118 N.Y.S. 146 | N.Y. App. Div. | 1909
The respondent was admitted to practice i-nt November,, 1900, •and has. continued, to» practice in the city of New Yorlt since, that time. The petition alleges that on the» 6>tk day of December, 1907, the respondent entered into, an agreement, with one Peck,, who, was not an attorney at law, whereby he, agreed to pay Peek a weekly •salary varying from, fifteen to twenty dollars a, week, in consideration of Peck’s, doing such work as the- respondent should) assign to ‘him», and more especially the-work, of'investigator in negligence cases- and preparing the same for trial; and in addition to, the weekly salary tit® respondent, agreed, to pay Peck ten per cent of the net fees that the respondent should thereafter’ receive in all negligence cases- which the said Peck should solicit, and bring into the respondent’s office. This sum was not paid as compensation for »any services performed by Peck for the respondent, but as- compensation for. obtaining contracts by which the respondent was retained and employed as an attorney and counselor at law to bring ^actions on behalf of the persons with whom the contracts were made. It was further alleged in the petition that during the time "this contract was in force one Tully was injured hy an accident which- occurred in the city of" New York and which resulted in 'Tully’s losing one of Ms legs-; that on- or about the 25th day of -June, 1908, the day of the accident, Peck went to- see Tully and obtained, from Mm a written agreement retaining the respondent .-■as attorney for the- said Tully to bring an action to recover dam--ages for his injuries, promising in said agreement to pay to "the respondent as and for his services as such attorney fifty
•The respondent appeared in this proceeding and filed a verified answer, in which he made no denial of and raised no issue as to any of the allegations of the petition, and on the argument lie accepted the facts alleged in the petition as true, and asked that the, proceeding be determined on the petition and answer.
There were in these cases direct agreements by which an attorney at law agreed to pay to a person procuring contracts, by which he was retained to prosecute actions at la\v, a percentage of his fees for prosecuting the actions or proceedings after he was retained. It is expressly alleged that this percentage was not paid for services rendered to the respondent, but was paid solely for the procurement of the contracts of retainer by the persons having claims to be prosecuted by a legal proceeding. The fact that persons with whom the respondent made these agreements were paid by the respondent for other services rendered by them seems to me to have no relation as to the effect of these agreements. The persons with whom he made these contracts were not attorneys at law, and no part of the respondent’s fee that he paid to such persons had any relation to or connection with the performance by such persons of services which they rendered to the respondent, except in procuring the contracts of retainer. They were purely contracts by which the respondent paid persons, not attorneys at law, for obtaining contracts by which the respondent was to conduct legal proceedings and to receive a contingent fee therefor. Attorneys at law are admitted to practice by the Supreme Court of this State upon taking the oath of office, aiid they thereby become public officers. The duties of an attorney are regulated by the Code of Civil Procedure, and his compensation is governed by the agreement, express or implied, with his client. Certain rules are prescribed to regulate his conduct. Section 74 of the Code of Civil Procedure provides that “an attorney or counselor shall not, by himself, or by or in the name of another person, either before or after action brought, promise or give, or procure to be promised or given, a valuable consideration to any person as an inducement to placing, or in consideration of having
In -October, 1.9-05, there was presented to the Appellate Division-of the fourth department an application -to disbar'¿.n attorney and counselor at law upon the ground that he had employed a per-, son to .solicit the -owners of lands abutting, -upon highways in which telegraph .and telephone poles had been erected to retain such .attorney to prosecute, for a contingent fee -of. a percentage of the recovery, actions to .enforce their -claims against telephone and telegraph .companies maintaining such poles, and agreed . to pay such solicitor for each claim so- secured -one-half "the proceeds realized by the attorney therefrom. It was held that such an employment was a violation of .section 74 of the Code. of Civil Procedure, and such contract on the part of an attorney was and is illegal, and required his disbarment. (Matter of Clark, 108 App. Div. 150.) Upon an appeal to the Court of Appeals (184 N. Y. 222) in affirming" the order of the. Appellate Division the court said: “ The statute "forbids the promise or gift of a valuable consideration to any person -as an inducement to
As before stated, the respondent comes into court admitting the allegations of the petition; admitting a course of practice and the commission of acts which the highest court in the State has characterized as criminal. It is said, however, by the respondent that the fact that he had employed these solicitors to do other work for him for which he had paid them a salary, in some way affected this express prohibition of the statute. But there is no such limitation in the statute, the single exception being an agreement between two attorneys to divide the compensation to be received. . The statute does not except clerks or other employees of an attorney, the limitation applying strictly to agreements with attorneys; There cán be no question but that this exception would apply to an attorney employed in the office of another attorney ; but what the statute, as construed by the Court of Appeals, expressly prohibits is an agreement by which an attorney pays, or promises to pay money to a lay agent to exert his influence upon the claimant to" induce the latter to employ the attorney. (Matter of Clark, 184 N. Y. 231.) Counsel for the respondent, in his brief, seems to think that this conclusion would prevent an attorney from engaging a clerk not a
I cannot, therefore, escape the conviction that upon this showing the defendant had been engaged in a criminal practice and has been guilty of a misdemeanor. We have then to determine the punishment which should be inflicted. Notwithstanding the ingenious defense made for the respondent by his learned counsel, I cannot for one moment believe that the respondent considered this practice as one which was authorized by law, or which was not disgraceful for a member of the- legal profession. It is a practice made a misdemeanor by the Code of Civil Procedure (§ 75) and by the Penal Code (§ 136). It is a practice that has been commented upon and criticised at meetings of lawyers and in judicial decisions, as well as by the general public; and now, whep it is for the first time in this department brought directly before the court, I believe it to be our duty to speak in no uncertain terms in condemning it as a violation of the criminal law in this State, and also a practice which is unprofessional and destructive of the honor of the profession and of the confidence of the community in the integrity and honor of its members.
It has been urged in extenuation of this offense that it is a practice which is common among members of the profession who are engaged in the prosecution of negligence cases, and that it is unfair
. McLaughlin, Laughlin, Clarke and1 Houghton, JJ., concurred.
Respondent, suspended for one. year.