713 F.2d 14 (2nd Cir. 1983), 927, Newman v. Silver

Docket Nº:927, 928, Dockets 82-7789, 82-7813.
Citation:713 F.2d 14
Party Name:Murray NEWMAN and Capitol Motors, Inc., Appellees-Cross-Appellants, v. Murray M. SILVER, Murray M. Silver P.C., and Ralph LiButti a/k/a Robert Presti, Appellants-Cross-Appellees.
Case Date:July 22, 1983
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit
 
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Page 14

713 F.2d 14 (2nd Cir. 1983)

Murray NEWMAN and Capitol Motors, Inc., Appellees-Cross-Appellants,

v.

Murray M. SILVER, Murray M. Silver P.C., and Ralph LiButti

a/k/a Robert Presti, Appellants-Cross-Appellees.

Nos. 927, 928, Dockets 82-7789, 82-7813.

United States Court of Appeals, Second Circuit

July 22, 1983

Argued April 20, 1983.

Page 15

Murray M. Silver, P.C., appellant-cross-appellee, pro se.

Michael L. Kingman, Hackensack, N.J. (Joseph C. Woodcock, Jr., Hackensack, N.J., of counsel), for appellant-cross-appellee LiButti.

Robert A. Katz, Gandin, Schotsky & Rappaport, P.C., Melville, N.Y. (Roberto Lebron, Gandin, Schotsky & Rappaport, P.C., Melville, N.Y., of counsel), for appellees-cross-appellants Newman and Capitol Motors, Inc.

Before LUMBARD, OAKES, and PIERCE, Circuit Judges.

OAKES, Circuit Judge:

This case, here on cross-appeals, arises out of a complaint brought by New York clients (Capitol Motors, Inc., an auto dealership, and its president, Murray Newman) against their attorney (Murray Silver, Esq., of Atlanta, Georgia) and the fellow who brought lawyer and client(s) together, Ralph LiButti, also known as Robert Presti. Silver was paid, as the district court put it, the "staggering fee" of $212,000 to represent Newman and his dealership in connection with criminal charges brought in the Southern District of New York for violations of the odometer-fixing statute, wire fraud, and mail fraud. Newman and his corporation pleaded guilty, and, out of the fees paid Silver, the latter ultimately paid the corporation's fine of $28,000 as well as $3,000 in disbursements. The complaint here charged breach of fiduciary duty, malpractice, fraud and conversion on Silver's part and collusion and conversion on the part of LiButti. The United States District Court for the Southern District of New York, Robert J. Sweet, Judge, held in a bench trial that Silver had violated his fiduciary duty and awarded Newman $169,300, the difference between a reasonable fee and the $181,000 net amount (after disbursements and payment of the corporate fine) that Silver received. Newman v. Silver, 553 F.Supp. 485 (S.D.N.Y.1982). The court, however, found no liability on the part of LiButti who, inter alia, delivered briefcases which the court found contained cash to Silver from Newman. We affirm as to the award against Silver substantially on the findings and conclusions of Judge Sweet. 1

Page 16

For reasons that we set out below, in the interests of justice and its administration, especially in light of the fact that while this appeal was pending Silver was admitted to the bar of this court, we remand on the cross-appeal for further findings with respect to both Silver and LiButti.

The theory of the case against LiButti was that through his racetrack-oriented friendship with Newman's son, Gary, LiButti had arranged a meeting between Silver and Gary leading to Newman's engaging Silver, for which LiButti was paid by Silver. It is suggested that the whole arrangement be viewed as a confidence game, that is, as a "sting" or "scam" in which the "mark," Newman, is led into parting with his money by the "con artists" who, while seemingly independent, are secretly conniving, one as a "shill" and the other as the "stingman," and who do not hesitate to get the "mark" to do something off-color (if not illegal) to make him, perhaps, unwilling to expose the "con." To support this theory, there was evidence that Silver, after he had already been paid $187,000 and Newman's plea of guilty had been accepted, obtained four $25,000 checks from Newman (only one of which was cashed) so that Newman could "have a seal," i.e., obtain, presumably by bribery of the trial judge or otherwise, assurance that a jail sentence would not have to be served. Newman changed his mind about making this payment and received...

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