(concurring in part). The Essex County Ethics and Grievance Committee found that respondent’s “manner of handling the matrimonial matter was stupid and incompetent,” but not fraudulent. There was a division of opinion “as to whether such stupidity and incompetence * * * were tantamount to unethical or unprofessional conduct”; and the Committee “resolved the doubt” in respondent’s favor, “and determined that the charges which it preferred against him be dismissed.”
The charge was a knowing and willful fraud upon the court in the institution and prosecution of the suit for divorce. I am not persuaded that respondent believed Dillard had no cause for divorce, and instituted the suit notwithstanding that belief, intending to misrepresent the facts to the court and thereby perpetrate a fraud. Although a practitioner of the law since 1927, he had had little or no experience in the field of divorce. The things he did reveal an ignorance of the rules and mode of procedure, rather than a corrupt intent to impose upon the court. There can be no doubt that Dillard related to respondent circumstances indicating the legal consequences of the void ceremony of marriage involved the statutory or common law presumption of death, arising from an absence of seven years or more. Dillard told respondent that the second ceremonial marriage was performed seven years and some two or three months after he had last heard from his wife Yiola. Manifestly, the circumstances recounted by Dillard presented a case of great difficulty to respondent, one beyond his experience and competence in the particular branch of the law. But the charge in this regard is fraud, and fraud must be clearly and convincingly proved. Pahy v. Pahy, 107 N. J. Eq. 538 (E. & A. 1931). We do not consider the assent to the dismissal of the suit as having a contrary implication. There was nothing in that incident to suggest conscious participation by respondent in the fraudulent scheme thus laid to his client.
Yet, respondent concedes that, by the allegation in the answer to the counterclaim that the divorce suit was instituted “for the purpose of clearing the title” to the real *437property, “at the behest of the Orange Land Co., who holds a certain purchase money mortgage on the said property in the amount of $4,000,” he intended to deceive the defendant wife as to the amount due on the mortgage lien. He said he “knew” Viola “was after an interest in the property,” and he “wanted to impress upon the attorney representing the defendant that he had very little interest in the property, that there was a $4,000 mortgage on it,” and he “thought that would take the wind out of their sails.” He believed “the only interest they had in the suit was to see what they could get out of it.” The fact was, respondent acknowledged, that there was then “very little due” on the mortgage. This constituted an abuse of the judicial process, censurable professional conduct that merits discipline.
There is no rational basis for the suggestion made by the prosecuting counsel that respondent was “interested in the removal of any cloud on the mortgage” by his “pecuniary interest in the purchase-money mortgage,” and was moved to invoke the divorce process to that end. There was no need for that. The mortgage was all but paid; and it was a purchase-money mortgage, as respondent well knew. It was Dillard who broached the subject of divorce, and his testimony establishes that this “idea” was his alone, to insure the passing of his “insurance” and property to Lillian in the event of his prior death, to the exclusion of Yiola. But this bears witness to the impropriety of pleading.
The respondent hitherto has borne a good reputation. His professional conduct has been without blemish, so far as appears. It would seem that under all the circumstances the suspension of respondent from the practice of law for a period of one year, and until the further order of the court, would constitute adequate discipline.
Mr. Justice Jacobs joins in this opinion. For suspension for one year — Justices Hehbr, Wacheneeld, Burling and Jacobs — 4. For disbarment — -Chief Justice Yanderbilt, and Justices Oliphant and Brennan — 3.