People ex rel. Karlin v. Culkin

Decision Date19 July 1928
Citation162 N.E. 487,248 N.Y. 465
PartiesPEOPLE ex rel. KARLIN v. CULKIN, Sheriff. Appeal of KARLIN.
CourtNew York Court of Appeals Court of Appeals


Petition by the People of the State of New York, on the relation of Alexander Karlin, for a writ of habeas corpus to Charles W. Culkin, as Sheriff of the County of New York, for the release of relator from custody under a commitment for contempt in refusing to testify in an investigation on petition of the Association of the Bar of the City of New York and others. From orders of the Appellate Division (223 App. Div. 822, 228 N. Y. S. 873), affirming an order of the Special Term, dismissing the writ and remanding relator to custody, and an order adjudging him in contempt, he appeals.

Affirmed.Appeal from Supreme Court, Appellate Division, First department.

Abraham Tulin, of New York City, and Leon A. Tulin, of New Haven, Conn., for appellant.

Isidor J. Kresel, Bernard Hershkopf, and Leon Leighton, all of New York City, for respondent.


A petition by three leading bar associations, presented to the Appellate Division for the First Judicial Department in January, 1928, gave notice to the court that evil practices were rife among members of the bar. ‘Ambulance chasing’ was spreading to a demoralizing extent. As a consequence, the poor were oppressed and the ignorant overreached. Retainers, often on extravagant terms, were solicited and paid for. Calendars became congested through litigations maintained without probable cause as weapons of extortion. Wrongdoing by lawyers for claimants was accompanied by other wrongdoing, almost as pernicious, by lawyers for defendants. The helpless and the ignorant were made to throw their rights away as the result of inadequate settlements or fraudulent releases. No doubt, the vast majority of actions were legitimate, the vast majority of lawyers honest. The bar as a whole felt the sting of the discredit thus put upon its membership by an unscrupulous minority.

It spoke its mind through its associations, the organs of its common will. The court was asked to inquire into the practices charged in the petition, and any other illegal and improper practices, either through an investigation to be conducted by itself, or through some other appropriate procedure. It was asked upon the conclusion of the investigation to deal with the offenders in accordance with law, and to grant such other remedies as would avoid a recurrence of the evil and maintain the honor of the bar.

The court responded promptly. It held (speaking by its presiding justice) that its disciplinary power is not limited to cases where specific charges are made against a named attorney.’ It will act of its own motion, whenever it has reasonable cause to believethat there has been professional misconduct, either by one or by a class. Information may be adequate to define the offense and identify the offender. If so, charges will be preferred, and the offender brought to trial. On the other hand, inforation may be so indefinite as to make charges impossible or improper without further inquisition. If so, the power of inquisition, it was held, is commensurate with the need. ‘Only by such means will the court be able to devise appropriate rules to prevent the continuance of such evil practices, and bring the unworthy to judgment, and protect the worthy in the profession from suspicions in the public mind.’

The order of the Appellate Division designates a justice of the Supreme Court to conduct the investigation at an appointed term, with full authority ‘to summon witnesses and to compel the giving of testimony and the production of books, papers, and documentary evidence.’ The petitioning associations are authorized to furnish counsel in aid of the inquiry. The investigation is to extend into the practices described in the petition and any other practices obstructive or harmful to the administration of justice. The court conducting the inquiry is to report the proceedings to the court making the order, i. e., the Appellate Division, with its opinion thereon, and upon the coming in of the report there is to be such other and further action as shall seem just and proper.

The investigation proceeded in the form directed by the order. Many witnesses were examined. They were given the privilege at their option of examination in camera. There came a time when the appellant, a member of the bar for 25 years, was served with a subpoena. He appeared in court, but refused to be sworn. His practice had involved the trial of many actions for personal injuries. He was called to testify as to his conduct in the procurement of retainers in these cases and in others. There is no denial that the testimony had relation to the ends of the inquiry. His refusal to testify was a challenge to the inquiry as a whole. Upon his persisting in that challenge, the court adjudged him in contempt, and committed him to jail until he should submit to be sworn and examined. A petition for his release upon habeas corpus was dismissed. Both orders, the one adjudging the contempt and the one dismissing the writ, were affirmed by the Appellate Division. They are now before this court.

[1] The precise question to be determined is whether there is power in the Appellate Division to direct a general inquiry into the conduct of its own officers, the members of the bar, and in the course of that inquiry to compel one of those officers to testify as to his acts in his professional relations. The grand jury inquires into crimes with a view to punishment or correction through the sanctions of the criminal law. There are, however, many forms of professional misconduct that do not amount to crimes. Even when they do, disbarment is not punishment within the meaning of the criminal law. Matter of Rouss, 221 N. Y. 81, 85,116 N. E. 782. Inquisition by the court with a view to the discipline of its officers is more than a superfluous duplication of inquisition by the grand jury with a view to the punishment of criminals. The two fields of action are diverse and independent True, indeed, it is that disbarment may not be ordered without notice of specific charges. Judiciary Law (Consol. Laws, c. 30) § 476; Matter of Eldridge, 82 N. Y. 161, 37 Am. Rep. 558; Matter of an Attorney, 83 N. Y. 164. So. also, an indictment must precede a conviction of a felony. We cannot know to-day whether charges will be laid against the relator as an outcome of his testimony or of the testimony of others. If preferred, they will be the subject of a separate proceeding, as separate as proceedings before and after an indictment. The requirements of the law as to the formulation of a charge are inapplicable to an inquisition in advance of the preferment of the charge.

[2][3] ‘Membership in the bar is a privilege burdened with conditions.’ Matter of Rouss, supra, 221 N. Y. page 84, 116 N. E. 783. The appellant was received into that ancient fellowship for something more than private gain. He became an officer of the court, and, like the court itself, an instrument or agency to advance the ends of justice. His co-operation with the court was due, whenever justice would be imperiled if co-operation was withheld. He might be assigned as counsel for the needy, in causes criminal or civil, serving without day. Code Crim. Proc. § 308; Civil Practice Act, §§ 196, 198. He might be directed by summary order to make restitution to a client of moneys or other property wrongfully withheld. Matter of H., an Attorney, 87 N. Y. 521. He might be censured, suspended, or disbarred for ‘any conduct prejudicial to the administration of justice.’ Judiciary Law, § 88, subd. 2. All this is undisputed. We are now asked to hold that, when evil practices are rife to the dishonor of the profession, he may not be compelled by rule or order of the court, whose officer he is, to say what he knows of them, subject to his claim of privilege if the answer will expose him to punishment for crime. Matter of Rouss, supra. Co-operation between court and officer in furtherance of justice is a phrase without reality, if the officer may then be silent in the face of a command to speak. There are precedents of recent date, decisions in Wisconsin and Ohio, upholding the power of the court by a general inquisition to compel disclosure of the truth. Rubin v. State, 194 Wis. 207, 216 N. W. 513; Ohio Ct. of App., 26 Ohio Law Bull. 355, 515. Precedents far more ancient, their roots deeply set in the very nature of a lawyer's function, point the same way.

‘The Supreme Court shall have power and control over attorneys and counselors at law.’ Judiciary Law, § 88, subd. 2. The first Constitution of the state declared a like rule in terms not widely different. Provision was there made that ‘all attorneys, solicitors, and counselors at law hereafter to be appointed, be appointed by the court, and licensed by the first judge of the court in which they shall respectively plead or practice, and be regulated by the rules and orders of the said courts.’ Constitution of 1777, § 27. What was meant by this provision that lawyers should be ‘regulated by the rules and orders of the said courts'? Would the men who framed the Constitution of 1777 have been in doubt for a moment that a rule or order might be made whereby lawyers would be under a duty, when so directed by the court, to give aid by their testimony in uncovering abuses? We find the answer to these questions when we view the history of the profession in its home across the seas.

The barrister, unlike the attorney, was not in the strict sense an officer of the court where he was privileged to speak. Halsbury, Laws of England, vol. 2, p. 385, title ‘Barristers'; Wettenhall v. Wakefield (1833) 2 Dowl. 759. He was called to the bar upon the nomination of the inns of court, whose members exercised that power as the delegates of the judges. King v. Benchers of Gray's Inn, 1780, 1 Douglas, 353, per Mansfield, L. C. J.; King v. Benchers of...

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