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In re Marino

20 N.Y.2d 176 Court N.Y. Decision date 1967-07-07 English

Delivered by Van Voorhis, J.

Contents

Majority

p. 176
In the Matter of Julio John Marino and Alfred L. Plesser, Attorneys, Appellants. Judicial Inquiry on Professional Conduct, Petitioner-Respondent.
Submitted May 15, 1967;
decided July 7, 1967.
Julio John Marino, appellant pro se.
I. The evidence has failed to meet any burden of proof. (Matter of Post, 54 Hun 634 ; Matter of Attorney, 83 N. Y. 164 ; Matter of Eldridge, 82 N. Y. 161 ; Matter of Attorney, 175 App. Div. 653 ; Matter of Herrmann, 175 App. Div. 310 ; Matter of Mogel, 18 A D 2d 203 ; Matter of Farrell, 237 App. Div. 678 .) II. Appellant’s constitutional rights of due process have been violated. III. There is an ex post facto finding with respect to specification A, the Hirsch matter, as well as a violation of the discrimination amendment of the Constitution. IV. The pro
p. 177
ceedings here were in violation of the Fifth Amendment and the Fourteenth Amendment. (Spevack v. Klein, 385 U. S. 511 ; Cohen v. Hurley, 366 U. S. 117 ; Garrity v. New Jersey, 385 U. S. 493 ; Zuckerman v. Greason, 386 U. S. 15 ; Kaye v. Co-ordinating Comm. on Discipline of Assn. of Bar of City of N. Y., 386 U. S. 17 ; Nardone v. United States, 308 U. S. 338 ; People v. Ditson, 57 Cal. 2d 415 .) V. Appellant was entitled to a speedy trial. (People ex rel. Karlin v. Culkin, 248 N. Y. 465 .) VI. The Appellate Division has set itself up as a lawmaker, prosecutor, judge, jury and disciplinarian. (Green v. United States, 356 U. S. 165 .)
Alfred L. Plesser, appellant pro se.
I. The court has jurisdiction to review the lower courts. (Matter of Pincus, 20 A D 2d 655 ; Matter of Weber, 26 A D 2d 565 .) II. The court may substitute its judgment for that of the lower court. (Electrolux Corp. v. Val-Worth, Inc., 6 N Y 2d 556 ; People ex rel. MacCracken v. Miller, 291 N. Y. 55 ; Woods v. Lancet, 303 N. Y. 349 .) III. Substantial justice requires the weighing of substantial evidence. IV. Respondent-appellant’s rights and immunities guaranteed him by the Fifth and Fourteenth Amendments of the Constitution of the United States have been denied him.
Harold M. Spitzer for petitioner-respondent.
I. Mr. Plesser must share responsibility for acts of professional misconduct of the partnership. (Matter of Weitz, 11 A D 2d 76 ; Matter of Fata, 22 A D 2d 116 ; Matter of Neimark, 13 A D 2d 676 .) II. No substantial constitutional questions are presented for review. (Spevack v. Klein, 385 U. S. 511 ; Garrity v. New Jersey, 385 U. S. 493 ; People v. Friola, 11 N Y 2d 157 ; People v. De Renzzio, 19 N Y 2d 45 ; Matter of Phillies, 17 A D 2d 93 ; Zuckerman v. Greason, 386 U. S. 15 ; Anonymous v. Baker, 360 U. S. 287 .) III. There is ample evidence to support the decision and order of the Appellate Division. (Matter of Flannery, 212 N. Y. 610 .)

After a careful review of the evidence, we have concluded that the charges of professional misconduct against appellants have not been proved as matter of law with the exception of specification 7F. This specification charges that appellants accepted referrals of clients from tow car operators, automobile repair and service station operators, insurance brokers, doctors and others and thereby btirred up litigation.

p. 178
Concerning this the Referee stated (report, p. 10) that respondents filed statements of retainer in 881 negligence cases from 1957 to 1961, of which number 122 were allegedly and admittedly referred to them by persons of the nature just described.

Edward Condra of Levittown, manager of Center Island Auto Body Shop of Levittown, referred to the law firm 22 clients listed in petitioner’s exhibit 78.

Sam Seibelli and Anthony Scibelli, doing business as Nassau Body So Fender Shop, referred 16 cases to appellants (ex. 76).

Steve Potash, doing business as S So P Motors, referred 28 to appellants (ex. 77).

Philip Abatelli, an insurance broker, referred 11 clients to the firm (ex. 75).

Doctor Samuel R. Sherman referred 13 clients to the firm (ex. 74; stenographer’s min., pp. 312-317).

Frank Scappatura, president of Scappy & Peck Auto Body Corp., Westbury, referred 8 clients to the firm (ex. 80; stenographer’s min., p. 394).

Frank Flood, an insurance broker, referred 6 clients to the firm (ex. 79; stenographer’s min., pp. 391-394).

These total 104. The Referee’s figure of 122 was evidently derived from treating separately husband, wife and children in instances where families were involved in accidents.

This evidence is sufficient, in the case of two lawyers who had been admitted to the Bar in 1954 and 1955, to establish prima facie a pattern of systematic solicitation of automobile negligence business by utilizing their relationship with these people as a cover for directing legal business to them (People v. Schneider, 20 A D 2d 408 , 411). It was enough to put the burden upon them of coming forward with evidence sufficient to overcome such a presumption, and it was for the Appellate Division to determine the adequacy of their explanation as a question of fact. The other charges have not been proved as matter of law.

We think, however, that petitioner should be allowed further opportunity to establish specification 7D, which is that appellants made improper use of an investigator in obtaining retainer agreements, adverse party statements and execution of guardian ad litem forms. In this record the evidence fails to show that appellants’ lay investigator, to their knowledge,

p. 179
obtained statements from adverse parties represented by other counsel, and the preparation and execution of guardian ad litem forms were approved by appellants before they were utilized. The same applies to the charge that the investigator was vested with authority to reject retainers and to determine the amount of appellants’ percentage fees. A lay person, as, for example, a stenographer in a law office, may prepare legal papers provided that they are approved by licensed attorneys before they are utilized, and this applied to whatever guardian ad litem forms this investigator prepared, or had executed, and likewise to the percentage fee agreements, which came to the attention of appellants and were approved by them before taking effect. These lawyers were not interested in rejecting negligence claims, large or small, which they thought could be collected on which they could obtain percentage fees, and, where the investigator told clients of appellants that their firm would not accept their cases, this was done by the direction of one of the firm members. This investigator, insofar as the proof shows, communicated with clients only after they had retained this law firm, and petitioner does not claim that there is evidence that he solicited these cases as such. Although specification 7D, as we view the record, is not sustained prima facie, the activities of this investigator are not clearly disclosed by the record and it may well be that further evidence is available with respect to his activities, perhaps on somewhat broadened charges.

The order appealed from should be reversed so as to dismiss all of the charges except specifications 7D and 7F, and the matter is remanded to the Appellate Division to impose whatever disciplinary measures may be appropriate with respect to specification 7F alone, except that a new trial or hearings are authorized with respect to specification 7D as presently stated or enlarged if petitioner be so advised so as to comprehend more extensively the activities of this investigator. Appellants should, of course, be given notice of any such broadened charges and of such further hearings as may be conducted in the premises, in which event the imposition of sanctions with respect to specification 7F may be postponed until the charge under 7D is disposed of.

p. 180
Chief Judge Fuld and Judges Burke, Scileppi, Bergan, Keating and Breitel concur.

Order reversed and matter remanded to the Appellate Division for further proceedings in accordance with the opinion herein, without costs.

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