In re Raisch

• Decision Date: 14 March 1914
• Citation: 90 A. 12,83 N.J.Eq. 82
• Parties: In re RAISCH.
• Court: New Jersey Court of Chancery

90 A. 12

83 N.J.Eq. 82

In re RAISCH.

Court of Chancery of New Jersey.

March 14, 1914.

(Syllabus by the Court.)

On order to show cause why Carl Raisch should not be adjudged guilty of malpractice as solicitor of the Court of Chancery, and be put out of the roll of solicitors, and be suspended from practicing as solicitor, or be otherwise disciplined and punished. Order against defendant advised.

John M. Enright, of Jersey City, Prosecutor (appointed by the court). Charles H. Burtis, of New York City, for defendant.

STEVENSON, V. C. The malpractice charged and proved against Mr. Raisch relates solely to his conduct as an officer of the Court of Chancery, and consists of fraud and imposition upon the court in the conduct of a suit for divorce. The proof is convincing. The respondent did not offer any testimony, and did not go upon the witness stand to meet the force of the direct proofs of malpractice or to offer any explanation. It does not seem to be necessary to set forth in very great detail the evidence of the malpractice of which it is my duty under the evidence to find the respondent guilty. The respondent, as a solicitor of this court, on February 20 1911, filed a petition on behalf of May Mattner against her husband, Otto Mattner, praying for an absolute divorce on the ground of adultery. The usual proceedings seem to have been then taken to bring in the defendant by publication, and the proofs filed show that notice of the suit was actually received by the defendant through the mail while he was residing in Baltimore, Md., and that his time to file an answer expired on the 13th day of June, 1911. The suit seems to have slumbered until February 21, 1912, when an appearance for the defendant, which, it is perfectly apparent, is in the handwriting of the respondent, Mr. Raisch, was filed in the name of Mr. James D. Manning, a solicitor of this court, whose condition of health may account for the fact that he was not called as a witness in this proceeding.

On March 18, 1912, an answer was filed purporting to be signed by James D. Manning as solicitor of defendant, of which answer, both the body and the signature, it is likewise perfectly apparent, are in the handwriting of Mr. Raisch. The respondent admitted to a witness who testified in this cause, that he (Mr. Raisch) had signed the answer in Mr. Manning's name, but claimed that he had been permitted to do so by Mr. Manning. The answer on its face is a sham, setting forth no defense, while admitting the marriage and the residence of the petitioner in the state of New Jersey, and it does not exhibit the signature of Mr. Mattner, the defendant, as required by the statute. The proofs do not show that the defendant, Mattner, ever employed Mr. Manning or any solicitor to defend the suit, and indicate that he did not know that this answer was tiled. Mr. Raisch stated to the witness above referred to that he had procured the answer to be filed because he could not pay the fee for getting an order of reference. The fraudulent plan of the respondent seems to have been to procure an order of reference to a Vice Chancellor and bring on the cause for hearing upon notice to Mr. Manning, as solicitor of the defendant, who, at the time, was perhaps in such a condition of health as to make him irresponsible for his actions. This, of course, would have insured an ex parte hearing on an answer raising no issue, and thus all the expenses of a reference to a special master, which Mr. Raisch had neglected to have made in June, 1911, would have been saved.

In my opinion, the conduct of the respondent constitutes "such intentional fraud upon the court * * * as shows evidence of moral turpitude" (In re Cahill, 66 N. J. Law, 527, 531, 50 Atl. 119, and makes the inference unavoidable that he is not a fit person to be permitted to exercise the functions of a solicitor of the Court of Chancery.

Counsel for the respondent made no objection to the exercise of jurisdiction by the court to remove or suspend the defendant, in case he should be found guilty of the malpractice charged against him. The questions of fact upon the evidence and an appeal for mercy, in case the respondent should be found guilty of any malpractice, constituted the only subject-matter of the argument on his behalf.

In view, however, of some variance or uncertainty of opinion in the minds of judges and members of the bar as to the correct course of procedure to be taken in order to have a solicitor of the Court of Chancery removed or suspended for malpractice, it has been thought that a statement in support of the exercise of such jurisdiction in this case is advisable. Such a statement seems all the more appropriate because of the anomalies and uncertainties which are encountered when the effort is made to ascertain the exact status of attorneys at law and solicitors in chancery of New Jersey, in respect of the historical origin and legal basis of their offices. For generations many things appertaining to these officers, who, In the colonial legislation, are sometimes called attorneys at law, and sometimes "practitioners of the law" (see ordinance of 1723 by Governor Burnett, regulating and establishing fees, p. 10), have been involved in the obscurity of ancient customs, the exact origin of which is often hard definitely to ascertain. What comes down from the past and fits into the requirements of the present is often accepted without inquiry in regard to its historical or legal basis, and without consideration, or even recognition of characteristics which theoretically are anomalous or even absurd.

Probably the most interesting and curious feature of our present New Jersey method of appointing attorneys at law and solicitors in chancery consists in the fact that these officers of the courts are appointed not by the courts, but by the Governor of the state, who is now the political head of the state, and has no connection with the actual administration of justice in the courts. It is true the Governor appoints the judges by and with the advice and consent of the Senate, but judges are officers of the state, and the exercise of such a power does not even suggest the propriety of permitting the Governor alone to appoint and commission the officers of the courts whose Judges he so appoints. So far as I am aware, this anomaly is not found in any other state of the Union, although, perhaps, some modification of this statement may be necessary. Certain it is that in England and in our federal courts, and in the most of the courts of the states. the practice has been settled for years of having the courts appoint as well as remove these officers. It is beyond all dispute that attorneys at law and solicitors in chancery are not officers of the state; they are not removable by impeachment. They are officers of the courts, and are removable by the courts. By what courts and through what judicial process these officers are removable in New Jersey is the subject of our present cousideration.

No one has ever suggested that, after the Governor of the state has commissioned or "licensed" an attorney at law and solicitor in chancery, he now has any power to revoke the appointment and cancel the commission, although a colonial governor may possibly have assumed to exercise such a power. The lawyer is licensed only "during his good behavior," but the Governor, so far as I know, has never assumed the power of determining that the license of a lawyer by its own terms had expired. This has been regarded as a judicial function to be exercised by a court.

1. The office of solicitor in chancery is a distinct and separate office from that of attorney at law. The fact that these two offices formerly often were held and now uniformly are held by a single person is a mere accidental circumstance growing out of the conditions under which legal business in the courts has been attended to during the last century or two. During a long period it was the practice of the English Court of Chancery to admit as solicitors all applicants who had been admitted as attorneys at law without further examination, but a separate examination was held under the direction of the Court of Chancery for applicants for appointment as solicitors who did not hold attorneys' licenses. All persons who were deemed qualified for appointment by the Court of Chancery as solicitors, evidenced by the presentation of their credentials as attorneys at law, or by the result of an examination held under the direction of the Court of Chancery, were appointed and sworn in by the Court of Chancery as solicitors, and thereupon they signed a roll which was kept by that court For malfeasance the English Court of Chancery always exercised the power of striking the name of the convicted solicitor from its rolls. 2 Dan. Ch. Pl. & Pr. (6th Am. Ed.) c. 43, p. 1840 et seq.; 1 Smith Ch. Pr. c. 26, p. 676 et seq. The appointment and the suspension or expulsion of solicitors were effected by the action of the Court of Chancery of England, and this power was regulated by English statutes. There is no evidence that i have been able to discover that any solicitor of the Court of Chancery of England was ever appointed by letters patent from the King.

From the history of the appointment of attorneys at law and solicitors in chancery in England and in this country, the fact appears to be indisputable that the offices are as distinct as are the offices of a judge of a common-law court and a judge of a court of equity under the ancient English and present Mew Jersey system.

It was a long time after' attorneys were recognized in the law courts and their appointment was regulated by statute before there were any solicitors in chancery, and, when solicitors first appeared, they "had no strictly defined position." Christian's Short History of Solicitors, c. 3. Originally "The Six Clerks from the nature of their office were the attorneys of the parties charged with their business."...