In re Naphtaly

I dissent. The evidence in this case, as I construe it, shows that in the month of June, 1877, one Lewis applied to the respondent to bring an action against Schoenfeld, Cohn & Co., upon certain promissory notes, of which said Lewis represented himself to be the indorsee. Among said notes was one for $17,000, dated December 23, 1876, payable on demand. The respondent ascertained from the indorsee that this note had been due more than forty days. Thereupon respondent informed said indorsee that the fact that the makers of said note had suffered the same to remain unpaid for a period of forty days after it had matured would of itself constitute an act of bankruptcy, and that a complaint filed upon that note would necessarily disclose that the *394 makers of said note had committed an act of bankruptcy. To avoid that, the respondent suggested the execution of a new note, for the same sum, and of the same date as the old one, payable six months after date. That suggestion was followed, and an action was commenced on the new note by filing a complaint verified by the plaintiff in the usual form, and an attachment was sued out by filing an affidavit in the usual form.

It is urged that…

I concur in the judgment. According to the testimony before us, when in June, 1877, Mr. Naphtaly’s legal advice vras sought, there were outstanding notes of the firm of Schoenfeld, Cohn & Co., aggregating $18,000, drawn in favor of Newman, by him indorsed to Lewis and by the latter permitted to be pledged to the London and San Francisco Bank, Limited, as collateral security for certain moneys advanced by the bank. These notes were payable on demand and evidenced all the indebtedness from Schoenfeld, Cohn & Co. to Lewis. There was also then (in June, 1877), in existence a simulated note for $17,000, dated December 23, 1878, executed by Schoenfeld, Cohn & Co., to Lewis. I say simulated, because this note purported to represent an indebtedness that did not exist—the true and only indebtedness to Lewis being evidenced by the notes then held by the London and San Francisco Bank, Limited, as collateral security for the moneys it had advanced on the faith of those securities. When Mr. Naphtaly’s legal advice was sought, the firm of Schoenfeld, Cohn & Co. was insolvent, and he knew it. Extensive purchases of goods had been but recently made by the firm, which had not been paid for. A…

This is an application made to this court that Joseph Naphtaly, an attorney and counselor of this court, be removed. The information is laid and the prosecution made by a committee of the Bar Association of the city and county of San Francisco, appointed for that purpose. In proceedings had before the association for the purpose of determining whether it would institute measures for his removal, Mr. Naphtaly had leave to make such statement as he desired; and in pursuance thereof he made a statement in writing, which was introduced in evidence on the hearing of this matter, and from which we hereinafter copy.

The charges made against the respondent are:

The specifications accompanying the charges embrace the facts hereinafter stated, and relate to advice given and steps talien by the accused in and about certain matters of business intrusted to his care, conduct and management as an attorney and counselor at law.

First. By section 282 of the Code of Civil Procedure of this state it is made the duty of an attorney and counselor:

To counsel and maintain such actions, proceedings or defenses only as appear to him legal or just, except the defense of a person charged with a public…