New York Law Review

In re Association of the Bar of the City of New York, 222 A.D. 580 (1928): Upholding Court Authority to Investigate Attorney Misconduct

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In re Association of the Bar of the City of New York, 222 A.D. 580 (1928)

The Appellate Division has the inherent authority to conduct a general inquiry into the conduct of its officers (members of the bar) and to compel those officers to testify regarding their professional actions, subject to the privilege against self-incrimination.

Summary

Following a petition from bar associations detailing ethical violations among attorneys, the Appellate Division ordered a general inquiry into improper legal practices. An attorney, after being subpoenaed, refused to be sworn in and testify about his conduct in procuring retainers. He was held in contempt. The New York Court of Appeals affirmed the lower courts’ orders, holding that the Appellate Division has the power to conduct a general inquiry into the conduct of attorneys and compel testimony regarding their professional behavior, subject to valid claims of privilege. The court reasoned that regulating the bar is essential for justice and the court’s inherent powers allow for such investigations.

Facts

  • Three bar associations petitioned the Appellate Division, First Department, reporting widespread “ambulance chasing” and other unethical practices among attorneys.
  • The Appellate Division ordered an investigation into these practices, authorizing the examination of witnesses and production of documents.
  • The appellant, an attorney with 25 years of experience, was subpoenaed to testify about his conduct in procuring retainers in personal injury cases.
  • He refused to be sworn in, challenging the validity of the inquiry.
  • The court held him in contempt and ordered him jailed until he agreed to testify.

Procedural History

  • The attorney was found in contempt by the trial court for refusing to testify.
  • His petition for release via habeas corpus was dismissed.
  • Both the contempt order and the dismissal of the habeas corpus petition were affirmed by the Appellate Division.
  • The New York Court of Appeals granted review.

Issue(s)

Whether the Appellate Division has the power to direct a general inquiry into the conduct of its officers, the members of the bar, and in the course of that inquiry, to compel one of those officers to testify as to his acts in his professional relations.

Holding

Yes, because membership in the bar is a privilege burdened with conditions, and attorneys are officers of the court with a duty to cooperate with the court to advance justice. This includes disclosing information about unethical practices, subject to valid claims of privilege, when directed by the court.

Court’s Reasoning

The Court of Appeals emphasized the historical and inherent power of the courts to regulate the legal profession. The court stated that “Membership in the bar is a privilege burdened with conditions.” The court reasoned that an attorney is an officer of the court, with a duty to cooperate in advancing justice. This duty extends to disclosing knowledge of unethical practices when directed by the court. The court cited historical precedents, including English court practices dating back to the 16th century, where courts conducted inquiries into attorney misconduct.

The Court acknowledged concerns about potential abuse of this power, noting that “Reputation in such a calling is a plant of tender growth, and its bloom, once lost, is not easily restored.” However, it addressed this concern by pointing out that preliminary investigations could be conducted in secret to protect the reputations of attorneys. The court quoted Judiciary Law § 88, subd. 2, stating that the supreme court shall “‘have power and control over attorneys and counselors-at-law.’”

The Court drew an analogy to legislative bodies’ power to investigate matters relevant to legislation, stating that “The right to pass laws, necessarily implies the right to obtain information upon any matter which may become the subject of a law.” This suggests that the power to regulate implies the power to investigate and compel testimony. Ultimately, the Court concluded that the power was necessary to maintain the integrity of the legal profession and protect the public. The court stated, “If the house is to be cleaned, it is for those who occupy and govern it, rather than for strangers, to do the noisome work.”

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