NEW YORK VOL. VII. MATTER OF MASHBIR. [......App. Div. ......; 94 St. Rep. 451; 60 Supp. 451.] (Supreme Court, Appellate Division, First Department. October 20, 1899.) 1. ATTORNEYS SUSPENSION FALSE AFFIDAVITS. An attorney who, on disputed taxation of costs, deposes positively to what he knows to be untrue, or without personal knowledge or verification of the facts, recklessly deposes to what is in fact untrue, should be suspended from practice, especially when his previous depositions as to the same matters had been challenged. 2. ATTORNEYS-DISBARMENT EVIDENCE. In proceedings to disbar, evidence of grave malpractice, for which an attorney may be disbarred for life, should establish guilt beyond a reasonable doubt. Motion to disbar Eleazer S. Mashbir. The motion was sustained, and said Mashbir was suspended for two years. NOTE. DISBARMENT OF ATTORNEYS. a. Grounds. b. Procedure. c. Evidence. d. Punishment. See §§ 67, 68.-Code of Civil Procedure. a. Grounds. An attorney may be disbarred whenever he ceases to possess a good moral character, which is one of the constitutional and statutory qualifications for mission to the bar. Matter of Percy, 36 N. Y. 651. Loss of character in private affairs, as well as those of a professional character, is ground for disbarment. Argued before VAN BRUNT, P. J., and BARRETT, PATTERSON, MCLAUGHLIN, and INGRAHAM, JJ. Peter B. Olney, for the motion. Edward Lauterbach, opposed. We PER CURIAM. We have held this voluminous record for quite an unusual length of time, owing to the fact that, as the evidence and report were not printed, but came to us as a single document, each member of the court was compelled to read it in turn. felt it to be our duty to give the attorney the benefit of an independent perusal of the entire record by each of the justices. The result, after the fullest consideration, is our conviction that the first charge is sustained. We refer to the charge of "deceit and malpractice in swearing to and submitting for taxation a false and fraudulent bill of costs, and in subsequently making DISBARMENT OF ATTORNEYS,-continued. Deceit and malpractice are recognized grounds for disbarment. Matter of Baum, 30 St. Rep. 174; 8 Supp. 771. Matter of Goldberg, 61 St. Rep. 277; 29 Supp. 972. Ex parte Peterson, 3 Paige, 510. Matter of Loew, 50 How. 373. Matter of Percy, 36 N. Y. 651. Matter of Opdyke, 143 N. Y. 528; 62 St. Rep. 822; 38 N. E. 963. Rochester Bar Association v. Dorthy, 152 N. Y. 596, 46 N. E. 835. Matter of Valentine, 10 App. Div. 491; 76 St. Rep. 268; 42 Supp. 268. Bank of N. Y. v. Stryker, 1 Wheeler's Crim. Cases, 330. The term deceit in this connection implies concealment or false suggestion as an attorney to injure a party or mislead a court, while acting in a professional capacity, or in the course of professional employment. Matter of Post, 26 St. Rep. 641; 7 Supp. 438. and submitting two other false and fraudulent affidavits in connection with the same matter, after his attention has been called to the false statements contained in the said bills of costs." We can add nothing to the clear, elaborate, and convincing review of the evidence on this head furnished by the learned referee. While we might have overlooked, as a mere act of culpable carelessness, the first affidavit sworn to by the attorney, it is impossible to take this charitable view of the second and third affidavits which followed. The attorney knew that his first affidavit was questioned. The subsequent explanatory affidavits consequently called for care and thought. They were intended to meet the criticisms placed upon the first affidavit, and to settle the contested facts with accuracy and precision. The proof is abundant DISBARMENT of Attorneys, continued. Malpractice as a lawyer means evil practices in a professional capacity and the resort to methods and practices unsanctioned and prohibited by law. Matter of Baum, 30 St. Rep. 174; 8 Supp. 771. In the case last cited the attorney was found guilty of having practiced deception and perpetrated frauds upon his clients. Removal of an attorney from office is proper where he made charges of corruption against a judicial officer, in the latter's court, and although given an opportunity, did not apologize, show any regret or state anything in extenuation or mitigation of his conduct. Matter of Murray, 33 St. Rep. 831; 11 Supp. 336. Where it appears that an attorney had on several occasions retained moneys collected by him, necessitating the institution of summary proceedings for the recovery thereof; that he had retained moneys given him to settle criminal actions; that he had taken mortgaged chattels with knowledge of the mortgage, and an action for alienating the affections of another man's wife was pending, he is properly removed from office. Matter of Titus, 50 St. Rep. 636; 21 Supp. 724. The alteration by an attorney of an undertaking after its use in an unsuccessful application to the court, and its subsequent use for the same purpose before another court, without re-execution or re-acknowledgment, constitutes professional misconduct. Matter of Goldberg, 61 St. Rep. 277; 29 Supp. 972. In view of the youth and inexperience of the attorney in question, however, the court, in the case last cited, deemed suspension from practice for two years sufficient punishment. that, in making these subsequent affidavits, the attorney either deposed (positively) to what he knew to be untrue, or, without personal knowledge or verification of the facts, recklessly deposed to what was in fact untrue. As to the second and third charges, the case is closer. These charges are far graver than the first, and, if sustained, would certainly call for disbarment. There is, we must say, evidence tending, and with some force, to support these charges. In view, however, of the peculiar nature of this evidence, of the character of some of the witnesses relied on by the prosecutor, and of the conflict with respect to their testimony, we do not feel DISBARMENT OF ATTORNEYS,-continued. An attorney is properly stricken from the roll for the conversion to his own use, and the concealment thereof, of a sum of money delivered to him as attorney, by his client, to be applied upon a bond and mortgage outstanding against the client. Matter of Burd, 9 Week. Dig. 562. The manufacture of misleading, if not false, evidence is sufficient cause for disbarment. Matter of Gale, 75 N. Y. 526. Likewise, the forging of a certificate of divorce and the fraudulent use thereof. Ex parte Peterson, 3 Paige, 510. And forging the name of a third person to a note and the delivery thereof by an attorney to his client, and the retention of an excessive and unconscionable sum for legal services. Matter of - an Attorney, 86 N. Y. 563. Removal of an attorney from office is proper, who upon a motion to open a judgment by default taken by reason of the omission of certain necessary words in the verification of the answer, presented the latter with an erasure wrongfully and fraudulently made by him in the verification where the omitted words generally appear, and claimed to the court that the plaintiff's attorney had made the erasure in question before returning the answer, for the purpose of wrongfully entering judgment. Matter of Loew, 50 How. 373. The courts will not disbar an attorney for offenses committed as a party to an action, unless such misconduct amounts to malpractice as an attorney, there being other and adequate means for the punishment of offenses committed by a party. Matter of Post, 26 St. Rep. 641; 7 Supp. 438. that certainty upon the subject which would justify conviction. The case upon this head may well be said to inspire a reasonable doubt of the attorney's guilt; and, although this is not technically a criminal trial, we cannot but think that so serious a consequence as the deprivation for life of a man's vocation should only result from grave malpractice, established beyond a reasonable doubt. Upon the whole, our conclusion is that the second and third charges should be dismissed, and that for the offense specified in the first charge the attorney should be suspended from the practice of his profession for the period of two years. DISBARMENT OF ATTORNEYS,-continued. The drawing by an attorney of a check upon a bank in which he has no money nor account, and the delivery thereof in payment of a debt will not warrant his disbarment. Bank of N. Y. v. Stryker, 1 Wheeler's Crim. Cases, 330. b. Procedure. It is the duty of the supreme court to cause charges to be preferred against an attorney, where from what has occurred in its presence, or comes to its knowledge by satisfactory proof, it is satisfied the public good and ends of justice require it. Matter of Percy, 36 N. Y. 651. The usual mode of procedure in the commencement of disbarment proceedings is the presentment of the evidenc of the alleged misconduct to the court, the granting by the latter, in case the charges are of a sufficiently grave nature, of an order to show cause why the attorney should not be disbarred for the alleged misconduct, and the personal service upon such attorney of the order mentioned, together with all the papers setting forth the alleged misconduct. Anon, 22 Wend. 656. Matter of Brewster, 12 Hun, 109. Matter of Percy, 36 N. Y. 651. Ex parte Peterson, 3 Paige, 510. It is irregular to commence disbarment proceedings by motion and notice. Anon, 22 Wend. 656. Matter of Brewster, 12 Hun, 109. By an amendment of sec. 68 of the Code of Civil Procedure it is now made the duty of any district attorney within the department, when so designated |