Matter of Kelly

| NY | May 25, 1875

The principal point urged on behalf of the appellant is, that the costs awarded against Mr. Morange, were not ordered to be paid by him for misconduct as an attorney or counselor (Laws of 1847, 491, § 2), and that therefore he could not lawfully be imprisoned for their non-payment.

The order imposing the costs shows that the court deemed it very clear that there was no foundation for the extreme measure taken by the appellant against Mr. Kelly, and that the proceedings had been prosecuted by the appellant from improper motives. We agree with the Supreme Court in the opinion expressed by them, that to institute such a proceeding without grounds, and to prosecute it with improper motives, is misconduct in an attorney for which the court may impose costs upon him, and that the order shows that the costs in question were imposed for such misconduct. But it is claimed that although the appellant may have been guilty of misconduct, and although he be in fact an attorney, he could not be guilty in this matter of misconduct as suchattorney, for the reason that he was not acting for a client, but was himself the party prosecuting the proceeding.

If the court had imposed the costs on Mr. Morange simply as a party, and not by reason of any misconduct, it is very clear that the mere fact that he was an attorney of the court would not be sufficient to subject him to imprisonment for their non-payment. He should be treated in such a case like any other party, and the costs collected by execution against his property. But we deem it equally clear that if an attorney of the court, who is conducting an action or proceeding therein in his own behalf, is guilty of misconduct in the prosecution of such action or proceeding, which would subject him to costs and imprisonment for their collection if the action or proceeding were being conducted in the name of a third party, he is not exempted from the penal responsibility imposed by the statute merely by the fact that he is a party to the proceeding as well as the attorney conducting it. To hold that an officer of the court may, in a matter in which he is acting for himself, abuse the process of the court, or take proceedings therein under circumstances which would subject him to costs and imprisonment if he were acting for the benefit of a third party, and be exempted from these consequences simply because he is acting for himself, is an absurdity which the law never could have intended. In the present case the proceeding sprang out of a litigation in which Mr. Morange was acting, nominally at least, as attorney for a judgment-creditor. He used his own name in the proceeding which he instituted against Mr. Kelly, but in prosecuting that proceeding he exercised the functions of an attorney and counselor of the court, and appeared before its bar representing himself to be such. In speaking of misconduct as attorneys and counselors, the act of 1847 deals with them not simply in respect to their relations to their clients, but with reference to the relation which they bear to the court, as its officers, the facilities which their position gives them for gaining the ear of the court, using its process and enjoying its confidence. If an attorney or counselor by the abuse of the confidence acquired by virtue of his office should, in a litigation, impose upon the court and use its machinery to the injury of a third party, or should attempt to do so, for his own benefit, can it be said that he would not be guilty of misconduct as an attorney or counselor of the court, simply because he was a party in interest in the litigation? We think that no such narrow interpretation can be placed upon the statute. Attorneys and counselors conducting their own cases in the courts are entitled to all the immunities and protection accorded to other litigants, so long as they refrain from doing acts which would not be permissible if they were acting for a client. But when they exceed these bounds in the conduct of proceedings before the courts they are violating their official duty, as well when acting for themselves as when representing others, and should be held to the same degree of responsibility. This point was substantially decided by us on the former appeal in this case from the order imposing costs and disbursements.

The other objections taken by the appellant are sufficiently answered in the opinion of DAVIS, J., at General Term.

The order appealed from should be affirmed, with costs.

All concur.

Order affirmed.