225 A.D. 246 | N.Y. App. Div. | 1929
Lead Opinion
This matter comes before the court on the report of an official referee in disciplinary proceedings. No recommendation is made.
The respondent, who is thirty-four years of age, was admitted to the bar in 1922. In the petition presented to the court it is charged
The facts as disclosed by the record are not in dispute, except as to one important item. Respondent began the practice of the law as a member of a firm of lawyers who were not engaged in negligence cases. In 1923 and 1924 he was a law lecturer at a university school of commerce. In 1924 he began the practice of law on his own account; also became an active member of the faculty of a law school, which position he continued to hold until 1928. Shortly after he began the practice of the law one Fabricant, who is now twenty-seven years of age, entered his office as a law student, later became a law clerk and continued as such until the commencement of this proceeding. For a period of three years Fabricant had brought to respondent’s office fifty-five cases, of which nineteen were negligence cases. Fabricant received a percentage of respondent’s fees, part of the time twenty-five to thirty per cent and a small salary, and later thirty-three and one-third per cent without salary. According to Fabricant’s “ guess,’’ he received upwards of $1,000 a year out of the cases. No books or other records were produced to show the amounts of payments to or the salary of Fabricant, or the times when he was paid a salary. Negligence cases constituted the lesser portion of respondent’s practice. Fabricant testified he did not “ solicit ” any of the cases for respondent. The real question in dispute is as to the intent with which a share of the fees was given by respondent to Fabricant. Petitioner asserts that it was given as an inducement for procuring cases or as a reward for having brought them, in violation of subdivision 2 of section 274 of the Penal Law, and of canons 27 and 28 of the Canons of Ethics of the American Bar Association, adopted by the Bar Association of the State of New York. Respondent claims it was given out of consideration for kindnesses and fidelity of Fabricant to him. In his answer to the petition, respondent alleges that what he gave to Fabricant was as a reward for his “ devotion and faithfulness ” and not as an inducement for procuring cases. Not a word is said in the answer about loans of money by Fabricant to respondent as an inducing cause for the sharing of fees. Fabricant testified that on two occasions when respondent was in financial distress he borrowed money and loaned it to him. Nothing is stated about the terms and amounts of these loans. Respondent testified to the loans in a general way, and also testified it was because of this
This testimony clearly indicates that respondent’s relationship with Fabricant was what the court has found it to be.,, It demonstrates that his claimed purpose of rewarding Fabricant was an assumed mental attitude rather than a fact. There is no proof that the respondent has been guilty of any wrongdoing other than this arrangement with Fabricant. It would, however, have shown
Reference has been made in a case, decided herewith, as to the condition of affairs of the bar in connection with “ ambulance chasing.” With that in mind, and the fact that respondent has not, in so far as the proof discloses, in the slightest degree participated in the evils which are incident to “ ambulance chasing ” and that none of the cases procured by Fabricant was the result of solicitation, a majority of the court feel that the ends of justice will be served by suspending the respondent for a period of two years. Such a result cannot now be avoided, since the respondent knew that he was doing something that was illegal. As a teacher of those who were to serve in his chosen profession, where the highest standards of conduct are demanded, he showed himself weak in the face of the temptations of material gain. Such conduct cannot be tolerated any longer. The fine traditions of the bar must be maintained.
Kapper, Hagarty and Carswell, JJ., concur; Rich, J., dissents and reads for dismissal of the charges.
Dissenting Opinion
(dissenting). I am not in accord with the decision about to be rendered in this proceeding, and must, therefore, dissent.
It is clear to me that the evidence preponderates in favor of respondent’s innocence, but assuming that I could agree with my learned associates on this vital question of fact, then I could not agree to the action to be taken, because I would regard it as being entirely too severe.
I cannot overlook his good character, the fidelity with which he has represented his clients, and the fact that bis dealings, even with his adversaries, have been honorable.
He is charged with giving one Fabricant money for introducing him to a few persons requiring his assistance.
The respondent tells us that Fabricant had been a student under him in a school of commerce, and after he began practicing on his own account he took Fabricant in his office as a student. It appears that Fabricant devoted himself to respondent’s service for several months without compensation. He tells us that Fabricant brought him business from time to time and it was done without compensation or any request or promise of compensation, and he says that it was because of the services Fabricant had rendered to him that he finally began to pay him twelve dollars a week, and the compensation was subsequently increased to fifteen dollars a week. This salary was for current services and was not intended as a reward for anything but the ordinary services of a typist and clerk, and it
There is no Statute of Limitations for this offense. It does not outlaw. When housecleaning commences, the question arises as to just how far and how high this court shall reach.
Respondent has . been punished and humiliated, and, under the circumstances, if I believed him guilty of the practices charged I would feel that a censure by the court was sufficient; but because I do not believe him to be guilty I vote to dismiss the charges against him.
Respondent suspended from the practice of the law for a period of two years.