For discharge -- Chief Justice Weintraub, and Justices Heher, Wachenfeld, Burling, Jacobs, and Francis. Opposed -- None. The opinion of the court was delivered by Weintraub, C.J. Jacobs, J., concurring in result.
This is a disciplinary matter arising out of a complaint made by respondent's client, Sawa Zaboronak. It is charged that (1) respondent, despite an agreement to accept a fee of $1,000, demanded and received the further sum of $4,000 by threats, and (2) the amount received was "unreasonable and grossly excessive."
On December 20, 1951 Zaboronak conveyed premises known as 14 Cornell Avenue, Hamilton Township, to his son and daughter-in-law, on the strength, as Zaboronak claimed, of an oral promise that he could live there with them for the rest of his days. He made the conveyance despite advice against it by another attorney of his own selection. After some months, friction developed between Zaboronak and his daughter-in-law, as the result of which he was excluded from the home. On October 2, 1952 Zaboronak retained respondent to recover the property.
Zaboronak testified respondent agreed to handle the case for a flat fee of $1,000. Respondent however insisted he was to receive $1,000 against a contingent fee of one-third of the value of the property.
After respondent wrote to the son and daughter-in-law, conferences ensued between Albert Cooper, Jr., their attorney, and respondent. It quickly developed that the son conceded the oral agreement his father claimed, but despite the father's insistence that the home represented his own investment, the son had in fact paid numerous bills, which he said totalled about $7,000. The son was preparing to leave for Kentucky to be employed there and we gather respondent correctly sensed the son would accept reimbursement on that basis, notwithstanding that he asserted he should be deemed to be an equal owner with his father. Respondent proposed that for the purpose of negotiations he suggest the property was worth $14,000, and that either buy out the other for $7,000. As respondent anticipated, the son accepted $7,000. It developed that some vacant lots (or perhaps a one-half interest therein) had also been conveyed to the son, who agreed to return them in exchange for a promise that he could occupy the home until April 1953 when he expected to depart for Kentucky. The matter was closed on that basis on January 26, 1953. A mortgage of $7,000 was placed with John Ewanicz, a friend of Zaboronak and client of respondent, who had initially recommended respondent to Zaboronak to handle this matter.
According to respondent, Zaboronak pleaded his inability to pay the balance of the fee, but said he held a mortgage of $6,000 on other property which would fall due at the end of the year and he would then complete the payment. Respondent testified they agreed upon a charge of $5,000 (less the $1,000 already received) which was also to include his services in some other minor matters which he in the meantime handled for Zaboronak. About December 29, 1953 Zaboronak collected the $6,000 and paid it to Ewanicz in reduction of the $7,000 mortgage. Ewanicz met respondent on the day of payment and told him of it, whereupon respondent at once sent Zaboronak a statement for the balance and in a conversation which followed chided him for his failure to keep his word. Zaboronak then agreed that Ewanicz pay $4,000 to respondent, and increase the outstanding mortgage
accordingly. This was done, voluntarily according to respondent, and under a threat to sue and sell the property according to Zaboronak. Ewanicz said he heard respondent threaten to sue and no more. Some months later (the time interval is of no real significance because of Zaboronak's intervening illness), Zaboronak complained to an attorney and ultimately to a member of the Ethics and Grievance Committee, and these proceedings followed.
After initial argument before us, we returned the matter to the Committee for further testimony, including evidence of the value of the property as of January 26, 1953. The experts differed greatly, those selected by the Committee valuing the property at $17,750 and $18,916.40, and respondent's witnesses finding a value in excess of $33,000. Prior to the additional hearings before the Committee, respondent returned $4,000 to Zaboronak with a statement that "I cannot somehow divorce from my mind the feeling that I am under a severe handicap by reason of the complainant's age (now 72) and that any doubts which may arise from the testimony in this case will be resolved against me." The reason may not be flattering to the Committee or to us, but the payment was made without prejudice and we should and do accept it as such.
We suggested that evidence of actual value of the property be obtained in the hope it might shed some further light, but although it is helpful, it is not of decisive influence. The crux of the matter, as we see it, is what respondent and Zaboronak understood to be the value of the property when the fee agreement was made. Respondent testified that when he was engaged Zaboronak told him he had over $30,000 in the property and placed its value between $30,000 and $40,000. Zaboronak did not contradict this testimony. Ewanicz testified that at that point Zaboronak had told him he had $36,000 in the property and later in seeking a mortgage valued it at $65,000. Again Zaboronak did not contradict this testimony. That Zaboronak had a tendency to exaggerate seems evident from testimony he gave on other phases. For example, even in these proceedings he testified
his son did not have "thirty cents in the property, that is all mine," whereas it is clear the son had a substantial investment. Some puffing was not unlikely in view of the intense wrong he felt his son had perpetrated and his desire to activate an interest in the attorney he wanted to accept his cause. There is no suggestion that respondent had any information at ...