I cannot give my assent to the opinions of my brothers Clarke and Scott. A most careful and painstaking search has failed to reveal a single case in this or any other State that even remotely could be considered as a precedent for this decision. The cases cited in the opinion of the presiding justice all arise out of the misconduct of attorneys in civil actions.
The obligations of an attorney to court and client are very different in a civil and a criminal case. In a civil case an attorney is under no obligation to accept a retainer; in a criminal case, he may be assigned to defend a person whom he believes to be guilty and it is then his duty to defend. In a civil case, if it developes in the trial of the cause that his client has not a meritorious cause of action or defense, and that he has been deceived by. his client and the suit is not being prosecuted or defended in good faith, he is under an obligation *72to so inform the court and withdraw from the cause. In a criminal prosecution, the attorney having accepted a retainer, believing in his client’s innocence, he cannot withdraw even if his client confesses his guilt and demands that the attorney continue in his defense. And if the attorney should inform the court of the confession, it would be a grave breach of his duty. The distinction between the duty of attorneys in civil and criminal cases is clearly set forth in the “ Canons of Ethics ” adopted by the New York State Bar Association in 1909.
“30. Justifiable and Unjustifiable Litigation.—The lawyer must decline to conduct a civil cause or to make a defense when convinced that it is intended merely to harass or to injure the opposite party or to work oppression or wrong. But otherwise it is his right, and, having accepted retainer, it becomes his duty to insist upon the judgment of the court as to the legal merits of his client’s claim. His appearance in court should be deemed equivalent to an assertion on his honor that in his opinion his client’s case is one proper for judicial determination.
“31. Responsibility for Litigation.— No lawyer is obliged to act either as adviser or advocate for every person who may wish to become his client. He has a right to decline employment. Every lawyer upon his own responsibility must decide what business he will accept as counsel, what causes he will bring into court for plaintiffs, what cases he will contest in court for defendants. The responsibility for advising questionable transactions, for bringing questionable suits, for urging questionable defenses, is the lawyer’s responsibility. He cannot escape it by urging as an excuse that he is only following his client’s instructions. ”
Contrast these rules with rule 5: “ The Defense or Prosecution of Those Accused of Crime.— It is the right of the lawyer to undertake the defense of a person accused of crime, regardless of his personal opinion as to the guilt of the accused; otherwise innocent persons, victims only of suspicious circumstances, might be denied proper defense. Having undertaken such defense, the lawyer is bound by all fair and honorable means, to present every defense that the law of the land permits, to the end that no person may be deprived of life or liberty, but by due process of law.”
*73In Sharswood’s “ Professional Ethics” it is stated: “Every man, accused of an offense, has a constitutional right to a trial-according to law; even if guilty, he ought not to be convicted and undergo punishment unless upon legal evidence; and with all the- forms which have been devised for the security of life and liberty. * * * He is entitled, therefore, to the benefit of counsel to conduct his defense, to cross-examine the witnesses for the State, to scan, with legal knowledge, the forms of the proceeding against him, to present his defense in an intelligible shape, to suggest all those reasonable doubts which may arise from the evidence as to his guilt, and to see that if he is convicted, it is according to law. * * * It is not to be termed screening the guilty from punishment, for the advocate to exert all his ability, learning and ingenuity, in such a defence, even if he should be perfectly assured in his own mind of the actual guilt of the prisoner.” (Pp. 90-92.)
Bearing in mind that the attorney here accused was engaged in defending a person accused of a crime of which he claimed to be innocent; applying the rules of ethics of the profession which have long been recognized as applicable to the conduct of attorneys in such employment, we will review the facts which fortunately are undisputed, and having been stated in the presiding justice’s opinion, need not be here repeated in detail.
The respondent was retained as counsel for the defense, definitely, on the day preceding the trial, and had no prior connection with the case. On that date he had an interview with De Lane, and was informed that the Annette woman had made the charges against De Lane; that for sometime she had been kept by the district attorney in apartments in the Bronx, not having been detained as a witness in the house of detention or confined in prison; that she had left the city and De Lane had been in communication with her and could get her to return as a witness and that she would testify in his behalf. The respondent told De Lane to have her come down to New York. The next morning she appeared at the respondent’s residence, and told him that she had never signed a statement for the district attorney; had never been a witness in any judicial proceeding nor gone before the grand jury. *74Furthermore that she had never given De Lane any money and had so told the district attorney, but that he would not believe her. The presiding justice in his opinion states fully the happenings in court on the first day of the trial. In my opinion there was nothing in the conduct of the respondent which merits condemnation. If the witness had not been produced by him and had in fact been a material witness' for the prosecution, it might have been argued that it would have been respondent’s duty to have informed the district attorney that the witness was available, although I know of no duty that rests upon the counsel for the defendant to inform the district attorney of the whereabouts of his witnesses, especially when that information had been obtained by counsel from the accused. The district attorney had allowed the witness to remain at liberty, trusting to be able to produce her.
The witness was produced and sworn on behalf of the party in whose favor she testified. Of the purpose to produce her the district attorney had timely warning, so that he had the documentary evidence available for her cross-examination.
The learned referee has held that it was the duty of the respondent to have corrected the testimony of the Annette woman, which he knew to be false, i. e., that she had left May-field the night before because of the fact that she had seen mention of the trial in the Evening Journal and that no one knew of her coming. This view seems to have been adopted by a majority of this court.
An examination of the record does not show that a question was asked by the respondent for the purpose of eliciting this testimony. The witness, in answer to the question, “ How did you get from Mayfield to New York?” answered, “ Why, I came down on the New York Central and Hudson River; I came down on the train last night; I came down here because I read in the paper that Mr. De Lane’s case — ” Here the district attorney interposed: “ I submit, your Honor, the witness be told to answer questions,” and the court said: “Yes, please answer questions only. Repeat the question to her. ” The question being repeated, she answered: “I came down on the train. ” The respondent did not interrogate her further as to her coming to the trial. The only other reference to the witness having *75come to New York that day, during the direct examination, was volunteered by the witness in response to the question of the respondent in reference to her talks with the district attorney, in which she said: “I never gave him [the defendant] a penny.” Question. “ Did you tell him that?” Answer. “ I told him that, but he knew different; he knew lots of things and he had so many witnesses. Where are your witnesses ? Bring them in and let them talk to me; these people that say he gave me money; they never seen nothing. Why don’t you bring them in and let me talk to them. That is why I came here to-day; I did not have to come; nobody knew where I was to bring me here, but I came anyway.” On cross-examination the district attorney went into the facts of her having left May-field the night before and as to the manner in which she had spent her time since her arrival. She was led into contradictions and improbable statements which demonstrated the falsity of her evidence on that point. On redirect examination the respondent did not ask any questions in relation to the matter either tending to correct the testimony in accord with the facts as he knew them, or to extricate her from the situation in which the witness had placed herself by her contradictory and improbable testimony. He left the matter, as it was, with the witness’ testimony discredited for the triers of the fact to determine. Under the circumstances was he required to do more ? The learned referee and the majority of the court say yes, he should have further discredited the witness by showing on this collateral and immaterial matter that the witness had deliberately and knowingly testified falsely. Had he done so there can be no doubt that it would have tended strongly to have destroyed in the minds of the jury credence in her testimony on the facts in issue. Yet, being false testimony as to an immaterial fact, under the rules of law they would not have been allowed to reject her testimony as a whole. He had not brought that fact into the case. He had presented a witness produced by his .client to substantiate his defense. He had presented the evidence to the court. Without his solicitation the witness had volunteered false testimony of an immaterial fact. Bearing in mind that it was his duty to lay before the court the evidence his client claimed proved him not guilty, irrespective *76of his own belief, can it be held that he holds himself personally liable for the truth of the testimony of the witness, even as to collateral matters, and that he must show the falsity of such statements, or render himself liable to be disbarred ? If such a rule is to be enforced few lawyers will dare to defend one charged with crime. The question would constantly be presented to their minds: Shall I betray my client or shall I take the risk of disbarment % If it had been shown in this case that the respondent had advised the giving of this testimony, or had the testimony been brought out by him, knowing as he did that it was false, I should be with the majority of the court. A lawyer’s duty to his client in a criminal case does not extend to the suggestion of false testimony even on a collateral matter. But there is not the slightest evidence in the record that he suggested in any manner the giving of the testimony, and as we have demonstrated the evidence was not elicited by him.
In the course of a long summation to the jury the respondent used one phrase that, under the circumstances of the case, was inexcusable. When, however, we read the entire summation, in my opinion, it cannot be said that this was a “ deliberate and emphatic adoption by the respondent * * * of what he knew to be the false testimony of the Annette woman.” In speaking of the two women who had appeared as witnesses for the prosecution and the Annette woman he said: “ The Annette girl is a prostitute, and I am not asking you to believe the Annette girl. I believe, if you will permit me my opinion, they are three brazen hussies, if you want to know my opinion, I wouldn’t believe them under oath.” In that portion of his address that the offending phrase was used he said: “This woman is no white slave, in the sense that you and I understand white slaves to be. Do you believe, gentlemen of the jury, that that brazen hussey would have ever given away a dollar. * * * It would have been a different case here if you had an innocent unsuspecting little girl without any experience of the world, and she was led into a life of prostitution. It would be entirely a different thing, entirely different matter, but we have got her here, and thank God, gentlemen of the jury, that Divine Providence has brought that woman here. If *77it was the Evening Journal, I thank the Evening Journal. If it was anybody else — she said it was the Evening Journal that she read it in, and by the way she produced a clipping to the judge if I .am not mistaken, isn’t that right, Judge. (The Court, Yes.) Thank God, I say, to the press.” In closing, in commenting on his failure to call the defendant to the stand, he said: “I don’t care how willing this defendant was to go upon the stand. I say that the prosecution in this case has failed to establish a case beyond a reasonable doubt, and it isn’t worthy on the part of the defendant to contradict it. I say that by Annette’s testimony, by her appearance upon the stand that there was sufficient to leave the case with you and with you alone, and the law says that a defendant has a perfect right to remain silent.” This does not to my mind indicate that the respondent adopted and made his own the false testimony of the witness. Or that he presented her as a truthful witness to the jury. The phrase in which he thanked Divine Providence was unwarranted. Inspired by an excess of zeal in his Ghent’s behalf in the course of a long summation, without thought or consideration he used the phrase. In my opinion the utmost punishment that should be administered, if any, would be a censure. Disbarment carries with it the stigma that the conduct of the attorney has been such as to show him to be morally unfit to practice an honorable profession, and, should be pronounced only for such practices, where clearly disclosed by the record before the court. “Admission as an attorney is not obtained without years of labor and study. The office which the party thus acquires is one of value, and often becomes the source of great honor and emolument to its possessor. To most persons who enter the profession, it is the means of support to themselves and their families. To deprive one of an office of this character would often be to decree poverty to himself and destitution to his family. A removal from the bar should, therefore, never be decreed where any punishment less severe — such as reprimand, témpora y suspension, or fine — would accomplish the end desired.” (Bradley v. Fisher, 80 U. S. [13 Wall.] 335, 355.)
To my mind, my brethren have adopted a stricter rule than has ever been recognized by the courts or the profession at *78large. Seventy-five years ago there was a vigorous discussion in England, in the public press and in pamphlets, growing out of the defense of the murderer of Lord William Eussell by a prominent barrister, Charles Phillips. Mr. Phillips had accepted a retainer, believing in the innocence of the accused. On the second day of the trial the prisoner called his attorney and Mr. Phillips to the dock and informed them that he was guilty. Mr. Phillips then said: “You will plead guilty,” to which the prisoner replied: “No, and I expect you to defend me to the utmost of your ability.” In this situation Mr. Phillips consulted Baron Parke, who was not sitting in the case. Baron Parke informed him that he was bound to defend the prisoner, and to use all fair arguments arising from the evidence in his behalf. The prisoner was convicted, and it after-wards transpired that the prisoner had confessed to his counsel, which led to a discussion of the duty of a lawyer under such circumstances. Thereafter Mr. Phillips was appointed a commissioner by two different lord chancellors, and the fact of Baron Parke’s advice became public by one of the lord chancellors having told of a conversation that he had with Baron Parke, in which the baron had told him of his advice, and that he went into court and listened to the summation, and that Mr. Phillips’ address was unexceptionable. (See appendix to Sharpswood’s Ethics and pamphlets issued in 1841.)
A comparison of Mr. Phillips’ summation with that in the case at bar shows that Mr. Phillips went to greater lengths than did the respondent in the case under consideration. However writers on moral philosophy and ethics may have differed from that time, the legal profession have recognized the duty of the lawyer in a criminal case to defend a client whom he knew to be guilty and to give him the benefit of all his skill and ability in presenting the defense by way of evidence and argumentation. Never, until this case, has the tremendous responsibility for his utterance during a summation been suggested or imposed.
The references made above to the opinion of Mr. Justice Scott are not to the opinion handed down herewith, but to a short opinion in which he stated that “the deliberate and emphatic adoption by the respondent, in his summing up to the *79jury, of what he knew to be the false testimony of the Annette woman, was the precise equivalent of false swearing himself.” I do not consider it necessary to rewrite this opinion to make plain the misconstruction that Mr. Justice Scott in his present opinion seeks by word and innuendo to place upon my opinion. If it will bear such construction, I have been unfortunate in the use of language. He has sought to reinforce his first ground for disbarment of the respondent, first, upon the suspicion that the respondent coached and instructed the witness in the false testimony she gave. If there were any evidence tending to show such conduct, I would, as I have hereinbefore stated, agree with my brethren that the respondent should be disbarred. This is not the case of a Scotch verdict of not proven, but is a charge contained in the opinion which was not theretofore in the case. It was not litigated. This charge is of a most serious nature. It imputes fraudulent practices to the attorney, and on suspicion alone. It would hardly seem necessary in a case of this character to refer to such an elementary principle of law, that fraud is never to be presumed but must be established by clear proof.
Second, that the fraudulent testimony was developed by the skillful questions of the respondent. In another portion of this opinion I have reproduced from the record every question that was asked by the respondent, in answer to which the witness volunteered her false statement. I submit that the answer of the witness in those particulars was irresponsive; and,- further, that not a question was asked, and answered, on the direct or redirect examination that tended to develop this false testimony.
There is a consideration, in addition to those mentioned.by my brother Scott, which transcends the mere issues of this particular case, and that is: That an attorney charged with misconduct has the right to have the case determined on the record presented to the court. His case should be considered on the evidence, and not on suspicion; and determined on proof, and not on prejudice.
I do not palliate the respondent’s misconduct in his summation, but I submit that a reprimand is sufficient punishment.
Respondent disbarred. Order to be settled on notice.