In re Leonard

127 A.D. 493, 111 N.Y.S. 905, 1908 N.Y. App. Div. LEXIS 4040

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: July 8, 1908
• Status: Published

Opinion

Per Curiam :

Upon the petition of the Association of the Bar of the City of New York the respondent was charged with fraud, deceit, malpractice and gross unprofessional conduct in the matter of his application. for admission to.practice as^ an attorney and counselor at law. It is alleged that bn the 15th of September, 1881, the respondent .applied to the General Term of the Supreme Court in the second department for admission" to practice" as an attorney and counselor at law, and submitted to the court certain certificates of character, and also a paper purporting to be a certificate Of the clerk of the Supreme Court of the State of New Jersey, to the effect that "the said respondent was, at the time of the issuing of said certificate, an attorney and counselor at law duly admitted to practice in the courts of the' State of New Jersey; that, acting upon such application, the respondent was admitted to practice and has since practiced as an attorney and counselor at law;' that this certificate was false and untrue, and that the said respondent was not at the time and never had been admitted to practice in the State’of New Jersey. The respondent submitted an answer admitting that he was admitted to practice as an attorney and counselor at law as specified in the petition, “ but denies that he has any knowledge or information. to form a belief as" to the truth of the statement as to any fraud or deceit practiced whereby and by which this respondent was admitted to practice.” He then alleges that he had been a law student since 1872, and for about three years preceding his admission was-connected-with one Abram A. Marks as a student at law and managing clerk; that he remembers that he was requested to be in court at a General Term'of the second department on the day of his admission, but being delayed on the way to' court he was immediately táken to the clerk of the court by Marks, and thereupon respondent was duly sworn and signed the roll as an attorney in open court. He then sets up the Statute of Limitations, and that the order admitting him to practice was a judgment "by which the respondent became vested with. a constitutional and vested fight to practice law, of which he could not be deprived by any subsequent act of the Legislature.

It will be noticed that this answer does not deny any of the facts alleged in the petition as the basis for his disbarment. The matter was referred to a referee, who has reported the evidence taken before him. There was produced from the files of the Supreme Court, in the second department, a paper which contains two letters as to the respondent’s character, and what purports to be a certificate of the clerk of the Supreme Court of the State of Hew Jersey, which certified that “ H. W. Leonard, Esq., is an attorney and counsellor duly admitted to practice in all the courts of this State, and that he is in good standing, &c.,” and which jrarports to be signed by Benj. F. Lee. Annexed to this paper is a seal, but whether it is the seal of the Supreme Court of the State of Hew Jersey or any other Supreme Court does not appear. An inspection of this seal quite conclusively shows that it is placed over another seal of a different color. It is so cracked as to present the appearance of having been detached from some other instrument and pasted upon this instrument. The impression of the seal was on it before it was annexed to the instrument, as there is no impression through the paper upon which the certificate' is issued. It has all the appearance of having been removed from some other instrument and pasted upon this alleged certificate. On the back of this instrument are written the words: “ Admit, J. G. Dykman, J. S. C., Septr. 15tli, 1881, Chas. B. Elliott, Clk.; ” in pencil: “Sworn in Sept. 15/81,” and marked “Filed Sep. 15, 1881.” There 'was then produced by the petitioner the minute book of the General Term, from which it appears that: “ On reading and filing the affidavits and certificates required by law, showing, among other things, that the applicant Henry W. Leonard has been duly admitted to practice as an attorney and counsellor at law in all the Courts of the State of Hew Jersey, It Is Ordered that the said applicant be and is hereby admitted to practice as an attorney and counsellor at law in all the Courts of this State on taking the constitutional oath of office and signing the roll.” It thus appears that the application of the respondent to be admitted to practice was based upon a certificate that he presented to the court that he had been duly admitted to practice as an attorney and counsellor at law in all the courts-of the State of New-Jersey.. , There was then produced a certificate, under the seal of the Supreme Court, of the State of New Jersey, as follows: “I, William Eilter, Junior, Clerk of the Supreme Court of the State of New . Jersey, do hereby certify- that ! have examined both attorneys and counsellors’ roll filed in this office, and do not find there the name of Henry or H. W. Leonard.” This certificate was dated the 3d-day of March, 1906. An attorney and. counselor at law of this State testified before the referee that he had made an examination of the register of attorneys in ..the State of New Jersey, and kept at the city of Trenton, on July TO, ■ 1907, at the State House in Trenton; that this register was ' designated as the official -and original roll of attorneys of. the State- of New Jersey, and dated hack to the year 1790; that this roll was taken out of the vault in the State- House in Trenton to allow the witness to examine it; that he examined the whole roll from 1790 to January 15, 1903, and that there was no person by the name of Henry W. Leonard upon that roll or who had ever' been admitted to practice in the State of New Jersey; that he also examined the roll of attorneys of the State of New York in the office of the clerk of the Court of'Appeals, and that there was but one Henry W. Leonard upon that roll who had been -admitted to- practice -in Brooklyn by the General Term of the Supreme Court on September 15, 188Í. Upon this testimony the petitioner rested. The respondent did not offer himself as a witness and was not examined.

The respondent before the referee claimed that this instrument, .purporting to be a certificate of the Supreme Court of New Jersey was conclusive, and that this court had no power to inquire into if under the full faith and credit clause of the Constitution of the United States

*; that the evidence was not sufficient to justify a finding that he was not admitted to practice in New Jersey and' that he was guilty of fraud or deceit in procuring' his admission, with some suggestion as to the Statute of Limitations, and as to the unconstitutionality of section 67 of the Code of Civil Procedure so. far as it affects persons who have been admitted to practice prior to its enactment. By section 67 of the Code of Civil Procedure as enacted in 1877* it is provided that an attorney or counselor who is guilty of any deceit, malpractice, crime or misdemeanor may be suspended from practice or removed from office by the Supreme Court at a General Term thereof.† By chapter 99 of the Laws of 1891 this section of the Code is amended so as to provide that “'an attorney and counselor, who is guilty of any deceit, malpractice, crime or misdemeanor, or who is guilty of any fraud or-deceit in proceedings by which/he was admitted to practice as an attorney and counselor of the courts of record of this State, may be suspended from practice or removed from office by the Supreme Court at a General Term thereof,” and with the exception of an amendment in 1895‡ which.substituted the Appellate Division for-the General Term, this provision is substantially the same as that now in force. There is in’this provision no limitation. as to the power of the court to remove the person admitted to practice for fraud committed in the proceedings by which he was admitted. Of course there is no Statute of Limitations as affecting such a proceeding, and no person has a constitutional right to hold an office which is obtained by fraud practiced upon the court that appointed him or the appointment to which he obtained by a forged certificate. The amendment of 1891 to section 67 of the Code of Civil Procedure conferred power upon the court to remove from office an attorney and counselor, at law who had been guilty of any fraud or deceit in the proceedings by which he was admitted to practice as an attorney and counselor at law. It was certainly within the power of- the Legislature to say that no one should remain a member of the profession who had obtained his admission by fraud or deceit practiced upon the court that admitted him. In this case the record shows that this respondent -was admitted to practice without an examination or other investigation as to his professional attainments or his character based upon, what purported to be a certificate that he was a member of the bar of the State of Mew Jersey. If this certificate, assuming it to be genuine, was sufficient to satisfy the court that the respondent was a member of the bar . of New Jersey, the certificate introduced by the petitioner was certainly sufficient to show that the respondent was not and never had been a member of the bar of that State. And there was additional proof that the original records in the State of New Jersey had been examined by a wit'nes's who testified before the referee and that such examination disclosed the fact that the respondent had never been admitted to practice in the Supreme Court of the State of New Jersey. From this evidence it was established that he was not a member of the bar of that .State on the loth of September, 1881, and considering the appearance of this alleged certificate upon • which the application of the respondent to be admitted to practice was based, a grima facie ■ case was certainly made which called upon the respondent to show that he 'was at that time actually a member of the bar of the State of New Jersey or at least some fact to establish that this alleged certificate upon which he was admitted was a genuine instrument. But nowhere in his answer1 nor on any proceeding before us does the respondent state that-.he was a member of the bar' of New Jersey, and we are satisfied that his admission to practice without an examination was based upon a false statement to the court and that the paper presented to the court to prove that fact was either a forgery, or certified to the existence of a fact which was not true.' Certainly the respondent was then called upon to meet that accusation, and his failure to 1 offer the slightest evidence to. show that this pretended certificate upon which he was admitted was genuine; that the seal on it was the seal of the Supreme Court of New Jersey or that it had ever b.een placed upon this instrument, or that he ever was as a fact a member of the bar of the State of New Jersey requires the court to hold that he was guilty of fraud and deceit in the proceedings by which he was admitted to practice.

The referee in his report stated that he did not feel justified in recommending the respondent’s suspension or expulsion from the bar, but feels bound to report that in his opinion nothing blameworthy has been shown. This court cannot concur in either this» opinion of the referee or in his recommendation, but it finds upon this testimony that the respondent was guilty of fraud and deceit and that he should be removed from his office as an attorney and counselor at law. Having examined this question upon the merits' it is only proper to add that the respondent did not appear before the court when the matter was brought up for final hearing and did not to this court as he did not before the referee make any claim that this so-called certificate was a genuine certificate or that he had ever been a member of the bar of the State of Hew Jersey.

. It follows that the application must be granted and respondent disbarred.

Present — Ingraham:, McLaughlin, Laughlin, Houghton and Scott, JJ. ...

Bespondent disbarred. Settle order on notice

See U. S. Const, art. 4, § 1. r— [Rep.

See Laws of 1876, chap. 448, § 67; Id. § 1496; Laws of 1877, chap. 416, and Laws of 1880, chap. 178, § 3356.— [Rep.

See, also, Laws of 1890, chap. 528.— [Rep.

See Laws of 1895, chap. 946.— [Rep.