In re Siben

15 A.D.2d 574, 1961 N.Y. App. Div. LEXIS 6805

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 29, 1961
• Status: Published

Opinion

In this disciplinary proceeding against respondent as an attorney and counselor at law, petitioner moves: (a) to confirm so much of the Official Referee’s report as sustained certain of the charges and as recommended dismissal of certain charges, and (b) to disaffirm so much of said report as recommended dismissal of certain other charges; and respondent cross-moves to confirm the Official Referee’s report and findings, except with respect to the charges sustained by the Referee and with respect to the Referee’s recommendation that respondent be suspended from the practice of the law for a period of two years. Thirty-one charges were made by petitioner against respondent. After extensive hearings the learned Official Referee, to whom the matter was referred, has recommended that 18 of such charges, and 3 specifications under charge 7, be dismissed. It is conceded that 6 other charges, and an additional specification under charge 7, have not been established. The learned Referee has found that 1 charge involving solicitation, and 5 other charges and a specification under charge 7, involving the giving of advice to clients designed to permit them to obtain fraudulent divorces in a foreign State, have been established by proof that such solicitation was undertaken by an investigator employed by respondent’s firm, and such advice was given by a partner, or by employees of such firm, without any participation therein by the respondent. It was not found that respondent had any knowledge of such activities, and the Referee has also found that there was no evidence and none was offered of any conspiracy on respondent's part to deceive the Florida courts. As to specification (c) under charge 7, the Referee has found that respondent gave improper advice to a client with respect to the necessity of her remaining in the foreign State for the minimum period of time necessary to establish a residence. With respect to said specification (e) under charge 7, it is our opinion that the Referee’s finding is contrary to the weight of the evidence (cf. Matter of O’Neill, 184 App. Div. 75). With respect to the findings of guilt of the offenses embraced in charges 7 (d), 8, 9, 10, 11, 15 and 19, we find the evidence insufficient (cf. Matter of Schneidkraut, 231 App. Div. 109; Matter of Solomon, 227 App. Div. 665). Respondent’s cross motion to confirm the Referee’s report and findings, except with respect to charges 8, 9, 10, 11, 15 and 19, and specifications (e) and (d) of charge 7, and except with respect to the discipline recommended, is accordingly granted. Petitioner’s motion to confirm the report with respect to charges 8, 9, 10, 11, 15 and 19, and specifications (c) and (d) of charge 7, and to disaffirm so much thereof as recommended dismissal of charges 1, 2, 3, 4, 5, 6, 7 (a), 7 (b), 7 (f), 12, 13, 14, 16, 17, 18, 23, 24, 25, 27, 28 and 30, is denied; and all of said charges and specifications are dismissed. The Referee’s report is otherwise confirmed, and the proceeding is dismissed. Nolan, P. J., Ughetta, Pette and Brennan, JJ., concur; Christ, J., not voting.