In re Axtell , 235 A.D. 350 ( 1932 )

Finch, P. J.

This is an application to modify an order of disbarment pursuant to a suggestion contained in the opinion of the Court of Appeals following an appeal by permission of that court (257 N. Y. 210).

In May, 1930, the respondent was disbarred from the practice of law by order of this court (229 App. Div. 323). Thereafter the Court of Appeals granted him permission tó appeal to that court.

The.decision of the Court of Appeals, while affirming the finding of guilt by this court, by implication suggested that the sentence of disbarment was too severe and that an application should be made to this court “ to mitigate its rigor ” because “ the court that pronounced the sentence has jurisdiction exclusive of any other * * *.” The per curiam of that court is as follows: “ The acts of solicitation proved against the appellant attorney are extenuated, but not excused, by his relations to the mariners’ union and to foreign consulates.

“The sentence of disbarment is a severe one, but misconduct being proved, the punishment to follow was to be determined by the Appellate Division, and is not subject to revision here (Matter of Hawes, 217 N. Y. 602).

“ The court that pronounced the sentence has jurisdiction exclusive of any other to mitigate its rigor.

“ The order should be affirmed.”

Following this decision of the Court of Appeals the respondent made the present motion.

This court should not depart from its traditional policy of giving consideration to the suggestions of the Court of Appeals.

The erstwhile prosecutors, the Association of the Bar of the City of New York, the New York County Lawyers’ Association and the Bronx County Bar Association are not insistent that the disbarment judgment stand but, as indicated by their counsel upon the argument, they do not oppose a reinquiry and revision by this court of its sentence. Mr. Charles C. Burlingham, who occupied the office of president of the Association of the Bar of the City of New York at the time of the prosecution of the charges, supports the present motion and has submitted a signed statement, of which the following is a portion: “ I respectfully urge the court to mitigate the severity of the sentence of disbarment. I think he has suffered already a severe punishment * * *.”

Since we are acting pursuant to the suggestion of the Court of Appeals, it would seem unnecessary to set forth a reconsideration of the original decision. In view, however, of the insistence of the dissenting opinion herein that the respondent should remain disbarred from the practice of the law, a brief review may not be out of place.

We are concerned wholly with the extent of the punishment to be borne by respondent. His guilt remains established. The referee who heard the evidence exonerated him from all charges except that of improper advertising. We held and still hold that he was remiss in other respects as well. His fidelity to his clients in the conduct of their causes has not been assailed.

In no other case of solicitation and advertising, unless accompanied by other reprehensible acts, has an attorney been disbarred. The greatest punishment heretofore meted out for mere solicitation has been a suspension for two years. This for the reason that ■until the so-called “ Ambulance Chasing Investigation ” solicitation and advertising had not been called particularly to the attention of the court or of the members of the bar as meriting condign punishment. The evils which that investigation revealed forced the courts to punish such infractions. In the case of respondent this court was moved by the number of the acts of solicitation and the length of time over which they had continued, to order disbarment. The Court of Appeals, in going over this record, was of the view that these acts were extenuated by the relationship of the respondent to the mariners' union and to foreign consulates, and that court suggested that, in view of those circumstances, disbarment was a punishment too severe. The Court of Appeals, however, was careful to add that such relations did not wholly excuse, thus indicating that the respondent was guilty and must receive some punishment.

In the dissenting opinion reference is made to Matter of Becker, Matter of Levy, (229 App. Div. 62; appeal dismissed, 255 N. Y. 223) and Matter of Levy, Matter of Hartman (228 App. Div. 249). In the Becker and Levy proceeding the opinion in this court makes it clear that the greater offense was the assertion by those respondents of the constitutional claim of privilege and bad faith for the purpose of hindering and impeding the so-called “ Ambulance Chasing Investigation.” The opinion of the Court of Appeals, dismissing the appeal because no question of constitutional law was involved, contains this statement: “ Appellants were not disbarred for asserting their privilege but for asserting it in bad faith.” In the Levy and Hartman proceeding, while it is true that charges of solicitation only were involved, the scale upon which it was carried on transcended any mere solicitation. The respondents admitted their guilt and the proceeding never went to a referee, and, as' the opinion pointed out, “ The record in this case is made up of the testimony of the respondents themselves as given in the course of the investigation before Mr. Justice Wasservogel.” After referring to some of such testimony, the opinion continues: “ It is unnecessary to go at further length into the details of the sordid and disgraceful methods by which the practice of what should be an honorable profession was turned into a disreputable and degrading business. For six years respondents soiled their hands by passing over money to runners, ‘ regular ’ and ‘ independent contractors ’ or ‘ free lances ’ and profited by the results of their operations, which continued until the initiation of the proceedings to bring about an investigation of such practices.” What would have developed upon a further and more thorough inquiry is beyond conjecture. And yet, there was not disbarment there.

We refer to those proceedings only because of the emphasis laid upon them in the dissenting opinion. It would not be helpful, and would unduly lengthen this opinion, to point out the distinguishing features which were the basis for differing results in other proceedings. Suffice it to say that where disbarment was decreed in the proceedings growing out of the “ Ambulance Chasing Investigation ” offenses were disclosed in addition to solicitation. In this class of cases it is particularly applicable to say that conscientious analyses show no two records alike.

The dissenting opinion likewise criticizes the staying of the order of disbarment to the extent of permitting respondent to obtain substitutions for his unhappy but innocent clients. In accordance with usual custom, when the professional life of a member of the bar is at once forever cut short by an order of disbarment, a respite is often given for the limited purpose of preventing unnecessary injury to his or her clients who would otherwise suffer without their fault for an act not connected in any way with their litigation. In the case at bar the respondent was well within this principle in that he represented an unusually dependent class of litigants, namely, seamen who were drifting, roving and voyaging from port to port. The several petitions of the respondent for extensions of time set forth those whom he had been unable to reach as yet, notwithstanding advertisements and various attempted communications for the purpose of effecting substitutions and contained the sworn statement that he had ceased to practice law except for this very hmited purpose. To have refused the requests for a purpose so limited would have been to inflict unnecessary hardship and expense upon a hapless class of litigants. While these substitutions were in progress, the order of the Court of Appeals was filed October 7, 1930, granting permission to appeal to that court. Pending the outcome of that appeal the respondent would have been entitled to a much wider stay of execution of the order of this court had he applied therefor. The decision of the Court of Appeals was handed down July 15, 1931. Thereafter this application for modification was made.

It is accordingly directed that the order of disbarment be modified so that respondent shall stand suspended for the time as already served and up to the 1st day of January, 1933.

Merrell, McAvoy and Sherman, JJ., concur; Martin, J., dissents.