Cohn, In re, D--5

• Decision Date: 10 January 1966
• Docket Number: No. D--5,D--5
• Citation: 46 N.J. 202,216 A.2d 1
• Parties: In the Matter of David COHN and Albert L. Cohn, Attorneys-at-Law.
• Court: New Jersey Supreme Court

Page 202

46 N.J. 202

216 A.2d 1

In the Matter of David COHN and Albert L. Cohn, Attorneys-at-Law.

No. D--5.

Supreme Court of New Jersey.

Argued Sept. 30, 1965.

Decided Jan. 10, 1966.

Leonard I. Garth, Paterson, for the order.

Jerome C. Eisenberg, Newark, for respondents (Clapp & Eisenberg, Newark, of counsel).

The opinion of the court was delivered by

HANEMAN, J.

After investigation and hearing the Passaic County Ethics Committee filed a presentment with this Court against David Cohn and Albert L. Cohn. We issued an order to show cause why they should not be disbarred or otherwise disciplined.

The presentment consists of four counts, the last composed of five separate parts. With the exception of the third part of the last count all of the charges are directed at Albert L. Cohn. Said third part concerns both Albert and David Cohn.

We shall treat initially of the charges as they apply to Albert Cohn.

I

In the first count Albert Cohn is charged with the violation of Canons of Professional Ethics, Canons 15, 16, 31 and 32, in that he allegedly assisted, cooperated and participated in the filing of a criminal charge by a client in order to obtain an advantage in a civil suit.

The facts as elicited at the hearing before the Passaic County Ethics Committee are as follows:

The firm of David and Albert Cohn had for some years prior to 1960 represented Marie Rigoletti, who was then operating a tavern known as Mountain View Inn in Wayne, which she had been operating for upwards of 20 years. The tavern was owned by Mar-Bel, Inc., the stock of which was owned largely by her. On December 26, 1960, Carrie Hollander who had been a patron, fell in front of the tavern and injured herself. Carrie Hollander, with her husband, John Hollander, joining Pre quod, filed suit in July 1961 against Mar-Bel, Inc. and Rigoletti, individually and trading as Mountain View Inn. One of the issues in that suit was the marital status of John Hollander. There is considerable dispute between Cohn and Rigoletti as to how and when the question concerning the marital status of Carrie and John Hollander originated.

During the taking of an oral deposition of Carrie Hollander on April 18, 1962 in connection with her suit against Rigoletti she admitted that she had been married to Joe Carey before her marriage to John Hollander in Baltimore, Maryland. She admitted that a Mexican divorce obtained against Carey was 'no good.' In answer to Albert Cohn's question 'You are saying that you are not legally married to John Hollander?' she replied, 'that's right.'

Cohn testified that Rigoletti, from early in July 1961 was 'hostile and vehement in her hostility towards Carrie Hollander' for having brought suit. he stated that 'she would use curse words towards her, words that were just not only unattractive and unkind, but filthy language, describing Carrie Hollander.' He further testified that Rigoletti said it was common knowledge that John Hollander was not Carrie Hollander's husband and 'that Carrie Hollander and John Hollander had a lot of nerve in bringing this type of an action when, actually, they weren't married.' Rigoletti denied making any such statement and asserted that her knowledge of Carrie's marital status came from Cohn after the taking of the Carrie Hollander deposition.

There is a further controversy between Cohn and Rigoletti about the inception of the idea to lodge a criminal complaint against Carrie Hollander charging her with bigamy. The gist of Cohn's testimony was that the idea originated with Rigoletti and that he tried to dissuade her. Rigoletti testified that Cohn persuaded her, over her objection, to file the complaint in the hope that Carrie Hollander would drop her suit. In any event, a complaint was eventually signed by Jack Brosh, Rigoletti's bartender, at the instigation of either Cohn or Rigoletti or both.

The facts attending the signing of the complaint and the trial thereof, as elicited from witnesses other than Cohn and Rigoletti, are most illuminating on the question of the activities of Cohn in connection with the bigamy charge. Mrs. Naughton, the clerk of the Wayne Municipal Court, stated that in the middle of April of 1962 Brosh appeared in her office and tried to file a bigamy complaint against Carrie Hollander. She testified that 'he seemed rather vague * * *. He said he would have to see Marie Rigoletti,' and no complaint was filed at the time. She received a call from Rigoletti asking about the case. Naughton told her that the case would not proceed or be processed until she was advised of the specific statute, allegedly violated, so that she could insert a reference to it in the complaint. She testified that she later had a phone conversation with someone in the office of David Cohn and Albert Cohn. She did not remember to whom she spoke or the date of the conversation. She did recall that she had previously received a letter from the Cohn office. Cohn admits the phone call but disputes that he sent the letter before he talked with the clerk. The letter reads as follows:

'May 3, 1962

Re: Hollander vs. MarBel

Our File #19,313

Violations Clerk

Wayne Township Municipal Court

Wayne, New Jersey

Dear Sir:

In answer to your inquiry please be advised that Carrie Hollander went through a ceremony of marriage with John Hollander on September 19, 1949 in Baltimore, Maryland. At the time she was still lawfully married to one, Joe Carey of Boonton, New Jersey.

This was admitted by her in sworn testimony on April 18, 1962, before Herman Edelstein, a certified shorthand reporter.

Very truly yours,

DAVID & ALBERT COHN

BY _ _

Albert L. Cohn.'

She stated as a result of the call she noted a memorandum on the letter, which reads 'Lawyer's Request 92.1.' She indicated that that 'was the section of the law under which he wanted the complaint brought,' and concluded from the presence of the memorandum on the letter that 'the call must have been after May 3rd.' (N.J.S. 2A:92--1, N.J.S.A. is the bigamy statute). Naughton further testified that she was concerned with the question of jurisdiction as well as the proper statute because the letter she received from Cohn said the second marriage took place in Baltimore.

The deputy court clerk of Wayne Municipal Court, Mrs. Schmidt, testified that she spoke to Cohn on May 4, 1962 to check the wording of the bigamy complaint. She made a notation of the conversation, dated May 4, 1962, as follows:

'Carrie Hollander. Read wording of complaint to Albert L. Cohn, att. for Jack J. Brosh. He said it was O.K. He gave me the date of Dec. 26, 1960 to be filled in. I asked him if we had jurisdiction on this and he said we did.'

Cohn denies receiving a call on May 4, 1962 and further denies ever having mentioned 'bigamy' or referring to any section of the statutes in conversation with anyone in the clerk's office. He testified that on May 4, 1962, which was a Friday, he was in court dealing with motions.

The deputy clerk received a letter from Albert Cohn dated May 21, 1962, which reads:

'Clerk, Municipal Court

Wayne Township

New Jersey

Re Hollander vs. Mar-Bel

Our File: #19,313.

Dear Sir:

Would you kindly tell us the status of the complaint made by Mr. Jack Brosh in the above matter.

Your prompt attention would be appreciated.

We should like to be notified of the hearing date so that we can be present. We have information in our file which will be of valuable assistance to the State.

Very truly yours,

David and Albert Cohn

by Albert Cohn.'

Mrs. Schmidt does not recall calling Cohn in response to said request but stated 'I must have called because Mr. Brosh came in shortly thereafter to sign the complaint.'

On May 22, 1962 Jack Brosh signed the complaint charging Carrie Hollander with a bigamous marriage under N.J.S. 2A:92--1, N.J.S.A., asserting December 26, 1960 as the date of marriage--the date that Carrie Hollander allegedly slipped in front of Rigoletti's tavern--and Wayne the place of the marriage. Mrs. Schmidt had no knowledge of the Hollander accident.

The Cohn firm was informed on May 29, 1962 that the complaint was scheduled for hearing on June 6, 1962. Cohn sent a letter to Marie Rigoletti dated May 31, 1962 advising her that the complaint had been filed and adding:

'If you desire that we be present, it will be necessary that you send us a check in the sum of $100.00 covering our appearance.'

Elwyn Saviet, an associate with the Cohn firm, appeared in court on June 6. He testified before the Committee that he had been called into Cohn's office early that morning and given instructions to take the Carrie Hollander deposition to the Wayne Municipal Court. He claimed he was not told the name of the case nor the nature of the complaint. Cohn testified that he gave the transcript to Saviet and identified the matter as 'State v. Hollander in Wayne' but had no further discussion on the matter. Saviet also said that Cohn told him to 'look at the records at Wayne' for something 'to help give me a complete picture.' Upon reaching the court Saviet stated that he was told by Brosh that the complaint involved Mrs. Hollander's marital status.

The transcript of the hearing in the municipal court shows Elwyn Saviet as appearing, but it does not show for whom he appeared. Brosh acknowledged at the hearing that he read and filed the complaint but was unable to testify in support of any of its elements or allegations. The magistrate testified that Saviet actively participated in the proceedings. At the municipal court hearing Saviet said, 'I was informed by the Prosecutor that there was no record of the marriage on the date charged in Wayne. All the information that I have at my disposal, which is from the depositions, does not support the charge either * * *.' The Assistant Prosecutor consented to a dismissal and the court dismissed the complaint. Saviet then attempted to have the case adjourned on the ground that he did not have sufficient knowledge of the facts. Saviet...