REPORT OF COMMITTEE ON FEDERAL COURT PROCEDURE 69

I move you, sir, that the report be received and accepted. The motion was duly seconded and carried.

The President:

Mr. Masten, the Chairman of the Committee on Amendments to the Procedure in the Federal Courts, has a resolution in respect to the work of his committee, which I will ask him now to present.

Arthur H. Masten, of New York:

Mr. President, in sending in my report I had intended at the same time to present a resolution. That resolution I will now read:

"Resolved, That this Association approves an amendment of Equity Rule 75 of the United States Courts, making the preparation of a condensed record on appeal in narrative form permissible, instead of mandatory, and that the Committee on Amendment of Procedure in the Federal Courts be authorized to cooperate with similar committees or other Bar Associations in securing the adoption of such amendment.

I move the adoption of this resolution.

The motion was duly seconded and carried.

The President:

May I have the liberty of suggesting that in a matter of this sort, relating to the improvement of procedure in the Federal Courts, it might be deemed to be the most feasible method of securing favorable action to have the matter presented to the American Bar Association, so that there could be a presentation which might be considered the opinion of the entire Bar of the country to the Supreme Court with respect to a modification of its rules. Of course, actions by local Associations will be very helpful in focussing attention upon the

matter which ultimately should be presented as the opinion of the entire Bar of the country, as I should suppose.

We will now receive the report of the Committee on Grievances.

Henry W. Jessup, of New York:

I do not recall, Mr. President, that this Committee has made reports to the Association; it has usually made its report to the Executive Committee.

Of course, in a report of this sort, we cannot mention any names, but I thought it would be illuminative to the members of the Association to know the character of some of the complaints that have been made to the Committee.

One of the cases submitted to the Committee was made by a judicial officer of this State, who thought an attempt had been made to influence him in his decision of a certain case.

Another case was that of a complaint by a firm of lawyers against another firm of lawyers to whom they had sent papers for service enclosing the usual fee, and requesting them to have the summons in the action served, and to which they never received any reply, not even the return of the money enclosed.

Another case involved a complaint against a District Attorney in this State, inquiry into which disclosed that the matter had been already under advisement by the appropriate Appellate Division, so that the Committee did not feel called upon to take any further action.

Another case involved the action of a Justice of the Peace, who also practiced law as is customary, in one of the counties of this State.

Several other matters came before your Committee, which appear in extenso in our printed report and I will not take up the time now by stating them.

We have made a report of all these matters to the Executive Committee, and no recommendation is asked.

REPORT OF COMMITTEE ON GRIEVANCES

To the New York State Bar Association:

The Committee on Grievances respect fully reports as follows:

The Committee has received and acted by sub-committees upon a number of charges made against members of the Bar in different parts of the State during the past year.

In view of the character of the functions of this committee and the subjection of its proceedings to the scrutiny and control of the Executive Committee we deem it inexpedient to report specifically as to the names of complainants or respondents, but we deem it of interest to comment on the character of the complaints which have been made, in order to indicate the nature of our work during the year just past.

One of the cases submitted to the Committee was on complaint of a judicial officer presiding over a case involving domestic relations, to whom a member of the Bar addressed a communication indicating that if his decision in the matter of marital infelicities should involve the separation of the parties and some provision for the wife, that friends of the husband would be glad to cooperate in freeing him from his feminine "Old Man of the Sea," by providing money to pay or secure her support. The judicial officer interpreted this as an attempt to influence him in his decision of the case, but the attorney contended that he was not in any way a party to the action, or representing anyone a party to the action, but friends of the parties, and that his letter was intended

to throw light upon the financial situation and enable the judicial officer to more intelligently discharge his duty. This complaint was referred to a sub-committee, which has been unable to report, owing to a successive involvement of its various members in military work incident to the state of war. The Chairman of the sub-committee, owing to serious illness in his family, was prevented from being at his office for a considerable time, and the papers having been returned, were referred to the Committee in the First District, and in their opinion the conduct complained of has its only impropriety in the fact that it was not a representation made in open court for the purpose of aiding the court in an adjudication on the merits, and likewise in its being apparently communicated to the judge covertly and hence capable of the misconstruction that it was intended to improperly influence his conduct. The infelicity of the conduct reported to the committee arose from the fact that the attorney was in a distant part of the state, that he was not under a retainer or in a position to have his expenses covered, should he make a special trip to the court in which the matter was pending, and the letter complained of, in the opinion of the committee, does not call for any action. The letter was substantially as follows:

in

"A. B. either has been or will be arraigned before you for non-support of his wife in — He has friends who will guarantee payment of a decent allowance to his wife in if she can see her way clear to take a divorce from him. The fact is that for some years they have not lived together, nor do they wish to. I have appealed by letter to her to take a divorce and let the alimony be secured and I thought if you deemed it advisable after talking with her to give her the same advice, it might help to a solution of this matter and provide for his family."

Your Committee quotes this letter not as a precedent for similar conduct- but as illustrating the distinction which it draws between the making of a suggestion in open court to guide the court in its adjudication of a pending controversy, and suggestions made covertly without the knowledge of the adversary. In this particular case the respondent stated, and the Committee accepts his statement, that while originally consulted by the husband, he was in reality acting at the request of his friends who desired to have the difficulties with which he was confronted definitely and finally adjusted, and who for that purpose alone were willing to make the necessary pecuniary guarantees.

Another case was that of a complaint by one firm of lawyers in this state against another to whom they had sent papers for service, enclosing the usual service fee and requesting them to secure the service of the summons in the action, to which communication they received no reply. Repeated inquiries elicited no reply or report on the service. The matter being complained of to this committee and the second firm of lawyers communicated with, they stated that they made it a practice to pay no attention to such communications, that they were a nuisance; but they made no explanation of the fact that they had retained the money which had been enclosed. The matter involving possibility of the loss to the firm's client by the lapse of time under the statute of limitations by failure. to serve the summons, it appeared of sufficient seriousness to the sub-committee to refer the papers to the arbitrament of the appropriate Appellate Division. The presiding justice reported to us his inquiry into the facts, and that the attorneys complained of had made satisfactory explanation of their conduct, sufficient to be described by the court as an amende honorable.