The opinion of the court was delivered by: CAMPBELL
Before CAMPBELL, INCH, MOSCOWITZ, GALSTON, BYERS, and ABRUZZO, District Judges.
CAMPBELL, District Judge.
The above named attorney was presented for discipline on a number of charges. The testimony was taken before the Senior Judge, briefs were filed and the matter brought on for hearing before all of the judges of this court.
On the final hearing we informed Jules Chopak, the attorney, that the court would confine the hearing to the two following charges: first, the charge that said Jules Chopak improperly obtained from the libellant Ole Hansen the retainer of May 25th, 1940, agreeing to pay him one-half (50%) of any recovery or settlement in the suit of Ole Hansen against Newark Terminal & Transportation Co., without the knowledge and consent of said Ole Hansen; second, that said Jules Chopak, attorney had written to said Ole Hansen a letter informing said Ole Hansen that he had lost his case, while in truth the case had been won by him.
The suit in question had originally been instituted by Harry S. Austin, Esq., as proctor for said Ole Hansen, to recover damages for alleged personal injuries, under a written retainer, dated May 7th, 1940, wherein said Ole Hansen agreed to pay Harry S. Austin 40% of any recovery or settlement. Ex. 1.
Harry S. Austin found it necessary to obtain money and entered into the agreement with the said Jules Chopak whereby said Jules Chopak loaned said Harry S. Austin a considerable sum of money, and said Harry S. Austin took the said Jules Chopak in as an attorney, and assisted in having him substituted, with said Harry S. Austin, as attorneys or proctors for said Ole Hansen, libellant in said case.
On May 21st, 1940, the said Jules Chopak, with the assistance of Harry S. Austin, obtained from the said Ole Hansen a written retainer of Harry S. Austin and Jules Chopak as his attorneys or proctors in said suit, wherein he agreed to pay to his said attorneys or proctors, 40% of any recovery or settlement in that case. Ex. 2.
The plaintiff Ole Hansen had a very limited knowledge of the English language, and the said Jules Chopak who knew that to be a fact, and was then a co-attorney or proctor of the said Ole Hansen, saw the said Ole Hansen and obtained from him a consent to the substitution of the said Jules Chopak as his sole attorney in that suit, displacing the said Harry S. Austin.
At the same time the said Jules Chopak induced the said Ole Hansen to sign a retainer of the said Jules Chopak as his attorney in the said suit, wherein the contingent fee of the attorney was fixed at one-half (50%) instead of 40%, as in the former retainers. Ex. 3.
There was some discussion about the knowledge of Harry S. Austin of the substitution of Jules Chopak as sole attorney, but the consent therefor was certainly signed by Harry S. Austin and also signed and acknowledged by said Ole Hansen, but we are convinced that Harry S. Austin did not know of the attempted increase of the contingent fee in the retainer from 40% to 50%.
Hansen says, and we are convinced that he is telling the truth, that he did not know that the retainer he signed was for one-half (50%) but believed it to be for 40%.
This is denied by Chopak, but his own writings within two or three weeks thereafter, certainly by July 11th, 1940, certainly do not tend to support his denial.
Chopak knew of the great confidence which Hansen had in Austin, and the influence which Austin exercised over Hansen, and although Chopak did have in his possession the 50% retainer, Ex. 3, he wrote on several occasions, subsequent to May 25th, 1940, to Austin, asking him to assist in obtaining a 50% retainer from Hansen. Why was this necessary if Chopak had properly obtained the 50% retainer from Hansen? Chopak's explanation was that he had forgotten that he had obtained the retainer.
That explanation, if offered for something done a year or more after the obtaining of the 50% retainer, might be worthy of some consideration, but it is certainly not a reasonable explanation for something done two or three weeks after the obtaining of the retainer. The fact undoubtedly is that Chopak knew he could not sustain the 50% retainer against Hansen, because Hansen did not know that the retainer was for one-half ...