
    In the Matter of John H. Post.
    
      (Supreme Court, General Term, Second Department,
    
    
      Filed September 9, 1889.)
    
    1. Attorneys — Disbarment.
    An attorney cannot be disbarred for acts committed by him as a party to an action.
    2. Same — Deceit—Code Crv. Pro., § 67.
    The term “deceit ” as used in Code Civ. Pro., § 67. implies concealment or false suggestion as an attorney or counselor to injure a party or mislead the court while acting in a professional capacity or in the course of professional employment.
    3. Same.
    Where an attorney has been punished as a party to an action for his. acts, disbarment would be the infliction of a double punishment and should not be granted.
    The facts appear in the opinion.
    
      Tracy, MacFarland, Boardman & Platt, for motion; John H. Post, in person, opposed.
   Dykman, J.

This is a proceeding for the disbarment of an attorney, and the complaint against him is that he has been guilty of misconduct which should deprive him of the privileges and associations of an honorable profession.

The acts and conduct of the respondent for which he is now arraigned were incited and inspired by his connection with a litigation which was precipitated upon the courts to prevent the-consummation of a fraudulent conspiracy of unparalleled enormity. Yet at all stages of the controversy in the cases of King v. Barnes the defendants sustained the most signal defeat, and judgments have been entered against them all; not only so, but the respondent, was more than once punished for contempt in the course of the proceedings and one of the other defendants received similar punishment.

Yet in all these respects he was acting and suffering as a party to a litigation, and not as a lawyer, and no malpractice as an attorney was charged against him, unless an attempt to perpetrate a fraud, and a failure to obey the mandate of a court constitute, such malpractice.

Although this court and the court of appeals have found much in the conduct of the respondent to censure and condemn, and although punishment has followed such condemnation with some degree of severity, yet it has been meted out to him as a party and not as an attorney, and he cannot be punished a second time for such offenses.

Neither can an attorney be disbarred for acts committed as a party to an action, because other and different punishments are prescribed by law for the control and punishment of such parties.

Malpractice as a lawyer means evil practice in a professional capacity, and the resort to methods and practices unsanctioned and prohibited by law, and the causes for which an attorney may be disbarred are now specified by the Code of Civil Procedure as follows: “ An attorney or counsellor who is guilty of any deceit, malpractice, crime or misdemeanor may be suspended from practice or removed from office by the supreme court at a general term thereof.” Code, § 67.

In this case there is neither proof nor claim that the respondent has been guilty of any crime or misdemeanor, and we have already seen that he has committed no malpractice as a lawyer.

The term deceit as used in this section implies concealment or false suggestion as an 'attorney or counsellor to injure a party or mislead a court while acting in a professional capacity or in the course of professional employment, and there is nothing to convict the respondent of misconduct of that character.

In view of the fact, therefore, that the present proceeding is of a highly penal character, the courts should require full proof in justification of the exercise of their summary powers to suspend or disbar an attorney, and we do not find in the papers before us sufficient proof to justify the exertion of the power with which we are invested.

Let it not be understood that we disapprove of these proceedings ; on the contrary we deem the presentation of the case to the general term meritorious and proper, but because the disbarment of the respondent would be in some measure the infliction of double punishment for the reasons already stated, and in view of .all the circumstances, we have concluded to withhold the punishment of dismissal.

Motion denied.

Barnard, P. J., and Pratt, J., concur.  