Brief in Opposition to Petition for A Writ of Certiorari — Kaye v. Co-Ordinating Comm. on Discipline of Assn. of Bar of City of New York

JOHN F..DAVIS, CLERK

In THE

. Supreme Court of the United States

| Ocroser Term, 1966

No. 300

>

In the Matter of

Louis Kaye, :

: Petitioner, .

—against—

Co-ORDINATING COMMITTEE ON DISCIPLINE,

Respondent. ~

,ON PETITION FOR WRIT OF CERTIORARI TO THE

APPELLATE DIVISION OF THE SUPREME COURT OF

THE STATE OF NEW YORK, FIRST DEPARTMENT

RESPONDENT’S BRIEF IN OPPOSITION

AnceLo T. Cometa

43 West 43rd Street

New York, New York 10036

Attorney for Respondent

ES LN I RMN ER PERN

on _ -

————

ee

Preliminary Statement................. RGN COM .

Statutes, Rules and Orders iphjssesimnsithaiendaanhiin |

Statement of Facts .....:...

Pornt I

The privilege against self-incrimination does not

extend to statements which may merely subject an

attorney to disciplinary action |

Port II

Assuming, arguendo, that the privilege against

self-incrimination was applicable herein, petitioner

waived his claim thereto

Port IIL

Assuming, arguendo, that petitioner’s invocation

of the privilege against self-incrimination was

proper and timely, his disbarment was not pre-

cluded thereby ....--: eISSN Gites

Porst IV

None of the evidence herein was improperly ob-

tained .... es

| Pomr Vv.

Petitioner’s rights to due process were scrupulously

protected . , ssiiantannite

14

17

21

a 32

Cases CITED

Matter of Anonymous 6 and 7 v. Baker, 360 U. S. 287 30

In re Association of the Bar of the City of New York,

~ © ey e S ge A SD RRR CE eee eee eee 21

Attorney General v. Lane, 243 N. W. 6, 259 Mich. 283 .... 16

Beilan v. Board of Education, 357 U. 8. 399 ccc. 25.

Bell v. Maryland, SN 28.

Boyd v. United States, 116 U.S. ae 16

Bram v. United States, 168 U. S. 532 .......... PSR ae Antone 18

In re Brooklyn Bar ——— 223 A. D. 149, 227 N. Y.

RTE Se WCRI On SO a neieipainiabennuninnnnies 22

Burdeau v. McDowell, 256 U. S. 465 . bani aaa i: ROR NOTA 26, 27

Burton v. Wilmington Parking Authority, 365 U.S. 715 28

In re Chernoff, 26 A. 2d 335, 344 Pa. 257 oo... 16

Cohen v. Hurley, 366 U. S. 117 vinieinoshenntamecsnsnannengsevscemanest Oy lt

Cummings v. Missouri, 4 Wall. 277 _.......----cscssoseeee 17

Doe v. Rosenberry, C. A. N. Y. 255 F. 24 118 o....:......---- 16

Elkins v. United States, 364 U.S. 206 .eecsseccesenee 28

Ih i 152 N. E: 2d 850, 14 Ill. Rees 16

Gair v. Peck, 6 N. Y. 2d 97, cert. den. and app. dism,

361 U. 8. 374 ielosdeahatinsieccmmghinaiiidiutebide 23 .

Ex Parte Garland, 4 Wall. 883 2... .....eeseeccssseeesssses ae 17

In re Gladstone, D. C. N: Y. 28 F. Supp. 858 -.2.00000000000..... 16

~ PAGE

In re Harrell, 23 So. 2d 92, 156 Fla. 327 .. 16

Lane v. Voorhies, 53 S. Ct. 115, 287 U. S. 654 220... - 16

Lees v. United States, 150. U. S. 476 16

Lerner v. Casey, 357 4 Saal eee ee 235-—

In re Lieberman, 125 N. E. 2d 328, 163 Ohio St. a 16

Linkletter v. Walker, 381 U. S. 618 . ; 28

Mapp v. Ohio; 367 U. S, 643 ........... scien ae

McNabb v. United States, 318 U.S. 332 w-o--27-28°

Miranda v. Arizona, Ne 759, October Term, A965, de-

cided June 13, 1966 ......2........ L 18, 19

Nelson v. County of Los Angeles, 362 U. S. “elt 25

“Yn re Pennica, 177 A. 2d 721, 36 N. Je 400 cesses 16

People ex rel. Karlin v. Culkin, 248 N. Y. 465 ............ 16, 22

Phipps v. Wilson, C. A. Ill. 186 F. 2d 748 ..0... 16

- Rea v. United States, 350 U. S..214 oo --cccccceccecsescesene. 928

Shelley v. Kramer, 344 U.S. 1 nee niiahiaiiay ae

Slochower v. Board of Education, 350 U. S. 551 ..............25

Spevack v. Klein, No. 944, October Term, 1965 ............17, 19

United States v. Guest, 383 U. S. 745 PEAS 28

_ United States v. Price, 383 U.S. 787 ............... 28

- Ex Parte Wall, 107 U. 8. 265 0... pms

Wan v. United States, 266 U.S. 1 eee 18

Wolf v. Colorado, 338 U, 8. 25 ....-..eccssesecccnestecseneeeeeenes 28

. Statutes, Ruues, OrperRs anp

i. Const{ftuTiIonaL Provisions Crrep

New York J udiciary Law, Section ee eins 2

- Special Rules of. the Appellate Division, First Depart.”

-. ment, Regulating the Conduct of Attorneys |

"Se Rule TV(1)(a) and (2) (a) (ecccceeccccseeeeesneeee «8-4, 9,21

- Rule IV(6) roa es oo bcleaid ssceeteliiassneitnistentinplicl 4, 21

Constitntion of the United "gin Amendment ¥. 14, 15, 17

| Revised Rules of the Supreme Court of bets United

: ani EW iocsccehisctnesticataibiain piace oe 7,15

_ New York Civil Practice Law and em Section 2304....7, 18

Order of the Appellate Division, First Department,

, aa lang BOD iseinjreceiesceginintnnmnongectcitoen 5

‘

In. THE

hot pase Court of the United States

‘OcToBER Term, 1966

No. 300

>

In the Matter of

Louis Kaye,

; Petitioner,

—against— |

Co-oRDINATING CommiTTEE oN DISCIPLINE,

Mecseaileat, |

ON PETITION FOR WRIT OF CERTIORARI TO THE

APPELLATE DIVISION OF THE SUPREME COURT OF

THE STATE OF NEW YORK, FIRST DEPARTMENT

nee

RESPONDENT’S BRIEF IN OPPOSITION

Preliminary Statement

This is a petition fora writ of certiorari to review the

order of the Appellate Division of the Supreme Court of

the State of New York, First Department, entered. on

January 13, 1966, disbarring petitioner from practice as

an attorney and counselor-at-law.

“ro

Statutes, Rules and Orders

The Judiciary Law of the State of New York, Section

90, Admission to and removal from practice by appellate

‘division: ‘

‘

2. The supreme court shall have power and control

over attorneys and counsellors-at-law and all persons

practicing or assuming to practice law, and the ap-

pellate division of the supreme court in each depart-

ment is authorized to censure, suspend from practice:

or remove from office any attorney and counsellor-at-

law admitted to practice who is guilty of professional

misconduct, malpractice, fraud, deceit, crime or mis-

demeanor, or any conduct prejudicial to the adminis-

tration of justice...

6. Before an attorney or counsellor-at-law is sus-

pended or removed as prescribed in this section, a

copy of the charges against him must be delivered to

him personally within or without the state or, in case

it is established tg the satisfaction of the presiding

~ justice of the appellate division of the supreme court

to which the charges have been . presented, that he

“eannot with due diligence be served personally, the

same may be served upon him by mail, publication

or otherwise as the*said presiding justice nray direct,

and he myst be allowed an —" of being heard ©

‘in his catenas .

8

Special Rules of the Appellate Division, First. Depart-

ment, Regulating Conduct of Attorneys:

Rule IV. Claims or actions for personal injuries,

property damage, wrongful death, loss of services re-

sulting from personal injuries and claims in connec-

tion with condemnation or change of grade proceed-

ings. (1) Statements as to retainers; blank retainers.

(a) Every attorney who in connection with any ac-

tion or claim for damages for personal injuries or for

property damages or for death or loss of services:

resulting from personal injuries or in connection with

any claim in condemnation or change of grade pro-

ceedings accepts a retainer or enters into an agree-

ment express or implied, for compensation. for

services rendered or to be rendered in such action, °

claim or proceeding, whereby his compensation’ is to

be dependent or contingent in whole or in part upon

the successful prosecution or settlement thereof, shall,

within thirty days from the date of any such retainer

or agreement of compensation, ‘sign personally and

file with the Judicial Conference of the State of New

York a written statement of such retainer or agree-

ment of compensation, containing the information

hereinafter set forth. Such statement may be filed

personally by the attorney or his representative at

the main office of the Judicial Conference in the City

of New York, and upon such filing he shall receive

a date stamped receipt containing the. code number

assigned to the original so filed...

(2) Closing Statement: statement where no recov- —

ery.

4

(a) A closing statement shall be filed in connection

with every claim, action or proceeding in. which a- re-

tainer statement is required, as follows: Every at-

torney: upon receiving, retaining or sharing any sum

in connection with a claim, action or proceeding sub-

ject to this rule shall, within fifteen days after such

receipt, retention or sharing, sign personally and file

with the Judicial Conference and serve upon the client

7a closing statement as hereinafter provided. Where

%

there has been a disposition of any claim, action or

‘proceeding or a retainer agreement is terminated,

without recovery, a closing statement showing such

fact shall be signed personally by the attorney and.

filed with the Judicial Conference within thirty days

after such disposition or termination. Such statement

may be filed personally by the attorney or his repre-

sentative at the main office of the Judicial Conferesfce

in the City of New York and upon such filing he shall

receive a date stamped receipt .

(6) Preservation of records of claims and actions.

ee for both plaintiff and defendant in the

case of any such claim or cause of action shall pre-

serve, for a period of at least five years after any

settlement~or satisfaction of the claim or cause of

action or any judgment thereon or after the ismissal

or discontinuance of any action, the’pleadings and

other. papers pertaining to suc aim or cause of

action, including, but not limited to, letters or other

. data relating to the claim of loss of time from em-

ployment or loss of income; medical reports, medical

bills, X-ray reports, X-ray bills; repair bills, estimates

of repairs; all correspondence concerning the claim or

za

oS . %

cause of action; and memoranda of the disposition

-thereof as well as canceled vouchers, receipts and

memoranda evidencing the amounts disbursed by the

attorney to the client and others in connection with

the aforesaid claim or cause of action.

Order of the “Appellate Division, First Department,

February 3, 1959:

Pursuant to the provisions of Section 90 of the J udiciary

Law and in the exercise of the inherent powers of this

court the Justices of the Appellate Division of the Supreme

Court in and for the First Judicial Department do hereby

Order a continuous examination and study of the State-

ments of Retainer and Closing Statements filed with the

Appellate Division in the First. Judicial Department, pur-

suant to the applicable rules of this court, for the follow-

ing purposes: 1. Compilation and interpretation of rele-

vant statistics and data; 2. Observation, consideration and,

where necessary, correction of the professional conduct of

attorneys and those employed by them or associated with

them in any manner whatever in representing either plain-

tiffs or defendants or their indemnitors, insurers, sub-

rogors, or subrogees in those actions in which such state-

ments are required to be filed by the rules of the court; and

it is further :

Ordered that this examination and study shall. continue~

until farther order of this court; that the same be con-

ducted under the supervision of the Pregiding Justice of .

this court by such employees of this court and of the Su-

preme Court in and for the First Judicial Department as

he may designate and by the members of the Co-ordinating

Committee on Discipline and such members of the Griev-

6

ance Committee of the Association of the Bar of the City

of New York, the Committee on Discipline of the New

York County Lawyers Association and the Grievance Com-

mittee of the Bronx County Bar Association ‘as may be

designated and it is further

Ordered that all subpoenas issued’ by the Clerk of this

court in connection with this examination and study be

made returnable at the Courthouse of. the Appellate

Division in and for the First Judicial Department at 25th —

Street and Madison Avenue, New York, New York, or at

the office of the Association of the Bar of the City of New

York, the New York County Lawyers Association or the

Bronx,.County Bar Association or such other places as may

be designated by the Presiding Justice of this court, and.

. that all examinations and nearings be held at said places

} or such other places as may be designated by the Presiding

Justice of this court, and it is further

Ordered that all pertinent records, papers and docu-

_ ments filed in this court shall be available for the purpose

of this examination and study.

‘Dated, New York, February 3, 1959.. 4

BERNARD BotTEIn

Presiding Justice

Cuartes D. BreITEL

Martin M. Frank

_James B. M. McNatiy™

Francis ‘L. VaLentTe

Harotp A. STEVENS

_ Associute Justices

“ } 7

Revised Rules of the Supreme Court of the United States,

Adopted April 12, 1954, Effective July 1, 1954, as amended

through June, 1964.

Rule 8—Disbarment:

.

Where it is shown to the court that any member of

its bar has been disbarred from practice in any State,

Territory, District, Commonwealth, or Possession, or

-has been guilty of. conduct unbecoming a member of

the bar of this court, he will be forthwith -suspended

from practice before this court. He will thereupon be

afforded the opportunity to show good cause, within

forty days, why he should not be disbarred. Upon his

response to the rule to show cause, or upon the ex-

piration of the forty days if no response is made, the

court will enter an-appropriate order; but no order

of disbarment will be entered except with the con-

- eurrence of a majority of the justices ee

New York Civil Practice Law and Rules, Section 2304:

§2304. Motion to ‘quash, fix conditions or modify.

A motion to quash, fix conditions or modify a subpoena

shall be made promptly in the court in which the

subpoena is returnable. If the subpoena is not. re--

, turnable in a court, a request’ to withdraw or modify

the subpoena shall first be made to the person who

issued it and a motion to quash, fix conditions or

modify may thereafter be made in the supreme court.

Reasonable conditions may be imposed upon the grant-

ing or denial of a motion to quash! or modify.

a

8.

Statement of Facts

On January 13, 1966, pursuant to New York Judiciary

Law, Section 90, the Appellate Division of’ the Supreme

Court of the State of New York, First Department, or-

dered the petitioner disbarred and his name struck from

the roll of attorneys and counselors- at-law, effective Febru-

ary 14, 1966.

The inquiry which led to petitioner’s disbarment began

with a complaint from one Abraham Gelman, received by

the Committee on Grievances of the Assoeiation of the Bar.

of the City of New York. On September 12, 1963, the Com-

mittee on Grievances referred the matter to respondent for

further, action. 7

‘Gelman was interviewed by a member of respondent’s

_ legal staff on September 23, 1963. Shortly thereafter, on

October 3, 1963, respondent sent petitioner a letter advis-

~ing him of its investigation and requesting him to appear

before the respondent on October 29, 1963.

On the latter date, petitioner appeared in person : ana re-

. quested an adjournment of the proceeding, which was

granted.

Thereafter, on or about December 9, 1963, respondent

served a subpoena duces tecum upon petitioner directing

that he appear with certain of his specified records on

January 10, 1964.

After ‘a number of adjournments at petitioner’s request,

he appeared and testified before the respondent on Febru-

“ary 28, 1964. In addition to his appearance on February

28th, the petitioner testified before the respondent on

- March 24, 1964, and on both occasions was accompanied

9

by counsel, a former assistant district attorney for New

‘York County. A total of 167 pages of testimony was taken _

_ and 54 exhibits were marked for identification during peti-

tioner’ s appearances.

At the close of the March 24th hearing, petitioner’s coun-

sel asked for time to read the minutes of his client’s testi- -

mony so that he might submit additional clarifying data

if he deemed it necessary. Petitioner was advised that the

minutes of the proceeding were available to him. How-

ever, neither petitioner nor his attorney thereafter re-

quested an opportunity to inspect them, whereupon the

respondent, by letters dated April 8, 16 and 21, 1964, asked

petitioner’s counsel whether he intended to supply any addi-

tional clarifying data. Neither petitioner nor his counsel

replied to the respondent’s queries nor.did either accept

the respondent’s offer to make a copy of the minutes of

March 24th available for inspection. |

As part of its preliminary inquiry, the respondent also

questioned witnesses under oath. It also introduced docu-

ments submitted by such witnesses, the files of various in-

surance companies, and statements of retainer or closing |

statements filed with the Judicial Conference of the State

of New York, pursuant to Rule [V(1)(a) and (2)(a) of

the Special Rules of the Appellate Division, First Depart-

ment, Regulating the Conduct of Attorneys. This is the

evidence, together with the testimony given in the prelimi- .

nary investigation by petitioner himself, which was offered

or sought to be offered by trial counsel for the respondent

before the referee, for the purpose of sustaining the

charges. brought in the Appellate Division.

Throughout the preliminary i inquiry, petitioner sought to

impress everyone with his often-stated desire to cooperate .

/

\

> 10

to the fullest with the investigation. On October 29, 1963,

on the occasion of his first appearance before the respon-

dent, the petitioner stated “I haven’t even the slightest

compunction of conscience about giving you information . .

I will answer your questions” (CC 11*). When the peti-

tioner returned on February 28, 1964, in the company of ©

counsel, his first statement apprised the respondent that he

had attempted to abide by the subpoena of the respondent

with “celerity” and “dispatch.” His counsel stated that,

. “We are here to do what we can do to comply with the

subpoena and the requests of the Committee. Now, let us

get on’*(CC 19, 20, 21). On his last appearance before the

respondent on March 24, 1964, petitioner advised that he

_Aad brought with him whatever was subject to the subpoena.

and more “so as to refresh my recollection” (€C 99).

_ Additional assurances of petitioner’s intention to coop-

erate with the inquiry are noted: “I want’to comply -with

_the subpoena” (CC 87); “Adjourn the case for a month,

and I will get everything together” (CC 88); “I will pro-

- duce the checkbooks, the files. I’ll show you every paper |

that.I have in my case” (CC 89).

At no time during the preliminary inquiry did the peti-

tioner invoke any privilege either under the New York

State or the United States Constitution. During this same

period, no objection was raised to the service of a subpoena ‘

_ upon petitioner, nor was any challenge made to its scope.

On May ‘12, 1964, respondent filed a petition charging *

the petitioner with nine substantive acts of misconduct,’

based upon the evidence adduced in its preliminary in-

quiry. These included charges of “farming out” of negli-

+

* References are to testimony before the Co-cedinating Com-

mittes.

il

-

gence casés, conversion of clients’ funds, ‘compromising -

infants’ claims without court orders, failure to file’ state-

ments of retainer and closing a failure to main-

tain a special account, and harboring a disbarred lawyer.

The. petitioner’s answer of July 22, 1964, generally denied —

the charges and alleged that the entire proceeding was

based on illegally obtained evidence taken from his. law

officéwith respondent’s knowledge. Petitioner further al-

- leged: that he appeared before the respondent in order to

- avoid any charge of contempt or lack of cooperation and

therefore, that.his appearance could not be construed as a

waiver of his constitutional rights.

. Allegation number nine of petitioner’s answer of July

22, 1964, contains his first assertion of any right guar- —

anteed under either federal or state constitutions:

“9. ‘That your respondent has never waived his con-

stitutional ‘privileges as~ citizen, and hereby invokes °

the rights, privileges and. immunities afforded to him

as a citizen under the Bill of Rights; under Article 14

of the United States Constitution, and under Article

1, Section 6, of the State Constitution, and all other

provisions therein, whereby citizens are protected and

‘safeguarded against the invasion of their constitu-

tional rights against self-incrimination and: against

the unlawful search and seizure of private papers and

other information without a search warrant having —

““ been duly obtained.”

>

Upon the Court’s appointment of a referee to hear the

evidence and report thereon, the respondent noticed the

proceeding for. trial on September 29, 1964. However, on

September 21, 1964before the appointed trial date, peti-

a ‘ .

. r

4 s-

.

>

tioner moved the Appellate’ Division for an order. sup-

pressing evidence allegedly developed by the respondent

in its preliminary investigation and for other relief. -In its.

affidavit of September 30, 1964,- the respondent, through

its counsel, denied that any evidence had been illegally

obtained or used in its proceeding against petitioner and

furnished the Court with a chronology of the events un-

derlying the inquiry which clearly set forth the genesis of

the inquiry and the sources of, information relied upon by

respondent, thereby demonstrating that no evidence was

obtained improperly.

On. October 29, 1964, the Appellate Division denied a

tioner’s motion in all respects.

Hearings before the referee were held on January 27,

28, February 3, March 22, 25, and April 5, 7, 21, 26, 1965.

_ During the hearings, respondent sought to offer in evi-

dence petitioner’s entire testimony before the respondent.

Petitioner objected to this offer on. the grounds that it

had: been illegally obtained and that he had’ been coerced

into giving testimony before the respondent.

The referee admitted those statements made by peti-

tioner before the respondent which constituted admissions

- against interest.

Petitioner refused to testify on his own behalf, invoking

the constitutional privileges raised in his answer to the -

petition. Petitioner again objected to the introduction in

evidence of documents he alleged had been stolen, but did

not offer any proof in support of his objection.

The referee’s report of July 23, 1965, sustained most of

the — against petitioner, and upon its —— the

’

13°

petitioner applied for a an order remanding the siatnislte

to the referee for the purpose of reeeiving in evidence his

entire testimony before respondent or, in the alternative, fe:

directing that all of petitioner’s aforesaid testimony .be

incorporated in the tecord before the Appellate Division

and permitting the parties to file supplemental briefs.

In support of. his application, petitioner’ s affidavit of

October 21, 1965, swore:

. that certain purely formal. positions I took in the

course of this case in terms, of the privilege against

self incrimination have not as a practical matter in-

volved me in any such privilege-grounded refusal to

give information about myself since.I did testify fully

and freely: and answered all questions before the Co-

ordinating Committee knowing that such would. be ad-

_ missible in evidence against me in any subsequent

* disciplinary hearing as extra-judicial admissions: In

any event, if anyone should deem that there does still

lurk in this record som, connotation that I, as a law-

yer, have ‘taken the Fifth Amendment’ in a profes-

' sional inquiry concerning ny own fitness to practice,

the granting of the within motion to incorporate my

full Coordinating Committee testimony into this rec-

. ord before the Referee and before this Court would

- be of value to my cause as constituting an amends by

me for any such possible ‘Fifth Amendment’ impact

of my prior purely formal references to the privilege

against self incrimination. And while it is true that I

did not testify in the Referee hearings, that was only

because at that stage-I was still concerned with pre-

serving the formalities of my constitutional claim con-

cerning self incrimination, and it did not occur by way .

14

of refusal on my-part to take the stand at the request

of .the petitioners herein or of the Referee or in

defiance of any subpoena aie oa F

=

Respondent, at the sarhe time, moved to confirm that por-

tion of the report which sustained the charges and to dis-

affirm that portion which failed to sustain certain charges.

- Petitioner’s motion was denied while respondent’s was

‘granted in its entirety, all of the charges against petitioner

having been found sustained.

POINT I

“ The privilege against self-incrimination, does not ex-

tend to statements which may merely subject an attor-

ney to disciplinary action. |

Recognizing the fact that a defense of the charges made

| against him in the disciplinary proceeding could not con-

ceivably require him to incriminate himself in the conven-

tional sense, petitioner here seeks to broaden ‘the protection

- against self-incrimination by claiming that the privilege

encompasses statements which might tend to subject him

to professional discipline (petitioner’s Point I).

The Constitution of the United States, Amendment V, .

provides in part: “No person... shall be _— inany ~

criminal case to be a witness eaniee himself .

The privilege by its very terms is limited to situations

_ in which an individual is forced to give evidence which

would connect him to the commission of a crime or might

result in his being charged with a crime. It does not give

the individual the right to refuse to answer questions of

a

. B,

any kind or in any context which: might have unfavorable .

consequences to him other than incrimination.

This distinction is nity demonstrated in situations

where an attortiey testifies before a grand jury investi-

gating a crime pursuant to a grant of immunity. -

For example, in a bribery investigation, the client of : an

attorney may testify that he delivered to his attorney a

quantity of money with the understanding that it would

be paid to a public official. The attorney might’ testify

before the grand jury under the grant of immunity, and

fully admit his complicity in this: scheme. He. could not

_thereafter be indicted fér the crime of bribery but he could,

nevertheless, clearly:be subject to disciplinary proceedings

for conduct unbecoming a member of the Bar.

This: Court has recognizéd that the privilege against

self-incrimination does not encompass statements which

might subject an attorney to disciplinary action. Thus, its

tules provide that where its attention has been drawn to

circumstances’ which might warrant the imposition of dis- _

eipline upon a member of its Bar, it will order such attor-

ney to show cause why disciplinary action should not be

imposed (Revised Rules of the Supreme Court of the

United States, Rule 8). Such a. procedure is inconsistent

with the view that a disciplinary proceeding is in any sense

criminal] in nature (and therefore encompassed within the

privilege) since, in effect, it- requires “the defendant” to

come forward with his explanation.

‘Carried to its logical conclusion, petitioner’ s argument

that the Fifth ‘Amendment privilege applies to statements

which might result in disciplinary action, would result in

foreing the Appellate Division to certify the admitted

briber in our example above, as an attorney in good stand-

ing, licensed to practice as an officer of the Courts.

- 16

The nature of a disciplinary proceeding has been dis-

eussed at length by almost every state court having juris-

diction over its attortieys. Many state courts have held po

‘that such proceedings are civil in nature, In re Chernoff,

, 26-A. 2d 335,344 Pa.-527; In re Harrell, 23 So. 292,156

Fla. 327; In re Elion, 152 N. E. 2d 850, 4 Ill. 2d 338; In

re Pennica, 177 A. 2d 721, 36 N. J. 401; In re Lieberman,

125 N. E. 2d 328, 163 Ohio St. 35; Attorney General v. Lane,

243. N. W..6, 259 Mich. 283, cert. denied; Lane v. Voorhies,

53 S. Ct. 115, 287 U: S. 654,77 L. Ed. 565.

It has been’ held that proceedings for the disbarment or

suspension of attorneys are judicial proceedings and not

criminal proceedings, Jn re Gladstone, D. C. N. Y.°28

F. Supp. 858; Doe v. Rosenberry, C. A. N. Y. 255 F. 2d-

118; Phipps v. Wilson, C. A. Ill. 186 F. 2d 748. The New

York Court of Appeals has called an inquiry into the con-

duct of an attorney a quasi-administrative remedy, People

ex rel. Karlin v. Culkin, 248 N. Y. 465.

The cases cited by petitioner in support of ie ne f

tion that the Fifth Amendment*applies to disciplinary pro-

ceedings all relate to criminal matters. Boyd v. United

States, 116 U. S. 616, and Lees v..United States, 150 U. S.

‘476; were actions in which the answers to certain ques-

tions ‘asked of the individuals involved might have clearly

tended to incriminate them. In addition, the individuals

who were subjects of suit in Boyd and Lees protested the

___—preduction of the records sought by the government in

| each case and asserted the privilege against self-incrimi-

nation at the outset. This aspect of the instant matter will -

be discussed under a. separate point dealing with peti- + | |

fioner’ 8 waiver of his Fifth Amendment petveage. | |

. |

17

Cummings v. Missouri, 4 Wall.-277, and Ex Parte Gar-

land, 4 Wall. 333, both involved statutes which.were clearly

penal ‘in nature. Contrary to petitioner’ 8: assertion, it is

obvious upon, close review of the law, that the cases cited

are irrelevant to the issue -here and hardly persuasive | for .

. the proposition that disbarment is “within the aiabitd of

the Fifth Amendment’s... protection.” _

- The vitality of: Cohen v. Hurley, 366 U. S. 117, is cur-

rently being challenged by Spevack v. Klein, No. 944, Octo-

ber Teri, 1965. Both Cohen and Spevack invoked their

constitutional rights against self-incrimination in the tradi-

‘tional way. In each case, the attorney advised the Court

that his answers might lead to possible criminal prosecu-

tion. Here, petitioner admits that it is only disbarment he

fears, not criminal prosecution.

POINT IT

Assuming, arguendo, that the privilege against self.

incrimination was applicable herein, petitionse waived

his claim thereto. cae

Even if it were held that the Fifth Amendment lite

extended to questions, the answer to which might subject

the attorney to possible disciplinary proceedings, the rec-

ord amply supports the contention that petitioner wafved

the privilege in testifying before the respondent.

The record before the respondent is replete with peti-

‘tioner’s assurances that he intended to cooperate with the

inquiring body to the.fullest extent. Respondent has al-

ready catalogued some of petitioner’s statements of inten- —

tion in the chronology of facts above.

18

Petitioner did not challenge the issuance of the subpoena

lawfully.seryed upon him on December 9, 1963. In: fact,

he appeared before respondent with his attorney, in com-

pliance thereto .and testified fully while invoking no privi-

lege at any time. Petitioner cannot be heard now. to say

q that he was coerced into testifying. Not until he interposed

his answer ‘to the-charges did petitioner. raise the issue of

privilege and coercion, many months after he had testified

at length.

Fe With respect to the gusitieiad subpoena, petitioner

failed to avail himself of his lawful remedy under Section

2304 of the New York Civil Practice Law and Rules, which

provides for a motion to. vacate or quash a subpoena. Thus

- petitioner might have validly. tested the propriety of the

subpoena’s issuance or the relevancy and materiality of the

documents sought to be produced. He failed to do so.

Petitioner’s conduct before, the respondent with reference

to his testimony and his failure to challenge the subpoena

_ Clearly constitutes a waiver of his privilege under the Fifth

Amendment to the United States Constitution.

The casés ‘cited by petitioner in support of his conten-

tion that the use of portions of his Committee testimony

before: the referee violated his Fifth Amendment rights —

are not relevant to the issue presented here. Wan v. United

States, 266 U. S. 1, Bram v. United States, 168 U. S. 532

and the recently decided Miranda v. Arizona, No. 759, Octo- |

_ber Term, 1965, stand for the principle that involuntary

confessions are inadmissible in criminal proceedings.

This Court’s recent decisions in the field of criminal law

relate more particularly to the right of a suspect to remain —

‘silent during a period of custodial interrogation. The |

19

‘ Court has addressed its attention to the effect ‘of private,

police interrogation upon the emotional state of the suspect:

who may be accused of a crime. Miranda déalt at length

-with the individual’s immediate. right to counsel in order

to protect his rights under the Fifth Amendment. | Here, -

petitioner was fully represented by counsel at all stages

of the proceeding: -

Another distinction between petitioner’ 8 inatter and the

eases of Cohen v. Hurley, supra, and Spevack v. Klein,

supra, is noted: Unlike the instant case, both Cohen and

Spevack involve absolute refusals to testify before the dis-

ciplinary agency. In neither case did the respondent testify

willingly before the body conducting the inquiry, nor did

the subject attorney comply with the directions of a sub-

poena duces tecum lawfully served.

Petitioner’s application to the Appellate Division which

sought an order directing the reception in evidence of his

entire Committee testimony constitutes an additional

waiver of his Fifth Amendment privilege.

- Petitioner’s notice of motion dated October 20, 1965, re-

“turnable October 22, 1965, was supported by his affidavit

sworn to October 21, 1965. A portion of the affidavit has

‘been set forth in the statement of facts herein. Petitioner

-. characterizes his assertion of the privilege against self-

-incrimination as a “purely formal position,” further advis-

ing the Court that he testified “fully and freely and an-

swered all questions . . . knowing that such would be

admissible in evidence against me ii: any subsequent dis-

ciplinary hearing as extra-judicial admissions.” Petitioner -

clearly advised the Court of his desire to wipe away any

“connotation” that he had “taken the Fifth Amendment in

_

a proteasional inquiry seemnerying my own fitness to

practice ..

At the time ee made the. above application, he

* was adequately represented by counsel of his own. choice.

“Tn addition, it is noted that petitioner, in his answer of

J uly 22, 1964, to the petition, generally denied the allega- —

tions contained in the charges against him. In thus ad-

dressing himself to the merits of the case, it is submitted

that petitioner waived his rights under the Fifth Amend-

- ment.

Petitioner’ . posture with regard to the use of his e-

, mittee testimony might well be summarized at this point: |

Before the referee, the respondent sought to intro-

duce petitioner’s entire testimony, which offer met with

. petitioner’s vigorous objection. The respondent then

offered portions of the rented as admissions against

interest.

The petitioner then sought to have the : ainaiilel

' reopened so that his entire testimony might be incor-

porated into the record. Thus, in his first about-face,

petitioner attempted to obtain the result which would

have been the fact, but for his own opposition to the

respondent’s offer of proof before the referee.

Now comes the. petitioner before this Court with his

newest about-face. He contends that his testimony.

before respondent, which he sought to exclude before

the referee, but which he prayed to have set: forth in

its entirety before the Appellate Division, is the prod-

uct of an unconstitutional deprivation of his rights.

It is ‘submitted, that petitioner’s privilege against self- -

‘imerimination cannot thus be turned on and off.

a

4

21

POINT Il :

‘oii urguendo, that petitioner’s invocation of

" the privilege against self-incrimination was proper and

timely, his disbarment was not precluded thereby.

By virtue of.a license granted by the State; petitioner |

_ has been given the status of attorney and permitted to.

exercise the rights flowing therefrom.: Simultaneously —

with the issuance of the license, the State imposed by law,

can certain responsibilities upon the licensee. In the case of .

an attorney, these include the obligation to accept assign- —

ment to represent indigent defendants without compensa-

tion and the status and responsibility of dn officer of the

Court, including the requirement to maintain certain rec-

ords in contingent fee cases [Special Rules, Rule IV (4) (a),

' (2)(a) and (6)] and to make them available to the Appel-

late Division upon request.. The latter requirement is not

only reasonable upon its face, but is mandated by weed his-

tory and experience with the contingent fee.

: The five counties‘of New York City are located. in the

' . First and Second Judicial Departments of New York. In

January of 1928, the Appellate Division, First Department,

was presented with a petition of the three major bar as-

sociations of the Department, requesting the Court to order

an investigation into the conduct of attorneys engaged in

“ambulance chasing,” In re.Assoctation of the Bar of the

- City of New York, 222 A. D. 580, 227 N. Y. Supp..1. Shortly

thereafter, a similar petition was presented to the Appel-

late Division, Second Department, by the Bar Associations

of Kings and Queens Counties, and that Court also ordered

an investigation. In its order, the Court stated:

Re

22.

‘ % “(If] the calendars of the coyrt have been congested

‘by. causes tainted with corrupt practices appropriate

court rules may be adopted according to law, . . . which

will biing this condition of affairs to a speedy end

and prevent a recurrence thereof.” In re Brooklyn

_ Bar Association, 223 A, D. 149, 227 N. Y. Supp. 666.

The authority of ‘the First Department to conduct such

an investigation and to compel an attorney to testify was

promptly challenged and vindicated in People ex rel. Kar-

lin v. Culkin, supra. In that decision, J udge Cardozo re-

cited: the evils that the investigation was designed. to

baat ; :

bulance chosing’ was pidiins to a demoraliz-

_. ing extent. As a consequence, the poor were oppressed

and the ignorant overreached. Retainers, often on

extravagant terms, were solicited and paid:for. Calen-

.dars became congested through litigations maintained

without probable cause as weapons: of extortion.”

_ As a result of the disclosures. of the 1928 investigations,

‘the Appellate Division, First and Second Departments,

‘each promulgated special rules designed to closely regulate

the practice. The rules, by their terms, were directed at

those attorneys who chose to practice in the area of per-\

sonal i injury claims on a contingent fee basis.

‘In spite of these rules, this area of practice has been the

source of-recurrent abuses and scandhls, and in succeeding

investigations, many attorneys have been disciplined and a

; number have been convicted of felonies.

Accordingly, the Appellate Divisipn, First and Second

Departments, found it en a promulgate a rule regu- -

%

23.

€.

+

lating the size of the contingent fee which an attorney may

lawfully exact in a particular case: The authority of the

Department was once more challenged and once again —

vindicated, Gair v. Peck,’6 N. Y. 2d 97, cert. den. and app.

dism., 361 U. S. 374: .

“The duty of the. silts Divisions to keep the

house of the law in order, does not hinge upon whether

clients, worn down by. injuries, delay, financial need

and counsel holding the purse strings of settlemen nt,

knowing little about law or lawyers, have had the

- stamina to ‘resist in Court by hiring other lawyers’ to

be paid out of the other half of the recovery for de-

fending against the first lawyer .-. . . In this one Judi-

cial Department, over 60% of the 150,000 contingent fee

agreements filed each year provide that 50% of \the

recovery shall be-paid to the lawyer... .”

Reliance upon the complaints of clients did not provide

an effective means for containing and remedying the abuses -

inherent in the contingent fée system: Thus the client was

often unaware of his rights and fearful of the consequences

attendant upon his making ‘a complaint against-his attor-

ney. Consequéntly, on February 3, 1959, the Appellate Di-.

vision, First Department, created by order, the Co-orgi-

nating Committee on Discipline éf the MMsociation of the

Bar of the City of New York, the New York County Law-

yers’ Association, and the Bronx County Bar Association,

the respondent herein, for the purpose of conducting a

continuing inquiry in this area. The Committee was given

the power of. subpoena, the right to question witnesses un-

der oath, and the sight. to require attorneys to’ preduce

their files and records which the rules: sequire them to

maintain. = ’ |

24

In the light of these circumstances, the “record-keeping”

requirements and the obligation of an attorney to provide

relevant information is a proper and indeed necessary ex-

ercise of the supervisory power vested in the Courts.

Absent any constitutional question, the prerogative of .

the State to attach reasonable requirements to the issuance

and maintenance of a license creating rights in a licensee,

cannot. be challenged. It is now contended that where the

failure of the licensee to fulfil such reasonable require-

ments attendant upon his license is predicated upon the

privilege of self-incrimination, the requirements of the

State are nullified and the State compelled to continue the

license in full force despite such failure. Such a conversion

of the privilege against self-incrimination.frem a shield.

into a sword, striking down otherwise proper provisions

of law, is not only unwarranted, but would euptivety de-

stroy the administrative process.

Such a conversion of the privilege against’self-incrimina- |

tion would not only require the Appellate Division to con- .

tinue to certify petitioner as an attorney in good standing

despite his refusal to comply with the requirement that he

produce records concerning his conduct as an attorney, but

would also (1) require the State to continue to keep in

force a license to an individual to carry a.concealed weapon

despite that “individual’s refusa¥ to answer the question,

_ upon. periodic application for renewal, “For what purpose

do you intend to use the. weapon?”, upon the ground that

to do so would tend to incriminate him; (2) require the

State to keep in force a driver’s license to an individual

despite that individual’s refusal to answer the question, 3

upon periodic application for renewal, “Have you ever

‘been involved in an accident resulting in fatalities?”, upon

25

the ground that to do so would tend to incriminate him, and

(3) prohibit a court from removing a trustee of funds

appointed by it who refused to account on the ground that

to do so would tend to incriminate him.

This Court, has already rejected the contention that the

privilege against self-incrimination not only protects an -

individual from direct compulsion to answer incriminating

‘questions, but also immunizes him from the consequences

of failing to perform duties otherwise required of him by

law. Thus, in the so-called “loyalty cases” (Beilan v. Board

of Education, 357 U. S. 399, Lerner v. Casey, 357 U. S. 468,

and Nelson v. County of Los Angeles, 362 U.S. 1) the Court

recognized the. right of the State to terminate the profes-

sional status granted by it to individuals where they re-

_fused, on the grounds of the privilege against self-incrimi-

nation, to respond to inquiries there held to be reasonably

related to such status. Even in Slochower v. Board of Edu-

cation, 350 U.S. 551, cited by petitioner, the Court recog-

nized this principle where it steted (at p. 558):

“It is one thing for the city authorities themselves to

inquire into Slochower’s fitness, but quite another for

his discharge to be based entirely on events occurring

before a federal committee whose inquiry was an-

nounced as not directed at the property, affairs, or gov-

ernment of the city....”

These cases have been criticized, not for the underlying

principles enunciated therein, but because there is some

doubt as to whether inquiries concerning past political af-

filiation were relevant to the professional status there in-

volved. In the instant matter, no such doubt exists, for the

inquiry was directly related to petitioner’s conduct as an

attorney pursuant to license issued to him by the State.

26 >

POINT IV

None of the evidence herein was improperly chtained.

The disciplinary proceeding which resulted in petition-

er’s disbarment was not based upon information obtained

through the theft of his files.

There is no finding of fact as regards the “purloined

document” issue. Simply and frankly stated, petitioner

manufactured a straw man—the “theft” of his files—and

submitted no proof to support his charge that the respon-

dent was the beneficiary of the proceeds of a theft. The

fact is that petitioner’s charges have no evidentiary sup-

port. avaer

The genesis of respondent’s inquiry has been set forth

at length. Petitioner argues that certain evidence obtained

by respondent should have been suppressed as being viola-

tive of the Fourth Amendment. Petitioner’s references to

“stolen papers” are totally without authority. The so-

called theft of petitioner’s files is not worthy of considera-

tion since it is completely unsubstantiated by any evidence

whatsoever, and merely calculated to becloud the real is-

sue—petitioner’s misconduct and consequent unfitness for

the practice of law.

Assuming, arguendo, that petitioner’ 8 tee: were stolen

by a former associate of his, respondent’s use of such files

and records would, nevertheless, not be improper‘under the

' doctrine of Burdeau v. McDowell, 256 U. S. 465.

In this landmark decision, the Court held that the fed-

- eral.government had a right to maintain custody of certain

incriminating documents which had been turned over to the

Justice Department by private citizens. These individuals

‘

27°

had obtained the documents by a wrongful search of the

owner’s private office without the participation or knowl-

edge of any government official.

In determining the right of the government to use these

stolen documents as evidence in a criminal prosecution

against their owner, the Court stated (256 U. S. at 475):

“The Fourth Amendment gives protection against un-

- lawful searches and seizures, and .. . its protection ap-

plies to governmental action .. . it was intended as a

restraint upon the activities of sovereign authority and

was not intended to be a limitation upon other than

governmental agencies; as against such authority it

"was the purpose.of the Fourth Amendment, to secure

the citizen in the right of unmolested occupation of

his dwelling and the possession of his property, subject

to the right of seizure by process duly issu

‘In Burdeau, the fact that evidence had been. unlawfully

seized by private individuals was beyond question. Safes

were blown apart and desks forced open. In the instant

matter, no unlawful search or seizure has been found to

have occurred. :

Petitioner cites McNabb v. United States, 318 U. S. 332, .

to support his argument for suppression. In an effort to

connect McNabb with the issue raised by petitioner’s fourth —

point, he has selected a portion of McNabb. and placed it

out of context. Petitioner, citing McNabb, states (page 15

of his petition) :

“The use as evidence of these stolen papers or the fruits —

of their disclosure cannot be upheld ‘without making

the Courts themselves eine in willful disobedi-

ence of law.’ ”

¥

sree enn aan a |

In fact, however, McNabb was concerned with the admissi-

bility of confessions in. the federal Courts wher federal § ,

officers?failed to promptly arraign defendants accused of

a crime. °

_ >

Shelley v. Kramer, 344 U. 8. 1, Divtnis.«: Wilmington

Parking Authority, 365 U. S. 715, and Bell v. Maryland,,.

378 U. S. 226, which are also-cited by petitioner to_sup-

port his suppression ‘argument are just as irrelevant to |

the issue as is McNabb. These three cases construe the

Fourteenth “Amendment’s equal protection clause and in-

a volve state enforcement of discriminatory acts committed

by individuals.

‘United States v. Price, 383 U. S. 787, and United States

v. Guest, 383 U. S. 745, are clearly inapplicable here.

These are cases arising in Mississippi and Georgia which.

- eonstrue the 1865 and 1964 Civil Rights Acts against per-

sons who deprive any citizen of his civil rights. _

Mapp v. Ohio, 367 U. S. 643, Elkins v. United States, 364

U. S. 206, and Rea v. United States, 350 U. S. 214, all re-

fer to criminal matters in which evidence was illegally

obtained by state officers. They fail to enhance the strength

.. of petitioner’s argument since he has never alleged that

agents or employees of respondent have illegally seized

his papers, and these three cases patently refer to state

_ action. See also: Linkletter v. Walker, 381 U. S. 618, 636,

in ‘which this Court; in denying retroactivity to Mapp,

held that all of the cases since Wolf v. Colorado, 338 U. S.

25, have been based on the necessity for an effective -de- |

terrent to pélice action.

\

29

‘POINT V

" Petitioner’ - rights to due ‘process were scrupulously

protected.

Petitioner was not denied his rights under the due

process clause of the Fourteenth Amendment.

Contrary to. petitioner’s assertion, there was nothing

“sordid” about the manner in which the inquiry began.

The allegations of “extortion” and “stolen documents” are

not issues, since no evidence was ad@aced to support either

charge.

Neither can it be contended that. petitioner was “coerced”

into testifying. He freely testified before the respondent

without raising any constitutional questions and never

challenged the issuance of a subpoena upon hini. Assum-

ing he had a right to assert his Fifth Amendment privi-

lege, he effectively waived it as discussed above.

Petitioner complains that the referee refused to consider

certain explanatory testimony which he sought to have

received in evidence. Petitioner refers (petition, page 5)

-to pages 859 to 867 of the transcript of testimony befoze

the referee. ‘A review of this testimony indicates a proper —

refusal by the referee to receive in evidence the testimony

of one Nathaniel Rankow, given before the respondent.

‘Respondent’s trial counsel properly objected to its re-

ception upon the ground that it was not a legal substitute

for the live testimony of the witness, who would thereafter

be subject to cross-examination. The referee, giving peti-

tioner every leeway, excluded the testimony on proper state

grounds.

30

Petitioner’s assertion that the disciplinary proceeding

violated the fundamental ‘fairness standard of the due

process clause of the Fourteenth Amendment is without

merit. Apart from the substantive allegations already

' discussed, the procedures followed-by the tespondent were

adopted to safeguard the rights of attorneys:

' (1), Petitioner was given written notice of the investiga-

tion of his practice prior to the interrogation of any wit-

nesses (other than the original complainant) by respon-

dent. |

(2) The investigation concentrated on closed accident

> cases.

(3) The petitioner, was granted the privilege of being

represented by counsel of his own choice when he. was

* questioned during the preliminary investigation, and his

cdunsel was present and participated in petitioner’s hear- ©

ings, even though this Court has held in Matter of Anony-

mous 6 and 7 v. Baker, 360 U. S. 287, that in a preliminary.

investigation such as this, which is analogous to a grand

jury, investigation, counsel for an attorney may not be

present in fhe hearing room during the interrogation.

. (4) Witnesses other than petitioner who were ques-

tioned during the preliminary investigation of petitioner’s

professional conduct were granted the right of counsel.

» (5) Petitioner was- permitted to obtain a copy of the -

transcript of his meas given in the preliminary in-

vestigation.

(6) Petitioner had his full -day in court in the hearing

before the referee, where he was confronted with the wit-

nesses who testified against him and was given the fullest

opportunity to cross-examine these witnesses.

31

In Ex Parte Wall, 107 U. S. 265, this Court, discussing

the nature of a disciplinary procteding, stated (at pp: 288,

290) : . | oat

-“The power to do this [inrpose discipline for profes-

sional miggonduct] is a rightful one; and, when exer-

-cised in. proper cases, is no violation of ony constitu-

tional provision: :

> : s * co * =

“We have seen that, in the present case, due notice

was given to the petitioner, and a trial and hearing ~

was had before the court, in the manner in which pro-

ceedings against attorneys, when the question is

whether they should be struck off the rolls, are always

conducted.

“ot a oe oa

“... the action of the court in cases within its juris-

diction is due process of law.”

¢

32

&

cONGWSION = °C;

The petition for, writ of certiorari should be denied.

Dated: August 25, 1966

Respectfully submitted,: 4.

Awnosio T. ComeTa

43 West 48rd Street

New York, New York 10036

Attorney for Respondent _ .

y

-Micuas, Francg, . | :

“PETER J. O’Connok eee °¢ es

On the Brief . da

- , 2

@ee

» SUPREME COURT OF THE UNITED STATES

| i. Octoser TERM, 1966. - 4

KAYE v. CO-ORDINATING COMMITTEE ON DIS-

CIPLINE OF ASSOCIATION OF BAR OF

CITY OF NEW YORK, erc.

ON PETITION FOR WRIT OF CERTIORARI TO THE APPELLATE

7 DIVISION OF THE SUPREME COURT OF NEW YORK,

FIRST JUDICIAL DEPARTMENT.

.

No. 300. Decided February 13, 1967.

Per .CurRIAM.

The petition for a writ of certiorari is granted. The

“judgment is vacated and the case is remanded to the

_ Appellate Division of the Supreme Court of New York,

First Judicial Department, for reconsideration in light

of Spevack v. Klein, 385 U. 8. 511. z

‘» Mr. — Cuanx, Mr. Justice Haruan, and Mr..

Justice Stewart would affirm the judgment below for

the reasons stated in the dissenting opinions of Mr.

Justice Haran in Spevack v. a 385 U. 8. 520, and

Garrity v. New Jersey, 335 U.S ;

Mr. JUgfICE Ware Pa for the reasons stated in-

his dissenting opinion in Garrity v. New Jersey, and

Spevack v. Klein, 385 U.S S. 530. |