Petition — Anonymous J. v. Bar Ass'n

PETITION FOR CERTIORARI

i

IN THE

Supreme Court of the United States

October Term, 1975

wo. €471642

ANONYMOUS J. and ANONYMOUS R., Attorneys

Admitted to Practice in the State of New York,

Petitioners,

v.

THE BAR ASSOCTATION OF ERTE COUNTY and

JOILN B. WALSH, General Counsel to the

General Preliminary Investigation,

Re spondents.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

JAMES P. SHEA,

Counsel for Petitioners,

Western building,

15 Court Street,

Buftalo, N. Y. 14202.

BATAVIA TIMES, APPELLATE COURT PRINTERS <=

A. GERALDO KLEPS, REPRESENTATIVE

BATAVIA, MH. ¥. 14020

716-343-0487

INDEX.

PAGE

Citations to Opinions Below ............--.--+++- 2

DRED knw ce casccccees eT ee ivaaeaeas 2

Questions Presented ...........6.5-0 000 seer renee: 2

Statute Involved ............. a aera Uae ae

ee cas cucscebeewweeseussaepeenues 3

Reasons for Granting the Writ ........... oer Sa

noes enue ehe vee een ex tieshese ae

Appendix A—Statute Involved ..............+++++55 12

Appendix B—Opinions and Judgment Below. = 13

CITATIONS.

CASES :

Erdmann v. Stevens, 458 F.2d 1205 (2d Cir. 1972),

cert. denied, 409 U.S. 889 (1972) ........... ..4,5,9

Ex Perte Young, 209 U.S. 123 (1908) . ca ola - . 8

Feola v. New York State Bar Association, 37 A. D. 2d

789, 324 N.Y.S. 2d 654 (1971) ......... enecea~” ae

Garrity v. New Jersey, 385 U.S. 493 (1967) . Pere ll

Huffman v. Pursue, Ltd., 95 S.Ct. 1200 (1975) re 7

In Re Epstein, 325 N.Y.S. 2d 657, 37 A.D. 2d 333 (1971),

Motion for Leave to Appeal denied, 327 N.Y.S. 2d

1076 (1971), Motion to Dismiss Appeal granted, 328

N.Y.S. 2d 1031, U.S. cert. denied, 405 U.S. 1046, 37

A.D. 2d 333 (1971) Co ee ee bed Dede ae eur

‘

In Re Lynch, 227 App. Div. 471, 238 N.Y.S. 482 (1930) .. a)

In Re O'Neill, 134 App. Div. 75, 171 N.Y.S. 514 (1914).. 8

In Re Randell, 158 N.Y. 216, 52 N.E. 1106 (1899) ...... 8

In Re Rothenberg, 18 A.D. 2d 397, 239 N.Y.S. 2d 591

0 Eee ee Perr ree re eer es 8

In Re Ruffalo, 390 U.S. 544 (1968) .................. 8,9

In Re Selig, 302 N.Y.S. 2d 95 (1969) ............... 7

PAGE

Kastigar v. United States, 406 U.S. 441 (1971) ....... 10

Lefkowitz v. Turley, 94 S.Ct. 316 (1973) ............. 10

Lurie v. Florida State Board of Dentistry, Fla. 288 So.

Ds vag cava ds uuknaennes ae 1

Matter of Farrell, 27 A.D. 2d 61, 276 N.Y.S. 2d 61 (Ist

Dept. 1966) ............ a Se ee 7

Matter of Ungar, 27 A.D. 2d 925, 282 N.Y.S. 2d 158

(lst Dept. 1967), leave to appeal denied, 20 N.Y. 2d

642, 282 N.Y.S. 2d 1026, 229 N.E. 2d 326 (1967), cert.

I, Se Wes I nn 6-0 ce cmncceancees he 7

Mitchum v. Foster, 407 U.S. 225 (1972) ..... 7

United States ea rel. Lois Sero, et al. v. Peter Preiser,

ee re ee Ge I ED bons 50 coos cc veccecaee 8

Younger v. Harris, 401 U.S. 37 (1971) ....... , &£4 72.8

Zuckerman v. Greason, 285 N.Y.S. 2d L (1968) 7.8

STATUTES:

U.S. Const. Amend. i ........... ' ae i)

U.S. Const. Amend. V

U.S. Const. Amend. XIV

28 U.S.C. § 1254.02.00. eee, eeeeies

42 U.S.C. § 1983 .

N. ¥. Judiciary Law §90 ............ ccc cece. 6

; . 8,9, 10, 11

2, 3, 7. 8, 9, 10, 11

NS tw

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IN THE

Supreme Court of the United States

October Term, 1975

No.

ANONYMOUS J. and ANONYMOUS R., Attorneys

Admitted to Practice in the State of New York,

Petitioners,

V.

THE BAR ASSOCIATION OF ERIE COUNTY and

JOHN B. WALSH, General Counsel to the

General Preliminary Investigation,

Respondents.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

Petitioners pray that a Writ of Certiorari issue to review

the judgment of the United States Court of Appeals for the

Second Circuit, entered in the above-entitled case on the

3rd day of April, 1975.

2

Citations to Opinions Below

The opinion of the District Court is unreported and is

printed in Appendix B hereto, infra, p. 17. The opinion

of the Court of Appeals is unreported and is printed in

Appendix B hereto, infra, p. 13.

Jurisdiction

The judgment of the Court of Appeals was entered on

April 3, 1975, printed in Appendix B hereto, p. 13. The

jurisdiction of this Court is invoked under 28 U.S.C., See-

tion 1254 (1).

Questions Presented

Where a local bar association disciplinary action is com-

menced solely on the basis of the immunized testimony of

the attorney-respondents therein. is federal relief available

to enjoin the proceeding?

Where the Courts of the State of New York have consist-

ently refused to recognize the rights of attorneys, under the

Fifth and Fourteenth Amendments of the United States

Constitution, in har association disciplinary proceedings,

should the federal courts intervene to prevent those abuses?

Statute Involved

The statutory provision involved is 42 U.S.C. § 1983. It

is printed in Appendix A, infra, p. 12.

Statement

Petitioners, attorneys admitted to practice in the State

of New York, invoked the jurisdiction of the District Court,

under 42 U.S.C. § 1983, to enjoin the Respondents from

proceeding with disciplinary actions against them on the

grounds that said proceedings were violative of the rights

enuring to the Petitioners under the Fifth and Fourteenth

Amendments to the United States Constitution.

During the summer of 1971, the Erie County District

Attorney’s Office had commenced a probe which later

ripened into a Grand Jury investigation relative to alleged

irregularities in the disposition of certain traffic matters

in the City Court of Buffalo.

On December 14, 1971, the Petitioners had been called to

testify before the Grand Jury and requested to execute

formal written waivers of immunity in regard thereto. On

the advice of counsel they had declined to do so. When so

advised, the Grand Jury voted them full and complete

transactional immunity in return for their testimony. At

that juncture and with full transactional immunity be-

stowed upon them, the Petitioners were compelled to give

testimony or suffer the consequences of a contempt citation.

Without executing a waiver of immunity, the Petitioners

were taken before the Grand Jury and testified. A single

indictment was returned against one individual and at the

trial thereon, the Petitioners having been immunized as

indicated, were called as witnesses and gave testimony.

Over a year after their trial testimony and two and one-

half years after their Grand Jury testimony, both Peti-

tioners were served with a Petition and Notice of Motion

instituted by the Respondent, Bar Association of Erie

County, naming both of them and seeking to have them

disciplined. Petitioner, Anonymous R. was also named

in a separate Petition and Notice of Motion, naming him

alone and seeking the same punishment.

In the preparation of the Petitions, the Respondents

conducted no investigation, interrogated no witnesses, held

no hearings whatsoever but prepared them and the charge

therein contained wholly and solely from the immunized

trial testimony of Petitioners.

The Petitioners commenced the instant action in the

United States District Court, Western District of New

York, on July 26, 1974, seeking, inter alia, a preliminary

injunction and final judgment permanently enjoining the

defendants from proceeding with disciplinary proceedings

against them.

They also sought final judgment declaring that they may

not be subjected to disciplinary proceedings on matters

for which they were previously granted full transactiona!

unmunity and that their compelled testimony, elicited under

grants of immunity, cannot be used against them in any

manner whatsoever in such proceedings.

The Petitioners proceeded by an Order to Show Cause,

granted on July 29, 1974, to secure the preliminary injunc-

tion sought pending the entry of final judgment.

The Respondents filed no Answer but instead moved to

dismiss the Complaint and Motion for Preliminary Injunce-

tion on the grounds that such Complaint failed to state a

claim upon which relief could be granted and, further, that

the Court lacked jurisdiction of the subject matter.

The Hon. John T. Curtin, on October 17, 1974, granted

the defendants’ Motion to dismiss the Complaint, without

prejudice. The Court below affirmed the Order of the

District Court upon the authority of Younger v. Harris,

401 U.S. 37 (1971), and Erdmann v. Stevens, 458 F. 2d 1205

(2d Cir. 1972), Cert. Denied, 409 U.S. 889 (1972).

Reasons for Granting the Writ

1. The doctrines enunciated in Younger v. Harris, 401

U.S. 37 (1971), upon the authority of which the instant

case was decided in the courts below are not applicable to

this action and the facts and circumstances of this case

differ from those in Erdmann v. Stevens, 458 F.2d 1205

(2d Cir. 1972), cert. denied, 409 U.S. 889 (1972).

In Younger, the court stressed the restraint to be exer-

eised by courts of equity “when the moving party has

an adequate remedy at law and will not suffer irreparable

injury if denied equitable relief.” at 43-44. (Emphasis

added. )

Assuming an adequate remedy at law is available to the

Petitioners through an ultimate appeal to the United

States Supreme Court, the injury to be sustained by them,

prior thereto, will be great, immediate and irreparable.

There is no way to erase from the minds of the public,

the disgrace, humiliation and degradation resulting from

the notariety attendant to successful bar association disei-

plinary proceedings.

Contrary to the facts of Younger v. Harris, supra,

where Harris had an adequate remedy at law and where

the denial of injunctive relief would not result in irrepar-

able injury, if these Respondents are allowed to proceed

with their disciplinary actions, using the immunized testi-

mony of the Petitioners to sustain the allegations contained

in the petitions, the Petitioners herein would suffer great,

immediate and irreparable harm, occasioned solely as a re-

sult of a deprivation of their constitutional rights—a de-

privation routinely and consistently practiced by the State

of New York in disciplinary proceedings where Fifth

Amendment privileges are asserted as a defense or bar.

The harm and loss to be suffered by the Petitioners, of

course, is the immediate and disasterous loss of livelihood

and earning ability which would, with more than a reason-

able probability, ensue following a determination by the

New York State Supreme Court, Appellate Division, Fourth

Department, whether that determination be censure, sus-

pension or disbarment. In accordance with New York State

Judiciary Law 90, upon a finding of misconduct, the pro-

ceedings no longer remain confidential, as they are sup-

posed to be theretofore, but, rather, become a matter of

public record, available to all, including, and most notably,

the media.

One of the most valuable assets of an attorney is the

image he projects to the public. This public opinion is,

in large measure, formed as a result of the esteem with

which the lawyer is regarded by members of the bench and

bar. The public reporting of the imposition of judicial

sanctions, in any manner whatsoever, would severely

impair the ability of the Petitioners to successfully, and

profitably, practice their profession. Furthermore, and

even more drastically, should the Appellate Division order

suspension or disbarment, the effective date of such a pen-

alty would be almost immediate and, in any event, in ad-

vance of any review by the New York State Court of

Appeals or the Supreme Court of the United States. Dur-

ing any period of suspension or disbarment, these Peti-

tioners would be completely and absolutely enjoined from

practicing law in the Courts of the State of New York, or

even clerking in a law office. An eventual reversal of the

Appellate Division determination would not restore the

plaintiffs to their present position, either financially or in

the eyes of the public.

The real threat of this irreparable, great and immediate

loss compelled the plaintiffs to commence this action, and,

as explained in Mitchum v. Foster, 407 U.S. 225 (1972), the

purpose for the existence of 42 U.S.C. § 1983, is to prevent

such an occurrence.

In Huffman v. Pursue, Ltd., 95 8.Ct. 1200 (1975), cited

in the opinion of the court below, the court focused upon

the existence of irreparable injury and remanded that case

to the District Court, ostensibly for a hearing, for a deter-

mination as to whether that injury, if any, fell within an

exception to Younger.

9. Traditionally, recently and uniformly, the courts of

the State of New York have held that compelled testimony

given pursuant to grants of transactional immunity and

obtained only as a result thereof, are admissible in bar

association disciplinary proceedings despite the existence

of the Fifth and Fourteenth Amendments of the United

States Constitution, and the Federal Court decisions de-

cided thereunder.

See In Re Epstein, 325 N.Y.S. 2d 657, 37 A.D. 2d 333

(1971), motion for leave to appeal denied, 327 N.Y.S. 2d

1076 (1971), motion to dismiss appeal granted, 328 N.Y.S.

2d 1031 (1971), cert. denied, 405 U.S. 1046 (1971); Jn Re

Selig, 32 A.D. 2d 213, 302 N.Y.S. 2d 95 (Ist Dept. 1969) ;

Zuckerman v. Greason, 20 N.Y. 2d 430, 285 N.Y.S. 2d 430

(1967); Matter of Ungar, 27 A.D. 2d 925, 282 N.Y.S. 2d

158 (1st Dept. 1967), leave to appeal denied, 20 N.Y. 2d

642, 282 N.Y.S. 2d 1026, 229 N.E. 2d 326 (1967), cert.

denied 389 U.S. 1007; Matter of Farrell, 27 A.D. 2d 61, 276

N.Y.S. 2d 61 (1st Dept. 1966).

This refusal to recognize the privilege against self-in-

crimination has been based on the established, entrenched,

New York decisional law which has held that disciplinary

proceedings are “civil”, in nature and not criminal or

quasi-criminal. (See also Zuckerman v. Greason, 285 N.Y.

S. 2d L (1968); In Re Randell, 158 N.Y. 216, 52 N.E. 1106

(1899), Jn Re Lynch, 227 App. Div. 471, 238 N.Y.S. 482

(1930), In Re Rothenberg, 18 A.D. 2d 397, 239 N.Y.S. 2d

991 (1963), In Re O'Neill, 184 App. Div. 75, 171 N.Y.S. 514

(1914), Feola v. New York State Bar Association, 37 A.D.

2d 789, 324 N.Y.S. 2d 654 (1971).)

These holdings, that disciplinary proceedings are civil

in nature, are contrary to the interpretation of such pro-

ceedings by the Federal Courts. See Jn Re Ruffalo, 390

U.S. 544 (1968). |

Given the New York State Court’s traditional unwilling-

ness to apply the protections of the Fifth and Fourteenth

Amendment safeguards for the benefit of attorneys in

disciplinary proceedings, a request for such recognition

would be futile.

Federal Courts will not, and should not, abstain from

exercising jurisdiction where recent State holdings on a

question of substantive law demonstrate that relitigation

of the same issue would have proven futile. United States

ex rel. Lois Sero, et al. v. Peter Preiser, 506 F2d 1115 (2d

Cir. 1974).

Even Younger recognized the uselessness of always re-

quiring resort to State Courts, citing Ex Parte Young, 209

U.S. 123 (1908), the Court held that

“The accused should first set up and rely upon his de-

fense in the State Courts . ~ “aiee't ake 4

pears that this course would not afford adequate pro-

tection.” 401 U.S. 371, 91 S.Ct. 745, 750 (1971). (Em-

phasis added)

The constitutional issue before the Second Circuit in

Erdmann v. Stevens, supra, was whether the institution

of disciplinary proceedings was a violation of his First

Amendment rights. The Second Circuit held that New

York Courts had the competency to decide these First

Amendment questions and recognized that First Amend-

ment rights had always been adequately protected by New

York Courts. However, this has not been the case where

Fifth and Fourteenth Amendment rights have been in-

volved. As hereinabove discussed, the New York Courts

have consistently rejected the contention that the privilege

against self-incrimination is available in the context of

bar association disciplinary proceedings, and, unlike

Erdmann, supra, resort to the state courts in the instant

ease would be futile.

3. Disciplinary proceedings are quasi-criminal, In Re

Ruffalo, 390 U.S. 544 (1968), and, as such, the transac-

tional immunity which was conferred upon the Petitioners

totally insulated and immunized them from any criminal or

quasi-criminal proceedings.

The sanctions which may be imposed on attorneys as the

result of disciplinary proceedings are of a real significance.

These measures constitute punishment, penalty and for-

feiture which reflect the quasi-criminal nature of the pro-

ceedings in the first instance.

No one can seriously question the fact that censure, sus-

pension from the practice of law or disbarment therefrom

constitutes punishment, penalty and forfeiture in a very

real sense.

LO

The instant disciplinary proceedings, in general, and

the use of the compelled testimony, in particular, are viola-

tive of Petitioners’ civil rights and prohibited as unconsti-

tutional in violation of the Fifth Amendment protection

against self-incrimination made applicable to the states

by the Fourteenth Amendment.

In Kastigar v. United States, 406 U.S. 441 (1971), the

court held that the Constitution permits testimony to be

compelled if neither it nor its fruits are available for use.

and that the testimony, as elicited, cannot lead to the in-

fliction of criminal! penalties.

The Petitioners having been granted full transactional

immunity by the State. must be afforded whatever im-

munity is necessary to supplant this privilege. Lefkowitz

r. Turley, 94 8.Ct. 316, 325 (1973).

The immunity extended to a witness must be coextensive

with all possible governmental penalties and forfeitures,

eriminal or civil. Lurie v. Florida State Board of Den-

tistry, Fla. 288 So. 2d 223 (1973).

The State of New York, through its authorized officials,

in granting the Petitioners immunity, acts totally for the

State. The State is now attempting to nullify that im-

munity by using the Petitioners’ immunized testimony in

the disciplinary proceedings.

Had the Petitioners refused to testify, after having re-

ceived a grant of immunity, they would have been incar-

cerated for their contempt and, most assuredly, would have

encountered bar association disciplinary proceedings seek-

ing to punish them for their refusal to testify. On the

other hand, having testified, the Respondents have used,

11

and intend to use, that compelled testimony to prosecute

its present disciplinary action. Thus, in either event, if

the utilization of their compelled testimony is permitted,

the Petitioners would be, as they presently are, confronted

with a most serious threat to their livelihoods. (See Gar-

rity v. New Jersey, 385 U.S. 493, 497 (1967).)

The institution of the disciplinary proceedings, in gen-

eral and the use of the compelled testimony, in particular,

are thus violative of the Fifth and Fourteenth Amendment

rights of these Petitioners.

Conclusion

For the foregoing reasons, this Petition for a Writ of

Certiorari should be granted.

Dated: June 18, 1975.

Respectfully submitted,

JAMES P. SHEA,

Counsel for Petitioners,

Western Building,

15 Court Street,

Buffalo, N.Y. 14202.

12

APPENDIX A

Statute Involved

The statutory provision involved is § 1983 of Title 42 of

the United States Code.

“Every person who, under color of any statute, ordi-

nance, regulation, custom or usage, of any State or

Territory, subjects or causes to be subjected, any citi-

zen of the United States or other person within the

jurisdiction thereof to the deprivation of any rights,

privileges, or immunities, secured by the constitution

and laws, shall be liable to the party injured in an

action at law, suit in equity, or other proper proceed-

ing for redress.”

13

APPENDIX B

Opinions and Judgment Below

UNITED STATES COURT OF APPEALS

For THE SECOND CIRCUIT

Nos. 640, 641—September Term, 1974.

(Argued February 19, 1975 Decided April 3, 1975.)

Docket Nos. 74-2489, 74-2515.

ANONYMOUS J. and ANONYMOUS R., Attorneys

Admitted to Practice in the State of New York,

Plaintiff s-A ppellants,

against

THE BAR ASSOCIATION OF ERIE COUNTY and

JOHN B. WALSH, General Counsel to the

General Preliminary Investigation,

Defendants-Respondents.

Before:

ANDERSON, Muuiican and Van GRAAFEILAND,

Circuit Judges.

Appeal from an order of the United States District Court

for the Western District of New York, Hon. John T. Curtin,

Chief Judge, dismissing a complaint seeking injunctive and

declaratory relief against the use of plaintiffs’ immunized

grand jury testimony by the defendants in disciplinary

proceedings pending hefore the Appellate Division of the

New York Supreme Court.

Affirmed.

14

Appendix B—Opinions and Judgment Below

Philip H. Magner, Jr., Buffalo, New York (Garvey,

Magner & Sullivan, Buffalo, New York), for Plaintiff-

Appellant J.

Thomas P. Flaherty, Buffalo, New York (Flaherty &

Shea, Buffalo, New York), for Plaintiff-Appellant R.

John B. Walsh, Buffalo, New York, for Defendants-

Respondents.

Per CURIAM:

Appellants are two attorneys at law admitted to prac-

tice in the State of New York. During the summer of

1971, the Erie County District Attorney's Office commenced

an investigation into the propriety of the disposition ot

certain traffic matters in the City Court of Buffalo. Both

attorneys were called to testify before the grand jury and

both refused to execute written waivers of immunity on

the advice of their counsel. The grand jury voted them

transactional immunity and both thereupon testified be-

for the grand jury on May 31, June 1 and June 4, 1973.

An indictment was returned against a third person and

the appellants testified as witnesses on that trial. On

June 11, 1974, the appellants were served with a petition

and notice of motion by the defendant Bar Association of

Erie County charging them with violations of N. Y. Penal

Law §§ 115.00, 100.05 and 105.05, as well as Canons l, 6,

7, 8 and 9 of the Code of Professional Responsibility.

The petitions and motions were returnable on June 25,

1974 before the New York State Appellate Division of

the Supreme Court, Fourth Department. On the return

date, the matter was adjourned until August 1, 1974. On

July 26, 1974, the appellants commenced an action in the

United States District Court for the Western District of

15

Appendiz B—Opinoons and Judgment Below

New York seeking preliminary and permanent injunctive

relief enjoining the defendants from pursuing the disci-

plinary proceedings. They also sought a declaratory judg-

ment that their immunized grand jury testimony could

not be used against them in any way in the pending disci-

plinary proceedings. Federal jurisdiction was invoked

pursuant to 28 U.S.C. §§ 1331, 1348, 2201, 2202 and 42

U.S.C. § 1983. On July 29, 1974, appellants obtained from

Hon. John T. Curtin, Chief Judge of the Western District

of New York, an order to show cause why a preliminary

injunction should not be issued against the defendants.

Defendants filed no answer but moved to deny the motion

for the preliminary injunction and dismiss the complaint

on the ground that the complaint failed to state a claim

upon which relief could be granted.

On October 17, 1974, Chief Judge Curtin issued a deci-

sion and order granting the defendants’ motion to dismiss

the complaint. The court below based its decision upon the

abstention doctrine of Younger v. Harris, 401 U.S. 37

(1971) and its application by this court in Erdmann v.

Stevens, 458 F.2d 1205, cert. denied, 409 U.S. 889 (1972).

The court also stated that it was adopting the reasoning

of Anonymous v. Association of the Bar of the City of

New York, 74 Civ. 2398 (S.D.N.Y. July 31, 1974). The

appeal in that case was heard by this panel on the same

day as this appeal, and our affirmance there ( F.2d

(1975)) compels affirmance here. The factual situa-

tion in both cases is the same in all material respects, the

only distinction being that here the disciplinary proceed-

ing had progressed from the Bar Association to the Appel-

late Division by the time this action was commenced.

16

Appendis B—Oprnions and Judgment Belou

Appellants here raise substantially the same arguments

presented in Anonymous '. Association of the Bar, supra,

in an effort to avoid the holding by this court in Erdmann.

Since these contentions are fully discussed in our opinion

in the companion case, repetition is unwarranted.

Appellants, however, do raise one issue not raised in

Anonymous. They urge that since this action is based upon

the Civil Rights Act of 1871, 42 U.S.C. § 1983. it is not

subject to the restrictions of the anti-injunction statute.

28 U.S.C. § 2283, or the Younger abstention principle.

There is no doubt but that a section 1983 action falls

within the “authorized by Act of Congress” exception to

section 2283. Mitchum v. Foster, 407 U.S. 225 (1972). How-

ever, it is equally clear that section 1983 is not exempted

from the Younger abstention doctrine. Erdmann itself was

a case in which plaintiff's counsel invoked section 1983 but

we nonetheless refused to intervene in the state action. In

any event, in O’Shea v. Littleton, 414 U.S. 488, 499 (1974).

the Supreme Court applied the Younger principle in a

1983 action, reiterating what it had said in Mitchum v.

Foster, supra, 407 U.S. at 243, that the Mitchum holding

was not intended to qualify in any way the principles of

comity and federalism. See Huffman v. Pursue, Ltd., 48

U.S.L.W. 4379, 4380 n.1 (March 13, 1975) (Younger held

applicable in a suit brought under 1985 to enjoin a state

civil proceeding).

Affirmed.

17

Appendia B—Opinions and Judgment Below

UNITED STATES DISTRICT COURT

Western District or New YorK

ANONYMOUS R. and ANONYMOUS J., Attorneys

Admitted to Practice in the State of New York,

Plaintiff s,

VS.

THE BAR ASSOCIATION OF ERIE COUNTY and

JOHN B. WALSH, General Counsel, Office of

General Preliminary Investigation,

Defendants.

Civil 74-364.

Appearances :

Flaherty & Shea (Thomas P. Flaherty, Esq., of Counsel),

Buffalo, New York, for Plaintiff R.

Garvey, Magner & Sullivan (Philip H. Magner, Jr., Esq.,

of Counsel), Buffalo, New York, for Plaintiff J.

John B. Waish, Esq., Buffalo, New York, for Defendants.

Plaintiffs are attorneys admitted to practice in the State

of New York, against whom disciplinary proceedings are

pending brought by the Bar Association of Erie County

before the New York State Supreme Court, Appellate

Division, Fourth Department. Defendants are the Bar

Association and John B. Walsh, General Counsel to the

Bar Association’s Committee on Grievances. Plaintiffs

18

Appendix B—Opinions and Judgment Below

seek injunetive relief against defendants’ using grand jury

testimony given by plaintiffs under a grant of immunity

in the disciplinary proceedings. Plaintiffs claim that the

proposed use of compelled testimony violates their fifth

amendment right against self-incrimination, held applicable

to the states by the fourteenth amendment. See Malloy v.

Hogan, 378 U.S. 1 (1964). Federal jurisdiction is invoked

pursuant to 28 U.S.C. §§ 1331, 1343 and 2201, et seq., and

the federal Civil Rights Act, 42 U.S.C. ¢ 1983.

Before the court is plaintiffs’ motion for a preliminary

injunction and defendants’ motion to dismiss the action

for failure to state a claim. Plaintiffs’ motion is denied.

Defendants’ motion is granted.

On December 14, 1971, plaintiffs were called to testify

before a grand jury investigating certain alleged irregu-

larities in the disposition of certain traffic matters in

Buffalo City Court. Plaintiffs declined to execute written

waivers of immunity on the advice of counsel. The grand

jury then voted them full and complete transactional im-

munity. Plaintiffs then were taken before the grand jury

and testified. Subsequently the grand jury returned one

indictment against one individual and, at the trial, plain-

tiffs were called as witnesses and gave testimony under

the grant of immunity. Plaintiffs testified on May 31,

June 1 and June 4, 1973 in Erie County Court.

Approximately on June 11, 1974, the defendant Bar

Association of Erie County commenced a disciplinary pro-

ceeding against plaintiffs, with defendant John B. Walsh

acting as its counsel before the New York State Supreme

Court, Appellate Division, Fourth Department. In its

petition the Bar Association alleged that the plaintiffs

aot oe eee ee

19

Appendiz B—Opinions and Judgment Belou

violated the Penal Code of the State of New York and the

Code of Professional Responsibility by reasons of actions

and conduct described in the testimony of plaintiffs given

before the grand jury and trial jury. The defendants

motions and petitions were returnable on June 25, 1974

before the Appellate Division. The return date was ad-

journed to August 1, 1974. since extended to September

10, 1974.

Defendants did not hold any hearings for the preparation

of the petitions. Plaintiffs’ allegation (which must be ac-

cepted as true at this stage of the proceedings) is that the

charge contained in the petitions derived wholly and solely

from the immunized trial testimony of plaintiffs.

Plaintiffs’ complaint is dismissed for insufficiency, under

the doctrine of Younger v. Harris, 401 U.S. 37 (1971). The

disciplinary proceedings in the instant case were com-

meneced on June 11, 1974. The summons and complaint

in the federal action were filed on July 26, 1974. There-

fore, the state prosecution was pending so as to make

federal intervention inappropriate. Perez v. Ledesma, 401

U.S. 82, 103 (1971) (Brennan, J. concurring). Further,

the pending state bar disciplinary proceeding is quasi-

criminal in nature. /n Re Ruffalo, 390 U.S. 544, 551 (1968) ;

Erdmann v. Stevens, 458 F.2d 1205, 1209 (2d Cir. 1972),

cert. denied, 409 U.S. 889 (1972). See also, Place and

Bloom, Mental Fitness Requirements for the Practice of

Law, 23 Buffalo L. Rev. 579, 595 (1974). As Judge Greisa

so ably pointed out, Erdmann is still the rule in this Circuit

and its holding that federal courts should not intervene in

a pending state bar disciplinary proceeding binds this court.

Anonymous v. Assoc. of Bar of City of New York, et al., 74

20

Appendur B—Opinions and Judgment Below

Civ. 2398 (S.D.N.Y. July 31, 1974). This court adopts the

reasoning of Anunymous, supra.

Defendants’ motion to dismiss the complaint is granted,

without prejudice.

So o. ‘ered.

JOHN T. CURTIN,

United States District Judge.

Dated: October 17, 1974.