Opinion
276 A.D. 36 93 N.Y.S.2d 141 Application of SENECA COUNTY BAR ASS'N. In re KOCH. Supreme Court of New York, Fourth Department November 16, 1949
Proceeding in the matter of the application of the Seneca County Bar Association for disciplinary action against Henry W. Koch, also known as Henry Wm. Koch, an attorney, for his conduct in entertaining as a district attorney a complaint of criminality on the part of a client's step-daughter growing out of a controversy between his client and stepdaughter.
The Appellate Division, Per Curiam, dismissed the application and held that disciplinary action would not be taken in view of the attorney's statements to the Grand Jury disclosing his interest in the matter.
J. Seward Bodine, President of the Seneca County Bar Association, Waterloo, for petitioner.
Richard C. S. Drummond, Auburn, for respondent.
Daniel J. O'Mara, District Attorney of Monroe County, Rochester, designated by Hon. Marsh N. Taylor, Presiding Justice, to prosecute the proceedings.
Before TAYLOR, P. J., and McCURN, LOVE, VAUGHAN, and KIMBALL, JJ.
PER CURIAM.
Respondent's conduct in representing Barton J. Morehouse as attorney and at the same time entertaining, as District Attorney, a complaint of criminality on the part of Barton's step-daughter Elizabeth Cosad, growing out of the controversy which his client Barton had with his step-daughter, does not have our approval.
However, we are prompted to withhold censure in view of the statement made to the Grand Jury, by respondent, at the close of the evidence in that proceeding, to the effect that he at first objected to presenting the criminal charge because he had been attorney for the Morehouse estate, that Morehouse insisted on presentation, that the matter involved a family dispute and should be carefully considered before an indictment was returned, reminding the jurors that the Court had directed that their body should not be a collection agency and expressing his personal regret over the matter.
That such a statement had been made could not be known to the Seneca County Bar Association because of the secrecy of the Grand Jury Minutes.
In the less populous counties the District Attorneys are fairly extensively engaged in private practice and it is our view that in a situation where a district attorney has acted in his private practice for any person involved in any official investigation, as complainant or accused he should ask to be superseded to avoid any conduct which might give rise to the suspicion or claim that he was using his office as District Attorney to further his civil practice.
We feel, with regard to the charge referred to in the report of the Referee as ‘ Healey Charge C’ , that respondent, as attorney for Mrs. Healey, acted voluntarily in assuming control of the evicted stock in trade belonging to Healey, who was not available.
While the Sheriff did accompany respondent and housed the stock for a time, he declined further responsibility, whereupon respondent assumed control of it as a part of Healey's estate.
Concededly some of it disappeared while it was in the jail and in respondent's home. Respondent assume liability for it to the estate of Healey.
However, the evidence does not sustain the charge that he converted it to his own use.
Report of the Official Referee confirmed and proceeding dismissed.
All concur.