Frankel, In re, D--5

• Decision Date: 13 February 1956
• Docket Number: No. D--5,D--5
• Citation: 120 A.2d 603,20 N.J. 588
• Parties: In the Matter of Charles FRANKEL, an Attorney-at-Law.
• Court: New Jersey Supreme Court

Page 588

20 N.J. 588

120 A.2d 603

In the Matter of Charles FRANKEL, an Attorney-at-Law.

No. D--5.

Supreme Court of New Jersey.

Argued Oct. 17 and Nov. 21, 1955.

Decided Feb. 13, 1956.

Harold H. Fisher, Newark, by designation of the court, for the rule.

John E. Toolan, Perth Amboy, (Sam Weiss, Newark, on the brief; Toolan, Haney & Romond, Perth Amboy, attorneys), contra.

The opinion of the court was delivered by

HEHER, J.

The respondent attorney-at-law, in practice at Asbury Park, was ruled to show cause why he should not be disbarred or disciplined for violations of sections 28 and 34 of the Canons of Professional Ethics, as found by the Honorable Lester A. Drenk, Judge of the County of Burlington, in a report made to this court under date of September 6, 1955, pursuant to a reference made June 23, 1955.

Judge Drenk reported that the respondent Frankel and one Low had entered into and pursued an arrangement for the 'procurement of automobile negligence cases by Low for Frankel, for which Frankel rewarded Low by paying him 25% Of Frankel's net fee less $40,' a sum paid at the outset 'ostensibly for photographs,' of which more hereafter.

Canon 28 declares it to be 'disreputable' for a lawyer to 'breed litigation by seeking out those with claims for personal injuries or those having any other grounds of action in order to secure them as clients, or to employ agents or runners for like purposes, or to pay or reward, directly or indirectly, those who bring or influence the bringing of such cases to his office, or to remunerate policemen, court or prison officials, physicians, hospital attache § or others who may succeed, under the guise of giving distinterested friendly advice, in influencing the criminal, the sick and the injured, the ignorant or others, to seek his professional services.' A duty to inform, in the interest of the public and the profession, is laid upon every member of the bar having 'knowledge of such practices' by any practitioner, 'to the end that the offender may be disbarred.' And Canon 34 provides that no 'division of fees for legal services is proper, except with another lawyer, based upon a division of service or responsibility.'

There can be no doubt that Low solicited negligence cases for the respondent Frankel, even where the injured person had retained counsel to act in his behalf. He made it a practice to photograph the area of the particular accident and the vehicles involved; and he then called upon the victim at the hospital or in his home, as the case might be, exhibited the photographs as important pieces of evidence, and sought a retainer for the respondent as a specialist in the field. He had at his bedside a radio tuned in to police broadcasts of automobile accidents, and not infrequently he was on the scene even before the arrival of the police or the ambulance. This early contact with the injured person possessed of photographic evidence of the locale served his primary purpose of arranging a retainer for the respondent.

Low called on Jeremiah P. Davis, a patient at the Monmouth Memorial Hospital undergoing treatment for injuries sustained in an automobile accident on January 10, 1953, and sought a retainer for respondent after Edward W. Wise, Jr., an attorney, had been engaged for the purpose by Davis' son at his direction, and he, Low, had been so advised by Davis, who had been a client of the Wise firm. Davis testified that Low was told of the Wise retainer on an earlier visit; that Low returned two or there days later, asked Davis for permission to see Wise, which was not given, and after a telephone call out of Davis' presence Low told Davis he was 'making a mistake,' referred to Frankel as a good lawyer, and said that if Wise wanted the pictures he, Low, had taken, 'he will pay darned good for them.' He displayed newspaper items and pictures of a group in attendance at a banquet and identified one of the group as Frankel, the lawyer he would have Davis retain. Low admitted he recommended Frankel. He said Davis asked for his opinion of Wise, and he replied he was a good attorney but 'there were others that I personally preferred,' and he named Frankel as one. But Low did call on Wise and told him he had seen Davis at the hospital and he could get the case for him if he would purchase the photographs. Wise replied that he had already been retained; and he refused to buy the photographs.

Low paid a visit to John Schaible at his home in Keansburg, where he was confined following hospital treatment for injuries suffered in a highway accident, and told him, Schaible testified, 'that he has come in contact with a lot of these cases and he has a friend of his that he works for and he would recommend him very highly; that the man is in a very good job--he is a Prosecutor--and that he could do the best for me as far as legal advice was concerned.' He wrote down Frankel's name. He hold Schaible of pictures he had taken and their evidential value, but he made no offer to sell them. Low admitted the call, but said: 'I don't recollect what went on.' He then agreed it was 'quite possible' he did recommend a lawyer to Schaible. He did not recall an offer to sell the photographs.

There were other instances of the same pattern, all indicating the use of the photographs as a means of obtaining a retainer for the respondent. His endeavors in this direction are not denied. Insisting that the photographs were for sale to any one who wanted them, he admitted that on occasion he refused to sell such photographs to lawyers other than Frankel.

In his formal answer to the charges the respondent averred that he had paid to Low, 'on various dates between December 23, 1952 and December 14, 1953, compensation for bona fide, substantial and valuable investigation services rendered by the said Low, at a rate approximating 25% Of the net fee received by the respondent for legal services in each case in which the said Low rendered such investigation services,' a 'method and rate' of compensation for 'investigation services in legitimate aid of the respondent's legal services to his respective clients' that 'is a common and accepted practice in Monmouth County among lawyers and investigators,' and 'is not a division of legal fees with a layman such as is condemned by Canon 34'; and he maintained that the payments were not made 'with any purpose or understanding that they were to encourage or induce the said Low to bring and to influence the bringing of negligence cases arising from and out of automobile cases to the respondent, and were not in violation of Canon 28.' The allegation of a common practice was abandoned at the hearing.

We are clear, as was Judge Drenk, that the payments thus made by Frankel to Low were not for 'investigation services,' but rather as 'pay or reward' for the successful solicitation of negligence cases for respondent, pursuant to an arrangement to that end in disregard of the cited canons of professional ethics.

In 1953, Frankel paid Low $6,303.53. Low conceded that his gross yearly income never exceeded $8,000; his yearly average would be about $5,000. His first check from Frankel came July 3, 1951, for $100. Prior to 1951 Low's gross annual income ran between $2,500 and $2,700, and in 1951 or 1952 he began to 'hit $5,000,' indicating that Frankel was the major source of his income. The contention is that it was 'entirely legal and ethical' for the respondent to 'hire Low's services as an investigator, and to pay him, after recovery, a maximum compensation approximating 25%' of respondent's 'net fee.'

But Low was certainly a solicitor of negligence cases for Frankel, and the evidence is equally clear and convincing, beyond any doubt founded in reason, that Low rendered no investigatory services which would account for the payments made by Frankel. Counsel directs attention to the testimony of Frankel and Low that the latter 'performed an actual, bona fide investigation in each case in which a check was issued to him for such services'; and it is insisted that 'Express testimony cannot be rejected on the sole ground of its improbability,' citing Rains v. Rains, 127 N.J.Eq. 328, 12 A.2d 857 (E. & A.1940), and 'Its impossibility alone can discredit the witness,' citing Berckmans v. Berckmans, 16 N.J.Eq. 122 (Ch.1863), affirmed 17 N.J.Eq. 453 (E. & A.1864). It is said in argument that the burden of proof rests upon the prosecutor of the charges, and disbelief of the testimony of Frankel and Low in this regard 'will not support an affirmative finding that the reverse of that testimony is true,' and 'Disbelief in testimony concerning particular facts does not convert that testimony into affirmative proof of contrary facts,' citing Eckenrode v. Pennsylvania R. Co., 164 F.2d 996 (3rd Cir.1947), affirmed 335 U.S. 329, 69 S.Ct. 91, 93 L.Ed. 41 (1948); State v. Poplowski, 104 Conn. 493, 133 A. 671 (Sup.Ct.Err.1926).

The principle is not apposite here. The charges may be proved by direct or circumstantial evidence; and the question is whether the evidence satisfies the standard of persuasion. Does it have the quality of belief or conviction constituting the legal measure of persuasion? As Judge Drenk found, 'other than Frankel's and Low's testimony not one bit of evidence was adduced on behalf of the respondent to corroborate the alleged fact that Low performed investigating services; not one statement of a witness taken by Low, no memorandum of any report made by Low, no police or other agency report secured by Low, no name of a witness or fact discovered by Low was ever offered; not one client or witness was produced to testify that Low had interviewed him or her.' There is no tangible evidence of the investigation of a single case by Low--a singular deficiency of proof that goes far to negative the tendered hypothesis. But conclusive in itself, when viewed in the context of the circumstances, is the payment to Low of 25% Of the net fee received by Frankel...