On disciplinary proceedings.
For the prosecutor, Joseph L. Smith and Simon L. Fisch.
For the respondent, Merritt Lane and John J. Clancy.
Before Justices Parker and Lloyd.
Two charges were made against P., a member of the bar, of unethical conduct in the practice of his profession. The first of these was heard by the board of bar examiners to whom it had been referred by the court; the second was heard by the ethics committee of the Essex County Bar Association.
In the first disciplinary action by the court is recommended to the effect that the member should be suspended from practice for the period of one year; in the second, there is a finding that P. (hereinafter called the respondent), has been guilty of "most unethical and unprofessional conduct" and the matter is submitted to the court for such action as it deems necessary and proper.
The first of these charges was in the form of a complaint by one Peter Kronos to the effect that the respondent had issued checks on his account as attorney well knowing that the funds were not in the bank to meet them.
The undisputed facts, both as charged and as admitted, were that on November 29th, 1929, the respondent gave to Kronos two checks dated the following day, one for $350 and the other for $441. They were drawn on the Guardian Trust Company of Newark and there were not in that account funds sufficient to meet them. The statement of the parties is somewhat at variance as to the purpose for which these checks
were issued. It is fair to say that no moneys or other credit were obtained upon their issuance other than might be implied in the testimony of the complainant that the checks were to pay complainant's own wages as the manager of a restaurant and that of employes, and for the payment of rent, or if the testimony of the respondent be credited, that they were given as part of the proceeds of a check which had been deposited with the respondent by one Murphy on account of the purchase price of the restaurant which the respondent was authorized to sell, and therefore perhaps does not fall within the provisions of chapter 72 of the laws of 1919, page 133, which declares that "any person who, with intent to defraud shall make or draw, or utter or deliver any check * * * upon any bank or other depositary, knowing at the time of such making, drawing, uttering or delivering that the maker or drawer has not sufficient funds in or credit with such bank * * * for the payment of such check * * * upon its presentation, shall be guilty of a misdemeanor."
In view, however, of the want of credence which the board of bar examiners and this court places in the respondent's story, the issuance of the checks exhibits a clear purpose to deceive and mislead the person to whom they were given. If this were all in connection with this charge, the misconduct of the respondent, as it appears to us, would be far less serious than later evidence shows it to be, and for this reason: When the respondent was called to account before the board of bar examiners he testified under oath that he was endeavoring at the request of Kronos to obtain a purchaser for the restaurant; that a Greek by the name of Murphy called upon him and inquired about the restaurant; said he was from Jersey City, had heard the restaurant was for sale and asked the price; that Murphy was given a price of $3,500 and returned in a week offering $3,000 which the respondent accepted subject to Kronos' approval; that respondent received a check from Murphy for $1,000 upon the back of which Murphy wrote something to the effect that it was a deposit on account of the purchase price of $3,000 for the restaurant. The alleged Murphy was a stranger to the respondent; no pains
were taken to ascertain his identity or responsibility. Respondent did not even recall with certainty the bank upon which the check was drawn. This same check, against which the two checks heretofore described were issued, was later returned to the alleged Murphy without explanation. This story for these reasons, and others unnecessary to recount, the board of bar examiners deemed a myth ...