Before CAMPBELL, INCH, MOSCOWITZ, GALSTON, and BYERS, District Judges.
This is an application, duly instituted, for the discipline of the above-named attorney, based upon the petition of the attorney appearing for the application, pursuant to the direction of the Senior Judge of this court, made under the following circumstances:
A motion was made by Mr. O'Neill for an order substituting him as attorney for plaintiff in the place of the respondent, in the action of Klemm v. N.Y., O. & W.R. Co., lately pending in this court, on affidavits made by the plaintiff Klemm and his wife, containing allegations of unprofessional conduct on the part of the respondent; and the respondent personally appeared on the return day of that motion and submitted in opposition only an affidavit of the plaintiff Klemm that he did not desire a change of attorney, but no denial of the allegations of unprofessional conduct, and neither the plaintiff Klemm nor the respondent appeared on the day set by the court for the examination of Mr. Klemm in relation to said motion.
An order to show cause, based upon the said petition, was granted by the Senior Judge, and, after a preliminary hearing, the hearing was directed to proceed before the entire court on June 5, 1933.
The respondent was admitted to the bar of this court on January 30, 1920.
Effective July 1, 1931, this court adopted, as part of the rules of this court, the following: "Adherence to the standards of professional conduct established by the Canons of Ethics of the New York State Bar Association will be exacted of all of the members of the Bar of this court." A copy of the foregoing was published in the New York Law Journal prior to the effective date.
These charges involve the alleged violation by the respondent of that part of Canon 28 reading as follows: "* * * It is disreputable * * * to breed litigation by seeking out those with claims for personal injuries * * * in order to secure then as clients, or to employ agents or runners for like purposes, or to pay or reward, directly or indirectly, those who bring or influence the bringing of such cases to his office, or to remunerate * * * others who may succeed, under the guise of giving disinterested friendly advice, in influencing * * * the sick and the injured, * * * to seek his professional services. * * *"
The taking of testimony herein required two half-day sessions of the court, on June 5th and 6th.
It is unnecessary to recapitulate the evidence, and only those charges involving solicitation since July 1, 1931, have been considered.
The evidence establishes, and we find, that the following persons were solicited by the respondent to place their respective personal injury causes in his hands as their attorney:
Anthony Lowe: This man, a resident of Philadelphia, Pa., was injured on November 26, 1931, while in the employ of the Reading Railroad Company, with the result that his leg was amputated. The respondent came to see him personally about one month after the former left the hospital where he was treated, and talked to him about the case, exhibiting papers and news clippings showing his experience in other similar matters. Lowe testified that the respondent offered to pay him money pending the trial of his case, which was refused, as was the employment. The respondent's visit was preceded by at least one call made by one Barrett, who introduced himself as a former railroad switchman, and sought to induce Lowe to employ the respondent. Lowe had no prior acquaintance with either Barrett or Rowe.
This man received hospitalization from the date of the accident for the ensuing six months, and returned to his home during the latter part of April, 1932, and in August of that year was visited by the respondent's witness Paster, who testified that he called upon Lowe at the suggestion of a manufacturer of artificial limbs, for the purpose of interesting Lowe in the purchase of an artificial leg, and thus learned of Lowe's injury, which he communicated to the respondent by telephone. Paster testified that the reason for doing this was that Lowe had already suffered the amputation of his leg, and that Paster demonstrated to Lowe the merits of an artificial leg that he (Paster) was using. His testimony was clearly to the effect that it was because Lowe needed an artificial leg that he (Paster) called upon him.
The difficulty with this narrative is that Lowe did not suffer amputation of his leg until February, 1933. The bearing of that fact upon Paster's testimony and upon the respondent's conduct in offering him as a witness requires no comment.
Napoleon D. Cote: This witness lived in New London, Conn., and was injured on December 18, 1931, while in the employ of the Central Vermont Railroad Company. He was confined to a hospital for two months, and forty-eight hours after leaving the hospital was visited by a man named Burke, who said he represented the respondent, and who exhibited an Interstate Commerce Commission report of the accident; he urged that Rowe could handle the case so as to probably secure ...