Cohen, In re

• Citation: 199 N.Y.S.2d 658,7 N.Y.2d 488,166 N.E.2d 672
• Parties: , 166 N.E.2d 672 In the Matter of Albert Martin COHEN, an Attorney, Appellant, Denis M. Hurley, Respondent.
• Decision Date: 01 April 1960
• Court: New York Court of Appeals

Page 658

199 N.Y.S.2d 658

7 N.Y.2d 488, 166 N.E.2d 672

In the Matter of Albert Martin COHEN, an Attorney, Appellant Denis M. Hurley, Respondent.

Court of Appeals of New York.

April 1, 1960.

Certiorari Granted June 6, 1960. See 80 S.Ct. 1250.

Theodore Kiendl, New York City, and David F. Price, Brooklyn, for appellant.

Denis M. Hurley, Brooklyn, in pro. per.

Michael A. Castaldi, New York City, and Michael Caputo, Brooklyn, for Denis M. Hurley, respondent.

Leonard B. Boudin, New York City, for New York State Association of Plaintiffs' Trial Lawyers, amicus curiae.

Emanuel Redfield, New York City, for New York Civil Liberties Union, amicus curiae.

David Scribner, Jonathan R. Goldberg and Herman B. Gerringer, New York City, for National Lawyers Guild, Amicus curiae.

Henry Weiner, Allen Harris and Daniel J. McMahon, New York City, for Co-ordinating Committee on Discipline of the Association of the Bar of the City of New York and others, amici curiae.

DESMOND, Chief Judge.

By an order of the Appellate Division, Second Department (one Justice dissenting) petitioner, admitted to the Bar in 1922, has been disbarred from the practice of law. The disbarment order was made after a hearing and on findings that he had refused to answer pertinent questions put to him during a 'Judicial Inquiry and Investigation' (Judiciary Law, Consol.Laws, c. 30, § 90) ordered by the Appellate Division and held before a Supreme Court Justice assigned by that court. The 'Inquiry' and 'Investigation' was concerned with charges of alleged illegal, corrupt and unethical practices and of alleged conduct prejudicial to the administration of justice, by attorneys and others acting with them, in the County of Kings, where appellant had his law office. Appellant's refusal to answer was on the stated ground that the answers might tend to incriminate him. On this appeal he argues that the disbarment order was, contrary to law and in violation of his right to due process of law, made solely because of his refusing to answer questions, in good-faith reliance on his constitutional privilege (N.Y.Const. art. I, § 6) against self incrimination. The Appellate Division held that he was not disciplined for invoking his constitutional privilege but because, in his capacity and status as a lawyer, he had deliberately breached his inviolable and absolute duty to co-operate with the court in a valid and proper investigation of unethical practices. A lawyer, wrote the Appellate Division, 'cannot remain must, thereby sterilizing the power of the court and frustrating its inquiry into unethical practices, and yet be permitted to retain his privilege of membership in an honorable profession.'

There is no dispute as to the facts and no real dispute as to the legality of this kind of general investigation or 'Judicial Inquiry' (Judiciary Law, § 90; People ex rel. Karlin v. Culkin, 248 N.Y. 465, 162 N.E. 487, 60 A.L.R. 851). On two occasions appellant appeared before the Supreme Court Justice presiding at the inquiry. He was represented by his own counsel. The counsel for the inquiry explained the nature of and authority for the inquiry. Appellant and his attorney were informed by the inquiry's counsel and by the court that this was an investigation and not an adversary proceeding (see Anonymous v. Baker, 360 U.S. 287, 291, 79 S.Ct. 1157, 3 L.Ed.2d 1234; People ex rel. Karlin v. Culkin, 248 N.Y. 465, 479, 162 N.E. 487, 492, supra), that there were no respondents or defendants, that appellant was 'not being charged with anything' but was to be questioned as to pertinent facts 'within the scope of the Inquiry' and which were thought to 'bear on or relate to your professional conduct', also that counsel for the inquiry had 'information that indicates your participation in professional misconduct'.

Counsel for the inquiry then put into evidence 228 'Statements of Retainer' which during the years 1954 through 1958 appellant had filed with the Appellate Division in obedience to its Special Rule 3 which requires that an attorney who makes contingent-fee agreements for his services in personal injury, wrongful death, property damages, and certain other kinds of cases, must file such agreements with the court and, if he enters into five or more such agreements in any year, must give to the court in writing certain particulars as to how he came to be retained. Put into evidence, also, when appellant appeared before the judicial inquiry were 76 other such statements of retainer filed during the same period by the law firm of Cohen & Rothenberg, with which appellant apparently had some association. Counsel for the inquiry informed appellant and the court that all these retainer statements were offered in evidence 'as a basis for some of the questions to follow'.

Appellant answered a few preliminary questions as to how long and where he had practiced law. About 60 other questions were asked of him during the two days (six months apart) on which he was on the witness stand but, on advice of his counsel who was present in court, he refused to answer any of them (except questions as to whether he had failed in any case to comply with Special Rule 3 and except as to questions about maintaining a separate office bank account) on the ground that answers might tend to incriminate or degrade him or expose him to a penalty or forfeiture. Those unanswered questions related to the identity of his law office partners, associates and employees, to his possession of the records of the cases described in his statements of retainer, to any destruction of such records, to his bank accounts, to his paying police officers or others for referring claimants to him, to his paying insurance company employees for referring cases to him, and to his promising to pay to any 'lay person' 10% of recoveries or settlements. He was asked and refused to answer as to whether he had made or agreed to make such payments to any of several named persons, as to whether he had hired or paid nonlawyers to arrange settlements of his cases with insurance companies and as to whether his partner or associate Rothenberg had been indicted for and had pleaded guilty to violations of sections 270-a and 270-d of the Penal Law, Consol.Laws, c. 40 which forbid the solicitation of legal business or the employment by lawyers of such solicitors. At one stage of this questioning counsel for the inquiry pointedly called to appellant's attention section 90 of the Judiciary Law which gives the Appellate Divisions power and control over lawyers and authority to punish professional misconduct or conduct prejudicial to the administration of justice. At that time the inquiry's counsel cited Canon 22 of Professional Ethics requiring lawyers to be candid and frank when before the court, Canons 28 and 29 forbidding the payment of awards to persons bringing in legal business and requiring lawyers knowing of such practices to inform the court thereof, Canon 34 outlawing division of fees except with other lawyers; also sections 270-a, 270-c, 270-d and 276 of the New York Penal Law, all relating to soliciting and fee splitting. Counsel for the inquiry warned appellant and his counsel that 'serious consequences' might flow from his refusal to answer by way of a 'recommendation to the Appellate Division.' Appellant's counsel replied that he was relying on Matter of Grae (282 N.Y. 428, 26 N.E.2d 963, 127 A.L.R. 1276) and Matter of Ellis (282 N.Y. 435, 26 N.E.2d 967) as holding that there could not be any 'consequence' to lawyers for 'doing what they had an absolute legal right to do'. Appellant was given a further opportunity to answer but persisted in his refusal, all this being admitted in his pleading in this proceeding.

The Supreme Court Justice presiding at the judicial inquiry then filed with the Appellate Division a transcript of the proceedings before him with a recommendation that disciplinary proceedings be instituted against appellant. The Appellate Division directed respondent Hurley, counsel to the inquiry, to commence this disbarment proceeding. Appellant's answer says that there is only an issue as to whether he was within his rights under section 6 of article I of the New York State Constitution, in pleading the privilege. The case, however, is not so simple. Of course, he had the right to assert the privilege and to withhold the criminating answers. That right was his as it would be the right of any citizen and it was not denied to him. He could not be forced to waive his immunity (Matter of Ellis, 282 N.Y. 435, 26 N.E.2d 967, supra). But the question still remained as to whether he had broken the 'condition' on which depended the 'privilege' of membership in the Bar (see Judge Cardozo in Matter of Rouss, 221 N.Y. 81, 84, 116 N.E. 782). 'Whenever the condition is broken the privilege is lost' (Matter of Rouss, supra, 221 N.Y. at pages 84-85, 116 N.E. at page 783). Appellant as a citizen could not be denied any of the common rights of citizens. But he stood before the inquiry and before the Appellate Division in another quite different capacity, also. As a lawyer he was 'an officer of the court, and, like the court itself, an instrument * * * of justice' (Chief Judge Cardozo in People ex rel. Karlin v. Culkin, 248 N.Y. 465, 470-471, 162 N.E. 487, 489, supra), with the inevitable consequences that the court which was charged with control and discipline of its officers had its own right to demand his full, honest and loyal co-operation in its investigations and to strike his name from the rolls if he refused to co-operate. Such 'co-operation' is a 'phrase without relity' as Chief Judge Cardozo wrote in People ex rel. Karlin v. Culkin, supra, 248 N.Y. at page 471, 162 N.E. at page 489 if a lawyer after refusing to answer pertinent questions about his professional conduct can retain his status and privileges as an officer of the court.

The solution to our problem is clear when we consider the lawyer's special...