94 N.Y.S. 331 | N.Y. App. Div. | 1905
This is a proceeding brought against an attorney at law for improper and unprofessional conduct. On October 23, 1903, the petition and charges herein were presented to this court by the
The charges are three in number, designated respectively, “ A,” “ B ” and “ O,” and in brief are as follows:
Charge A.
That on or about December 29, 1901, a suit was brought in a District Court of the State of Minnesota, entitled Peter Power v. Northern Pacific Railway Company, to restrain the defendant from retiring its preferred stock, the complaint, verified by said Peter Power, alleging “ that plaintiff now is and for more than six months last past has been the owner and holder of 100 shares of the aforementioned stock (meaning common stock) of the defendant company, and now holds and for more than six months last past has held the certificates representing the issue therof; ” that such statement was relevant and material, and one of the solicitors. for complainant in said suit testified on August 28, 1902, before a special examiner, that he prepared said complaint at the instance of said Lamb, the personal counsel of said Power, in reliance upon statements made by him, and the said Power testified before the special examiner that he verified the complaint upon the professional advice and representations of said Lamb; that on December 30, 1901, said Lamb, as counsel for said Power, swore to an affidavit intended for use and used in said cause, averring “ that he has read the complaint of Peter Power against the Northern Pacific Railway Company and is familiar with the facts therein set forth; ” that said Lamb testified on August 11 and 21, 1902, and at other times before the special examiner, that the basis for the allegation
Charge B.
That on December 30, 1901, the said cause was removed into the United States Circuit Court for the district of Minnesota, issue was joined, and on December 31, 1901, the injunction was dissolved; that by order of said court, dated January 14, 1902, a special examiner was appointed, who, on July 23, 1902, made an order that the taking of testimony in defendant’s behalf should commence before him at 15 Broad street, Hew York city, July 29, 1902; and on July 24, 1902, upon petition of the secretary of the defendant, an order was made directing that a subpoena issue commanding Peter Power to appear before the special examiner to testify on July 29, 1902; and on July 24 and 25, 1902, copies of said petition and order and original subpoenas thereunder were duly served on Peter Power; that on said day Peter Power did not answer nor did he appear, and said Lamb stated that he had advised his client not to come because the service of the subposna was improper and the court had no jurisdiction, and the special examiner ruled that the service was proper and Power should be produced, which said Lamb declined to do, and he did not appear until August 21, 1902; that on July 10, 1902, Peter Power went to West Hurley, H. Y., and on July 31, 1902, an order to show cause was granted by Hon. Edward B. Thomas, United States judge, directing said Power to show cause why an attachment should not issue against him, punishing him for contempt, and providing that service of the order and papers upon which it was based upon said Power prior to August 5,
Charge C.
That on August 11, 1902, said Lamb, while duly sworn as a witness in said cause, was asked: “ Q. Who took the certificate to Chicago? ” (meaning a certain certificate for 100 shares of the defendant company), and replied, “ I did.” And he also testified on that day, in reply to questions, that he brought the certificate back to Hew York; that in the meantime he handed it to Mr. Power, who had it quite some time, and, his recollection was, took it to Minneapolis and returned it to him on the way back to Hew York; that it was a fact he carried the certificate himself to Chicago and delivered it to Mr. Power; that he was then asked : “ Q. Is it a fact that Mr. Power retained possession of it until a few days afterward, when you started to return from Minneapolis ? ” and answered: “ I won’t say this, Mr. Guthrie, that I took the stock in my own physical possession, but I was in custody of it and I was charged with the
These charges, it appears from the affidavit of the secretary and attorney of the committee on grievances of the Association of the Bar of the City of Hew York, were received by him “ in due form,” and subscribed by and bearing the seal of the Horthern Pacific Railway ,Company, “and that upon examination thereof he deemed said charges proper to submit to the committee.” Except for changes in lettering and numbering and the insertion of the word “petitioner” for “ undersigned,” the charges of the Bar Association are verbatim those submitted by the railroad company.
The answer to the petition and charges denied' that, with respect to charge A, respondent knew that said Power ivas not the owner and holder of the shares mentioned or that the respondent made any untruthful statement or representation for the purpose of deceiving the court as alleged, and avers that the suit was begun and the complaint therein verified in good faith, and that respondent did not procure said Power to make any untruthful statement in said cause; the respondent denied with respect to charge B that the departure of said Power from West Hurley was advised and that the funds to support said Power were furnished by the respondent for the purpose of preventing said Power from testifying in the said cause as alleged in order to prevent the court from learning of
Upon the opening of the proceeding before the referee, the respondent moved to dismiss the charges upon the ground that the petition and charges fail to present any facts or accusation against the respondent of which this court has jurisdiction, it not being alleged that he was guilty of any deceit or wrongdoing under the law of this State and that the acts complained of and stated in charge A relate solely to alleged conduct of the respondent in an action pending in the courts of the State of Minnesota; that the facts alleged in charge B relate wholly to the respondent’s conduct in a judicial proceeding in the United States court of Minnesota and an examination held in the United States court of the southern district of New York, and, if true, constitute at most contempt of the courts of the United States and their process; and that with respect to charge C the testimony referred to was given in the United States court of Minnesota. The motion was denied upon the ground that it had already been decided by the Appellate Division in making the order of reference to take testimony and report to that court. The respondent excepted.
The testimony of Weidenfeld and Stern relates solely to charge A, and the referee was called upon, as is this court, to consider what was stated by them and what was stated to the contrary by the respondent, and whether the statement of the respondent was such as to free him from the accusation made of deceit and wrongdoing. Upon the question of credibility, therefore, in connection with the general facts conceded, the whole inquiry must turn.
The respondent, in effect, has admitted that in December, 1901, Peter Power began a suit-in Minnesota courts against the Northern Pacific Railway Company to restrain it from retiring its preferred stock, and verified the complaint alleging that he was, and for six months had been, the owner and holder of 100 shares of the company’s stock, which was a material allegation, and that the respondent, as counsel for Power, averred in an affidavit made in that month that he had read the complaint and was familiar with the facts alleged therein, and that the attorney who prepared the complaint in Minnesota did so at the instance of the respondent. We thus conie to the crucial point of Power being the lawful owner of the stock in question, and, if not, whether the respondent knew it.
The respondent’s testimony before the examiner and before the referee is substantially as follows: That he is thirty-two years old and studied law in the office of Davies, Stone & Auerbach, being admitted to the bar in 1887, and in 1899 left that office and formed a partnership with George A. Yoss, Esq., which continued for three years, his practice being general, and then formed a partnership with Daniel W. Guernsey, Esq.; that he met Camille Weidenfeld, of the firm of Lawson, Weidenfeld & Co., who gave him his first important case, and who became his principal client; that his relations with him were friendly and intimate, and he had charge of a number of active litigations for Weidenfeld’s firm, and placed absolute reliance upon and confidence in him; that in May, 1901, Weidenfeld evinced a great interest in the affairs of the Northern
Mr. Weidenfeld testified that he had business relations as client
It was agreed that Mr. Stern would testify if present that he went to Chicago on the day named with Power and Mr. Lamb', and that was the first time he knew he was the Peter Power in the suit. “ Q. Well, Mr. Weidenfeld told you that if Mr. Lamb secured a good plaintiff or a responsible plaintiff — A. (Interrupting) Or words to that effect ” •—■ “ Q. Or words to that effect he would be inclined to go into the litigation? A. Yes, sir; ” that he took the certificate in the name of H. Content & Co. to Chicago in an envelope pinned to his undershirt and took it out in the attorney’s office there and showed it to the gentlemen present who examined it, and then he took it back to New York that same day and handed it to Mr. Weidenfeld.
There was offered in evidence a ledger account of Mr. Weidenfeld with H. Content & Co. showing the purchase in December, 1901, of the certificate in question.
Upon this evidence the referee concluded that it affirmatively appears that the stock in question was never owned by Power and hence he was not a Iona fide holder thereof, and that the whole proceeding “ savors of fraud, deceit and duplicity,” and that charge A is established by the proof.
The testimony of Mr. Weidenfeld and Mr! Stern corroborates that of the plaintiff excepting as to the alleged agreement that Mr. Weidenfeld was to carry, assign and hold for delivery to Power the stock in question. Thus Weidenfeld admits that he was respondent’s client; that he was vitally interested in testing the proposed merger; that he talked with respondent of it; that he obtained the stock and may have had other stock and authorized its being taken to Chicago, for the purpose, however, he says, of intervening in the suit; that “if Mr. Lamb secured a good plaintiff * * * he would be inclined to go into the litigation ; ” that he agreed with respondent to contribute to the expense of the litigation and did contribuí# $6,000; that Stern did draw upon him, paying expenses
With respect to charge B many of the alleged facts are admitted. Thus the respondent admits in effect that a special examiner was appointed and proposed to take testimony in Hew York and that the subpoenas, orders, etc., directed to Power were issued and that these papers were delivered to him at the times and places specified; that Power went to West Hurley, H. Y., and that when the order to show cause was granted why he should not be adjudged guilty of contempt, the respondent went to West Hurley and on the following morning went to Rhinebeck ferry with Power who then took a train for Montreal, the respondent returning to Hew York; that it was thereafter adjudged that Power was in contempt and decided that the service was good and that the respondent who had sent moneys to Montreal to Power went there for him and returned with him, surrendering him to the process of the court, and Mr. Power testified and was thereupon released from custody. It becomes necessary, therefore, to scan the respondent’s testimony as to the explanation of his conduct to determine whether it was such as calls for punishment.
The respondent testified that Power is a young man twenty-three years of age, and at the time the proceeding began before the special examiner was engaged to be married ; that both he and his fiancée were annoyed by the constant vigilance of detectives and concluded to be married at once, and the ceremony was quietly performed, and Mr. and Mrs. Power went to West Hurley, H. Y.; that they were followed by detectives, who encamped day and night near the house where they were stopping, and they both became very nervous, and particularly Mr. Power, who was in bad health ; that the respondent regarded the whole proceeding with respect to the service of papers unlawful and improper, and, acting under that belief, advised his client to pay no attention to them until it was finally determined whether such service was valid; that the validity of the service was being contested and the respondent secured the psistot)99 pf other attorneys, and particularly Mr, Chandler, who
The petitioner calls attention to an apparent inconsistency in the respondent’s testimony before the special examiner and before the referee ; he testified before the former that when Mr. Power suggested going to Montreal he “ exacted a solemn promise that he would instantly return if Judge Lacohbe decided that he had been properly served and that he was in contempt of court,” and that “ the matter of his going to Montreal I can only say it is myself who is to blame and not Mr. Power. * * * I had some intention of sending him up into Dutchess County and finally we agreed that he should go to Montreal, he first, however, giving me his solemn promise that he would return immediately. * * * I thought the best thing to do was to get Power out of West Hurley. It happened that I had in Montreal a very strong man, I mean as a lawyer, a King’s Counsel * * * Farquhar S. MacLennan so I gave Power just sufficient money to get to Montreal and to cover preliminary expenses and I telegraphed MacLennan to look after him and give him any funds that were necessary but not to allow him to get away.” Before the referee respondent testified “ that he did not know Power, had gone to Montreal till he got his telegram but was afraid he had; that he did not consent to it and Mr. Power had done what he asked him not to in going to Montreal; that his previous testimony was not accurate; that he felt to ‘blame’ because he did not take Power back to Hew York; that lie had agreed for him to go to Montreal and then changed his mind at the
The referee upon this testimony concluded that the respondent was guilty of the charge and that his conduct was “ gross unprofessional conduct and malpractice, which was highly reprehensible and more calculated to defeat than to further the ends of justice.”
The third charge (0) is all contained in the testimony of the respondent wherein he stated that at Chicago he had actual custody of the certificate, whereas he finally admitted'that he did not mean to say he had physical possession of it, and Mr. Stern testified that the certificate was constantly in his own and not the respondent’s possession. This charge the referee concluded was interwoven with charge A and was proven.
In addition the respondent contends that this court has no jurisdiction over his acts committed outside the State and in the United States court and with respect to the process of that court. This point is not well taken since as an attorney of this State the respondent was. bound in all his acts .to conduct himself properly or be prepared for proceedings such as these to be taken against him. (Code Civ. Proc. § 67.)
Of all the charges the most serious is charge A, which is based upon the fact that in the complaint in the Northern Pacific suit there was the allegation that “ plaintiff (Power) now is and for more than six months last past has been,” the owner and holder of 100 shares of common stock of the Northern Pacific railroad. This complaint was enforced by an affidavit of Lamb that he had read the complaint and knew the facts therein stated to be true.
It appears beyond dispute that Power was a “dummy,” who, taking the respondent’s own statement, had been brought into the litigation by him in response to the suggestion made by Weidenfeld that he should get some one who in his (Weidenfeld’s) interest would bring the suit to test the legality of the action of the railway company in retiring its preferred stock; and that for such purpose he, Weidenfeld, would carry 100 shares of the common stock for such person’s account. As matter of fact Power never became a stockholder of record nor was there a transfer to him of the
There is no escape from the conclusion that not only did Lamb permit his client Power to swear to a false statement, but reinforced it by his own affidavit which, with respect to the ownership of the stock, was equally false. The charge of perjury and subornation of perjury, because it amounts to that, has been fully proven. Considering the purpose for which the suit was instituted and the serious consequences resulting from its institution and the deliberation with which the whole fraudulent scheme connected with that litigation was concocted and carried out by the respondent, we are convinced that he is unworthy of being continued as a member of the legal profession. There is no place within its ranks for perjurers and suborners. We cannot extend leniency in this case. The offense of the respondent cannot be attributed to the indiscretion of youth and mistaken zeal. His acts show singular fertility and complete deliberation in devising and executing the outrageous scheme by which he involved so many people in harassing litigation and from the basest of motives.
Without considering in detail the other charges made against the respondent, and which the referee has reported are sustained, after a very careful reflection and examination of the whole situation, we are satisfied that the respondent should be disbarred.
Present — Patterson, O’Brien, McLaughlin and Laughlin, JJ.
Respondent disbarred.