In re Hart

131 A.D. 661, 116 N.Y.S. 193, 1909 N.Y. App. Div. LEXIS 873

Opinions

Scott, J.:

The respondent, an attorney of this court, was charged upon the complaint of a client with improper and unprofessional conduct. The matter was sent to a referee who found and reported that these charges were not sustained by the evidence, The referee, however, found and so reported that it had appeared from the evidence taken before him that the respondent, having brought an action for one Evelyn ¡Reed, as guardian ad litem for her sister Charlotte Reed, effected a settlement of said action without having obtained the permission of the court, and that having instituted a civil action for damages for an alleged criminal assault, simultaneously for the same cause commenced a criminal proceeding, which he allowed to lapse upon the opening of negotiations for a settlement upon which he was to receive a contingent fee. As the matter last mentioned was not embraced in the original charges, the Association of the Bar of the City of ¡New York prepared and presented supplementary charges, which have been submitted to the court upon the evidence already taken before the referee, neither the petitioner nor the respondent availing of the opportunity, which was afforded, to submit further evidence. The supplemental charges are:

“ A. That on or about the 16th' day of April, 1907, in the City and County of New York, the said respondent knowing the con tents of a writing which threatened to accuse one W. H. Crane of a criminal assault, delivered the same to said Crane with intent, and by means thereof to extort or gain money.

“B. That on or about April 16th, 1907, the respondent took money upon the agreement or understanding to discontinue the prosecution of a criminal proceeding for assault theretofore instituted in the Jefferson Market Magistrate’s Court against the said W. H. Crane.”

There is no dispute as to the facts, which were, in large part, testified to by the respondent himself. The respondent has been practicing as an attorney in the city of Hew York for thirteen or fourteen years. On the 2d or 3d of April, 1907, he was visited in his office by one Evelyn Reed whom he had not previously known. She informed him that during her absence from her apartment her younger sister Charlotte, an infant, had been visited by a man who had attempted to outrage her. Respondent asked for a retainer which Miss Reed declared herself unable to pay, whereupon it was agreed between them that respondent should receive fifty per cent of any recovery in a civil action. Respondent does not testify that anything was said at that time about a criminal proceeding. Respondent visited the apartment house where the Reeds resided and took the statements in writing of Charlotte Reed and of certain employees of the house. On April 5, 1907, respondent prepared the necessary petition and consent and obtained from a justice of the Supreme Court an order appointing Evelyn Reed guardian ad litem for Charlotte Reed for the purpose of bringing an action against W. H. Crane for assault, and on the same day prepared a summons in the civil action against Crane. Ho attempt seems to have been made at this time or for ten days after-wards to serve the summons on Crane and thus to commence the civil action. On or about April eighth or ninth (the date is left uncertain) the'respondent procured from the Jeffersoft Market City Magistrate’s Court, and caused to be served on Crane, what is known as a summons, citing Crane to appear on April eleventh to answer to a charge of assault on Charlotte Reed. Such a summons is not a legal process which the person summoned is bound to obey, but is in effect nothing more than a notification that at the time and place mentioned therein a charge will be made. It is not the commencement of a criminal proceeding; does not, apparently, require that an information or complaint shall be laid before the magistrate before it is issued, and it does not appear in the present case that such an information or complaint was laid before the magistrate. On the return day mentioned in the summons Crane did not appear, but an attorney named W. J. Bolger, who had been retained by him, did appear and inquired of the respondent what the charge against Crane was.' Bespondent told him, whereupon Bolger denounced the proceeding as a blackmailing one, and said that he did not propose to have his client come to court in response to the summons and have the matter made public knowledge; that if respondent wanted Crane in the Magistrate’s Court he would have to arrest him. Thereupon the respondent had the return day of the summons adjourned to April sixteenth. .Nothing further was done until April fifteenth, when respondent called Bolger up on the telephone and had a conversation which resulted in Bolger’s going to respondent’s office. Bespondent showed to Bolger the statement of Charlotte Beed and the order appointing Evelyn Beed her guardian ad litem. Bolger then said that if it was proposed to bring a civil action he would accept service for his client, and give a notice of appearance, as he did not want any more papers served on his client or any one sent to his house. Thereupon the summons in the civil action was served on Bolger and he gave notice of appearance for Crane. A conversation then ensued concerning the payment of a sum of money in settlement, but no conclusion was then arrived at as the parties were too far apart, Bolgér offering $500 and respondent demanding $25,000. On the following morning there appeared, most opportunely, in a daily newspaper a long and circumstantial account of the alleged assault on Charlotte Beed, in which the assailant was not named, although the description given tallied well with that of Crane. It does not appear that respondent caused this article to be printed..' He says that a reporter called upon him and said that he had heard something about the story, and that he (respondent) refused to say anything about it, but advised the reporter to go to the apartment house in which the Beeds lived to get the rest of the story. It appeared that the publication of this article greatly disturbed and alarmed Crane. On the "ame day, being the day to which the return of the summons had been adjourned, the respondent and Bolger met in the Magistrate’s Court. Meither the Reeds nor Crane were present. The discussion as to a settlement was renewed and Bolger said that his client was much wrought up over the newspaper article, and that if anything more appeared he should take the matter to the district attorney.

The negotiations for a settlement went on during the day, Bolger protesting all the time that what he wanted was to avoid notoriety, and respondent offering to guarantee that if a settlement was effected not another word would appear. Finally on the same day a settlement was effected by the payment by Bolger, on behalf of Crane, of $2,000, on receipt of which Evelyn Reed, as guardian, executed a general release. Later Bolger paid respondent a counsel fee of $500, and no further action was taken in the Magistrate’s Court. Respondent paid Evelyn Reed $1,250, retaining a like sum for himself. Mo order permitting the guardian to compromise the action was obtained and no security was given by the guardian as required by section 474 of the Code of Civil Procedure and rule 51 of the General Rules of Practice. Respondent admits his familiarity with the statutory requirements in this regard.

It is argued on behalf of respondent that the taking out of a summons in a Magistrate’s Court is not the commencement of a criminal prosecution, and with this contention we are disposed to agree. The issuance and service of such a summons amount to nothing more than an intimation that a charge of criminality is to be made against the person to whom the summons is directed. There is no evidence that respondent was retained to institute a criminal prosecution. His own evidence as to his retainer indicated very plainly that he was employed to demand and collect pecuniary damages (of which he was to have half), and these could not properly or legally be collected by means of a criminal proceeding. The only evidence as to any suggestion to the Reeds of a criminal prosecution is that when something was said on the subject to Evelyn Reed she repudiated the idea because it would involve the interposition of the Gerry Society. Mor is there anything to show that Hart ever seriously considered the institution of a criminal prosecution. It is urged on his behalf that having become cognizant of the commission of a crime by Crane it was his right, and perhaps his duty, to take steps looking to his prosecution criminally. This may he admitted, but lié never did so. It does not appear that he ever laid before the magistrate or the district attorney the facts upon which such a prosecution conld'have been based, even when challenged so to do by Crane’s attorney. The reason is fairly obvious. If he had actually initiated a criminal prosecution by laying the facts before the proper officer, he would have lost control of the prosecution, and could not have agreed to drop it upon a settlement of the civil action for damages. The whole evidence tends to show that the impelling cause which led Crane to setlle was the fear of publicity. He was an old man, accused of a shameful crime, and not unnaturally shrank from notoriety. It is equally evident that respondent appreciated how potent a factor this fear of publicity would be in inducing Crane to settle, and that the settlement was finally made especially with a view to escaping notoriety. Although everything was ready to begin the civil action on April fifth, no attempt was made to do so until the fifteenth. When Bolger declared that Crane would not appear in the Magistrate’s Court in response to a summons, the respondent did not apply for a warrant, but adjourned the return day of the summons. When Crane showed no disposition to move in. the matter, it was respondent who called up Bolger and showed him the statement of Charlotte Beed, andas respondent himself testifies, the criminal proceeding was dropped when Bolger began. to show a disposition to make a cash settlement. Finally as part con-sideration and inducement for a settlement, respondent undertook to guarantee that the matter should be given no further publicity.

The service of the summons issued out of the Magistrate’s Court, while not the actual commencement of a criminal prosecution, amounted distinctly to a threat of such a - prosecution. It was at least as effective, if not more so, than a letter threatening a prosecution would have been, and from the whole evidence we cannot escape the conviction that the service of the summons from the Magistrate’s Court was intended merely as a threat of a criminal prosecution made in order to force a settlement of the civil action which was contemplated and prepared for before the criminal summons was taken out, and that the respondent never actually intended to prosecute Crane criminally. If this be so, there can be no doubt that the respondent acted illegally, improperly and unprofes sionally. People v. Eichler (75 Hun, 26; appeal dismissed, 142 N. Y. 642) was a case much like the present. The defendant, an attorney, had been retained to prosecute a man for damages for assault upon a young girl. He wrote a letter to the accused in which he said: “ Please call at my office at 7 o’clock this evening in reference to the Mayer matter, without fail, otherwise I will be obliged to proceed against you criminally.” He was convicted of an attempt at blackmail, and his conviction was affirmed by the General Term in this department. In People v. Wickes (112 App. Div. 39) this court has recently had occasion to review a similar conviction where the offense consisted in sending not a threatening letter, but an apparently friendly one, suggesting a possible prosecution for the crime of perjury, the purpose being to induce the addressee to forego his appeal from a civil judgment against him. Again the conviction was affirmed. The respondent justifies himself in threatening a criminal prosecution on the ground that lie really believed that a crime had been committed. The same x plea was interposed by the defendant in People v. Eichler (supra). The court said upon this subject: “ The moral turpitude of threatening, for the purpose of obtaining money, to accuse a guilty person of the crime which he has committed is as great as it is to threaten, for a like purpose, an innocent person of .having committed a crime. The intent is the same in both cases, to acquire money without legal right by threatening a criminal prosecution. But threatening a guilty person for such a purpose is a greater injury to the public than to threaten an innocent one, for the reason that the object is likely to be attained, and the result is the concealment and compounding of felonies to the injury of the State. The fact that the defendant believed in the complainant’s guilt is no defense, and is not even a mitigating fact.” These words are quoted with approval in People v. Wickes (supra) and supported by numerous authorities from other jurisdictions. It is true that it was respondent’s privilege as an attorney to sue Crane for damages, and it may be that the claim therefor was well founded, but “ the law does 6 not authorize the collection of just debts by the malicious threatening to accuse the debtor of a crime.’ ” (People v. Wickes, supra; People v. Eichler, supra; Commonwealth v. Coolidge, 128 Mass. 55.) If it be considered that the issue and service of the summons issued out of the Magistrate’s Court was in effect the commencement of a criminal prosecution the respondent is placed in no better light, because then he was guilty under the second supplementary charge of taking money upon the agreement and undertaking to discontinue a prosecution for a crime. It may be claimed for the respondent that the frankness with which he admitted all the facts upon which the charge against him is based indicated that he did not understand that he was doing an unlawful thing. If so, not only does it not mitigate his offense, but most clearly demonstrates his unfitness to fill the honorable office of an attorney of this court. Nor may we pass by in silence his act in permitting Evelyn Reed to accept a sum of money in settlement of the action without complying with the plain requirements of the law as to giving security. That alone would call for severe censure, if not for disciplinary action. Section 474 of the Code of Civil Procedure explicitly forbids a guardian ad litem,, who is not also a general guardian, “ to receive money or property of the infant other than costs and expenses allowed to the guardian by the court until he has given sufficient security approved by a judge of the court, or a county judge, to account for and apply the same under the direction of the court.” Respondent admits that he knew of this section, and yet he deliberately permitted his client to violate it. Such a plain disobedience of law cannot be overlooked.- We are constrained to Hold, that the respondent has been clearly shown to be an unfit person to remain a member of the bar.

The motion is, therefore, granted and the respondent disbarred.

Patterson, P. J., Ingraham, McLaughlin and Lahghlin, JJ., concurred.