Opinion
No. 5048.
Argued May 8, 1962.
Decided June 5, 1962.
1. An attorney cannot escape his professional responsibility with the excuse arising that he followed the instructions of his client or that it was the client who sought advice on the means of accomplishing a questionable transaction.
2. The action of an attorney in participating in the pre-dating of letters and contracts and in organizing and providing a New Hampshire corporation for the purpose of receiving money for services not rendered and which he knew were not to be rendered, and in the procuring of a friend to receive a "finder's fee" which he had not earned, and in executing a contract for legal services for the purpose of influencing a relative in the performance of the latter's official duties constituted unprofessional conduct.
3. The fact that an attorney's professional and personal reputation was good prior to breach of professional conduct bears on the extent of the disciplinary action to be taken but does not dispense with the necessity for it.
4. So also, the fact that an attorney has not benefited financially from the transactions concerning which he acted with unprofessional conduct does free him from disciplinary action.
5. The public and the bar are entitled to be assured that the practice of law is a profession which demands that its members adhere to fiduciary standards of conduct and that the failure to do so will result in expeditious disciplinary action.
Original petition filed in this court by the Attorney General praying that disciplinary action be taken against Maurice A. Broderick of Manchester, a member of the bar of this state since 1934. The defendant is the brother-in-law of George Brady, who on May 28, 1959 was designated chairman of the Massachusetts Parking Authority, a public instrumentality authorized by statute to construct, maintain and operate a garage for the parking of motor vehicles under the Boston Common in the city of Boston. Mass. Stat. 1958, c. 606.
The pertinent parts of the petition are as follows:
"5. The Granite State Realty and Construction Co., Inc. was incorporated in New Hampshire by Maurice A. Broderick on May 21, 1959. In February of 1960 a contract was received by Mr. Broderick under which the Granite State Realty and Construction Co., Inc. was to receive one hundred and fifty-five thousand dollars in consideration for the performance of certain work in connection with the construction of the Boston Common Underground Garage. Maurice A. Broderick knew that the Granite State Realty and Construction Co., Inc. was in no position to perform any services for the Foundation Company, Inc. and knew that no services were to be performed, and yet he received three checks in the total sum of one hundred thousand dollars payable to the Granite State Realty and Construction Company, which checks he retained in his possession for some period of time but never cashed.
"6. That in the year 1959 — possibly in the Fall of the year — a meeting was held in the City of New York. Present were Maurice A. Broderick, William Thompson, Chairman of the Board of the Foundation Co., Inc. of New York, and possibly others. In the course of this meeting, Mr. Thompson indicated that the Foundation Company (which subsequently was awarded the contract for construction of the Boston Common Garage) was willing to pay a finder's fee in the sum of one hundred and fifty thousand dollars.
"7. That said Maurice A. Broderick procured one Edward Plourde of Newington, Connecticut to act as a finder well knowing that the said Plourde had done nothing to deserve such finder's fee. The said Edward Plourde was a former resident of Manchester, New Hampshire and was a classmate and close friend of the said Maurice A. Broderick. Through Mr. Broderick's efforts a finder's contract in the form of a letter, which letter was back dated to May 1, 1959, was executed between the Foundation Company and the said Plourde.
"8. In March of 1960 Mr. Plourde and Mr. Broderick went to New York and received from William Thompson, two Foundation Company checks in the total amount of one hundred and forty-five thousand dollars. Mr. Broderick and Mr. Plourde went to the Wall Street branch of the Manufacturer's Trust Co. and deposited these checks in an account opened in Mr. Plourde's name. This money was subsequently withdrawn by Mr. Plourde on Mr. Broderick's instructions and in the presence of Richard K. Gordon, Richard C. Simmers, both of Andover, Massachusetts, and John J. Craven and Francis W. Kiernan, both of Boston, Massachusetts.
"9. In March of 1960, Maurice A. Broderick and the Foundation Co., Inc. entered into a contract for legal services. This agreement was back dated to June 17, 1959 and Mr. Broderick knew it was back dated. It was understood between Mr. Broderick and Mr. Thompson that one of Mr. Broderick's functions under the contract was to influence his brother-in-law, George L. Brady, in the performance of his official duties, including the approval of specifications. Mr. Broderick received as a part of the fee provided in the contract for legal services a check from the Foundation Company the amount of fifty thousand dollars. Mr. Broderick had this check in his possession for some weeks but returned it to the Foundation Company, assigning this contract to Richard K. Gordon of Andover, Massachusetts.
"10. There is no evidence known to your petitioner to indicate that Maurice A. Broderick benefited financially from the transactions described above."
The defendant has not contested the allegations set forth in the petition as appears from the following part of his answer: "That without prejudice, and, for the purposes of this proceeding only, and, for no other purpose, Petitionee does not and will not contest the allegations as set forth in Paragraphs 3 — 9 inclusive of said petition, so that the court may take such disciplinary action, if any, as justice may require."
After the hearing on May 8, 1962 the court held the matter in abeyance temporarily pending a grand jury investigation in Massachusetts into the circumstances surrounding the construction of the Boston Common Garage.
William Maynard, Attorney General and Elmer T. Bourque, Deputy Attorney General (Mr. Maynard orally), pro se.
Stanley M. Burns (orally), for the defendant.
Joseph A. Millimet, President-elect of the Bar Association of the State of New Hampshire (orally), pro se, as amicus curiae.
An attorney has a duty to protect the interests client but the legal and ethical methods of performing this duty are solely the responsibility of the attorney. The attorney cannot escape this responsibility with the excuse that he is only following the instructions of his client or that it was the client who sought advice on how to accomplish a questionable transaction. The requirement that an attorney shall not represent conflicting interests nor favor his own interests to the detriment of his client illustrates the fiduciary nature and nondelegable responsibility of an attorney for his own professional conduct. Hines v. Donovan, 101 N.H. 239, 244.
The facts alleged in the petition for disciplinary action filed by the Attorney General have not been contested for the purposes of this case. The petition discloses that the defendant participated in the pre-dating of certain letters and contracts, and that he provided a New Hampshire corporation, which he had previously organized, to receive money for services not rendered, and which he knew were not to be rendered. The petition also states that the defendant procured a friend to receive a "finder's fee" which he had not earned and executed a contract for his own legal services for the purpose of influencing his brother-in-law in the performance of his official duties, "including the approval of specifications." These transactions were entered into by the defendant or under his direction with the Foundation Company, Inc. of New York which was awarded the contract for the construction of the Boston Common Garage. The defendant's actions clearly constituted unprofessional conduct. The extent to which these and similar transactions allegedly entered into by other individuals may be criminal offenses are issues awaiting trial in Massachusetts.
The defendant's professional and personal reputation prior to the present proceeding was good and this bears on the extent of the disciplinary action but does not dispense with the necessity for it. Drinker, Legal Ethics, c. III (1953). On behalf of the defendant it is contended that he has made an error in judgment which was due to misplaced reliance on others. The fact that he has not "benefited financially" from these transactions and that he returned certain checks is a mitigating factor but does not free him from disciplinary action. Allen's Case, 75 N.H. 301. The ancient admonition of Quintilian that an advocate is not required to throw open the harbor of his eloquence as a port of refuge for pirates has relevance even in the Twentieth Century. See Trumbull, Materials on the Lawyer's Professional Responsibility, c. 9 (1957).
The public and the bar of this state are entitled to be assured that the practice of law is a profession which demands that its members adhere to fiduciary standards of conduct and that the failure to do so will result in expeditious disciplinary action. Moore's Case, 98 N.H. 324; Ford's Case, 102 N.H. 24; Harrington's Case, 100 N.H. 243. See Griswold, The Legal Profession, 25 Cleveland B. J. 39 (1954). On the record before us, the defendant's conduct calls for action now (Barnard's Case, 101 N.H. 33) even though subsequent trials in Massachusetts will determine ultimate responsibility for any derelictions which may have occurred in the construction of the Boston Common Garage. The defendant's conduct cannot be condoned whether he acted for friend or foe, relative or stranger. Moore's Case, 76 N.H. 227, 228. The defendant is suspended from the practice of law until further order of this court. RSA 311:8; see Hobb's Case, 75 N.H. 285, 287.
So ordered.
All concurred.