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In re Schapiro

Supreme Court of New York, Appellate Division

April 7, 1911

In the Matter of LOUIS E. SCHAPIRO, an Attorney, Respondent.

PETITION by the New York County Lawyers' Association to disbar the respondent.

COUNSEL

Hiram Thomas, for the petitioner.

Harry A. Gordon, for the respondent.

INGRAHAM, P. J.:

The New York County Lawyers' Association presented a petition to this court asking for the disbarment of the respondent.

The charges in the petition are as follows: The respondent brought an action for one Rosenblatt in the United States Circuit Court for the Southern District of New York to recover damages for personal injuries alleged to have been caused by a firm consisting of Gould & Eberhardt. A Dr. Dawbarn had attended the respondent's client professionally for the injuries

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alleged to have been received, and just before the trial on February 14, 1908, and after the doctor had been subpoenaed, the respondent executed and delivered to Dr. Dawbarn the following instrument with the intention at the time of refusing compliance with it:

'For value received by myself I hereby agree to pay Dr. R. H. M. Dawbarn for services heretofore and hereafter rendered in connection with the case of Rosenblatt vs. Gould & Eberhardt, the same to equal the amount paid to the chief attorney who tries this case for the plaintiff.

'Said money to be paid to Dr. Dawbarn on the same day and place as the said attorney.

'LOUIS E. SCHAPIRO.'

'Witness:

'JENNIE IRVINE,

'105 W. 74th St.'

That following the execution and delivery of this agreement the case of Rosenblatt v. Gould & Eberhardt came on for trial in the United States Circuit Court; Dr. Dawbarn testified on behalf of the plaintiff concerning the latter's injuries; and such trial resulted in a verdict in favor of the plaintiff for the sum of $2,600. The case was subsequently settled by the payment by the defendant to the respondent's clients of the sum of $2,440, of which the respondent received for his services under an agreement with his client the sum of $1,220. That the respondent had paid to Mr. Feltenstein, who tried the case for the plaintiff as counsel, the sum of $420 for his services as such counsel. There was a further charge that Dr. Dawbarn testified upon the trial of that action upon cross-examination that he had no interest in the case, and had no understanding as to what he would be paid for testifying; that Dr. Dawbarn's testimony was given in the presence of the respondent, who was the attorney of record in the case, and the action was allowed to go to the jury upon his testimony. It is further alleged that the respondent having refused to pay Dr. Dawbarn the amount provided for by this agreement, the doctor brought an action against the respondent in the Municipal Court of the city of New York. The 6th paragraph of the complaint in that action set out this agreement in full and it was sought to

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recover under it the amount that the respondent had paid to Feltenstein as counsel in the case. The respondent interposed a verified answer in that action, first denying the allegation of the 6th paragraph of the complaint which alleged the making of this agreement, and then for a separate defense alleging 'that prior to the alleged delivery of the writing referred to in paragraph marked 'Sixth' of said complaint, a subpoena was duly issued out of the District Court of the United States, for the Southern District of New York, at the instance of this defendant as attorney for Kalman Rosenblatt, directed to the plaintiff herein and commanding him to appear and attend at the trial of the action of the said Kalman Rosenblatt against Gould & Eberhardt; ' that after this subpoena had been served upon him he had an interview with the doctor, in which the latter threatened to testify against the plaintiff, and in fear and apprehension that the doctor would carry out such threat, the carrying out of which would result to the prejudice of the said Rosenblatt in the prosecution of his action and 'incidentally in the prejudice to and reduction of this defendant's compensation, unless writing was given and for no other consideration whatsoever, this defendant signed and delivered the said writing.' Upon the trial of this action in the Municipal Court the doctor obtained a verdict against the respondent, which judgment upon appeal to the Appellate Term was affirmed.

The respondent in his answer in this proceeding after alleging his inexperience alleges that in the early part of January, 1908, Doctor Dawbarn had stated to the respondent what he would testify to upon the trial. That on January 22, 1908, the respondent served Dr. Dawbarn with a subpoena to appear at the trial. On January 23, 1908, the respondent had an interview with Dr. Dawbarn, when the doctor requested the respondent to give him an agreement to the effect that upon the recovery of a verdict in the case of Rosenblatt v. Gould & Eberhardt the respondent would pay to the doctor a sum equal to one-third of the sum rendered by the jury. That respondent stated that he was to receive one-half of the verdict and refused to accede to Dr. Dawbarn's request. That Dr. Dawbarn then stated that if the respondent would not give him such a writing he would appear upon the trial of the action and give testimony damaging

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to the plaintiff; that if he did not obtain from the respondent the agreement which he sought, he would testify upon the trial that the records of the hospital were correct and that the plaintiff in the action was then suffering from tuberculosis of the leg which made the amputation necessary--in effect destroying the plaintiff's cause of action. That the doctor further stated that that was the usual proceeding in accident cases; that in every case he had exacted such an agreement, and the respondent was finally induced to sign a paper which Dr. Dawbarn still has in his possession, which agreement is set forth in the answer as follows:

'In consideration of the medical and professional services rendered by Dr. Robert H. M. Dawbarn to one Kalman Rosenblatt, I, the undersigned, hereby agree to pay to said Dr. Dawbarn one-third of the amount of any verdict that may be rendered in the case of Rosenblatt v. Gould & Eberhardt, less cutomary court expenses, but no bill for other legal services is to be charged against Dr. Dawbarn.

'LOUIS E. ...

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