is a gift of so much as exceeds just compensation; and, if the man is indebted, cannot stand as against his creditor.
“But how can we believe that it was even intended as a mere gift ? It is contrary to human experience that a man so situated should give away a large sum understandingly.”
In Tate v. Field, 60 N. J. Eq. 42, Vice-Chancellor Pitney held:
In Morehouse v. Brooklyn Heights Railroad Co., 185 N. Y. 520 (at p. 525), it was held:
“Of late years the subject of attorneys’ fees, and their manner of procuring contracts of retainer, especially in negligence cases, have attracted the attention of both the public and the courts. The charges made in some cases have been exorbitant, if not scandalous, and have tended in a measure to bring the profession into disrepute. It is contended that a claimant who is poor and unable to pay his attorney in cash ought to be permitted to contract to pay a portion of his claim to his attorney, in order to procure his services. The' validity of such contracts is not questioned. It is only where the attorney has taken advantage of the claimant, by reason of his poverty or the surrounding circumstances, to extort an unreasonable proportion of such claim that it is condemned. The federal courts have recently, in two instances, characterized a contract of retainer giving to the attorney fifty per cent, of the recovery as unconscionable. Herman v. Metropolitan Street Railway Co., 121 Fed. Rep. 184.; Muller v. Kelly, 125 Fed. Rep. 213. The appellate division in the first department has also denounced such contracts. The question, however, as to whether such a contract is unconscionable, is one of fact depending upon the character of the claim and the amount of services rendered in prosecuting it to judgment. An agreement to pay an attorney one-half of the recovery, where the action was to recover a penalty of $50, would not by any person be considered to be improper, but if it was for $50,000, it might be considered quite improper. So, that the mere fact that the attorney under the agreement was to receive one-half does. not render it unconscionable, unless it appears from the evidence
In Dorr v. Camden, 55 W. Va. 226 (at p. 234), it was held:
“A contingent fee is only permitted to attorneys as reward for skill and diligence exercised in the prosecution of doubtful and litigated claims, and is not allowed for the rendition of mere minor services which any layman or inexperienced attorney might perform.
“It is the skill, diligence, ability, experience, judicial knowledge and judgment of the attorney that is thereby rewarded, and the performance of duties that require no such qualities is wholly insufficient to sustain such fee, as the true measure of such services can be ascertained on a quantum meruit.
“The evidence of this case clearly shows that the only duty the plaintiff was to perform was to furnish the evidence of himself, Winchester, Butcher and Hutton, and the record and decision in the case of Camden v. Dewing shows the case wholly depended on the evidence of Winchester, Butcher and Hutton; all of whom were under obligation to the defendant as his fully compensated agents, to furnish him their evidence free of charge or compensation of any kind whatsoever.' It is therefore clear from the proofs that the plaintiff did nothing requiring skill, diligence, experience, ability, legal knowledge or judgment, entitling him to a contingent fee for legal services, and, as before seen, the contract, if entered into at all, was coerced from the defendant by the unfair advantage taken of him by his agents, withholding from him information that belonged to him.”
These cases were civil suits between party and party concerning fraudulent and unconscionable contracts negotiated by attorneys with clients, whom they were bound to protect and not to oppress; and if this were such a suit, I'would have no difficulty whatever in reducing the fee of counsel to far less than he gave Peaker, and to award Peaker more than counsel retained for .himself and permitted the detectives to obtain. This matter, however, is disciplinary, looking to the suspension or expulsion
A bare statement of the facts of the case at bar, as to the alleged contract, shows that “the compensation therein fixed is so unreasonably excessive as to amount to extortion, or to evince a purpose on the part of the attorney to obtain an undue advantage of the client” as laid down by Thornton; that “the parties could not have had in view the real nature and effect of the alleged bargain” as in Colgan v. Jones. In that case Advisory Master Williams remarked that a gift of all of his claim, by a poor laboring man disabled by injury, to his lawyer, in the name of compensation for getting it, was only a name; that it was contrary to human experience that a man so situated would understanding give away a large sum. Equally, in this case, it is unbelievable that Peaker could have known or understood it to be possible to obtain $25,000 from a man for committing adultery with his wife, who, by the way, gave herself up to him willingly, and at whose offence he, Peaker, appears to have connived. The comparative enormity of the recovery in this case is what renders the sum taken under the guise of compensation unconscionable, as hinted at in Morehouse v. Brooklyn Heights Railroad Co. Again the meagre and inexpert services performed by Hahn for Peaker, services which any inexperienced attorney might have performed, are “wholly insufficient to sustain such fee” as was said in Dorr v. Camden.
As is well known, exemplary damages are recoverable in crim. con. suits, and yet the conduct of the wife with her paramour may be given in evidence in mitigation' of damages. Foulks v. Archer, 31 N. J. Law 58; Ferguson v. Smethers, 70 Ind. 519. In the latter case the court observed (at p. 520) :
“The. circumstances attending the adultery — as to whether the wife was sought or threw herself in the way of her paramour,
It is to be born in mind that Peaker is the man whose wife’s affections were said to have been alienated from him, and for which it is said he was entitled to damages. He wrote his wife a letter dated December 25th, 1913, which was received by her and in pursuance of which she met him and went to Hahn’s office where she made the sworn confession. The letter was offered in evidence and reads as follows:
“Dear Bertba this is certainly A swell Christmas Day but it is just as good to me and I suppose you also if you are over the hot stove which you are I believe. Well Sweet I had A talk with my Friend A Lawyer & he said if you would come down to Newark Monday afternoon he would fix it up for me, but mind you this is to be strictly private only the ones concerned in it must know any thing about it as He would not do this for any body else under any circumstances, so I told him I would guarantee him any thing contracted between you and I as far as we were concerned would be absolutely safe so after I get straight with you I will hike it as soon as I get straight but until you are married again after we are Divorced I want you to keep in touch with me if you feel so disposed for I will never wish you any ill will and hope the same from you so if you can meet me Monday after noon let me know or if not let me know when it will be convenient for you and I will meet you at the Central Depot on Broad st. then there will be no danger of the Boss seeing us together therefore it will not hurt your standing with Him, answer me by Saturday so I can make the appointment with the Lawyer, it will not take us over % hour so you see we can make it short. All at Present I remain the same old Cranky Hubby Charles Peaker with love Happy Christmas & A Merry New Tear get me Steve.”
In this letter Peaker invites his wife to meet him and go to a lawyer’s office and says that until she is married again after they are divorced he wants her to keep in touch with him if she feels so disposed for he will never wish her any ill-will and hopes the same from her. He goes on to say there will be no danger of the “Boss” seeing them together, therefore it will not hurt her own standing with him. This can mean none other than Ease, for Peaker had been told by his wife that she was having relations with Ease, and, in consequence of this information Peaker instructed the Gregorys to shadow her at Kase’s
It will not be out of place here to inquire as to what services Hahn performed for Peaker. They met by introduction of the younger Gregory one day, and Peaker visited Hahn’s office later and stated the facts of his case to him. It may be assumed that all this took a couple of hours. Next day Peaker visited Hahn’s office with his wife who reiterated the story and signed and swore to a confession which Hahn drew. It may be assumed that this took three hours. That makes five hours, or, say, one-lialf of a day. Hahn’s transaction with Ease was all in the afternoon of December 30th, 1913, which was less than half a day. Later in the evening of that day Hahn sent for Peaker and gave him $2,000, and gave $9,000 to the Gregorys, the latter dole unbeknown to Peaker. All this may have taken a couple of hours. I reject Hahn’s statement to the effect that Peaker appeared at his office the next morning and told him that he had a settlement yet to make with the Gregorys and that he wanted Hahn to keep the rest of the money ($3,150) for him until he called. Peaker and the Gregorys deny this. Thus, practically, it will be seen, that Hahn’s services in this matter occupied about one day’s time.
Of course lawyers’ services are not based upon, nor are they restricted to, mere time service. They are entitled to fees which will adequately compensate them for their services, especially when those services are valuable to their clients, and, when recoveries are made, their fees may be, and properly are, somewhat apportioned to. the avails gotten for their clients. The same amount of time might be devoted to the interests of a client where no money passed, and the charge would be, perhaps, nominal, if the client were of little ability to pay. And, on the
Advisory Master Williams well said in Colgan v. Jones (at p. 275) :
“The right in action belonged to Colgan, and the judgment was recovered for him and in his name, and became, on its recovery, an asset liable to his creditors.”
This observation has especial appositeness to the case at bar. Here the cause of suit or action was Peaker’s, not Hahn’s, and when the $25,000 was obtained by Hahn it was recovered for Peaker and not for Hahn plus the Gregorys. Yet the conduct of Hahn and the Gregorys would indicate that they regarded
Now, if Hahn’s extortionate charge against his own client is to he reprobated, and indeed it is, what shall I say of his permitting these detectives, the Gregorys, to possess themselves of $10,250. of Peaker’s money for services not requiring any detective skill and which could have been equally well performed by anyone. Francis Gregory, who did the “shadowing,” was informed of the time when Bertha Peaker would visit Ease’s office, and he watched the office and saw her go in and come out five or six times, devoting an hour or so to each occasion. .Besides this, Peaker had several interviews with the agency. By no stretch of the imagination could the Gregorys’ services have consumed more than two days’ time. I understand that detectives charge from five’ to twenty-five dollars a day for their services. Upon the basis of time service the Gregorys would probably have been well paid with $50 and overpaid with $100. And yet, notwithstanding this, Hahn, the solicitor, permits the Gregorys to share equally with him in the “spoils” — for such, I think, the $25,000 may well be called — giving them first $9,000 and then $1,250, when, by the way, they only claimed that there was to be a division into thirds, which would have made their-compensation $8,333.34 instead of $10,250, But, of course, there was no such agreement, for, if there had been, Hahn would not have given the Gregorys $9,000 on the night of the settlement and $1,250 in January, 1915, as “hush money,” for such it was. It was a veritable case of “addition, division and silence,” with silence broken and the usual result — exposure!
The authorities to which I have just referred — Thornton on Attorneys, Colgan v. Jones, Tate v. Fields, Morehouse v. Brooklyn Heights Railroad Co. and Dorr v. Camden — concern causes between parties and solicitors with reference to unconscionable and extortionate contracts between them. But, In the Matter of ——, an attorney, 86 N. Y. 563, the sort of a contract here under discussion was distinctly held to be a cause for disciplining an attorney who was disbarred. Said Chief-Justice Folger (at p. 573) :
As already intimated, however, the opinion at which I have arrived, and the result of it, is not based upon a contract unconscionable, oppressive and fraudulent, but upon such conduct by a solicitor toward a client, without any contract between them, including, also, the withholding of information from the client as to the amount of money recovered for him.
It will not be out of place to mention the fact that Hahn was guilty of unprofessional conduct in procuring from P eater’s wife her sworn confession of adultery.
In Summebell v. Summerbell, 37 N. J. Eq. 603, coercion was practiced upon a wife by her husband who stood by while she wrote and signed confessions which were witnessed by a woman who attended at the husband’s invitation (at pp. 604, 618). And Gummere, advisory master', in this case held (at p. 617) :
“In conclusion, I am of opinion that the confession in this case was not collusive, but that it was procured by the complainant to be used as evidence of his wife’s adultery, and that it is open to the legal presumption of having been procured by the influence of the complainant exerted over his wife for that purpose, and that for both of these reasons it is insufficient corroborative proof of the fact of adultery.’’ And Mr. Justice Van Syckel, in
“A confession procured under such circumstances cannot be regarded as the free and voluntary declaration of the wife, but must be treated as the product of his restraining influence exerted over her feebler will. It was penned, by the hand of the wife, but is none the less the language and voice of the husband.
“The attestation clause by which the complainant sought to remove the presumption of constraint, which he knew must attach to it, only adds to the suspicion with which it must be received.
“The analogies of the law lead us to discredit and discard all testimony which is marked by this infirmity. A confession procured from an accused through inducements held out to him is utterly rejected as evidence. No responsibility attaches for an act done under duress. Even in certain crimes committed by the wife in presence of her husband, the law does not charge her with the guilt of the offence, but imputes her conduct to his coercion.
“If these ancient principles of the law are wisely founded, what probative force should be given to the wife’s confession of guilt put forth at a time and place appointed by the husband; before a witness summoned by him, attested by a clause drawn by Ms hand, and written and signed in his presence and under his eye, with the purpose of using it against her ?
“In my judgment, self-accusation thus procured is unworthy of credit, and cannot be a safe basis upon which to build up and support a charge of adultery against a wife.”
The situation is not at all changed because Mrs. Peaker said in her sworn confession: “I am making this affidavit of my own free will and without any coercion.”
In the Summerbell Case (at p. 619), the attestation to the confession read: “I have written the within without dictation or control by my husband or any other person, without any promise or threat, and sign in presence of Miss Caroline Forman as witness.” Afterwards the wife signed another confession which commenced: “By this writing I bear witness willingly and without dictation or compulsion, in the hope alone that my husband
“The language of this paper, and that in the attestation clause, leave no doubt in my mind that they were drawn by the husband after consultation with counsel, to be used, as they have been used, as a means of proving the wife’s adultery.”
As the confession of Mrs. Peaker would not have been received in evidence in a divorce case (Summerbell v. Summerbell, supra), neither would it have been received in a suit for damages for alienation of the wife’s affections, for the Evidence act provides that nothing contained in it “shall render any husband or wife competent or compellable to give evidence for or against the other in any action for criminal conversation, except to prove the fact of marriage.” Comp. Stat. p. 2222 § 5.
Hahn knew, and even Peaker and his wife are presumed to have known, that this affidavit was valueless as evidence. It would seem, therefore, that it was procured by Hahn to become the engine of oppression against Kase; and it had that effect. The expression in the handwriting of Hahn that the confession of Bertha was made of her own free will and without coercion goes far to throw light upon the character of this transaction and Hahn’s connection with it. Bertha’s declaration as to that is the judicial language of a trained lawyer put into the mouth of a domestic servant. I regard this sworn confession as a flagrant piece of unprofessional conduct on Hahn’s part.
It has already been stated that Hahn’s claim is that he was not retained to prosecute a divorce suit but one for alienation of a wife’s affections. This defence is aimed at the jurisdiction of this court, the contention being that the offence, if any, was committed by Hahn in his capacity as an attorney-at-law and not as a solicitor in chancery. I have already determined, upon the facts, that his retainer was to bring a divorce suit. He successfully turned it into a demand for a money consideration to suppress a divorce suit or to settle a crim. con. accusation. True, Hahn had Peaker sign a release to Kase on the day he got the money, December 30th, 1913. It is filled out in a general release blank, and, after the usual omnibus clause, written in by Hahn, is the following:
*545 “And in particular all claims I have against the said Charles M. Kase on account of his alienating the affections of my wife Bertie Louise Peaker, and his having committed illicit intercourse with her.”
This release is expressed to be made for and in consideration of the sum of “one dollar and other valuable consideration.” This speaks volumes in corroboration of P caller’s claim that he did not know how much money Hahn obtained from Kase. If this were a bona fich transaction, which Hahn says it was, in which Peaker instructed him, according to his own statement, to demand $50,000 damages, then surely, when he, Hahn, at last got down to settling for $25,000 he would have informed Peaker and had the amount written in the release so that Peaker would know that Hahn was telling him the truth and that he was to get no more than the latter sum. True, Hahn testified that Kase asked him to write the consideration as $1. Kase says nothing of the kind, only that he demanded a release. Hahn did not instruct his counsel to cross-examine Peaker on this question, nor did he ask Kase anything about it. This testimony of Halm’s was brought out by a question of mine. Hahn testified that he sent for Peaker and told him that Kase had submitted a proposition to settle for $25,000.’ I then asked Hahn why he did not write the amount in the release, and he said he had spoken to Kase about it and he told him to put in the amount as $1.
It would be absurd to think that Kase had any desire in that regard. He wanted a release for his protection, and that, under the hand and seal of Peaker, being in full for any and all demands to date, would have been equally as good a defense against the claim which was compromised, had it expressed the real or only a nominal consideration.
Again assuming that Hahn’s version of the matter is correct, and that he was retained to prosecute a crim. con. instead of a divorce suit, nevertheless, this court has jurisdiction of his of-fence. It may be that if there were no question but that the claim was one for damages for alienation of affections that the court of chancery would not have commenced this prosecution, but would have brought the matter to the attention of the supreme court, if it were not already aware of the facts. But
In State v. McClaugherty, 33 W. Va. 250, it was held:
“That when an attorney commits an act, whether in the discharge of his duties as an attorney or not, showing such want of professional or personal honesty as to render him unworthy of public confidence, it is not only the province, but the duty, of the court, upon proper presentation of the case, to strike his name from the roll of attorneys.''
In re Wilson, 79 Kan. 674, it was held that whenever one who was in fact a lawyer accepted employment to act for some one else in a business transaction, in the course of which he received money belonging to his employer, his wrongful detention of it is a sufficient ground for his disbarment, although he may not have been called upon to give legal advice or to take part in litigation; that “such conduct would justify excluding him from the practice of the law, as it would certainly be a just cause of refusing an application for admission to the bar” — citing In re Smith, 73 Kan. 743. In this case the amount of money received and misappropriated was inconsiderable.
In re O ———, 73 Wis. 602, it was held:
“The misconduct which will warrant the suspension of an attorney is not limited to acts committed strictly in a professional character, but extends to all such misconduct as would have prevented an admission to the bar.
“In proceedings instituted in the court of his residence, such court may disbar or suspend an .attorney for professional misconduct before officers of the United States land office."
The last citations are ample authority as to the power of
Now, for what causes will courts discipline lawyers? Generally, it may be said that they will be disciplined for offences involving moral turpitude. .
In re Charles A. Thatcher, 80 Ohio St. 492, it was held:
“The real question in cases of this kind is whether under the facts admitted and proved the respondent appears to be a fit person to be longer allowed the privilege of an attorney; whether he has shown himself, by lack of appreciation of ethical standards and by unworthy conduct, to be no longer worthy of being recognized as an officer of the courts.
In order to justify a court in disbarring an attorney, it is not necessary that his offence should constitute a contempt or a crime; or that he should be convicted of the crime or contempt before the disbarment.
While the power of disbarment should be exercised with great caution, yet where the respondent has been found guilty of unprofessional conduct involving moral turpitude and of misconduct affecting his character and standing as an attorney, and especially where he had manifested no signs of regret and retracted nothing, the courts will not hesitate through sympathy for the individual, to protect themselves from scandal and- contempt and the public from prejudice, by striking such person from the roll of attorneys.”
As I said In re Rosenkrans, 94 Atl. Rep. 42 (at p. 45) :
“The supreme court (In re McDermit, 63 N. J. Law 476), reprobates the breach of that highest trust and confidence which obtains between counsel and client, under which a duty to observe the strictest integrity in his dealings with a client is enjoined, and disbarred a lawyer who had been unfaithful to the instructions of his clients, obtaining from them money for which he failed and neglected to render any adequate service, and retained for his own use money which he had received from them for another purpose.”
In People v. Salomon, 184 Ill. 490, the court quotes from Sharswood’s Essay on Professional Ethics, as follows:
“There is no class of men among whom moral delinquency is more marked and disgraceful than among lawyers. Among merchants, so many honest men became involved through misfortune that the rogue may hope to take shelter in the crowd and be screened from observation. Not so the lawyer. If he continues to seek business, he must find his employment in lower and still lower grades, and will soon come to verify and illustrate the remark of Lord Bolingbroke that, ‘the profession of the law, in its nature the noblest and most beneficial to mankind, is in its abuse and abasement the most sordid and pernicious.’ ”
Still another matter — one which has been hinted at but not descanted upon — is Hahn’s oppressive conduct toward Kase. True, Kase was not Hahn’s client, but his client’s adversary. Nevertheless, he had rights which Hahn was bound to regard. One was to deliberate as to whether or not he would pay the enormous demand made upon him or resist the collection of it. He asked for time to think it over but was told that the money had to be paid that afternoon or night or the papers would be sent to Trenton and get there early the next morning, when he would be exposed.
In Thornton on Attorneys, § 295, it is laid down:
“An attorney’s liability does not end with being answerable to his client. He is also liable to third persons who have suffered injury or loss in consequence of fraudulent or tortious conduct on his part.”
In Schalk v. Kingsley, 42 N. J. Law 32, it was held:
“While an attorney-at-law acts merely in the character of attorney, making use of the process of the law to enforce his client’s demand, however groundless and vexatious it may be, he is not liable to suit. But when he steps beyond that, 'and actively aids his client in the execution of his purpose, he is not shielded from responsibility.”
In the Matter of Hutson, an attorney, 127 N.Y. App. Div. 492, it was held:
Hahn, as already observed, had no instructions from Peaker to collect $25,000 to settle the divorce suit or a crim. con. action; his instructions were to bring a proceeding for divorce; but, even if his instructions were to get money for the settlement of the cause of action, whichever it was to be, Hahn had no right by threats óf exposure to extort $25,000 from Kase in Peaker’s name. If an attorney who writes to a third person, in an endeavor to collect a claim from him, that he had brought suit for his client, when in fact he had not, may be disciplined, as we have seen, how much more reprehensible and deserving of discipline was Hahn’s conduct in demanding that Kase raise an enormous sum of money after banking hours to prevent the immediate commencement of a divorce suit in which he had drawn no papers, and when, as we have seen, he went to the bank with Kase and insisted that the money be drawn and turned over to him, which was done. This course, it seems clear, was taken by Hahn because lie knew that if the matter was allowed to rest over night and Kase took counsel there would be small likelihood, indeed, of his (Hahn’s) scheme succeeding.
Upon this whole matter I am clearly of opinion that Hahn has shown such a want of professional and personal honesty as to render him unworthy of the confidence of the court or the public, and he should, therefore, be disbarred; and his guilt is heightened by his bold defence of his indefensible conduct. If the court were to put the seal of its approval upon this nefarious transaction, and let this solicitor go acquit, then the public— the third party to this proceeding, whom the court is bound to protect — might well despair of protection from the fraud of unconscionable and designing lawyers.
It is, of course, with great reluctance that I have come to this conclusion. The solicitor is a prominent practitioner of the law
Let an order be entered debarring the respondent from further practicing as a solicitor or counselor of the court of chancery.
