Cohen, In re
| Decision Date | 11 February 1963 |
| Citation | 238 N.Y.S.2d 146,18 A.D.2d 927 |
| Parties | In the Matter of Albert Martin COHEN, Applicant, Denis M. Hurley, Objectant. |
| Court | New York Supreme Court — Appellate Division |
Edward Vogel, Brooklyn, for applicant.
Denis M. Hurley, Brooklyn, for objectant.
MEMORANDUM BY THE COURT.
This is an application for reinstatement as a member of the Bar.
On December 31, 1959, in a prior proceeding, this court had disbarred the applicant by reason of his refusal, before the Additional Special Term appointed by this court to conduct a Judicial Inquiry into unethical practices, to answer pertinent questions in reliance on his constitutional privilege against self-incrimination (Matter of Cohen, 9 A.D.2d 436, 195 N.Y.S.2d 990, affd. 7 N.Y.2d 488, 199 N.Y.S.2d 658, 166 N.E.2d 672, affd. 366 U.S. 117, 81 S.Ct. 954, 6 L.Ed.2d 156). We stayed the operation of the disbarment order, however, 10 A.D.2d 581, 196 N.Y.S.2d 277, pending the determination of the applicant's appeal to the Court of Appeals. Thereafter, the operation of the disbarment order was again stayed pending the decision and mandate of the Supreme Court of the United States. On May 26, 1961, that mandate was issued, thereby ending the stay of the disbarment order.
The applicant was then granted permission by this court to return to the said Special Term where, between September 1961 and March 1962, the Justice presiding heard the applicant's testimony as well as that of several independent witnesses. Thereafter, the applicant made this application to be reinstated as a member of the Bar. In opposition, the objectant (who was the petitioner in the prior disbarment proceeding) filed fifteen specific charges of misconduct against the applicant. The application, including the charges, was referred to the Hon. Peter M. Daly, Justice of the Supreme Court, for hearing and report.
Mr. Justice Daly, after having conducted hearings, has filed his report in which he sustained twelve in toto and one in part of the fifteen charges made. The charges sustained included the following:
(1) That the applicant was lacking in candor in his testimony at the Additional Special Term----
(a) in respect of a partnership relationship;
(b) concerning his non-production of certain financial records; and
'(c) concerning his knowledge of dealings with a solicitor of negligence cases.
(2) That the applicant paid laymen for referral of negligence cases to him.
(3) That the applicant advanced moneys to clients in matters where his fee was contingent upon recovery.
(4) That the applicant commingled his clients' moneys with his own.
(5) That he failed to keep and preserve proper books and financial records.
(6) That he paid lay public adjusters or 'ten percenters' for aiding in the settlement of his negligence cases.
(7) That he advanced moneys to attorneys in consideration of their referral of negligence cases to him.
(8) That he participated in a scheme designed to obtain negligence cases by the use of information derived from hospital lien books and filed notes of issue.
(9) That he failed to file partnership income tax returns, and failed in his returns to report his correct net income.
(10) That he participated in a scheme which violated the proscription against representing conflicting interests.
(11) That he filed statements of retainer containing misrepresentations.
While sustaining these charges, the recommendation of Mr. Justice Daly was to grant the application for reinstatement. The applicant now moves to confirm the report.
We agree with the findings made by Mr. Justice Daly in which he sustained the charges of professional misconduct, and to this extent the report is confirmed. The nature of the charges, however, is so serious as to warrant the denial of the application on the ground that the applicant is not possessed of the character and fitness required for a member of the Bar.
Accordingly the application for reinstatement is denied.
KLEINFELD, Acting P. J., dissents with the following memorandum and votes to confirm the report of Mr. Justice Daly except as to its findings of guilt on Specifications 1, 6 and 10, which dealt with lack of candor in the applicant's testimony before the additional Special Term:
It is uncontradicted that the applicant suffered a serious mental breakdown in 1955 and thereafter underwent prolonged electric shock treatments and psychotherapy which, says the applicant, greatly impaired his memory. And the applicant says in was this impairment of memory, not lack of candor or willingness to cooperate, that resulted in his somewhat contradictory and seemingly evasive testimony concerning the matters involved in Specifications 1, 6 and 10. In my opinion, the applicant's explanation is wholly believable, since (a) his illness and treatments are undisputed; (b) the record clearly shows that he was frank and cooperative as to the other matters under investigation; and (c) the overwhelming bulk of the charges against him were established out of his own mouth and solely on the basis of his voluntary, candid revelation of the relevant facts. If the applicant had intended to be uncooperative and evasive, he would not have voluntarily disclosed all the facts which supported the other charges. On this record, then, I think the applicant's explanation of the inconsistencies in his testimony...
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