In re Lamb

This is a proceeding brought against an attorney at law for improper and unprofessional conduct. On October 23, 1903, the petition and charges herein were presented to this court by the Association of the Bar of the City of New York, and the respondent moved to dismiss them, which motion was denied, and an order was entered on November 13, 1903, directing the respondent to show cause why he should not be suspended from

The charges are three in number, designated, respectively, “A,” “B,” and “C,” and, in brief, are as follows:

Charge A.

That on or about December 29, 1901, a suit was brought in a district court of the state of ¡Minnesota,' entitled “Peter Power v. Northern Pacific Railway Company,” to restrain the defendant from retiring its preferred stock, the complaint, verified by said Peter Power, alleging “that plaintiff now is, and for more than six months last past has been, the owner and holder of 100 shares of the aforementioned stock (meaning common stock) of the defendant company, and now holds,' and for more than six months last past has held, the certificates representing the issue thereof” ;■ that such statement was relevant and material, and one of the solicitors for complainant in said suit testified on August 28, 1902, before a special examiner, that he prepared said complaint at the instance of said Lamb, the personal counsel of said Power, in reliance upon statements made by him, and the said Power testified before the special examiner that he verified the complaint upon the professional advice and representations of said Lamb; that on December 30, 1901, said Lamb, as counsel for said Power, swore to an affidavit intended for use and used in said cause, averring “that he has read the complaint of Peter Power against the Northern Pacific Railway Company, and is familiar with the facts therein set forth"; that said Lamb testified on August .11 and 21, 1902, and at other times, before the special examiner, that the basis for the allegation in the complaint and in his affidavit was that Camille Weidenfeld had agreed with him to “carry” 100 shares of said stock for any person acting as plaintiff in said suit, Peter M. Power testifying to the same effect; that Camille Weidenfeld testified on August 12, 1902, that no such transaction _ ever took place, and that Lamb had always told him Power was a stockhold-' cr; that the said Lamb well knew that the allegation in question was false when made, and that it was relevant and material in the suit, and procured said Power to make the statement to induce the court to believe Power a bona fide stockholder, and thus issue a temporary injunction against the defendant, and that the court was so misled, and issued such an injunction on December 30, 1901.

Charge B.

That on December 30, 1901, the said cause was removed into the United States Circuit' Court for the District of Minnesota, issue was. joined, and on December 31, 1901, the injunction was dissolved; that by order of said court, dated January 14, 1902, a special examiner was appointed, who, on July 23, 1902, made an order that the taking of testimony in defendant’s behalf should commence before him at 15 Broad street, New York City, July 29, 1902, and on July 24, 1902, upon petition of the secretary of the defendant, an order was made directing that a subpoena issue commanding Peter Power to appear before the special examiner to testify on July 29, 1902, and on July 24 and 25, 1902, copies of said petition and order, and original subpoenas thereunder, were duly served on Peter Power; that on said day Peter Power did not answer, nor did he appear, and said Lamb stated that he had advised his client not to come, because the service of the subpoena was improper and the court had no jurisdiction, and the special examiner ruled that the service was proper and Power should be produced, which said Lamb declined to do, and he did not appear until August 21, 1902; that on July 10, 1902, Peter Power went to West Hurley, N. Y., and on July 31, 1902, an order to show cause was

Charge C.

That on August 11, 1902, said Lamb, while duly sworn as a witness in said cause, was asked, “Q. Who took the certificate to Chicago?” (meaning a certain certificate for 100 shares of the defendant company) and replied, “I did;” and he also testified on that day, in reply to questions, that he brought the certificate back to New York; that in the meantime he handed it to Mr. Power, who bad it quite some time, and, his recollection was, took it to Minneapolis, and returned it to him on the way back to New York; that it was a fact he carried the certificate himself to Chicago and delivered it to Mr. Power; that he was then asked, “Q. Is it a fact that Mr. Power retained possession of it until a few days afterward, when you started to return from Minneapolis?” and answered, “I won’t say this, Mr. Guthrie, that I took the stock in my own physical possession, but I was in custody of it, and I was charged with the duty of seeing that it was safely kept;” that on August 12, 1902, Camille Weidenfeld testified that neither said Lamb nor said Power ever had possession of said certificate, unless during the trip to Chicago, while it was in the possession of Henry Stern; that on August 14, 1902, said Henry Stern testified that neither Lamb nor Power had obtained possession of such certificate on the trip to Chicago or at any time, so far as he knew, and that it was the property of Camille Weidenfeld, from whom he received and to whom he returned it; that Camille Weidenfeld produced such certificate at the hearing, and testified that it had never, to his knowledge, been in the possession or under the control of said Lamb, who also testified that he had never seen the certificate since its exhibition in Chicago; that said Lamb did not take such certificate to Chicago nor return it to New York, and was never in custody of it, and his statements to the contrary were deceitful, and made to deceive the court into the belief that said Power was a bona fide stockholder of the defendant company, and as such entitled to maintain the suit.

These charges, it appears from the affidavit of the secretary and attorney of the committee on grievances of the Association of the Bar of the City of New York, were received by him “in due form,” and subscribed by and bearing the seal of the Northern Pacific Railway Company, “and that upon examination thereof he deemed said charges proper to submit to the committee.” Except for changes in lettering and numbering, and the insertion of the word “petitioner” for “undersigned,” the charges of the bar association are verbatim those submitted by the railroad company.

Upon the opening of the proceeding before the referee, the respondent moved to dismiss the charges upon the ground that the petition and charges fail to present any facts or accusation against the respondent of which this court has jurisdiction, it not being alleged that he was guilty of any deceit or wrongdoing under the law of this state, and that the acts complained of and stated in Charge A relate solely to alleged conduct of the respondent in an action pending in the courts of the state of Minnesota; that the facts alleged in Charge B relate wholly to the respondent’s conduct in a judicial proceeding in the United States court of Minnesota and an examination held in the United States court of the Southern District of New York, and, if true, constitute at most contempt of the courts of the United States and their process; and that, with, respect to Charge C, the testimony referred to was given in the United States court of Minnesota. The motion was denied, upon the ground that it had already been decided by the Appellate Division in making the order of reference to take testimony and report to that court. The respondent excepted.

The reference thereupon proceeded, and there was put in evi

The testimony of Weidenfeld and Stern relates solely to Charge A, and the referee was called upon, as is this court, to consider what was stated by them, and what was stated to the contrary by the respondent, and whether the statement of the respondent was such as to free him from the accusation made of deceit and wrongdoing. Upon the question of credibility, therefore, in connection with the general facts conceded, the whole inquiry must turn.

The respondent, in effect, has admitted that in December, 1901, Peter Power began a suit in the Minnesota courts against the Northern Pacifio Railway Company to restrain it from retiring its preferred stock, and verified the complaint, alleging that he was, and for six months had been, the owner and holder of 100 shares of the company’s stock, which was a material allegation, and that the respondent, as counsel for Power, averred in an affidavit made in that month that he had read the complaint, and was familiar with the facts alleged therein; and that the attorney who prepared the complaint in Minnesota did so at the instance of the respondent. We thus come to the crucial point of Power being the lawful owner of the stock in question, and, if not, whether the respondent knew it.

The respondent’s testimony before the examiner and before the referee is substantially as follows: That he is 33 years old, and studied law in the office of Davies, Stone & Auerbach, being admitted to the bar in 1897; and in 1899 left that office and formed a partnership with George A. Voss, Esq., which continued for three years, his practice being general; and then formed a partnership with Daniel W. Guernsey, Esq.; that he met Camille Weidenfeld, of the firm of Lawson, Weidenfeld & Co., who gave him his first important case, and who became his principal client; that his relations with him were friendly and intimate, and he had charge of a number of active litigations for Weidenfeld’s firm, and placed absolute reliance upon and confidence in him; that in May, 1901, Weidenfeld evinced a great interest in the affairs of the Northern Pacific Railway, and had many conversations with the respondent concerning the subject, and particularly with reference to the proposed merger or consolidation of the Great Northern and the Northern Pacific Railway Companies, and he looked the matter up on Weidenfeld’s suggestion, and reported that he did not believe such merger was legal; that the retirement of the preferred stock of the Northern Pacific was a part of the general plan, as he understood it, and, in fact, the foundation thereof, and Weidenfeld said he had stock, and would like to see a test suit brought, but that if he brought it, with the Morgan interest against him, he would have every loan called, and' would be ostracized, and that he could not afford to fight these influences, and if suit could be brought in the

Mr. Weidenfeld testified that he had" business relations as client of the respondent, and that he had confidence in him, and that he may have conversed with him of the Northern Pacific Railway matter, as he was interested in it, but he had no recollection of any conversation in May, 1901, to the effect that, if respondent would get some reputable person to act as plaintiff, he (Weidenfeld) would carry 100 shares of stock for him; that in December, 1901, he became the owner of 100 shares of the stock of the Northern Pacific Railway Company, the certificate standing in the name of H. Content & Co., and, he believed, numbered H9355, and he never assigned it to Peter Power, and still owns it; that that certificate, by his authority, was taken by Mr. Stern to Chicago at the time mentioned, “for the purpose of intervention in the Power suit”; that he never agreed to carry stock for Power, and thought he never discussed Peter Power or the Northern Pacific matters with respondent; that a difficulty had arisen concerning respondent’s compensation in matters in which he, with others, was interested, connected with certain transactions in gas stock, and until then his relations with respondent were pleasant; that prior to December, 1901, he may have been at different times the owner of Northern Pacific stock; that he did not know at the time that Mr. Stern, Power, and respondent went to Chicago together; that he did know respondent had previously been to St. Paul in connection with litigation against the Northern Pacific, and he did not know he went there to see the Governor of the state; that he purchased the 100 shares merely as a good investment;' that he thought Mr. Stern had no definite instructions as to where he was to take the certificate—to Chicago, St. Paul, or Minneapolis—but was going to see certain attorneys (whom respondent has communicated with) of whom he learned either through Mr. Stern or Mr. Lamb; that he thought Mr. Stern was to take the stock on a trip to Montana, and did not know whether he went to Montana from Chicago or not; that Mr. Stern had authority to draw upon him, and may have done so, for the expenses of himself, Power, and respondent to Chicago; that respondent had told him that Power was a man of property and had the stock, and this he believed; that he asked respondent what the total expenses of the litigation were to be, and’

It was agreed that Mr. Stern would testify, if present, that he went to Chicago on the day named with Power and Mr. Lamb, and that was the first time he knew he was the Peter Power in the suit: “Q. Well, Mr. Weidenfeld told you that if Mr. Lamb secured a good plaintiff or a responsible plaintiff— A. (interrupting) Or words to that effect. Q. Or words to that effect—he would be inclined to go into the litigation? A. Yes, sir”; that he took the certificate in the name of H. Content & Co. to Chicago, in an envelope pinned to his undershirt, and took it out in the attorney’s office there, and showed it to the gentlemen present, who examined it, and then he took it back to New York that same day and handed it to Mr. Weidenfeld.

There was offered in evidence a ledger account of Mr. Weidenfeld with H. Content & Co., showing the purchase in December, 1901, of the certificate in question.

Upon this evidence the referee concluded that it affirmatively appears that the stock in question was never owned by Power, and hence he was not a bona'fide holder thereof, and that the whole proceeding “savors of fraud, deceit, and duplicity,” and that Charge A is established by the proof. The testimony of Mr. Weidenfeld and Mr. Stern corroborates that of the plaintiff, excepting as to the alleged agreement that Mr. Weidenfeld was to carry, assign, and hold for delivery to Power the stock in question. Thus Weidenfeld admits that he was respondent’s client, that he was vitally interested in testing the proposed merger, that he talked with respondent of it, that he obtained the stock and may have had other stock, and authorized its being taken to Chicago, for the purpose, however, he says, of intervening in the suit; that “if Mr. Lamb secured a good plaintiff * * * he would be inclined to go into the litigation”; that he agreed with respondent to contribute to the expense of the litigation, and did contribute $6,000; that Stern did draw upon him, paying expenses of himself, Power, and respondent; and that he has financial interests at stake in the result. Stern admits that he paid both respondent’s and Power’s expenses, and does not deny that, when he showed the stock in Chicago to the attorneys named by respondent, he said it was Power’s check.

With respect to Charge B, many of the alleged facts are admitted. Thus the respondent admits in effect that a special examiner was appointed and proposed to take testimony in New York, and that the subpoenas, orders, etc., directed to Power were issued, and that these papers were delivered to him at the times and places specified; that Power went to West Hurley, N. Y., and that, when the

The respondent testified that Power is a young man, 23 years of age, and, at the time the proceeding began before the special examiner, was engaged to be married; that both he and his fiancée were annoyed by the constant vigilance of detectives, and concluded to be married at once, and the ceremony was quietly performed, and Mr. and Mrs. Power went to West Hurley, N. Y.; that they were followed by detectives, who encamped day and night near the house where they were stopping, and they both became very nervous, and particularly Mr. Power, who was in bad health; that the respondent regarded the whole proceeding with respect to the service of papers unlawful and improper, and, acting under that belief, advised his client to pay no attention to them until it was finally determined whether such service was valid; that the validity of the service was being contested, and the réspondent secured the assistance of other attorneys, and particularly Mr. Chandler, who agreed with him that the service was improper; that he so advised Power, and, upon seeing him in West Hurley after the order to show cause why he should not be held in contempt was issued, and finding him in such nervous condition, with the detectives constantly annoying him, consented to his going to Albany, and, when Mr. Power suggested Montreal, advised against it finally, and that, without his knowledge, Mr. Power went to Montreal, and from there telegraphed respondent of his act, saying he would there remain until the last possible moment; that when it was finally decided that papers were properly served—though the third service was held bad—respondent went to Montreal and returned with Mr. Power; that when he learned that Mr. Power was in Montreal he communicated with an eminent attorney there to keep track of him and supply him with funds needed for his mere support.

The petitioner calls attention to an apparent inconsistency in the respondent’s testimony before the special examiner and before the referee. He testified before the former that when Mr. Power suggested going to Montreal he “exacted a solemn promise that he would instantly return if Judge Lacombe decided that he had been properly served and that he was in contempt of court,” and that in “the matter of his going to Montreal I can only say it is myself who is to blame, and not Mr. Power. * * * I had some intention of sending him up into Dutchess county, and finally we agreed that he should go to Montreal, he first, however, giving' me his

The third charge (B) is all contained in the testimony of the respondent, wherein he stated that at Chicago he had actual custody of the certificate, whereas he finally admitted that he did not mean to say he had physical possession of it, and Mr. Stern testified that the certificate wás .constantly in his own, and not the respondent’s possession. This charge the referee concluded was interwoven with Charge A, and was proven.

In addition, the respondent contends that this court has no jurisdiction over his acts committed outside the state, and in the United States court, and with respect to the process of that court. This point is not well taken, since, as an attorney of this state, the respondent was bound in all his acts to conduct himself properly, or be prepared for proceedings such as those to be taken against him. Section 67, Code.

Of all the charges, the most serious is Charge A, which is based ■upon the fact that in the complaint in the Northern Pacific suit there was the allegation that “plaintiff [Power] now is, and for more than six months last past has been,” the owner and holder of 100 shares .of common stock of the Northern Pacific Railroad. This complaint was enforced by an affidavit of Lamb that he had read the complaint and knew the facts therein stated to be true. It appears beyond dispute that Power was a “dummy,” who, taking the respondent’s own statement, had been brought into the litigation by him in response to the suggestion made'by Weidenfeld that he should get some one who in his (Weidenfeld’s) interest would bring the suit to test the legality of the action of the railway company in retiring its preferred stock, and that for such purpose he, Weidenfeld, would carry 100 shares of the common stock for such person’s account. As matter of fact, Power never became a stockholder of record, nor was there a transfer to him of the certificate

There is no escape from the conclusion that not only did Lamb permit his client, Power, to swear to a false statement, but reenforced it by his own affidavit, which, with respect to the ownership of the stock, was equally false. The charge of perjury and subornation of perjury, because it amounts to that, has been fully proven. Considering the purpose for which the suit was instituted, and the serious consequences resulting from its institution, and the deliberation with which the whole fraudulent scheme connected with that litigation was concocted and carried out by the respondent, we are convinced that he is unworthy of being continued as a member of the legal profession. There is no place within its ranks for perjurers and suborners. We cannot extend leniency in this case. The offense of the respondent cannot be attributed to the indiscretion of youth and mistaken zeal. His acts show sim guiar fertility and complete deliberation in devising and executing the outrageous scheme by which he involved so many people in harassing litigation, and from the basest of motives.

Without considering in detail the other charges made against the respondent, and which the referee has reported are sustained, after a very careful reflection and examination of the whole situation, we are satisfied that the respondent should be disbarred.