In re Grae
| Citation | 26 N.E.2d 963,282 N.Y. 428 |
| Court | New York Court of Appeals |
| Decision Date | 16 April 1940 |
| Parties | In re GRAE. |
OPINION TEXT STARTS HERE
Appeal from Supreme Court, Appellate Division, Second Department.
Proceeding in the matter of Michael H. Grae, an attorney. From a nonunanimous order of the Appellate Division, 258 App.Div. 576, 17 N.Y.S.2d 822, in which motion for stay was granted in App.Div. , 18 N.Y.S.2d 746, confirming the report of an official referee and suspending the attorney from the practice of law, he appeals.
Reversed and proceeding dismissed. Stephen Callaghan, of New York City, for appellant.
Harold M. Kennedy, of Brooklyn, for respondent.
We review an order of the Appellate Division suspending the appellant from the practice of the law upon proof of a single charge that, upon an inquiry, ordered by that court, into certain alleged unlawful and unethical practices impairing the administration of justice, he refused to sign a waiver of immunity.
On June 8, 1938, the Appellate Division, second department, in response to a petition by the Richmond County Bar Association, ordered an inquiry ‘* * * into certain alleged unlawful and unethical practices impairing the due administration of justice, including the practice of so-called ‘Ambulance Chasing’ and the conduct of attorneys with reference thereto, the solicitation by attorneys or their agents of claims in condemnation proceedings and the prosecution of damage actions, and the solicitation by attorneys or their agents in criminal cases, including also, the state of calendars and the trial of causes in the County of Richmond.' It will be convenient to refer to the investigation thus ordered as the ‘inquiry.’
In the course of proceedings which followed and on July 14, 1938, the appellant was called before a Special Term of the Supreme Court designated to conduct the inquiry, at which time he was asked whether he would be willing to waive immunity. Appellant replied that he did not intend to do so but that he was willing to answer all questions at the direction of the Presiding Justice and would bring to the hearings his office records and ‘everything that the Court desires.’ Then occurred the following colloquy between the special prosecutor and the appellant:
Thereafter the special prosecutor sent to the appellant a letter stating that under instructions by the Presiding Justice and in view of appellant's expressed willingness to furnish his office records, request was made that he produce (1) a complete list of personal injury cases in his office for the last three years with certain data in reference to each case; (2) his office ledger or docket showing disbursements made against each of said cases, and (3) his check book and canceled vouchers for that period. The appellant responded by letter stating that upon receiving a notice to appear at the inquiry he would bring with him the records which the special prosecutor had requested provided he was permitted to explain them before the Presiding Justice. No response was received to this offer by the appellant. In fact he received no communication from any one connected with the inquiry until November 21, 1938, when he was served with a copy of the petition in the disciplinary proceeding now before us which petition is signed by the special prosecutor who had acted as counsel to the inquiry at Special Term. It is addressed to the Appellate Division and asks that disciplinary action be taken against the appellant by reason of his refusal to waive immunity from prosecution for any of his acts in connection with his practice or otherwise. It asserts that by his course of concuct the appellant willfully and knowingly concealed facts connected with his practice or otherwise which were ‘incriminating and degrading;’ that his conduct and concealment were in part a mere pretext to enable him to withhold information which he was in duty bound to divulge in accord with the provisions of section 88 of the Judiciary Law (Consol.Laws, ch. 30) and that such conduct served to impede and defeat the inquiry ordered by the Appellate Division. The appellant's answer alleges that upon being called as a witness at the inquiry conducted by the Special Term he had stated his willingness in good faith to answer fully all questions that might be asked of him; to produce for inspection and examination his office records and to assist the inquiry to the fullest extent, but that he had respectfully declined to sign a waiver of immunity basing such declination upon his constitutional rights and privileges and the advice of counsel.
Thereupon the Appellate Division appointed an Official Referee to take testimony in the present disciplinary proceeding. The record comprises only testimony by the appellant, including a transcript of his testimony, outlined above, which he had given at the inquiry. It appears from his testimony herein that prior to his appearance as a witness upon the inquiry at Special Term he had learned from news articles in the current local press and from other sources, that those in charge of the inquiry were investigating matters of a criminal nature in connection with the practice of attorneys in Staten Island. Thereafter, upon his appearance at the inquiry, he was asked to sign a written waiver of immunity which provided that, pursuant to section 2446 of the Penal Law (Consol.Laws, c. 40) the signer waived all immunity, and the privilege which he would otherwise obtain by giving testimony at the inquiry, from indictment, prosecution, punishment, penalty or forfeiture, on account of any transaction concerning which he might testify or produce evidence in the inquiry ordered by the Appellate Division, ‘* * * or in any other investigation, or on any inquiry, trial, action, investigation or other proceeding, before any magistrate, judge or Justice, counsel or attorney, ...
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