The opinion of the court characterizes as unprofessional conduct, known to be improper and unprofessional as a matter of common knowledge in each and every profession, "conduct by which, after a professional man has been licensed by the State, he enters into a partnership in his professional work with a layman, by the terms of which he divides with the latter, on a percentage basis, payments made by client or patient for professional services rendered." Thus this court is writing for all the professions in this State a rule of ethics. With great deference, it must be said that the rule, if limited to the facts in this case, has not received the universal acceptance claimed for it. Surely it cannot be said that it is unprofessional to employ one who is not a member of the profession in nonprofessional work and pay him a percentage of the gains from professional service. Indeed an office manager in a large law office may well be paid a percentage of the firm's earnings for his nonprofessional but highly valuable services in management of the office and such an arrangement is neither immoral nor unethical. Many other analogies must exist in the management of hospitals and will frequently recur in the important growth and development of group medicine.
In this case the payment was made to one who was not a dentist for performing services of a strictly nonprofessional *Page 112 character, namely, in bringing from the steamship piers to the respondent's office seamen requiring dental work. These men were ignorant of our language and unable to find their way from place to place within the city and the arrangement was certainly notmalum in se and, for all that appears, may well have been decidedly in the public interest.
If one is to be deprived of his professional livelihood he is entitled to be warned in advance that conduct which is neither reprehensible nor prohibited by law may have such consequences. We cannot accept the view that the Legislature intended to authorize suspension or removal from the professions for every breach, whether or not reprehensible, of rules of ethics promulgated without legislative sanction. The Board of Regents was authorized, both before and after the amendment of subdivision 2, clause (h) of section 1311 of the Education Law, to promulgate rules to define and clarify, when necessary, unprofessional conduct (Matter of Dr. Bloom Dentist, Inc., v.Cruise, 259 N.Y. 358, 363-364; Matter of Cherry v. Board ofRegents, 289 N.Y. 148, 155; L. 1945, ch. 805). Such definition and clarification are essential to basic concepts of fair play if a man is to be tried and suspended or removed from his profession for a breach of professional ethics by conduct in no sense reprehensible or opposed to the public interest.
In Matter of Cherry v. Board of Regents (289 N.Y. 148,154), the Appellate Division having sustained a determination of the Board of Regents which suspended Dr. Cherry from practicing his profession for a period of six months, we reversed and held that the employment of a dental credit agency as advertising solicitors and free publicity press agents for the purpose of obtaining patients, and obtaining persons as patients through such practices, was not a ground for suspension of license. The effect of the legislative prohibition of specified means of advertising on the validity of the rule prohibiting the additional means charged against Dr. Cherry was considered, but we held that, although the statute by necessary implication "sanctions the use of other means of publicity", by no possible implication did it sanction "the use of the permitted means for a purpose or in a manner which would constitute unprofessional conduct." (p. 158). Consequently, it was necessary to consider whether suspension for unprofessional conduct was permissible in that case, and we concluded that it was not. The *Page 113 following language from the opinion (at pp. 160-161) shows the basis upon which that decision was predicated:
"Advertising solicitors and free publicity press agents are ordinarily employed and used for a purpose and in manner which would be regarded as unprofessional and improper, even if not specifically banned by regulation. As we have said, the statute cannot be construed as an implied sanction of such employment or use. Nonetheless, there may be occasions when advertising solicitors or free publicity press agents may be employed or used for proper purposes and in proper manner; and the Board of Regents could not by general regulation ban proper use and improper use indiscriminately.
"* * * The only charge against the petitioner is a violation of the ban against employment and use of advertising solicitors and free publicity agents, and that is the only act or conduct of which petitioner has been found guilty; yet, as we have said, violation of that regulation is not by itself a ground for revocation of a license to practice dentistry. Cooperation by the petitioner in the plan of the so-called `dental credit service' might well be subject to censure as `vulgar commercialism' and we assume that it could be banned by regulation of the Board of Regents, and might be regarded as unprofessional conduct even without such a regulation. That is not, however, the charge which has been tried by the Dental Board. Indeed, we cannot overlook the fact that in its recommendation that Board stated, `We are satisfied that respondent discontinued the practices complained of herein as soon as it was brought to his attention that these practices were considered objectionable and unprofessional.' In effect, that is a finding that the petitioner acted without wrongful intent and in the belief that his conduct was not `objectionable and unprofessional.' Quite evidently the Dental Board found a wrong which, in its opinion, was only technical and at least partly venial.
"Since the conduct charged here as `unprofessional' is not of itself a ground for suspension of license, the order of the Appellate Division should be reversed".
From the record now before us it appears that there was not only no rule or regulation of the Board of Regents warning the respondent that the arrangement for which he has been suspended for one year was improper, but, in the absence of any evidence of reprehensible conduct, wrongful intent or *Page 114 prejudice to the public interest, the respondent has been deprived of his livelihood because "the payment of commissions by licensed dentists to laymen is regarded as unethical by practitioners, generally, of the dental profession in the State of New York and such practice has been defined as unethical * * * in Canons of Ethics adopted and promulgated by the American Dental Association of the United States" and other associations local to the City and State of New York. It is at least questionable whether upon the record before us the payments made by Dr. Bell were commissions within the rule of these associations; certainly not if the rule would not be violated by paying to an office manager a percentage of professional earnings in compensation for nonprofessional services. Under the decision in the Cherry case (supra), the conduct proved here would not of itself be a ground for suspension of license even if it had been banned by a rule of the board.
The generality of subdivision 2, clause (h) of section 1311 of the Education Law was by our decision in the Cherry case (supra), restricted to exclude from the term "unprofessional conduct" co-operation by the petitioner in the so-called dental credit service plan which we considered might well be subject to censure and regarded as unprofessional conduct even without regulation by the Board of Regents. Such restrictive interpretation is generally considered necessary to save the validity of such statutes. In Sage-Allen Co., Inc., v.Wheeler (119 Conn. 667), the court so construed the words "immoral", "fraudulent", "dishonorable" and "unprofessional" contained in a similar statute regulating the profession of optometry. There the court held (at pp. 678, 679): "These words in themselves have no significance in law even to a reasonable certainty and might seem to authorize the revocation of a license for acts having no reasonable relation to the underlying purpose of the statute, the protection of the public. Giving these words a board meaning, it would be difficult to justify the grant to the board of power to revoke a license for any conduct which it might deem to be immoral, dishonorable or unprofessional. [Citing cases.] But if we did give to these words so broad a meaning, we would be attributing to the Legislature an intent to vest the board with power going beyond the scope of its purposes and to enact a law of at least doubtful constitutionality. We cannot assume that the Legislature intended to *Page 115 give expression to such an intent and must, if it is reasonably possible to do so, so construe the words it has used as to make the provision a valid and reasonable one. [Citing cases.] The words must have been used in the light of the fundamental purpose of the statutes to regulate the profession in the public interest, and they can only be construed as intending to include conduct within their fair purport which either shows that the person guilty of it is intellectually or morally incompetent to practice the profession or has committed an act or acts of a nature likely to jeopardize the interest of the public."
We concur in these views, which are generally supported in other jurisdictions (Aiton v. Board of Medical Examiners,13 Ariz. 354; State ex rel. Lentine v. State Board of Health,334 Mo. 220, 233; State Board v. Savelle, 90 Col. 177, 187;Walker v. Corwin, 210 Minn. 337, 340; Freeman v. StateBoard of Medical Examiners, 54 Okla. 531, 538; Forman v.State Board of Health, 157 Ky. 123, 128).
But, even if the case were one which could stand upon a rule of the board, it would emphatically call for the application of the principle stated by Chief Judge LEHMAN in his opinion in theCherry case (supra, at p. 154): "The Legislature, of course, could not grant to an administrative board or quasi-judicial tribunal power to impose such a penalty upon a dentist for act or conduct not defined in advance. That would be contrary to our basic concepts of justice. Nor could it delegate to the Board of Regents legislative power to define, in accordance with an unfettered discretion, the acts or conduct which, in the opinion of the Board, would justify disciplinary action against a dentist." Here there was no definition in advance. There was a naked determination of "unprofessional conduct" which in and of itself was not found to be and was in no sense reprehensible or immoral.
Under these circumstances we are constrained, with deference, to dissent from the opinion of the court in the belief that the unanimous order of the court below should be affirmed.
LEWIS, DYE and MEDALIE, JJ., concur with CONWAY, J.; DESMOND, J., concurs in result only, because he believes that the rule as to division of fees is stated too broadly in the second last paragraph of the majority opinion; THACHER, J., dissents in opinion in which LOUGHRAN, Ch. J., concurs.
Order reversed, etc. (See 295 N.Y. 821.) *Page 116