In re Ellis

258 A.D. 558, 17 N.Y.S.2d 800, 1940 N.Y. App. Div. LEXIS 8237

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: February 7, 1940
• Status: Published

Opinions

Johnston, J.

The Richmond County Bar Association submitted a petition to this court alleging that a survey made by its committee on unlawful practice of the law disclosed the existence of a practice commonly known as “ ambulance chasing." The petitioner enumerated the methods employed and emphasized the consequences which flow from this practice not only to the injury of litigants but to the discredit of the bar, and prayed that a confidential judicial investigation be ordered.

On June 13, 1938, this court directed that a secret inquiry be made by the Supreme Court, at a Special Term thereof, concerning the conduct of attorneys in the solicitation and prosecution of personal injury claims, the solicitation and procurement of retainers in condemnation proceedings, and other unlawful and unethical practices impairing the due administration of justice in Bichmond county. Mr. Justice Hooley was assigned to conduct the inquiry and Mr. Harold M. Kennedy was designated to assist him. The inquiry proceeded as ordered.

Bespondent, a member of the bar for ten years, residing and having an office in Bichmond county, was requested to attend before the court and testify. He appeared before the Special Term and, prior to any interrogation, stated he would answer no question, furnish no information and not waive immunity. Bespondent was then sworn. After some preliminary questions, in reply to which he repeated that he would disclose nothing, answer no question and refuse to waive immunity, in response to the following question put by the court he made the following-answer: “ Q. * * * Does the court understand your position to be that you decline to answer any question in regard to this investigation in connection with your activities in the practice of law in Staten Island, on the ground that those answers will tend to incriminate or degrade you? A. Precisely so."

Three other attorneys, Walsh, Bregoff and Grae, also were requested to appear, before the Special Term and testify. Each refused to sign a waiver of immunity, although they expressed a willingness to testify, believing that if .they testified they would secure immunity from prosecution.

.Mr, Justice Hooley then made his report to this court. Thereafter, pursuant to the provisions of .section 476 of the Judiciary Law, an order was made authorizing and directing Mr. Kennedy to prosecute charges, of alleged unprofessional conduct against respondent. Subsequently, charges embodying in substance respondent’s conduct before the Special Term were made to this court. It was charged that by his conduct respondent willfully concealed and intended to conceal facts, acts and deeds either connected with his practice of law or otherwise; that his conduct and concealment were in part a mere pretext to enable him to withhold information which he was in duty bound to divulge; that by his conduct and concealment respondent endeavored to and did in part thwart and impede the inquiry. Respondent in his answer states that in failing to answer the court’s questions and refusing to waive immunity he was motivated solely by a desire to preserve his constitutional right against self-incrimination in case he was prosecuted for any claimed criminal act. On December 13, 1938, the matter was referred to an official referee to take proof and report with his opinion.

The official referee found that the charges were established and that respondent’s attitude before the Special Term was a mere pretext; that his conduct was contemptuous, and he was unfit to continue the practice of the law. The referee recommended that if this court should conclude that respondent’s conduct did not warrant striking his name from the roll he be suspended until he purged himself by agreeing to testify under a waiver of immunity.

The first question presented is: Were the charges proved? We cannot assume, as do the dissentients, that at the time the respondent asserted his privilege he had reason to apprehend his answers would expose him to punishment for crime. As will presently appear, the contrary is the fact. It is true that in an effort to justify his assertion of privilege respondent testified before the referee that there was “ general gossip ” in Richmond county and that the press carried stories to the effect that there was a “ possibility ” of a criminal investigation of the attorneys on Staten Island and a special prosecutor would be designated “ to find out what was what as far as the criminal activities of the attorneys were concerned.” But when respondent appeared before the Special Term he had no knowledge of what had been testified to against him or any one else. In fact, as far as he knew, no one connected with the inquiry had suggested that a crime had been committed. Nevertheless he declined to answer any question “ in regard to this investigation in connection with your [his] activities in the practice of law in Staten Island, * * It clearly appears

that respondent’s refusal to answer was contumacious and his resort to the claim of privilege was sham. Before the referee, in response to a question of his counsel, respondent testified that when he asserted his constitutional privilege at the Special Term he had no “ honest, sincere apprehension or fear concerning the results of any answers "or information that might be disclosed.” On cross-examination he testified he “ knew nothing in connection with [his] practice, upon which a criminal prosecution could rightfully be based.” If those answers before the referee were true, respondent’s assertion of privilege before the Special Term was fraudulent. A witness “ may not claim his privilege when he is clearly contumacious, not acting in good faith but making the claim as a mere pretext to avoid giving non-incriminating answers.” (Matter of Levy, 255 N. Y. 223, 225.) Under the circumstances, respondent’s refusal to testify was a challenge to the inquiry as a whole and constituted a contempt. (People ex rel. Karlin v. Culkin, 248 N. Y. 465.) It is admitted that prior to his appearance before the Special Term respondent conferred with Walsh and Grae. He had no recollection of conferring with Bregoff. The record justifies the finding of the referee that respondent and the others were acting in concert in an effort to impede the inquiry. To paraphrase the language of the late Presiding Justice Dowling in Matter of Becker (229 App. Div. 62, 76), the claimed privilege was a subterfuge to stop, if possible, the inquiry into the unlawful and unethical practices which were undermining respect for members of the bar and to hinder and impede the investigation generally, and to encourage others to do the same. We hold, therefore, that the charges were proved and that respondent’s position before the Special Term was not taken in good faith but was a mere pretext to impede and defeat the inquiry ordered by this court.

The second question presented, and the only one which merits discussion, is: Was respondent guilty of professional misconduct or conduct prejudicial to the administration of justice? We hold he was.

This court, for good and adequate reasons, ordered the inquiry with respect to the administration of justice in Richmond county. That it had the right to do so cannot be doubted. (People ex rel. Karlin v. Culkin, supra.) “ Attorneys owe a duty to uphold the honor of their profession and to aid any effort under the direction of the court to root out corruption and fraud.” (Matter of Becker, supra, at p. 73.)

Obviously, it was the duty of attorneys practicing in Richmond county, when requested, to aid the court in its investigation. Their “ co-operation with the court was due whenever justice would be imperilled if co-operation was withheld. * * * Co-operation between court and officer in furtherance of justice is a phrase without reality if the officer may then be silent in the face of a command to speak.” (People ex rel. Karlin v. Culkin, supra, at p. 471.) Without their co-operation the inquiry would be both futile and abortive. Respondent and the others mentioned not only failed to co-operate with the court but did their utmost to thwart the investigation. They thereby impeded the court in its effort to sustain the honor of the profession and protect the public in its dealings with its members.

Respondent contends he had a right to assert his privilege. We hold that not every witness is entitled to remain silent as soon as he invokes his constitutional privilege against self-incrimination. Any witness “ may be compelled to answer when he contumaciously refuses, or when it is perfectly clear and plain that he is mistaken, and that the answer cannot possibly injure him, or tend in any degree to subject him to the peril of prosecution.” (People ex rel. Taylor v. Forbes, 143 N. Y. 219, 231.) No constitutional right is involved. “No question of constitutional right to remain a member of an honorable profession arises when an attorney delays or impedes justice by the contumacious assertion of spurious privileges.” (Matter of Levy, supra, at p. 226.)

Matter of Becker and Matter of Levy (supra) are authorities, if any be needed, for our holding that respondent was guilty of professional misconduct or conduct prejudicial to the administration of justice. In those cases, under almost identical facts, the respondents were disbarred. Under our view of the facts this is all that need be said so far as the instant proceeding is concerned.

As heretofore indicated, the minority finds that at the time respondent asserted his privilege he had fair reason to apprehend a possible criminal prosecution. In other words, he was acting in good faith. Even if it were possible to accept this premise, our conclusion would be the same. Therefore, we feel impelled, in view of the dissenting opinion, to give our reasons.

The presiding justice deplores the attitude of the respondent and concedes that it was his duty, when summoned, to attend the inquiry and testify unreservedly. He contends, however, that respondent’s defiance of the admitted power of the court is sanctioned by the fundamental law of the State (State Const, art. 1, § 6) and by the statutes (Code Crim. Proc. § 10; Civ. Prac. Act, § 355). We answer that there is no constitutional or statutory barrier which prohibits or prevents this court from vindicating its honor. • The .respondent seeks shelter behind these enactments and .the minority holds that he is protected by them. We do not share this view. We recognize that respondent has a dual status; he is here not only as an attorney but. as a citizen. We assume that all constitutional privileges inure to the benefit of lawyer and layman alike. Nor do we hold that any rights guaranteed to respondent as a citizen may be denied him because he is an attorney. If we did, the persuasive and decisive utterances of the distinguished jurists, quoted in the dissenting opinion, would be pertinent. Here there is no constitutional right involved. Respondent has no constitutional or statutory right to his office of attorney. Membership in the bar is not a right but a privilege; “ a privilege burdened with conditions. A fair private and professional character is one of them. Compliance with that condition is essential at the moment of admission; but it is equally essential afterwards. (Selling v. Radford, 243 U. S. 46; Matter of Durant, 80 Conn. 140, 147.) Whenever the condition is broken, the privilege is lost.” (Matter of Rouss, 221 N. Y. 84, 85.)

We cannot subscribe to the statement of the learned presiding justice that the Constitution, statutes and, by virtue of them, the courts, have placed a seal of approval upon respondent’s assertion of privilege. Examination of the cases cited and, we venture to say, of all other cases in this State, will show that no court has ever approved the act of an attorney in claiming his privilege under facts similar- to those involved in the instant proceeding.

The cases relied upon by the presiding justice are not controlling. Each may be readily distinguished. Matter of Cohen (115 App. Div. 900) and Matter of Kaffenburgh (Id. 346; affd., 188 N. Y. 49) may be considered together. There the respondents were charged with professional misconduct because at the trial of their employer — Hummel — for conspiracy, they refused to answer questions concerning their connection with or knowledge of the crime, on the ground that their answers would incriminate them. The court held that it was impossible to conclude from the fact they availed themselves of their constitutional privilege that they were intentionally deceiving the court or were guilty of crime. —- ■

In Matter of Schneidkraut (231 App. Div. 109) the referee found that the respondent willfully impeded and thwarted the inquiry by refusing to answer questions on the ground that his answers would incriminate him and that his assertion of privilege was a mere pretense. This court dismissed the charge, holding that there was no justification for the finding that the position assumed by the respondent was intended to thwart or impede the inquiry and that the privilege asserted had a substantial and genuine basis. That case must be limited to its own peculiar facts. An examination of the record discloses that the respondent had been examined on three separate occasions, at which he did not refuse to answer any question. It was not until his examination was nearly completed and after an interview with the examiner, at which the latter made reference to respondent’s “ apparent thievery ” and that he was “ going to jail,” and, like two others who were mentioned, he was “ going up the river,” that the respondent asserted bis privilege. Moreover, about the time the charges were presented respondent and his clerk were indicted for taking the identical money of one of his clients, whose complaint was the basis of the disciplinary proceeding. Notwithstanding that upon the trial of that indictment the entire group of seven complaints made against the respondent was the subject of inquiry, the respondent and his clerk were acquitted. We do not believe that case is authority against the principle for which we contend, but if it is we cannot follow it.

In Matter of Solovei (250 App. Div. 117; affd., 276 N. Y. 647) the respondent was charged, among other things, with misconduct in that he refused to waive immunity with respect to testimony to be given by him before a grand jury which had indicted certain persons for the crime of conspiracy to obstruct justice. Respondent, although not indicted, was named as a co-conspirator. This court dismissed the charge, stating (at p. 120): “ The question of good faith is not involved here, (1) because the respondent was willing to answer any questions which would be asked of him, and (2) since this was a proceeding dealing with a conspiracy to obstruct justice, the respondent could have been compelled to testify whether he was willing or not. (Penal Law, § 584.) ”

Matter of Vaughan (189 Cal. 491; 209 P. 353) is not in conflict with our views. It merely determines that a disciplinary proceeding is not a criminal prosecution nor an aid to a criminal prosecution, and at such a proceeding the accused may decline to answer questions on the ground that his testimony would tend to incriminate him. As heretofore shown, the respondent is not charged with misconduct because he declined to answer the court’s questions and claimed his privilege at a disciplinary proceeding directed against him, but an inquiry ordered by the court into the administration of justice.

The minority also relies on the following sentence from the opinion in People ex rel. Karlin v. Culkin (supra, at p. 471): “ We are now asked to hold that when evil practices are rife to the dishonor of the profession, he may not be compelled by rule or order of the court, whose officer he is, to say what he knows of them, subject to his claim of privilege if the answer will expose him to punishment for crime.” It is stated the above sentence means that a lawyer who asserts bis constitutional privilege has not offended the dignity or power of the court. We respectfully disagree. The court in the Karlin case (supra) did not decide the question whether the assertion in good faith of the privilege against self-incrimination is ground for disbarment. This is clear because three years later, in the Levy case (supra), the court said it was unnecessary to consider that question and six of the judges who sat in the Levy case sat in the Karlin case. Moreover, in the Karlin case the respondent did not claim his privilege. He challenged the power of the court to direct a general inquiry into the conduct of its officers. The court held his refusal to testify was a contempt.

It is also suggested that the distinguished jurist who wrote in the Karlin case could not have meant that one may claim the privilege as matter of right and yet have done a wrong which subjects him to discipline. With due respect, we believe the writer meant just that, because he stated: “ There are, however, many forms of professional misconduct that do not amount to crimes. Even when they do, disbarment is not punishment within the meaning of the criminal law.” The writer also knew that “ The courts have repeatedly held that the constitutional privilege does not apply where the testimony sought to be elicited may lead to disbarment.” (Matter of Becker, 229 App. Div. 62, 76.) While the precise question we are called upon to determine was not involved in the Karlin case (supra), our views are fortified by a reading of the whole opinion. There, Chief Judge Cardozo traced the power, now vested in this court by statute (Judiciary Law, § 88, subd. 2), from the Constitution of 1777, and discussed the duty of lawyers when so directed by the court, to give aid by their testimony in uncovering abuses. He also reverted to the history of the profession in England to show the origin of the power and how it was there exercised. The learned chief judge stated at page 472: “ If a barrister was suspected of misconduct, the benchers of his inn might inquire of his behavior. We can hardly doubt that refusal to answer would have been followed by expulsion.” If the benchers failed in the performance of their duties, then the judges, in their capacity as visitors, exercised their reserved power. “ Short shrift,” said the chief judge, “ would there have been for the barrister who refused to make answer as to his professional behavior in defiance of the visitors ” (p. 473). It was also pointed out in the same scholarly opinion, characteristic of the chief judge, that more than three centuries ago, in dealing with the same evils which our inquiry was designed to uproot, the English courts compelled' attorneys to submit to an inquisition as to professional misconduct, and the end of the inquisition was not punishment, but discipline. It may be urged that in England there is no constitutional provision guaranteeing the privilege against compulsory self-incrimination. But for centuries the common law acknowledged the existence of such a right.

We cannot agree that the Constitution of the State of New York has created a standard of duty for attorneys and that it has given respondent the right to do what he has done. This court has power and control over attorneys, and may censure, suspend from practice or remove from office any attorney guilty of professional misconduct or any conduct prejudicial to the administration of justice. (Judiciary Law, § 88, subd. 2.) It is for this court to fix the standard of duty for its officers and to say what constitutes professional misconduct. We are neither diffident in defining that duty nor hesitant in pronouncing the policy which hereafter will be followed. If an attorney is summoned to assist the court by his testimony at its investigation, instituted to uncover unlawful and unethical practices impairing the due administration of justice, and he refuses to answer the court’s questions on the ground that his answers would tend to incriminate or degrade him, or unless he is granted immunity, he is guilty of professional misconduct or conduct prejudicial to the administration of justice and will be disbarred.

We believe that in adopting this policy we are sustained by reason and supported by authority. Such a policy is in keeping with the present public policy of the State. In adopting the recent amendment (Art. 1, § 6) to the Constitution, the People declared that a public officer who, when called before a grand jury to testify concerning the conduct of his office or the performance of his official duties, refuses to sign a waiver of immunity or to answer any relevant question concerning such matters, shall be removed from office by the appropriate authority, or shall forfeit bis office at the suit of the Attorney-General. The attitude of the respondent and the others mentioned shows the need for this court to take the same view with respect to its officers’ refusal to sign a waiver of immunity or to answer any relevant question when they are called upon by the court to aid it in its investigation as to the administration of justice. We recognize that it required a constitutional amendment to accomplish the removal of a public officer when he asserted his constitutional privilege against self-incrimination. That was because he had a right to or in the office to which he had been appointed or elected. But, as heretofore shown, no one who does not possess the requisite character, even though he possesses the required learning, has a right to membership in the bar. Could any one doubt the power of this court to deal summarily with its clerk if he were guilty of like conduct, under like circumstances? Should the court’s officer be treated differently than the court’s clerk? To ask the question is to answer it. To quote again the late Chief Judge Cardozo in the Karlin case: “ If the house is to be cleaned, it is for those who occupy and govern it, rather than for strangers, to do the noisome work ” (p. 480).

While we have defined the policy which hereafter will obtain, we do not believe that the extreme penalty of disbarment should be imposed in the instant proceeding. Respondent was advised by experienced counsel that in invoking his privilege before the Special Term and the referee he was within bis rights, but toward the close of the hearing before the latter he changed his position and expressed his willingness to waive immunity and answer any question.

The respondent has failed in his duty as an attorney and should be suspended from the practice of the law for a period of six months.

Adel and Close, JJ., concur; Lazansky, P. J., with whom Taylor, J., concurs, dissents in opinion and votes to deny the motion to confirm the report of the official referee and to dismiss the charges.