In re Kaffenburgh

• Decision Date: 05 March 1907
• Parties: In re KAFFENBURGH.
• Court: New York Court of Appeals Court of Appeals

188 N.Y. 49

80 N.E. 570

In re KAFFENBURGH.

Court of Appeals of New York.

March 5, 1907.

Appeal from Supreme Court, Appellate Division, First Department.

In the matter of Abraham H. Kaffenburgh, attorney. From an order of the Appellate Division (101 N. Y. Supp. 507), removing defendant from his office as attorney and counsellor at law and striking his name from the roll of attorneys, he appeals. Affirmed.

John B. Stanchfield, for appellant.

Howard Taylor, for respondent.

HAIGHT, J.

These proceedings were instituted upon the petition of the association of the bar of the city of New York, who, through its attorney, Howard Taylor, presented a petition to the Appellate Division of the Supreme Court of the First Department, charging the defendant with being guilty of malpractice, deceit, or crime, and gross unprofessional conduct in his office as attorney and counselor at law.

The first charge is, in substance, that he was a clerk in the office of Howe & Hummel, a law firm of the city of New York, and that upon the trial of Hummel for conspiracy the defendant was called as a witness and asked several questions tending to elicit his connection with the matters pertaining to such alleged conspiracy and that he refused to answer each and all of the questions as to his personal transactions on the ground that his answers might tend to incriminate him, and that in so refusing he was intentionally deceiving the court or else his connection with these matters was criminal.

The second charge is to the effect that the firm of Howe & Hummel were attorneys for one Charles W. Morse, who was endeavoring to have a decree in divorce annulled, and that one Charles F. Dodge had been indicted for committing perjury in such proceeding; that he had gone to Texas, where he was apprehended, and that proceedings had been instituted by the district attorney to procure his extradition; that in order to prevent such extradition Hummel had sent David May, his copartner, Cohen, and the defendant, who was his nephew and a clerk in his office, to Texas to endeavor to keep Dodge from being extradited; that proceedings had been there instituted by them in the Texas courts which went eventually to the Supreme Court of the United States; that Dodge had been admitted to bail in Texas, and during the time that he was out on bail it is charged that ‘Kaffenburgh chartered a boat to take Dodge over to Mexico. This failed because the captain refused to put in at any Mexican port, having only a coast license. Kaffenburgh and Dodge were caught by Texas rangers, both under assumed names.’

The third charge is that after Hummel had been convicted of a crime in connection with the proceeding and had been disbarred by the Supreme Court, the defendant filed a certificate in the office of the county clerk, to the effect that he was transacting law business under the name of Howe & Hummel, and that in the supplement of the copartnership directory Howe & Hummel is given as the business name of Abraham H. Kaffenburgh, and that there is upon the new trial calendar in the county a large number of cases in which plaintiff or defendant is represented by Howe & Hummel. It is further charged that, although defendant knew that Hummel had been disbarred, he entered into an arrangement with him by which Hummel's trade-name and practice were to be continued. It appears that the firm of Howe & Hummel was formerly composed of William F. Howe and Abraham H. Hummel; that they had conducted the practice of law under the firm name of Howe & Hummel for many years; that Howe died several years ago, and, after his death, Hummel continued the practice of the law under the old firm name. Upon the return of the proceedings before the Appellate Division the defendant filed an answer, in which he denied that he had been guilty of malpractice, deceit, or crime, or gross unprofessional conduct with which he was charged. He did not, however, specifically deny any of the acts charged against him as constituting the three charges upon which the bar association asked for his disbarment, and the case was thereupon submitted to the court upon the pleadings.

With reference to the first charge, the Code of Civil Procedure (section 837) provides that ‘a competent witness shall not be excused from answering a relevant question, on the ground only that the answer may tend to establish the fact, that he owes a debt, or is otherwise subject to a civil suit. But this provision does not require a witness to give an answer, which will tend to accuse himself of a crime or misdemeanor or to expose him to a penalty or forfeiture; nor does it vary any other rule, respecting the examination of a witness.’ U. S. Const. Amend. 5; Const. N. Y. art. 1, § 6; Code Cr. Proc., § 10. In People ex rel. Taylor v. Forbes, 143 N. Y. 219, 227,38 N. E. 303, 305, it is said that: ‘These constitutional and statutory provisions have long been regarded as safeguards of civil liberty, quite as sacred and important as the privileges of the writ of habeas corpus or any of the other fundamental guaranties for the protection of personal rights. When a proper case arises, they should be applied in a broad and liberal spirit, in order to secure to the citizen the immunity from every species of self-accusation implied in the brief but comprehensive language in which they are expressed. The security which they afford to all citizens against the zeal of the public prosecutor, or public clamor for the punishment of crime, should not be impaired by any narrow or technical views in their application to such a state of facts as appears from the record before us. The right of a witness to claim the benefit of these provisions has frequently been the subject of adjudication in both the federal and state courts. The principle established by these decisions is that no one shall be compelled in any judicial or other proceeding against himself, or upon the trial of issues between others, to disclose facts or circumstances that can be used against him as admissions tending to prove his guilt or connection with any criminal offense of which he may then or afterwards be charged, or the sources from which or the means by which evidence of its commission or of his connection with it may be obtained.’ It will be observed that the provision of our Code applies to penalties or forfeitures as well as crimes or misdemeanors. The defendant therefore, upon his being sworn as a witness in the action pending against Hummel, had the right to refrain from answering any question which might form the basis of or lead to the prosecution of himself for a forfeiture of his office of attorney and counselor at law. To now hold that by availing himself of such privilege it amounted to a confession of his guilt upon which a forfeiture could be adjudged would, in effect, nullify both the provisions of the Constitution and the statute. We are therefore of the opinion...