Beiny, Matter of

• Decision Date: 28 June 1966
• Citation: 522 N.Y.S.2d 511,132 A.D.2d 190
• Parties: In the Matter of the Application for a judicial settlement of the account of proceedings of Rotraut L.U. BEINY, as trustee of the trust created u/i dated
• Court: New York Supreme Court — Appellate Division

Page 511

522 N.Y.S.2d 511

132 A.D.2d 190

In the Matter of the Application for a judicial settlement of the account of proceedings of Rotraut L.U. BEINY, as trustee of the trust created u/i dated June 28, 1966 f/b/o Martin Wynyard, Ruth Wynyard, and the issue of Martin Wynyard, Elizabeth N.F. Weinberg, Grantor Rotraut L.U. BEINY, Trustee-Appellant-Respondent, v. Martin WYNYARD, Petitioner-Respondent-Appellant.

Supreme Court, Appellate Division First Department.

Dec. 9, 1987.

Bernard S. Meyer, Mineola, of counsel (Philip L. Graham, Jr. and Mark McCall with him, on the brief; Sullivan & Cromwell, New York City, and Meyer, Suozzi, English & Klein, P.C., Mineola, attorneys), for petitioner-respondent-appellant, Martin Wynyard.

Heather D. Diddel, of counsel (David F. Dobbins, Richard D. Parsons, Thomas W. Pippert, Ann Loeb, and Richard H. Savage with her on the brief; Patterson, Belknap, Webb & Tyler, New York City, attorneys), for trustee-appellant-respondent.

Before MURPHY, P.J., and KUPFERMAN, MILONAS and KASSAL, JJ.

MURPHY, Presiding Justice.

We refer this proceeding to the Departmental Disciplinary Committee for investigation, including an inquiry by the Committee into the August 3, 1987 report of The Wall Street Journal that Donald Christ, a member of Sullivan & Cromwell, allegedly assaulted an attorney for Trustee Beiny in the Surrogate's Court at a conference in this case.

Trustee Beiny's motion for the sealing of the record is granted to the extent of directing the sealing of copies of the suppressed documents or any part of their contents, with costs to Trustee Beiny.

Petitioner Wynyard's motion for leave to reargue, renew or appeal is denied, with costs to Trustee Beiny.

As to reargument, petitioner points neither to a fact overlooked nor a principle of law misapplied by this Court.

As to renewal, the motion fails because the facts underlying it could have been proved before the Surrogate, assuming that a motion for leave to renew may be made after an appellate determination. In any case, the facts offered by petitioner in support of renewal would not persuade us to a determination of the appeal other than the one that we have ordered.

As for leave to appeal, the issues cited by petitioner are insufficient to warrant review. First, if petitioner's counsel, Sullivan & Cromwell, believe that an evidentiary hearing should have been held upon the serious charges of unethical conduct made against them before the Surrogate, their demand for that hearing should have been made at that time. No demand was made then or upon the appeal; no hearing will be granted now. Second, petitioner's claim of a joint attorney-client privilege is as meritless as his raising of it after his counsel had unlawfully obtained the mass of documents to which the privilege relates. Third, petitioner's claim that this Court, without examining the prejudice to both parties, disqualified his counsel who had reviewed only "a finite number of privileged documents" is a minimalist construction of the record. Our opinion shows that Sullivan & Cromwell's misconduct compelled us to consider the issue of prejudice and, as for the "finite number" of documents obtained by petitioner's counsel, those documents involve more than ten years of a law firm's representation of persons other than petitioner. A "finite number" may mean any number, and in this case the number is indeed many.

In ending this appeal, it might be useful to trace the lines of certain features of the case for they show how this Court, faced each morning with matters involving profound issues of liberty and property, can be burdened by an appeal such as that at bar, an appeal that is before us solely because of the misconduct of lawyers in pursuit of a fee. We speak of the matter because it extends beyond the ownership and transfer of porcelains, and well beyond the interest of a law firm in its reputation. Our consideration of the case is enlarged by issues involving the ethical norms required of attorneys as advocates.

Petitioner's counsel, Sullivan & Cromwell, believing that the liquidator of the law firm of Greenbaum, Wolff & Ernst had factual information concerning the property at issue, served a subpoena duces tecum and notice of deposition directing the liquidator to appear for examination with all the papers concerning certain clients, including Trustee Beiny. No notice was given by Sullivan & Cromwell to the other parties. The subpoena was knowingly aimed at privileged materials, and no court would have sustained its broad demand. In order to give the subpoena a sharper edge, Sullivan & Cromwell enclosed it in a letter that deceptively represented to the liquidator that Sullivan & Cromwell's client, petitioner Wynyard, was the executor of the estate of a former client of the Greenbaum firm. Sullivan & Cromwell, having thereafter received from the liquidator the mass of papers to which no law but only its deceit entitled it, then cancelled the day fixed for the liquidator's examination. Within weeks, the Trustee, ignorant of the raid upon Greenbaum's papers, was examined in London by Sullivan & Cromwell who not only used those papers to surprise her but refused to disclose how the papers had been obtained. When the Trustee's counsel learned how Sullivan & Cromwell had obtained the papers, they asked for their production, but Sullivan & Cromwell refused, unless the Trustee made concessions in discovery. Only after the Trustee was driven to obtain an order of the Surrogate in December, 1985, granting the Trustee access to the papers, did the Trustee learn the extent of Sullivan & Cromwell's massive intrusion into the Trustee's privileged papers; and not until July, 1986 did the Trustee have in hand an order of the Surrogate suppressing all but seven of one hundred fourteen documents as to which the Trustee claimed privilege.

In consequence of Sullivan & Cromwell's conduct, this Court has had placed before five of its Justices about one thousand seven hundred pages of record and briefs, to say nothing of paper footage given to motions that have since slid into the dark of appellate memory. Petitioner Wynyard's case, which may be one having substantial merit, has been delayed by about two and a half years given over to the legal debris that now lies before us. He has been left by Sullivan & Cromwell's conduct to search for other counsel who will probably bill him for the reading of the lengthy record generated by Sullivan & Cromwell's misconduct. Trustee Beiny has been driven down a legal gauntlet, arched by fees of expensive counsel and hedged by the anxiety to which Bench and Bar are often insensible. In short, upon facts that should have led Sullivan & Cromwell to a prompt, practical resolution, one that would have avoided delay, fees and the worrying of court and clients, Sullivan & Cromwell chose instead to drive the Trustee toward the steps of the Surrogate's Court and, ultimately, both petitioner and the Trustee to the steps of this Court. Having arrived in this Court, Sullivan & Cromwell, in protection of its reputation, then set about the making of arguments that, startlingly curious in design, required the time of this much pressed Court to identify and answer. ¹ We will describe only several of these arguments. Cousins to them, equally strange looking, may be found sitting in the briefs.

Sullivan & Cromwell argued on the appeal that its associate, Garrard Beeney, who had engineered the acquisition of the now suppressed documents, was procedurally correct in his obtaining of the papers without notice to the parties. The argument was notable if only because it might have caused an applicant's failure upon the Bar examination, to say nothing of its use against Sullivan & Cromwell by its adversaries in other actions. On reargument, petitioner's additional counsel, retained for the motions at bar, made for safer waters, concedi that Beeney was in error but that Beeney had acted innocently. In short, Beeney had known what he was doing but did not know that it was wrong. As far as our research has gone this is the first instance, at least in this Court, in which a breach of the Civil Practice Law and Rules has been met with the defense raised in 1843 in M'Naghten's Case, a fact that would have startled poor M'Naghten as he stood acquitted in the dock. The record shows that Beeney indeed knew what he was about when he palmed off petitioner as the executor of the estate of a decedent whose Will was never probated, and when he cancelled a deposition that he never intended to conduct. The record shows that even though Donald Christ, a senior partner at Sullivan & Cromwell, must have known at the very least of the way Beeney had acquired the privileged papers, still nothing was done to right what must have seemed to Mr. Christ to have been wrong. Instead, Sullivan & Cromwell in their prosecution of the case thereafter used the papers against the Trustee. As for the argument that the liquidator was in substance a volunteer in need of a subpoena as a kind of receipt for his files, we give to it the same value that we have given to Beeney's singular belief that petitioner was the executor of an estate unknown to any probate court.

Petitioner's claim that the Trustee and he had been jointly represented by the Greenbaum firm, a claim unproved before the Surrogate, can hardly be a foothold in justification of Sullivan & Cromwell's raid upon the Greenbaum files. Our cachet of approval upon such a primitive notion of discovery, to say nothing of the extension of such a principle throughout our law, would entice the invasive, disorderly mind in an area in which rights must be judicially or consensually fixed before parties proceed in the gathering of facts.

Last, it is disingenuous for petitioner's counsel to argue that we did not find that the suppressed documents were substantially related to the issues. We suppose that petitioner's counsel read our statement...