Silver v. Choban 11 A.D.2d 808

— A petition setting forth charges of professional misconduct against respondent was duly filed. Upon respondent’s answer to the petition the issues arising were referred to an Official Referee for hearing and report together with his recommendation. The Referee has now filed his report in which he has, in effect, found respondent guilty on two charges: (1) that respondent recommended Ms clients to doctors whose fees he agreed to pay and did pay without *809reimbursement; and (2) that respondent falsified retainer statements, filed by him in this court pursuant to its Special Rule, by failing to set forth in such statements the true names of the persons who referred the eases to him. For failure or insufficiency of proof the Referee has recommended that other charges of a more serious nature be dismissed. The Referee also recommended that respondent be suspended from the practice of the law for a period of one year. Petitioner moves to confirm the report. Respondent cross-moves to modify it by reversing the finding as to the first charge relating to improper payments to doctors and by rejecting the recommendation of suspension and substituting a censure based upon the finding of guilt on the second charge relating to the filing of false retainer statements. Petitioner’s motion to confirm the Referee’s report is granted, and respondent’s cross motion to modify the report is denied. Respondent is suspended from the practice of the law for a period of one year, beginning 20 days after the entry of the order hereon. The proof does not clearly establish that there was a champertous agreement between respondent and his client with respect to the transaction referred to in the first charge. Nor has the Referee made any direct finding that such was the case. However, the proof does establish respondent’s guilt on the second charge. The Referee’s report and the record also show that respondent made no attempt to conceal the true facts; that he testified fully and frankly; and that he co-operated with the court. Under all the circumstances, we accept the Referee’s recommendation that respondent be suspended from the practice of the law for a period of one year. Nolan, P. J., Ughetta, Christ and Pette, JJ., concur; Beldoek, J., dissents and votes to deny both motions; to reject the Referee’s recommendation as to punishment; and to disbar respondent on the ground that, in his opinion, the proof establishes respondent’s guilt, not only with respect to the two charges mentioned above, but also with respect to the more serious charges set forth in the petition.