A'Hearn v. Committee on Unlawful Practice of Law of New York County Lawyers' Ass'n

• Decision Date: 23 January 1969
• Citation: 23 N.Y.2d 916,298 N.Y.S.2d 315,246 N.E.2d 166
• Parties: , 246 N.E.2d 166 In the Matter of Charles A. A'HEARN, Appellant, v. COMMITTEE ON UNLAWFUL PRACTICE OF the LAW OF the NEW YORK COUNTY LAWYERS'ASSOCIATION, Respondent.
• Court: New York Court of Appeals Court of Appeals

Page 315

298 N.Y.S.2d 315

23 N.Y.2d 916, 246 N.E.2d 166

In the Matter of Charles A. A'HEARN, Appellant, v. COMMITTEE ON UNLAWFUL PRACTICE OF the LAW OF the NEW YORK COUNTY LAWYERS'ASSOCIATION, Respondent.

Court of Appeals of New York.

Jan. 23, 1969.

Practice of Law which issued subpoena duces tecum to disclose, not merely assert, that it had reason to believe that person to whom subpoena was addressed was unlawfully practicing or assuming to practice law.

Affirmed.

Charles M. McCarty and George C. Wildermuth, Brooklyn, for appellant.

Daniel M. Shientag, New York City, for respondent.

PER CURIAM.

The issues in this case are discussed in detail with elaborated reasoning in the opinions of the Appellate Division. It might have sufficed to rest on the majority opinion in that court, but, by way of caution, however, some additional comments are desirable.

It is ancient law that no agency of government may conduct an unlimited and general inquisition into the affairs of persons within its jurisdiction solely on the prospect of possible violations of law being discovered, especially with respect to subpoenas duces tecum (see, generally, 2 Weinstein-Korn-Miller, N.Y.Civ.Prac., pars. 2304.02, 2304.07). There must be authority, relevancy, and some basis for inquisitorial action (cf. Matter of La Belle Creole Intern., S.A. v. Attorney-General, 10 N.Y.2d 192, 196, 219 N.Y.S.2d 1, 4, 176 N.E.2d 705, 707, and cases cited). Thus, it has been held that even under broad investigation statutes the Attorney-General does not have an 'arbitrary and unbridled discretion as to the scope of his investigation' (Carlisle v. Bennett, 268 N.Y. 212, 217, 197 N.E. 220, 222, cited and quoted with approval in the La Belle Creole case, Supra). Such strictures are even of greater applicability when a nongovernmental organization, such as that involved here, has delegated to it powers of inquiry.

Moreover, in all inquiries it is always available to the subject of the inquiry to assert and establish that he is being unnecessarily harassed (cf. Matter of Edge Ho Holding Corp., 256 N.Y. 374, 382, 176 N.E. 537, 539; cf. Matter of Dawn Operators, Inc. v. Lyon, 283 App.Div. 358, 360--361, 128 N.Y.S.2d 317, 319--321 mot. for lv. to app. den. 306 N.Y. 977, 120 N.E.2d 232 app. dsmd. 307 N.Y. 673, 120 N.E.2d 848; see, generally, 97 C.J.S. Witnesses § 19, sub. b; § 25, sub. j).

True, in this case there has been but a bare showing for the basis of the inquiry, but it is enough to initiate it. If the inquiry is unduly protracted, unduly intrusive into the affairs of the witness without some showing of utility in its further prosecution, or by the breadth or intensity of the inquiry into the books and papers of the witness it has become unduly burdensome, the witness will not be...