Cohen, In re

• Decision Date: 31 December 1959
• Parties: In re Albert Martin COHEN, an Attorney, Respondent. Denis M. Hurley, Petitioner.
• Court: New York Supreme Court — Appellate Division

Page 990

195 N.Y.S.2d 990

9 A.D.2d 436

In re Albert Martin COHEN, an Attorney, Respondent. Denis

M. Hurley, Petitioner.

Supreme Court, Appellate Division, Second Department.

Dec. 31, 1959.

Denis M. Hurley, Brooklyn (Michael A. Castaldi, New York City and Michael Caputo, Brooklyn, of counsel), for petitioner.

David F. Price, Brooklyn, for respondent.

Before NOLAN, P. J., and WENZEL, BELDOCK, UGHETTA and KLEINFELD, JJ.

BELDOCK, Justice.

More than 40 years ago the eminent jurist, Chief Judge Cardozo, declared: 'Membership in the bar is a privilege burdened with conditions. A fair private and professional character is one of them. Compliance with that condition is essential at the moment of admission; but it is equally essential afterwards * * *. Whenever the condition is broken the privilege is lost. To refuse admission to an unworthy applicant is not to punish him for past offenses. The examination into character, like the examination into learning, is merely a test of fitness. To strike the unworthy lawyer from the roll is not to add to the pains and penalties of crime. The examination into character is renewed; and the test of fitness is no longer satisfied. For these reasons courts have repeatedly said that disbarment is not punishment' (Matter of Rouss, 221 N.Y. 81, 84-85, 116 N.E. 782, 783).

On the ground that respondent, a member of the Bar since 1922, by his conduct has broken the condition, this proceeding is brought to beclare that he has lost the privilege of membership in the Bar.

The genesis of this proceeding is a judicial inquiry undertaken by direction of this court. Advised by the Brooklyn Bar Association's petition (presented after its own investigation) of serious abuses and unethical practices by attorneys in Kings County with respect to their procurement of negligence cases on a contingent basis and with respect to their prosecution of such cases, this court in the exercise of its inherent and statutory power and duty (N.Y.Const. Art. VI, § 2; Judiciary Law, § 90; People ex rel. Karlin v. Culkin, 248 N.Y. 465, 162 N.E. 487, 60 A.L.R. 851), ordered a judicial inquiry. The inquiry was ordered with respect to the alleged illegal, corrupt and unethical practices and with respect to the alleged conduct prejudicial to the administration of justice by attorneys and others acting in concert with them, in Kings County. The purpose of the inquiry is to expose all the evil practices with a view to enabling this court to adopt appropriate measures to eliminate them and to disclipine those attorneys found to have engaged in them.

The existing conditions in Kings County as a result of the abuses in the handling of negligence cases by attorneys are well portrayed by Chief Judge Cardozo in his summary of the causes leading to the 1928 'ambulance chasing' investigation (People ex rel. Karlin v. Culkin, supra, 248 N.Y. at page 468, 162 N.E. at page 488). Unfortunately, the evils of yesterday have returned to plague us today.

In fairness and in justice to the legal profession, however, we state at the outset that the number of lawyers who appear to be involved in the alleged unethical practices is minute in relation to the total number of honorable practitioners at the Bar in Kings County.

During the period 1954 to 1958 inclusive, pursuant to the rules of this court, the respondent, who apparently specialized in negligence cases, filed 228 statements as to retainer in his own name and 76 such statements in a firm name, thus indicating that he and his firm had been retained on a contingent basis in a total of 304 negligence cases. He was duly subpoenaed to testify and to produce his records with respect to such cases before the Justice designated by this court to conduct this judicial inquiry at an additional Special Term. On the advice of counsel, respondent invoked his constitutional privilege against self incrimination and refused on that ground to answer pertinent questions and to produce his records.

It is not disputed that respondent has asserted his constitutional privilege in good faith. Nor is it disputed that the question put and the records sought come within the scope of the inquiry and that the information sought to be elicited would be relevant. Indeed, these facts are virtually conceded by the parties to this proceeding.

The petition now presented to the court seeks to discipline respondent, not on the ground that he has asserted his constitutional privilege, but on the ground that his refusal to answer relevant questions and his refusal to produce relevant records 'are in disregard and in violation of the inherent duty and obligation of respondent as a member of the legal profession', in that such refusals (a) are 'contrary to the standards of candor and frankness that are required * * * of a lawyer to the Court', (b) are 'in defiance of and flaunt [flout] the authority of the Court to inquire into and elicit information within respondent's knowledge relating to his conduct and practices as a lawyer', (c) have 'hindered and impeded the Judicial Inquiry' which had been ordered by this court, and (d) have resulted in respondent's withholding 'vital information bearing upon his conduct, character, fitness, integrity, trust and reliability as a member of the legal profession'.

Thus, the sole question for our determination is whether the respondent, by reason of his refusal to answer relevant questions and to produce relevant records, may be disciplined as a lawyer, or, stated differently, does his constitutional privilege against self incrimination shield him, not only from possible criminal prosecution, but also from disciplinary action as a member of the Bar for failing in his duties, obligations and responsibilities as a lawyer to the court?

This question goes to the heart of a serious and far-reaching problem confronting the Bar, the courts and the public. When this question is finally resolved it will affect the standing at the Bar, not only of this respondent, but of many other lawyers who similarly have asserted their constitutional privilege against self incrimination as a basis for refusing to divulge pertinent information with respect to their practices in relation to negligence cases. The resolution of this question will also determine in large measure whether this court's supervisory and regulatory power over lawyers, and whether this court's plenary power to curb all evil and unethical practices in the profession of the law, are to be suppressed and subverted, and whether this court is to be rendered impotent in the performance of its inherent and statutory duties relating to attorneys and to the administration of justice.

In order to keep in proper perspective the precise question to be decided here, it should be emphasized that with respect to the members of the Bar collectively, this court has the positive affirmative duty, springing both from its ancient plenary jurisdiction over attorneys and from the express statutory delegation of such power, 'to keep the house of the law in order', to compel attorneys 'to submit to an inquisition as to professional misconduct', to ascertain the existence of practices which are prejudicial to the administration of justice, to compel the discontinuance of such practices and to discipline those attorneys who may have engaged in them. For the achievement of these ends this court is empowered to make any rule, to hold any inquisition, and to require any attorney to attend and to give evidence under oath. The end and the aim of the inquisition are not punishment, but discipline. And every attorney, as an officer of the court, has the reciprocal duty to aid the court, to co-operate with it, to obey its rules and orders, to respond to respond to all relevant questions put by the court or by the agency conducting the inquiry on its behalf, and to refrain from doing any act which might thwart the inquiry (Judiciary Law, § 90; Gair v. Peck, 6 N.Y.2d 97, 111, 188 N.Y.S.2d 491, 501; People ex rel. Karlin v. Culkin, 248 N.Y. 465, 470-479, 162 N.E. 487, 489, 492, supra; Queens County Bar Ass'n v. Dwyer, 254 App.Div. 769, 4 N.Y.S.2d 895; Matter of Cherry, 228 App.Div. 458, 464-465, 240 N.Y.S. 282, 289-290; Matter of Brooklyn Bar Ass'n, 223 App.Div. 149, 151-153, 227 N.Y.S. 666, 669-671; Matter of Bar Ass'n of City of New York, 222 App.Div. 580, 584-587, 227 N.Y.S. 1; Matter of Flannery, 150 App.Div. 369, 371, 135 N.Y.S. 612, 614, affirmed 212 N.Y. 610, 106 N.E. 630).

And with respect to any particular member of the Bar, whenever the occasion demands or whenever his character and fitness are called into question, this court likewise has the positive affirmative duty to re-examine into them and to ascertain whether he still possesses the requisite character and fitness to continue to be a member of the Bar. If it finds that he does not, it must disbar him--not by way of punishment, but 'for the protection of both the court and the public * * * from the official ministration of persons unfit to practice.' An attorney may continue in the practice of the law only so long as he continues in the possession of the requisite character and fitness (Judiciary Law, § 90; In re Thatcher, C.C., 190 F. 969, 975-977; Matter of Donegan, 265 App.Div. 774, 787-788, 41 N.Y.S.2d 37, 47, 48; Matter of Rouss, 221 N.Y. 81, 84-85, 116 N.E. 782, supra; In re Durant, 80 Conn. 140, 147, 67 A. 497).

We disagree with respondent in his contention that the purpose of this proceeding is to discipline him 'because he has invoked his constitutional privilege against self-incrimination.' Respondent urges, in effect, that his rights as a citizen to be free from punishment for invoking his constitutional privilege are being destroyed if, in his capacity as a lawyer, he may be disciplined for resorting to such privilege as a citizen. But his argument overlooks the undeniable fact that respondent, with respect to his rights as a citizen and with respect to his...