In re Reifschneider

60 A.D. 478

Opinions

JENKS, J. :

Supplemental to the record made at Special Term, testimony was offered in our court on behalf of Mr. Reifschneider. Our conclusion justifies the action of the Special Term. In announcing it we add our words of commendation of the course of Mr. Justice Dickey, who presided there.

Mr. Reifschneider did not demean himself well at the reference, where he had the temerity to appear without counsel, although the questions involved were serious to him. In view of adverse facts not to be gainsaid, Mr. Reifschneider, defendant and witness, without counsel, even though a lawyer, failed to 'elicit the mitigating features of his case as honest and able counsel could have done. Mr. Backus has discharged his unpleasant duty with ability and with perfect fairness.

These facts, we think, are established: A suggestion by the defendant brought Mr. Reifschneider into the action as plaintiff’s" attorney, to put through the settlement theretofore agreed upon. He moved for a substitution and failed, incurring the rebuke of the court. He then negotiated and procured the consent to his substitution by discharging the claim of the plaintiff’s attorneys with a fee furnished by the defendant as an incident of the settlement. Though he may have hoped for a fee from the plaintiff, he felt assured that in any event he would receive consideration and probably compensation from the defendant outside of any sum involved in the settlement. He advised the guardián ad litem that the settlement was proper, and as ■ the plaintiff’s attorney he presented the proposed settlement for the sanction of the Special Term, stating that the payment proposed to be made to settle the.case was $2,200, without showing that $800 in addition thereto was to be paid to the father personally, or that other and additional sums were to be paid in the adjustment. On the other hand, Mr. Reifschneider did not suggest or initiate the settlement, nor did he reduce its terms These had been - determined upon by the father and guardian ad litem and the defendant before Mr. Reifschneider had any relation to the case or to the claims. The father testifies that when he asked Parmer to take him to another lawyer Parmer took him to Mr. Reifschneider, and that he then told Mr. Reifschneider to take the case, that the company had offered $3,000, and that he wished to settle. John L. Wells, Esq., a counsel in the office of the attorneys for the defendant, testifies that he understood that the guardian had agreed to settle for a certain amount, which, he supposed, was $3,000, and that he understood he would settle for $3,000 before the motion was made for substitution, and that they (i. father and son) were to have the $3,000 independent of the $750, referring by the latter sum to that paid to the plaintiff’s attorneys upon their consent to the substitution. The father'also deposes that he told Parmer to go to the railroad company and see if he ' could get more money, but, if he could not, to accept the $3,000, and that after that, he (the father) saw Mr. Reifschneider for the first time, and told him that the company had offered him a good sum of • money to settle his case and his son’s case, and he' told- Mr. Reifschneider that he wanted him “ to fix the matter up.” The father also deposes that after the proceedings for Mr. Reifschneider’s removal and for the substitution, he again told Mr. Reifschneider that he wanted to settle all claims for the $3,000 free and clear, and asked him to get the offer in writing, which was done; that Mr. Reifschneider then, asked him what witnesses he had, and the deponent told him, whereupon Mr. Reifschneider told him to talk with the witnesses and to “ bring him down what they Avould say.” They reported. Mr. Reifschneider then asked him if these were all the witnesses, and the father said they were all. Mr: Reifschneider then said he would find out what witnesses the defendant had. Thereafter, Mr., Reifschneider told him that, under the circumstances, the settlement was the wisest course. The father said that he wanted $1,000 and the boy $2,000, but Mr. Reifschneider said that he should make his claim as small as he could so that the boy could get more, and finally it was adjusted at $2,200 and $800'for the son and the father respectively. Mr. Walsh, a general investigator, also shows that Mr. Reifschneider came into the case only after the settlement had been agreed upon. After the claim of the plaintiff’s attorney was satisfied and consent to a substitution was given, Mr. Reifschneider’s services were required because the infancy of the plaintiff prevented a perfect settlement until it was sanctioned by the court. Mr. Wells deposes that he was told ¡by Mr. Lyman, attorney in charge of. defendant’s claim department, that the father was anxious to settle the entire matter for $3,000, which the defendant was willing to pay; that he was asked to talk with the plaintiff’s original attorney to see if he would he willing to put/ through a settlement for a reasonable fee in addition to the $3,000 net for Valentine Behr and George Behr, and that on several occasions he talked with that attorney, who at first wanted $6,500 and, at the third interview, wanted to know if the company would give $4,500. Mr. Wells said that he had no authority to pay that much, but that if the attorney insisted on having the $4,500, so that he would have $1,500 after paying the $3,000 already offered to the Behrs, he would try to get authority to pay $4,500 so that the Behrs would get the $3,000. After a day or two, the plaintiff’s attorney and Mr. Reifschneider came together; the plaintiff’s attorney wished to know if the company would pay the $4,500 and said he would settle the matter for that amount. Mr. Wells told the attorney that he had not decided to make the settlement through him. The attorney and Mr. Wells agreed that in case the Behrs were to get the $3,000, the rest of the settlement, whatever it was, would be used in paying counsel fees and medical expenses, and if the attorney gave a substitution, and Mr. Wells paid him $750, the Behrs were still to get the $3,000, and the other $750 out of the $4,500 which was not paid to the attorney was to be used in paying medical bills and certain other expenses. Mr. Wells further deposes that at the time the agreement was made to pay the plaintiff’s former attorney $750 for a substitution, the said attorney understood thoroughly that the railroad company was paying that amount to him because of the agreement of the railroad company to settle the Behr actions, and for the purpose of effecting a 'settlement by paying the sum of $3,000 in satisfaction of both the father’s claim and of the boy’s claim. The testimony of Mr. Wells before the referee, “ Q. Did you hear or know anything about any part of the $3,000 going, to the father for his share ? A. I don’t know anything about that at all. Q. You never heard of that before? No; I supposed'that the $3,000 was to cover all of an outlay so far as the child, the plaintiff and his father were concerned,” is not inconsistent with his affidavit, for the reason that it might well have been understood between Mr. Wells and the plaintiff’s attorney that the payment of the $3,000 was to settle all claims, and yet he might have been ignorant of any agreement that the father was to take a part thereof. That did. not concern Mr. Wells or his principals so long as they obtained a settlement and releases of all claims upon payment of the lump sum.

No one criticises the conduct of the plaintiff’s former attorneys, which, therefore,- may be a criterion of Mr. Reifschneider’s conduct, so far as the tangible result is concerned. ■ Under the present proposed settlement, the Rehrs are still to get the $3,000, and it is stated in the affidavit of Mr. Reifsehneider, and not controverted, that the entire settlement embraced the payment of $4,500, namely, $750 to the former attorneys, which was paid, $350 to Parmer, $150 to the physicians and $250 to the hospital. If, then, in either event, the Rehrs were to receive $3,000, the appearance of Mr. Reifsehneider in the litigation did not affect the pecuniary result to the Rehrs. The only possible difference, so far as they were concerned, is the proposed equation between the father and the son in case of a settlement through the former attorneys and the proposed equation under the settlement after Mr. Reifsehneider was substituted. ' Further, Mr. Reifsehneider says that he believed and still believes after his examination of the merits that the settlement was advisable. This presents an embarrassing question to this court, lest we should prejudge a case that may ultimately come before us, or even express an opinion that may affect any future settlement. While we have examined into the testimony, so far as it is disclosed by the record, I prefer to express no opinion except to say in justice to Mr. Reifsehneider that the facts so far as they are indicated, do not disclose such absolute liability as to narrow the issue to a mere assessment of damages, so that it could be said that the advice approving the settlement was so bad as to justify an inference that it was dishonest. Again, when Mr. Reifsehneider came into the case, he dealt not only with the guardian ad Utem, but with a father who was a guardian ad Utem, and who had fully made up his mind to accept a settlement which would secure the net sum of $3,000. Mr. Reifsehneider neither persuaded nor importuned the father. Judge Tbot, the learned referee, whom to mention is to commend, reports that the father must be absolved from the imputation of intending to betray his son, though he dilates on-his comparative ignorance, and notes that his pittance of wages, his debts for doctors and at the hospital and his large family may well have prompted his desire to settle the case. If, in addition to these cogent reasons, the father was importuned by others to settle, it does not appear that Mr. Reifschneider was one of them. The father deposes : “ I had arranged the settlement with the railroad company before I had seen Mr. Reifschneider, and Mr. Reifschneider had nothing to do with the settlement therefore. Mr. Reifschneider asked me several times whether I was satisfied with the settlement, and I told him I was, and I thought it was the best thing for me and for my child to get the money, as I was afraid from what I knew of the case that if we went to trial we might get nothing. Mr. Reifschneider told me everything from beginning to end, and did everything I asked him to do. He had nothing to do with influencing me in accepting the settlement in one way or the other. All of my friends and everybody I knew and even Mrs. Pfeffer (a witness for the plaintiff) advised me to settle with the railroad company if I could get a settlement.” Of course, if the same settlement could have been made through the former attorneys, the question suggests itself why was Mr. Reifschneider substituted ? Among the possible answers, two occur to me: First, the case had been brought to the former attorneys by Mr. Parmer, who, at the time, was in their employ under a regular salary, and who had no pecuniary interest in' the result of the case. Mr. Parmer had quarrelled with his former employers, and had left them. If Mr. Parmer could oust them and could bring about a settlement thereafter, he might obtain an allowance for his services. The interest, then, of Mr. Parmer was to get the attorneys out and to get in, not Mr. Reifschneider in particular, but some lawyer other than his former employers.

It is not established then that the injection of Mr. Reifschneider into the case either changed the course of affairs so far as his clients were concerned, or was in any way detrimental to their interest, in view of the fact that a settlement had already been agreed upon, which, so far as the result to the Behrs was concerned, would, if we credit Mr. Wells’ statement, have been acquiesced in and carried out by the former attorneys for the plaintiff. Aside from the payment to Mr. Parmer it cannot be said that the disposition of the proffered sum of $4,500 was improper. The infant had a suit, the father had a claim, the attorneys for the plaintiff had a lien, and the learned" referee states in his report that the father had incurred debts in connection with the sickness and injury of the child, thereby, I assume, referring to the physicians’ bills • and to the hospital expenses. -1 am not passing upon the amounts of these items, but' upon' the character of the claims.

The offending of Mr. Reifschneider is not in the practical result, but in his relationship. To adopt the expression of another, attorneys, “ receiving their authority from the court, they are deemed its officers. Their commissions declare them entitled to confidence,, and, in a just sense, their license is an assurance, not only of their competency, but of their character and title to confidence.” (Woodruff, J., in Hamilton v. Wright, 37 N. Y. 502.) In view of the function that he assumed, it will not do to excuse Mr. Reifschneider on the theory that his was a nominal retainer to perfect in form a settlement fully agreed upon, for the reason that in carrying through the settlement, he had to obtain the sanction of the court. Mr. Reifschneider’s fault is that he went before the Special Term as the attorney for the plaintiff. Upon the mere fact of his appearance there under such retainer, the justice1 presiding had a right to regard him and to rely upon him as the officer of the court, who, under oath, advised the court as to the best interests of his client, the ward of the court. It was to the interest of the child to get all that legal skill, devoted to him alone, could secure. It was to the interest of his opponent, and properly so, to pay to the child as little as possible. The question before the court was whether full justice had been done to the child, and it had a right to assume that Mr. Reifschneider advised it untrammeled by any relation whatever with the adverse party. And yet it is evident enough that Mr. Reifschneider would never have appeared in this case but for the friendly offices of the defendant, and that he knew this from the beginning. He does not pretend that his services were to be gratuitous, or that he really looked to the Behrs alone for compensation, or that his fee was to be a charge upon the $4,500. His nomination was due to the defendant, and practically he looked to that defendant alone for consideration and ' probably for compensation - in this very case. Under such circumstances it would seem morally impossible,' no matter how high his intentions or how resolved his purpose to consider but the interests of his client, that he could shut out from, his mind and from his memory the source of his retainer and, at least, the assurance of his compensation. If, at the time he made his affidavit and moved for settlement, he believed that he had succeeded in shutting out these facts which naturally tended to tempt him, or, perhaps, any other man, to satisfy all parties, and that he was mentally isolated from all interests but those of his client, well and good; but the court, that knew nothing save that he was the plaintiff’s attorney, could not weigh his sworn advice as . an intellectual triumph over a kindly feeling for his client’s adversary, engendered by his relations to it, but only as the submitted legal judgment of the officer of thé court, who knew no friend but the plaintiff, and who had no reason to regard the interest of any other person. “ An attorney,” said Chief Justice Hobart, “ oweth to his client fidelity, secrecy, diligence and skill, and cannot take a reward on the other side.” (Herrick v. Catley, 1 Daly, 514, citing Yardly v. Ellill, Hobart, 8a; Toml. Law Dict., Attorney.) We do not attach much significance to the fact that the affidavit of one of the plaintiff’s witnesses, procured at the instance of Mr. Reifschneider, was adverse to the plaintiff. It may well be that he wished to fortify himself in case the settlement were ever attacked. It does not appear that he misused it or that he proposed to do so. We do not approve of withholding all information from the court that the sum-proposed to be paid to the infant was but part of the general settlement. Though it may be partly palliated by saying that the court dealt with the compensatión of the infant alone, yet the court should have been informed of the full details in order that it might judge whether the infant had received his due under the full terms of the settlement. Ho lawyer can serve two clients any more than a man ■can serve two masters. In view of his relationship to the defendants, he should not have appeared as the plaintiff’s attorney, advising the court upon the application made for its sanction of the settlement, or, in any event, he should not have so acted without stating his relations to all of the parties. If it be said that other justices, of the court had learned, of such relations, it must be answered that they did not acquire their information through him, and in view of his subsequent course I cannot ascribe his silence to inadvertence. It is not to be assumed that the knowledge of some of the justices is the knowledge of all, or that the justices who had learned of such relations in other. proceedings of the case would, without reason therefor, communicate in course the facts to Mr. Justice Dickey.

This offense cannot be overlooked. To say the least, there is appearance of evil. We cannot hold facts as trivial which show that the attorney imposed upon the court, not perhaps by affirmative misstatement, but by his appearance and by his statements made in a relationship which, in itself, said to the court that he was retained by the plaintiff alone, in the interest of the plaintiff alone, and that in such capacity he advised the court, and, so advising, moved the ■court to determine the full measure of this child’s redress. Mr. Collin, with chivalric sentiments, has sought to excuse, or at least to explain Mr. Reifschneider’s action as the usual counterstep made necessary by the attacks of fraud and chicane under the guise of honest claims, without, however, pretending that this particular claim was dishonest. The plea that Mr.'Justice Dickey, or any other justice of the court might, have understood Mr. Reifschneider’s relations to the defendant in this case, derived from knowledge of a general system or necessarily to be inferred from any facts in the procedure of this case, is not proven.

I . It but- remains to determine the punishment which the majority of the court, after earnest and thorough deliberation, has determined upon, and which it has directed me to announce. This is not a proceeding to disbar. We are not limited to the punishments prescribed in section 67 of the Code, of Civil Procedure, but our power may be exercised under the general control founded upon the relar tion of Mr. Reifschneider as an officer of the Supreme Court. (Matter of H--, an Attorney, 87 N. Y. 521.) The question is, in our judgment, not what punishment may the offense warrant, but what does it require as a penalty to the offender, as a deterrent to others, and as an indication to laymen that the . courts will maintain the ethics of our profession. This offense does not require that Mr. Reifschneider should be stricken from the roll, and thereby his life be ruined; it does not require that he should meet with the terrible disgrace of suspension from practice, which in its result differs from disbarment only in the fact.that it permits him after a time to return to seek a practice which he shall never find. I yield to none in my esteem for the ability and probity of our bar, but I wofully mistake the temper of my brethren of the bar if they should deem that its welfare required either step, so drastic, against a young member of but six years’ standing, against whom, until now, nothing is recorded, and who,- possibly, in the keen desire to dispatch the business at hand, did not pause to realize that even though he followed a course previously agreed upon between all parties, he entered upon that course by overstepping the bounds marked by the ethics of our profession, and that, though the parties knew of his relations, the court did not. Moreover, disbarment is not for punishment so much as it is for the protection of the court. (Rochester Bar Assn. v. Dorthy, 152 N. Y. 596, 601.) Suspension is a temporary disbarment, and we feel that the court need take neither protective step. In Bradley v. Fisher (13 Wall. 335) Field, J., says : “ Admission as an attorney is not obtained without years of labor and study. The office which the party thus acquires is one of value, and often becomes the source of great honor and emolument to its possessor. To most persons who enter the profession, it is the means of support to themselves and their families. To deprive one of an office of this character would often be to decree poverty to himself and destitution to his family. A removal from the bar should, therefore, never be decreed where any punishment less severe—such as reprimand, temporary suspension, or fine—would accomplish the end desired.” We are of opinion that Mr. Reifschneider must appear in open court to receive a reprimand from our bench. We think that our final difference as to the punishment, marked by the dissent of Mr. Jnstice Hirsohberg, is due after all, to different views of the severity of the punishment that the majority has voted for. We decide upon this reprimand, in the belief that it is no light thing, to be forgotten as soon as spoken, or to be regarded as but a casual criticism upon a breach of decorum. We rather believe that no lawyer, young or •old, obscure or prominent, could fail either long to remember or long to regret the formal utterance of judicial censure upon his professional conduct, passed upon him standing within the bar of the •court. We believe that he would feel this was a punishment not to be brushed aside because it carried neither fine nor deprivation of •calling, but one to be lived down, in that it was a judicial condemnation of an act of his professional life. And yet we believe that the punishment shall not fulfill its purpose unless it may permit this young lawyer to live beyond it into days of a useful, .a successful and an honorable professional career.

All concurred (Woodward, J., in result), except Hirschberg, J., who reads for suspension, and Sewell, J., not sitting.