Javits, In re

• Decision Date: 05 January 1971
• Citation: 316 N.Y.S.2d 943,35 A.D.2d 442
• Parties: In re Benjamin A. JAVITS, an Attorney, Respondent. Association of the Bar of the City of New York, Petitioner.
• Court: New York Supreme Court — Appellate Division

Page 943

316 N.Y.S.2d 943

35 A.D.2d 442

In re Benjamin A. JAVITS, an Attorney, Respondent.

Association of the Bar of the City of New York, Petitioner.

Supreme Court, Appellate Division, First Department.

Jan. 5, 1971.

James H. Halpin and Stanley S. Arkin, New York City, for respondent.

John G. Bonomi, New York City, of counsel (Martin J. Linsky, New York City, with him on the brief) for petitioner The Association of the Bar of the City of New York.

Before EAGER, J.P., and CAPOZZOLI, McGIVERN, MARKEWICH and McNALLY, JJ.

PER CURIAM:

The respondent was admitted as an attorney by proceedings taken in the Second Department in December of 1922. For many years, he has been engaged in the practice of law in this department with his son and other partners and associates under the firm name and style of Javits & Javits. In this proceeding instituted by the petition of The Association of the Bar of the City of New York, the charges are that the respondent 'has been guilty of attempting to perpetrate a fraud upon the Courts of Mexico and the United States by paying monies to Mexican public officials and another Mexican national in order to improperly obtain and subsequently defend a nullification of a Mexican divorce decree' divorcing Mrs. Lewis S. Rosenstiel from her former husband, Felix Kaufmann. The respondent interposed an answer denying the material facts alleged in the petition in support of the charge and the issues were referred for hearing and report to a referee. Following the hearing of the allegations and proofs of the parties, the referee has rendered a report sustaining the charges and his report has been filed with this court. The petitioner now moves to confirm the report and prays that the respondent be severely disciplined.

The findings of fact and the report of the referee are confirmed. Thereby it is established that the respondent, under a retainer by Mr. Rosentiel, conducted an investigation and initiated steps leading to a vacatur of the Kaufmann (Mexican) decree of divorce. The respondent, although not retained by either of the parties to the Kaufmann decree, and acting under a retainer of his client, sought to obtain an unusually expeditious nullification of that decree. In this connection, substantial sums of money were paid to persons who were Mexican nationals, including to an Attorney General of a State in Mexico. The latter, who was allegedly retained as a practicing lawyer, was paid the sum of $10,000 to take proceedings for a vacatur of the Kaufmann decree. The payment, in the form of a bank draft purchased by respondent's firm, was delivered to the Attorney General by a Mexican laywoman who was employed by respondent as a person having some influence in Mexican affairs. About a week after the payment of the retainer to the Attorney General, upon petition of one 'Samuel Goldsmith', a purported creditor of the Kaufmanns, the Attorney General delivered to respondent's representatives a decree (the Goldsmith decree) rendered by the Mexican court setting aside the Kaufmann divorce decree. The Goldsmith decree was obtained ex parte without notice to Mrs. Rosenstiel other than a posting on the bulletin board of the Mexican court house. Respondent testified that he intended at an appropriate time to surprise her attorneys with the decree; that he would use it in a pending separation action before her attorneys learned of its existence and instituted proceedings to vacate it.

Eventually, Mrs. Rosenstiel did learn of the Goldsmith decree and brought an 'amparo' proceeding to set it aside. However, fully aware that it had been obtained without notice to her and that it was of questionable validity, the respondent proceeded in disregard of proper ethical standards, to continue to urge the efficacy of the decree. Without authority of 'Goldsmith', he retained Mexican attorneys to appear in opposition to the amparo proceeding, and also solicited from Mr. Kaufmann a power of attorney authorizing them to appear for him. Incidentally, these attorneys, who appeared in opposition to the amparo proceeding without authority of the alleged original Mr. Goldsmith, purported to appear for a 'second Samuel Goldsmith'. When Mr. Kaufmann later revoked his power of attorney, the respondent sent a representative to Switzerland to contact him to see whether or not his action in revoking the original power of attorney 'was irrevocable or whether he was still willing to have some representation'.

The respondent's unethical conduct included the paying out of large sums for the purpose of exerting influence on the part of public officials of Mexico to further the interests of his client. An aggregate of $15,500 was paid to the Attorney General in connection with his alleged retainer as a private practitioner and as an alleged 'associate counsel'; $10,000 was paid to a Mexican laywoman who was friendly to a member of the Mexican Cabinet, the payment being made 'for public relations, Mexican action, fees and disbursements'; $3,000 was paid as a contribution to a charity in which a member of the Mexican Cabinet was interested in order to obtain 'a favorable public relations climate'; a hotel bill of about $1,500 was paid to cover the charges of a stay in New York City of that same member of the Mexican cabinet; a sum of $5,000 was expended to obtain powers of attorneys from the attorneys who represented the parties in the Kaufmann divorce action, and also one from Mr. Kaufmann; and substantial sums were paid to the firm of attorneys in Mexico to oppose the amparo proceeding brought by Mrs. Rosenstiel.

The evidence, within the framework of the charges, does establish serious professional misconduct in a course of conduct tending to exert improper personal influence upon the courts, in a lack of candor and fairness with the courts, in fostering unjustified and questionable litigation and defenses, in the improper solicitation of employment, and in general in conduct designed to bring dishonor upon the courts and on the administration of justice (see Canons 3, 15, 22, 27, 29, 30, 31 and 32 of the Canons of Professional Ethics).

The respondent's professional misconduct represents serious breaches of the Canons of Professional Ethics and warrants severe discipline as prayed for by the petitioner. However, in fixing the measure of discipline, we have given due consideration to the general standing and good reputation of the respondent at the Bar and in the community, and also to his advanced age, his demonstrated ill health, and his purported retirement from the active practice of the law. Under the circumstances, the respondent should be suspended from practice for a period of three years.

Respondent suspended from practice as an attorney and counselor-at-law in the State of New York for a period of three years, effective February 5, 1971.

All concur except McNALLY, J., who dissents in part in an opinion.

McNALLY, Justice (dissenting in part).

I dissent, in part, and vote to disbar. The record amply supports the report of the learned referee, the Hon. George Trosk, in his conclusion that respondent attempted to perpetrate a fraud upon the governments of Mexico and the United States by paying moneys to Mexican public officials and a Mexican national in order to improperly obtain and subsequently defend a nullification of a Mexican divorce decree.

Respondent's answer to petitioner's charge letter admits the payments to Mexican public officials and a Mexican national upon which the charge is predicated, but denies any impropriety, contending that he had relied upon a lawyer associate, now dead, familiar with procedures in Mexico, who had approved all aspects of the Mexican litigation. The proof shows that respondent not only acquiesced in the improper activities but participated in many aspects. His failure to conduct any investigation into the circumstances, even when faced with charges that he engineered a fraud, confirms his awareness of the improprieties and his sanction of them. This is further demonstrated by the lack of candor which...