On rule to show cause why the respondent should not be disbarred or otherwise disciplined.
To suspend for two years and until further order -- Justices Case, Heher, Oliphant, Wachenfeld and Burling. To disbar -- Chief Justice Vanderbilt, and Justice Ackerson. Vanderbilt, C.J. (dissenting). Mr. Justice Ackerson joins in this dissent.
Respondent suspended for two years and until further order of the court.
VANDERBILT, C.J. (dissenting).
On July 28, 1949, the respondent, Andrew O. Wittreich, was ordered to answer charges of professional misconduct. The majority of the Court are of the opinion that he should be suspended from the practice of law for two years and until the further order of the Court. This means, in effect, suspension for two years, unless the respondent is guilty meantime of further misconduct.
The imposition of discipline on offending members of the bar is one of the unpleasant duties of our Court, but its performance is essential to public respect for and confidence in the legal profession. It is particularly distasteful to me that the first dissenting opinion that I have filed in the two years I have been on the bench should be on this point, but in my judgment the sentence imposed by the majority is entirely inadequate in view of the proven facts and out of line with the decisions of this Court in previous disciplinary proceedings. The matter is one of such importance to the profession and, indeed, the public that I feel that I should set forth the facts developed at the hearings and the reasons why I think the respondent should be disbarred.
A hearing held on August 2, 3 and 4, 1949, brought to light facts adverse to the respondent. On June 23, 1949, Jack Lalogian, an illiterate Armenian, 72 years of age and partially incapacitated by paralysis, came to the respondent's law office in Jersey City for the purpose of retaining the respondent to represent him in administering the estate of his brother, Sam Lalogian, who had died intestate three days previous on June 20, 1949. The respondent learned that the estate consisted of the decedent's interest in a checking account in the joint names of the two brothers in the First National Bank of Jersey City, containing a balance of approximately $33,000,
his interest in a Jersey City apartment house owned jointly by the brothers and whatever might be contained in a safe deposit box in the name of the decedent. At this conference the respondent suggested to Jack Lalogian that $25,000 be withdrawn from the joint account and held by the respondent so that the inheritance tax supervisor could not "tie the whole account up. So let us get the money out and argue about it afterward." When his office associate, a recently admitted attorney, questioned the propriety of this procedure, the respondent remarked, "I will fix it up, don't worry."
Accordingly, the respondent wrote out a check payable to himself as attorney for the sum of $25,000, antedated it to June 20, 1949, the date of Sam Lalogian's death, and had Jack Lalogian sign it. The following morning the respondent sent his office associate to the First National Bank of Jersey City and had the check certified. The respondent then took the check personally to the First National Bank and Trust Company of Paterson, where with the cooperation of the assistant cashier, a personal friend of the respondent, with whom he had earlier made arrangements by telephone, he attempted to open an account as attorney and deposit the check. The regular account officer, however, objected to the opening of an attorney's account and the account was therefore opened in the respondent's name personally, despite the fact that it was drawn to his order as attorney and the bank was thus put on notice that it was not his personal funds. This suited the respondent perfectly; he testified that "the account was to be a general account anyway," though how he could believe such an untruth in the light of the facts passes comprehension. Why the bank, moreover, should have refused to open an attorney's account is impossible to fathom, for every well advised lawyer who values either his reputation or his license to practice law has two bank accounts, one an attorney's account for funds that are not his, and the other a personal account for moneys that are exclusively his own, but this phase of the matter is no more fantastic than many others which were to follow.
But five days later, on June 29, 1949, the respondent drew a check on the Paterson account in the sum of $3,000 in part payment of the purchase price of a new Cadillac sedan. The balance of the purchase price was covered by trading in a 1948 Pontiac car which the respondent then owned, but which had been purchased on time and on which he still owed $256.63. The respondent testified that he purchased this new car for the purpose of making a favorable impression on the Negroes with whom he was then negotiating a contract for the development of a beach resort in Florida. To quote him, "to a Negro specially, the psychology of having a big car means you are somebody -- not me personally, but my idea was to use that car in the work of Bethune Beach." This venture was, of course, entirely alien to the Lalogian estate which had no use for a Cadillac car. On July 7th, he drew another check for $1,000 to the order of the Hudson Trust Company, which was deposited in his personal account there to cover checks drawn on this account the succeeding day in payment of trust funds payable to other clients, and without which his personal account would have been overdrawn and the outstanding checks bad for insufficient funds. On July 13th, he drew two checks on the Paterson account, one for $125 in part payment of two signs and the other for $350 for architect's fees, both in connection with the Florida real estate venture in which he was deeply interested. On July 19th, the respondent drew two more checks, one for $3,000 as a loan to a friend to enable him to redeem certain property he had pledged with a pawn shop, and the other for $500 to another friend in repayment of a loan. The last check drawn on the Paterson account, was made payable to "cash" for $50 and was negotiated by the respondent through his barber. This check was dishonored on presentation due to a temporary restraint that had been imposed upon the account by the court.
In the meantime Jack Lalogian and his cousins in Philadelphia had consulted with a lawyer there, who raised some doubts in their minds concerning the regularity of the respondent's action in securing the $25,000 check payable to
himself as attorney. In any event, Jack Lalogian, his relatives, and the Philadelphia lawyer visited the respondent on July 5th in Jersey City and questioned him with respect to the propriety of his action and the whereabouts of the $25,000. The respondent informed them that "it was for administrative purposes and he wanted to have the money set aside for purposes of the taxes, inheritance taxes, because if it wasn't in the bank, there would not be that much money to tax." The Philadelphia lawyer testified that he then demanded that the respondent return the money within 48 hours, and told the respondent to notify him when it had been redeposited. The degree of the respondent's recklessness is indicated by the fact that all of the checks on the Paterson account except the one for the Cadillac sedan were drawn after this demand for the repayment of the $25,000.
Not having heard from the respondent for a week, the Philadelphia lawyer on July 12th consulted with a Camden law firm and within the next few days an associate of this firm went to Jersey City to get information with respect to the transaction, but without success. Subsequently on July 25th, a partner in the Camden firm, in company with Lalogian and a relative of the latter, went to Jersey City and found out that the $25,000 had been deposited by the respondent in a Paterson bank and that only $17,000 remained on deposit there. Immediately a verified complaint was prepared with the assistance of counsel for the First National Bank of Jersey City, which believed itself vulnerable, since the account required the signatures of both brothers for withdrawals. The papers were presented to the court that night and appropriate ad interim restraint was obtained. By July 27th the respondent made arrangements for restitution, and a consent order of dismissal was entered. Restitution was made in the form of a ...