In re Wittner , 35 N.Y.S.2d 773 ( 1942 )

Cohn, J.

This is a disciplinary proceeding instituted by the Association of the Bar of the City of New York against respondent. In 1937 respondent, acting as attorney for plaintiff Fred L. Cole, brought an action in the Supreme Court of this State against Manufacturers Trust Company and certain of its officers and directors to recover the sum of $1,163,000 upon the theory that the trust company, its officers and directors, had converted securities belonging to Thomas F. Cole, the father of plaintiff. Respondent and the attorney for the bank went to California for the purpose of conducting an examination as a witness before trial of Thomas F. Cole, who was a resident of Pasadena, Cal. The bank’s attorney was accompanied by his wife and an assistant vice-president of the defendant trust company who had been active in the handling of the Cole transaction. While in Pasadena all three stopped at the Vista Del Arroyo Hotel, occupying adjoining rooms where matters relating to the pending litigation were discussed. With the aid of an attorney for the hotel corporation, who was acting with respondent, a microphone was installed in the room occupied by the attorney for the bank and his wife, and wires therefrom were connected with a dictograph apparatus in an adjoining room. Respondent asserts that the apparatus was installed to obtain information which would be of assistance to him to sustain the charges of conspiracy and fraud as alleged in the complaint in the action of Cole against Manufacturers Trust Company, and because he believed that the commissioner in California was co-operating with the bank’s attorney. Transcripts of the stenographic notes of the conversations heard over the apparatus were delivered to respondent and to local counsel. For these acts respondent has been charged with professional misconduct.

The official referee to whom this disciplinary proceeding was-referred to take proof of the charges set forth in the petition, has reported that the dictograph was installed by direction of respondent. The referee has also found as a fact established by the evidence that the alleged suspicions of respondent concerning the acts of the bank, of the California commissioner prior to the taking of testimony, and the conduct of the bank’s attorney in the taking of the depositions, did not “ justify the respondent in resorting to such a drastic and repulsive proceeding; ” that events which had occurred subsequent to the installation of the dictograph in the hotel room could not be considered in justification or mitigation of respondent’s offense; that notwithstanding the alleged suspicions of respondent, his conduct was wholly unjustified in the proceeding “ inasmuch as all the rights of his client could be safeguarded by the recording of appropriate objections and motions in the taking of the' deposition, there being no claim that the record was being improperly kept.”

With the conclusions of the learned referee we fully concur. It is clear from all the testimony that respondent was directly responsible for an improper invasion of the professional and personal privacy of the attorney for the bank. Though his acts may have been inspired by too zealous a desire to protect what he conceived to be his client’s rights and though he proceeded only after a consultation. with others, including a prominent member of the .California bar who advised him that the proposed installation of the dictograph would not violate any statute of that State, we nevertheless think that respondent’s conduct was highly unethical and reprehensible.

However, in view of respondent’s long and hitherto unblemished record at the bar we think that condign punishment for the offense should be suspension from practice for a period of two years. Accordingly, respondent is suspended from practice for a period of two years with leave to apply for reinstatement at the expiration of that term upon proof of his compliance with the conditions incorporated in the order.

XJntermyer and Dore, JJ., concur; Martin, P. J., and Townley, J., dissent and vote to disbar.