181 A.D. 490 | N.Y. App. Div. | 1918
Respondent was admitted to practice as an attorney and counselor at law in March, 1900, at a term of the Appellate Division, Second Department, and has since practiced in the First Judicial District. The petition contained two,specifications of unprofessional conduct charged against the respondent, (a) That in March, 1916, one Martha E. Grant consulted the respondent concerning domestic difficulties she was having with her husband, who, at the time, was living in Iowa. As Mrs. Grant had no grounds for a divorce and although respondent knew this he nevertheless advised that she should sue for a divorce representing that he could obtain one for her and fifteen dollars a week alimony; that relying upon the respondent’s advice and representations Mrs. Grant paid him the sum of sixty dollars, it being understood that his fee for obtaining the divorce was to be one hundred and fifty dollars and that the balance thereof was to be paid from the allowance which her husband might be induced to give her; that about a month after paying the respondent the sixty dollars, Mrs. Grant decided that she would not institute any proceedings against her husband and so advised the respondent, who, up to that time, had done nothing in the matter, except to write two letters to Mr. Grant making demands upon him for the support of his wife and child and threatening legal proceedings unless he did support them. At this time she asked the respondent to return .to her the sixty dollars less a reasonable fee for what he had already done in the matter, and also for the return of certain letters from her husband which she had intrusted to the respondent, but the respondent refused to return any part of the money to her and although he had no hen upon the letters in question, he refused to return them to her, unless she would execute in his favor a general release. This Mrs. Grant refused to do; whereupon the respondent demanded more money from her and threatened to sue her unless she paid it. To date the respondent has not returned the letters or any part of the money paid to him as aforesaid.
The learned official referee has reported that he found no misconduct in making the agreement and retainer and receiving the sixty dollars; that it was the privilege of Mrs. Grant
It is quite clear from all the testimony in the matter that at the time Mrs. Grant demanded the return of the letters the respondent .was utterly unjustified in refusing that demand. There could be no lien for she had admittedly paid him in full all that he demanded up to that time. He did not couple the refusal to deliver with any demand for any further sum at that time and his subsequent claim upon the hearing before the referee in direct contradiction of his claim when examined before the grievance committee is obviously an afterthought for the purpose of justification by way of a claimed hen and we agree with the conclusions of the learned official referee that the retention of the letters in the circumstances was violative of the standards prevailing in the legal profession and of the rule of conduct which the Supreme Court requires of the members of the bar.
(b) The substance of the allegations contained in this specification is that in March, 1914, the respondent was the attorney of record for the plaintiff in two cases against the Nassau Electric Railway Company and that he engaged Frederick Fishel, a member of the New York bar, to act as counsel in said cases; that one of'the cases came on for trial, Mr. Fishel selected the jury and opened the case, when both
The main contention of the respondent, by way of explanation and defense, is that the agreement with Mr. Fishel was that the latter was to receive twenty per cent as his share of the fees, whereas he has always claimed twenty-five per cent. It appearing that after the settlement of the cases the respondent passed Mr. Fishel in the corridor of the court house and said to him: “ As soon as I get the money, why, I will see you.” Two or three weeks passed and Mr. Fishel not having heard from the respondent concerning his compensation, endeavored to get in touch with the respondent but was unsuccessful, and he thereupon examined the judgment record and learned that the judgment had been satisfied. Under date of May 27,1914, respondent wrote Mr. Fishel as follows:
“ I have been unable up to the present time to adjust your end of the Kaiserauer matter due to actual engagements in matters of importance.
“ It is necessary, which will take a little time, to go over the disbursements incurred so that I could give myself credit when making allowances, which I will try to do between now and the early part of next week.”
Not having received his compensation, Mr. Fishel sued the respondent and recovered a judgment by default for the sum of $214. Thereafter the respondent ínade a motion to open the default and the motion was granted under terms, which the respondent did not comply with. The respondent was examined in supplementary proceedings in an effort to recover upon that judgment. At that time he testified that he had no property of any kind except a balance of $1.60 in one bank and a balance of less than $5 in another bank, and that no one held any property in trust for him. Respondent claims that he has always been ready, able and ."willing to pay Fishel twenty per cent of the net fees received by him, to wit, $110. Before the grievance committee he testified that he had given money over to his sister so that $110 was held by her in
The learned official referee concludes as follows: “ I do not consider these transactions as of much significance, for the reason that in my opinion, if we assume the respondent did exactly what he claims he did and Mrs. Wolper was able to make good, it does not constitute an adequate explanation of his conduct in the premises toward Mr. Fishel. It was the duty of the respondent within a few days, at the most, to inform Mr. Fishel of his receipt .of the money and to tender at least the $110 he conceded to be due. On the contrary he left Mr. Fishel to learn of the settlement from the records of the court, and even after his letter to Mr. Fishel he did not act promptly and squarely in endeavoring to effect a settlement but appropriated the entire fund to his personal use.”
The respondent’s own testimony produced a most unfavorable effect upon this court. It was shifty, evasive and lacking in candor. His conduct in both matters complained of as portrayed by himself shows that he is deficient in the characteristics of straightforwardness, honor and sense of personal responsibility expected from a member in good standing of an honorable and dignified profession. There may have been a real dispute between him and his brother lawyer, whom he had engaged as counsel, as to the terms of the retainer, and his personal use, which he admits, of the entire
We are of the opinion that the respondent has been guilty of professional misconduct and that he should be suspended from practice for six months, with leave to apply for reinstatement at the expiration of that term upon proof of his compliance with the conditions to be incorporated in the order to be entered hereon.
Scott, Smith, Page and Shearn, JJ., concurred.
Respondent suspended for six months, with leave to apply for reinstatement at the expiration thereof as stated in opinion. Order to be settled on notice.