Opinion
December 31, 1913.
Holmes Jones, respondent in person.
Einar Chrystie, attorney for the petitioner.
Charges of serious misconduct against the respondent were presented to this court by the Association of the Bar of the City of New York, to which the respondent filed his answer, and an order was duly entered appointing Hon. John J. Friedman, an official referee of this court, as official referee to take proof of these charges and report the same with his opinion to this court. The respondent now asks the court to remove the referee named herein and to appoint some person other than a member of the petitioner herein as the referee. He bases this request upon the fact that in 1876 John J. Friedman was elected a member of the Association of the Bar and has continued to be a member of the said association, and claims that he is both a prosecutor and a judicial officer in this proceeding.
On this motion the respondent entirely misapprehends the nature of the proceedings and the position of the petitioner. The association is not a party to an action between the petitioner and the respondent. The Association of the Bar was incorporated by an act of the Legislature, passed April 28, 1871, and one of its purposes was to maintain the honor and dignity of the profession of the law. (See Laws of 1871, chap. 819.) Various committees are appointed by the Association of the Bar to carry out the purposes for which it was incorporated, among them a committee on grievances, to whom are referred charges of professional misconduct against an attorney. With these charges the members of the association, other than the members of the grievance committee and the executive committee, have nothing to do, and it is not alleged that the official referee is a member of either of these committees. The association as a body or its members, other than the members of these two committees, are not interested in the result of this proceeding, except in so far as they as members of the association are interested in maintaining the standards of the profession of the law, and to that extent every member of the bar is also interested in the proceedings.
The distinguished referee, whose position herein is attacked on this motion, has been a member of the judiciary of the State of New York for twenty-eight years and upwards, and after his retirement from the bench he was appointed an official referee, under the provisions of the law, to whom this court was authorized to refer proceedings of this character. (See Judiciary Law [Consol. Laws, chap. 30; Laws of 1909, chap. 35], §§ 115, 116, as amd. by Laws of 1912, chap. 323.) He has no personal interest in these proceedings, and no possible advantage can accrue to the association from the final determination at which he arrives. Neither his personal interest nor the interest of the association of which he is a member is involved in the determination of the questions referred to him as the official referee of this court. Neither he nor the association is in any proper respect a party to a judicial proceeding. The association through its committees has reported to this court that the respondent, who is an attorney at law, has been guilty of professional misconduct. It, therefore, became the duty of this court to inquire into the conduct of the respondent and see if the charges against the respondent were true. A mere member of the association has nothing to do with presenting the charges to this court or of the prosecution of the charges after they are presented. The official referee is in no sense a party to the proceeding, interested in the result or disqualified from acting as a judge or referee in the determination of the truth of the charges themselves.
We approve what was said by the Supreme Judicial Court of Massachusetts, where a similar claim was made, in Boston Bar Association v. Casey ( 211 Mass. 187), and what was there said represents the position this court will take on this motion: "It may be at once conceded that if the respondent's premises are correct his conclusion would be the natural logical sequence. But the premises are not correct. They are based upon an entire misconception of the nature of the proceeding. This is not a proceeding between two parties where the court is asked to adjudicate conflicting claims as to some right, corporeal or incorporeal, and where a decision favorable to one party is necessarily to that extent unfavorable to the other. It is rather in the nature of an inquest or inquiry as to the conduct of the respondent. In the result of this inquiry the association has no interest. It can gain nothing nor can it lose anything whatever may be the result. It simply calls the attention of the court to the alleged misconduct of an attorney, not for the purpose of obtaining redress of any grievance suffered by itself, but only that the court, if so disposed, may inquire into the charge and act accordingly. Such this petition plainly is upon its face. It sets forth no wrong done to it; it asks for no relief. The prayer at the end of the petition does not ask for such a decree as justice and equity may require as between the association and respondent, but in substance for such an order as the court shall `deem expedient in the interests of the public welfare.'" (See, also, Fairfield County Bar v. Taylor, 60 Conn. 11.)
In presenting charges against attorneys who have violated their trust and been guilty of unprofessional conduct the Association of the Bar of the City of New York is performing a public duty which the Legislature by special act has authorized it to perform. (See Laws of 1871, chap. 819; Judiciary Law [Consol. Laws, chap. 30; Laws of 1909, chap. 35], § 88, subd. 2, as amd. by Laws of 1912, chap. 253, and Laws of 1913, chap. 720.) It is no more a prosecutor against a delinquent attorney than are all the people of the State of New York prosecutors against criminals called to the bar of justice for crimes against the people. The members of the association have no greater interest in the result of this proceeding than has any other member of the profession or any other member of the community who are entitled to protection against dishonest lawyers. To question the judicial impartiality of the distinguished official referee to whom this matter has been referred shows how entirely the respondent misapprehends the nature of the proceeding and the object for which it has been instituted.
The motion is, therefore, denied.
CLARKE, SCOTT, DOWLING and HOTCHKISS, JJ., concurred.
Motion denied. Order to be settled on notice.