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In re Backes

November 15, 1954

IN THE MATTER OF EDWARD H. BACKES, AN ATTORNEY AND {Q}COUNSEL{/Q}LOR AT LAW


On order to show cause why the respondent should not be disciplined.

For suspension for one year -- Justices Heher, Wachenfeld, Burling and Jacobs. For disbarment -- Chief Justice Vanderbilt, and Justices Oliphant and Brennan. The opinion of the court was delivered by William J. Brennan, Jr., J. Heher, J. (concurring in part). Mr. Justice Jacobs joins in this opinion.

Brennan

The respondent is charged with a willful and knowing attempt to perpetrate a fraud upon the courts of this State in the initiation and conduct of a divorce action on behalf of one Earlin Dillard.

Dillard was living with one Lillian Dillard in 1946 when respondent sold Dillard a house in Vauxhall, Union County, through a corporation, Orange Land Company, solely owned by respondent. A purchase money mortgage for $4,000 was taken by respondent in the name of the Company. Seven years later, in 1953, respondent, through the corporation, helped Dillard finance the purchase of abutting lots on each side of the house. Both the mortgage and the deed to the lots described Lillian Dillard as the wife of Dillard.

A few months after that purchase Dillard revealed to respondent that he had married Lillian in 1933 although not divorced from Viola whom he had married in 1922 in Virginia and from whom he separated in 1926. Dillard professed that he had married Lillian after a lapse of more than seven years following his separation from Viola because he had heard that Viola had been declared legally dead. Dillard gave respondent the address of a daughter of his marriage with Viola and respondent wrote to the daughter and learned from her that Viola was alive and living in New York City. Dillard shortly thereafter retained respondent to secure a divorce from Viola and paid him a fee of $350. He told respondent that he wanted the divorce so that Viola on his death could not "have anything belonging to me insurance or nothing," and the respondent told him "he thought he could get it."

Respondent filed a divorce complaint, making no mention of Dillard's marriage to Lillian and charging Viola with desertion. Respondent entertained the hope that Viola would not contest the action. That hope was revealed in a letter he wrote Viola forwarding her a copy of the summons and

complaint and requesting an acknowledgment of service. He stated in the letter:

"Earlin Dillard has filed suit against you for divorce on the ground of desertion * * * I am sure that you will agree with me, that after all these years, it is the proper thing to do. * * * In order to facilitate matters, I would greatly appreciate it if you would acknowledge service * * *. If you will kindly do this it will avoid the necessity of my having to publish the same in the paper." [Emphasis supplied.]

Respondent's hope was not realized. Viola retained counsel who filed an answer pleading the defense of Dillard's adultery with Lillian, and a counterclaim for a divorce on that ground, asking alimony.

Respondent thought that Viola might still be discouraged. He reasoned, he says, that she was defending only to get her hands on some of Dillard's property. He testified at the hearing before the Ethics and Grievance Committee:

"I knew Viola Dillard was after an interest in the property and I wanted to impress upon the attorney representing the defendant that he had very little interest in the property, that there was a $4,000 mortgage on it. I thought that would take the wind out of their sails. I knew the only interest they had in the suit was to see what they could get out of it."

The fact was, as he admitted in his testimony, "There was very little due" on the mortgage because of payments that Dillard had regularly made thereon over six and one-half years. Pursuing his strategy, however, he incorporated in the answer to ...


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