On order to show cause why the respondent should not be disciplined.
For discharge of order -- Chief Justice Vanderbilt, and Justices Heher, Oliphant, Wachenfeld, Burling, Jacobs and Brennan. Opposed -- None. The opinion of the court was delivered by Vanderbilt, C.J.
The respondent in his brief and in his oral argument in Shellhammer v. Lehigh Valley Railroad Company, 14 N.J. 341 (1954) contended that:
"it is shown by 'uncontradicted evidence' that 'an interval of 15 to 20 minutes had elapsed between the all-clear signal, followed by the
air-brake test, which took thirty seconds, and the actual starting of the train by Hann, the defendant's engineer;' that 'no one was assigned to check up and take any steps to ascertain if a change of status had occurred during that 15 to 20 minute interval during which no check-up or investigation had been made to prove it was safe to start the train,' 'as to whether or not the decedent or any one else was working at or about the train or between the cars,' and the 'engineer started the train relying solely on an all-clear signal which had been given to him 15 to 20 minutes earlier.'"
In dealing with this question which is the crucial, indeed, the only issue in the case, Mr. Justice Heher speaking for the court held:
"The Court's preargument examination of the record revealed no ground whatever for the statement that between 15 to 20 minutes intervened between the giving of the all-clear signal and the movement of the train; and on the oral argument, when counsel was asked to point out the evidential justification for this factual assertion, he was unable to do so and then agreed that it had no basis in the record. In ostensible support of this affirmation of fact, the brief cites evidence tending to show that there was an interval of 15 minutes between 'the time of the last coupling' of cars 'until the time the train moved out of the yard, started to move,' a radically different thing. Thus, the basic factor in the charge of negligence made on the brief is not sustained by the proofs. The train went into timely motion in accordance with the only signal given; there was no interval calling for a renewal of the signal before the train was actually put into operation. A finding of culpable negligence in these circumstances would be purely conjectural and utterly devoid of the factual substance requisite for liability under the statute."
The court thereupon issued an order calling on the respondent to show cause
"why he should not be disciplined for a misrepresentation of fact in the presentation of the cause of his client, censurable as in disregard of his professional duty to his client and to the Court."
On the return of the order to show cause it appeared that the respondent had nothing to do with the earlier stages of the case beyond introducing New York counsel to the court. Specifically it appeared that he did not prepare the briefs or argue the cause in the Appellate Division of the Superior Court, both of these matters being attended to by New York counsel.
The respondent was delegated by the law office with which he was then associated to prepare a petition for certification and, after certification was granted, to draft the brief and argue the appeal here. The respondent frankly concedes that he did not examine the transcript of the trial or the appendix used in the Appellate Division, but merely condensed the statement of facts in the brief used there. Nor did he check the cases in the brief in the Appellate Division which he adopted for use here. He says that it was not until two of the justices queried him at the oral argument as to the foundation in fact in the record for the basic ...