146 N.Y.S. 906 | N.Y. App. Div. | 1914
On September 15, 1906, one Herman Schradin was killed as the result of an accident, and the respondent was consulted by his brother, William Schradin, in relation to a recovery of damages caused by the death of bis brother. Thereupon a written retainer was executed by which the claimant agreed that “ my said attorney shall keep, have and retain out of any money received by him in the prosecution of my claim 30 per cent thereof as compensation for his services and in addition thereto all costs that may be legally taxed in any action brought by him in any court to enforce my said claim.” As a result of this retainer, the respondent commenced an action on behalf of his client against the Hew York Central and Hudson River Railroad Company, and after a trial the plaintiff in that action obtained a verdict for $3,500. ' On February 16, 1907, judgment was entered for the sum of $3,720.38, the costs and disbursements as taxed being $132.88, and interest on the verdict,
This proceeding was subsequently commenced charging the respondent with professional misconduct in refusing to pay this money to the client. The charges were referred to the official referee who has reported the charges proved, and that the respondent was guilty of professional misconduct. The report of the official referee contains a statement of the facts. Having 'seen the witnesses and heard their testimony, he has reported that, so far as there was a dispute between the attorney and his client, the client was to be believed. It is sufficient to say that the evidence satisfies us that the official referee was right, and we approve his report.
The amount which the respondent finally succeeded in collecting was made up of the verdict of $3,500, the costs of the respondent as taxed, with interest, $504, and the balance, $1,024.71, was interest on the original verdict down to the date of payment. In accounting to his client, the respondent retained all but $1,727.65, which sum he offered to pay his cli
To attempt to sustain this claim the respondent has sworn to an interview with his client after the judgment was affirmed by the Court of Appeals, in which he told his client that the interest belonged to him as his costs, and that the client assented thereto. The client denies that any such conversation ever took place, and further testifies that? the only conversation with reference to the interest took place after the
We thus have it proved that the attorney, having undertaken the prosecution of an action for a specific fee, which was fixed in a written retainer, when he collected the judgment retained a large portion of it to which he was not entitled and sent the balance to his client under such circumstances that, if the client accepted the money, he would be estopped from after-wards questioning the amount the attorney retained; and after that device failed, he manufactured an interview with his client which he failed to prove. That the official referee upon these facts should find the respondent guilty of professional misconduct as an attorney most certainly follows.
The serious question presented is the extent of the discipline that should be inflicted. Contracts as to the attorney’s compensation between attorneys and clients are now. made lawful by the Judiciary Law (Consol. Laws, chap. 30 [Laws of 1909, chap. 35],§474), and although the courts have been seriously concerned with the abuses that constantly flow from allowing such contracts to be made, the conditions existing at the present time seem to make it necessary that such contracts should be made legal and enforced. It is the duty of the courts, however, to minimize as much as possible the dangers and disadvantages resulting from the enforcement of such contracts, and to hold the attorney to the strictest good faith in his relations to his client based upon such contracts. Here the respondent
It seems to me there has been a gross abuse by the attorney in his relations with his client, a gross attempt to impose upon his client, and both in the proceedings before the Supreme Court and in this proceeding an attempt to inject an agreement with his client which was never made. We cannot overlook such professional misconduct. But under all the circumstances, instead of imposing the extreme penalty of disbarment, we will suspend this respondent from practice for two years and until the further order of the court, with leave to the respondent to apply for reinstatement at the expiration of such period upon showing that he has actually abstained from practice and has otherwise properly conducted himself.
McLaughlin, Laughlin, Scott and Hotchkiss, JJ., concurred.
Respondent suspended from practice for two years and until further order of the court, with lea've to apply for reinstatement as stated in opinion. Order to be settled on notice.