In 1933 the respondent’s brother was convicted in the United States District Court, Southern District of New York, of using the mails to defraud. The respondent, who had not represented his brother at the trial, appeared as his attorney on a motion for a new trial with nine affidavits, including affidavits of persons who had been witnesses for the government, in wMch they recanted testimony given at the trial and charged the prosecuting officers with improper and coercive tactics in procuring their testimony. Five of these persons, including one Samuel Walters and his brother David Walters, subsequently made affidavits to the effect that their signatures had been forged. After a hearing, at which the respondent was charged with contempt of court in submitting these five affidavits, the United States District Judge found that three of the five affidavits were forged and, for his failure to make sufficient inqmry concerning them, suspended the respondent from practice in the Umted States courts for a period of five years. The Umted States District Judge did not find, however, that the affidavits of Samuel and David Walters, claimed by the respondent to have been executed in his presence, were forged.
In this proceeding the respondent is charged with submitting these affidavits to the District Court without adequate investigation concermng their authenticity. The matter was referred to an official referee who found in favor of the respondent and recommended that the charge be dismissed. After careful consideration of the record, we are of opimon that with a single modification the findings and conclusions of the referee are correct.
*476Although three of the nine affidavits were concededly forged, the official referee concluded that they were accepted by the respondent in the belief that they were genuine. From mere inspection they would appear to have been properly verified before various notaries public, and were largely corroborative of. other affidavits, concededly genuine, filed on the motion for a new trial. We are, therefore, fully in accord with the conclusion of the official referee that the evidence fails to establish that the respondent was aware of the forgeries until the inquiry conducted in the United States District Court revealed that fact. If the respondent had submitted these affidavits to the court with knowledge that they were forged then we would agree that he should be disbarred.
We think, however, that in the light of all the circumstances the respondent should have exercised greater care in investigating the authenticity of the affidavits before using them on the motion for a new trial. These affidavits had been procured by Samuel Walters who had previously been convicted of forgery. They purported to repudiate testimony given at the trial of the respondent’s brother and contained serious charges against the prosecuting officers of the government. Although under ordinary circumstances it cannot be held that an attorney is under a duty to investigate the authenticity of affidavits which appear to be duly notarized, the unusual conditions under which these affidavits were procured and received by the respondent imposed upon him the obligation of investigating their genuineness with a greater degree of care than he exercised.
Considering the punishment already inflicted by the suspension in the Federal court and that the respondent is not guilty of any intentional wrongdoing, we are of opinion that a censure is sufficient punishment.
The respondent should be censured.
O’Malley and Glennon, JJ., concur; Martin, P. J., and Dore, J., dissent for disbarment.